Bombay High Court
Shri. Sandesh Gajmal Sinde vs The Nashik Municipal Corporation ... on 12 April, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 393 OF 2013
Shri Sandesh Gajmal Shinde, } ... Petitioner.
12-Aai, Navashaya Ganapati Nagar, }
Anandvalli, Gangapur Road, Nashik. }
V/s.
1. The Nashik Municipal Corporation, }
Rajiv Gandhi Bhavan, Nashik.
}
2. The Commissioner, }
the Nashik Municipal Corporation, }
Rajiv Gandhi Bhavan, Nashik. }
}
3. The Deputy Municipal Commissioner, }
the Nashik Municipal Corporation, }
Rajiv Gandhi Bhavan, Nashik. }
}
4. The Secretary, Urban Development }
Department, Mantralaya, Mumbai -32 }
}
5. The State of Maharashtra. }
}
6. Shri Madiwale Vinod Deorao, }
Age : Adult, Occ. Service. }
C/o. Nashik Municipal Corporation, }
Rajiv Gandhi Bhavan, Nashik. }
}
7. Shri Patil Sanjay Amrut, Age: Adult, } ... Respondents.
Occ. Service.C/o. Nashik Municipal }
Corporation,Rajiv Gandhi Bhavan,Nashik.}
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Mr. Atul G. Damle, Senior Advocate i/by Mr. Sachin D. Kadam,
Advocate for the Petitioner.
Mr. M. L. Patil, Advocate for Respondent Nos. 1 to 3.
Mr. Pritesh K. Bohade, Advocate for Respondent Nos. 6 and 7.
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CORAM : ANOOP V. MOHTA AND
RAVINDRA V. GHUGE, JJ.
DATE : 12 APRIL, 2017
ORAL JUDGMENT : (Per : RAVINDRA V. GHUGE, J.)
1 Rule. Rule is made returnable forthwith and heard
finally by consent of the parties.
2 We have considered the strenuous submissions
advanced by the learned senior Advocate appearing on behalf
of the Petitioner and the learned Advocates appearing on
behalf of the Respondents. With their assistance, we have gone
through the record available.
3 Considering the grievance of the Petitioner and the
issue before us, we are not required to advert to the entire
submissions of the respective sides.
4 The undisputed factors in this case can be
summarized as under :
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i. The Petitioner is aggrieved by his exclusion from
the promotion to the post of the Deputy Engineer.
ii. By resolution c.d.s. 1583/158 (215) Aa(10) dated
16.04.1984, the Irrigation Department provided
for the trainee/diploma holding Engineers to be
treated as Sectional Engineers after completing five
years of service.
iii. The Petitioner completed such five years with
Respondent No.1 Corporation on 04.02.2005 and
became a Sectional Engineer.
iv. The departmental examination was prescribed by
the State of Maharashtra for promotion to the post
of Dy. Engineer.
v. The Maharashtra Engineering Training Academy
(META) conducts such examinations.
vi. By the Notification dated 08.06.1995, the General
Administration Department (G.A.D.) had indicated
that the seniority for promotion would be
considered in favour of those candidates who
have passed the departmental examination and
the passing of such examination would be a
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criteria for raising the seniority of the said
candidate.
vii. The G.A.D. issued another Notification
dated 20.03.1997 by which the government took a
decision that the candidates passing professional
examination within the prescribed time and
prescribed attempts, would stand higher in
seniority than those candidates who have not
passed the said examination.
viii. It was also contemplated that those
candidates who have not passed the examination
but have completed 45 years of age would be
eligible for promotion, purely on the basis of
attaining the age of 45 years though they may lose
their inter-se seniority with those candidates who
have passed the departmental examination.
ix. Respondent Nos. 6 and 7 have not attempted the
departmental examination and have stayed away
from the said examination.
x. Respondent No. 6 attained the age of 45 years on
30.03.2008.
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xi. The petitioner passed the departmental
examination pursuant to the declaration of the
result on 05.01.2009.
xii. Respondent No. 7 attained the age of 45
years on 23.08.2009.
xiii. The recommendation of the Departmental
Promotion Committee (DPC) in its meeting
conducted on 11.12.2012 was considered by the
Municipal Corporation in its General Body Meeting
held on 17.01.2013, wherein the petitioner,
despite passing the departmental examination, was
not considered for the promotion.
xiv. Respondent No. 6 was granted promotion as
Dy. Engineer based on his attaining the age of 45
years which is prior to the petitioner passing the
examination.
xv. Respondent No. 7 was granted promotion as Dy.
Engineer w.e.f. 22.02.2013 by virtue of the
resolution passed by the General Body Meeting
dated 27.02.2013.
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xvi. Though the petitioner passed the said exam
before Respondent No. 7 completed 45 years of age
thereby being eligible for promotion by default,
was not considered for promotion.
5 The Respondent Corporation has filed affidavits in
reply dated 15.07.2013 through Mr. Anant Gajanan Jantre,
Assistant Commissioner (Administration) and 11.04.2017. It
is contended that considering the vacancies and the fact that
Respondent Nos. 6 and 7 have completed 45 years of age, they
were exempted from the examination and hence, they were
promoted. It is further stated that though the petitioner has
passed his examination, he was not eligible for promotion
and there was no illegality committed by the Corporation in
ignoring his claim. To say the least, we are unable to be
convinced by such submissions and the said contents of the
affidavits. We find that the affidavits put-forth an incorrect
picture before us.
6 The Municipal Corporation by its communication
dated 02.09.2015 had addressed the Additional Secretary,
Department of Town Planning, by which a query was raised as
to what would be the position inter-se between those
candidates who have passed the departmental promotion
examination and those who have failed in the said exam but
have completed 45 years of age. The State of Maharashtra,
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by its communication dated 03.11.2015 had categorically
informed the Commissioner of the Municipal Corporation,
Respondent herein, that those persons who did not pass the
qualifying examination would lose their seniority vis-a-vis
those candidates who have passed the examination. In
paragraphs 2 and 3 of the communication it is specifically
stated that after completing 45 years of age, such candidates
who have lost their seniority for having not passed the
examination, would not regain their seniority any time in
future.
7 We find that this communication dated 03.11.2015
was an eye opener for the Municipal Corporation which, in our
considered view, has been conveniently ignored by the
Corporation for the reasons best known to them. By this
communication, the policy of the State is reiterated that the
persons who would pass the qualifying examination should be
promptly placed higher in seniority over those candidates who
have not passed such examinations.
8 The situation is quite disturbing and appalling. On
the one hand, the State has introduced a laudable scheme by
which hard working and meritorious candidates are sought to
be selected for promotion after passing the promotion exams.
On the other hand, government instrumentalities like the
Respondent No.1 Corporation, are scuttling such policies by
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suppressing candidates like the Petitioner who has passed the
qualifying exam on 05.01.2009. For the last about 8 years, the
Corporation has denied the Petitioner his legal right. Adding
insult to injury, the Corporation has, with impunity, promoted
those candidates who have either failed in the said exam or
have conspicuously refrained from even attempting the said
exams.
nor Respondent No. 7 ever attempted such an examination
and have conveniently kept themselves away from the said
examination. We strongly deprecate the conduct of the
Corporation which has leaned towards such candidates who
have never attempted such examination and only because they
have completed 45 years of age, preference has been given to
them as against those worthy candidates who have passed the
said examination. In the light of the above, this petition
deserves to be allowed and the claim of the petitioner for
promotion as Dy. Engineer from the deemed date i.e.
22.02.2013 needs to be accepted.
10 It is contended by the learned counsel for the
Corporation that the petitioner should be placed below
Respondent Nos. 6 and 7 in the seniority list as the said
Respondents have completed 45 years of age. It would not
detain us even for a minute to reject this contention of the
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learned counsel to the extent of Respondent No. 7, keeping in
view that the Petitioner has passed his qualifying
examination on 05.01.2009 after Respondent No. 6 attained
the age of 45 years on 30.03.2008. Respondent No. 7 attained
45 years of age on 23.08.2009 which is after the Petitioner
passed the said exam. We, therefore, deem it proper to place
the Petitioner above Respondent No. 7- Sanjay A. Patil in
seniority.
11 This petition is, therefore, allowed. The impugned
decision of the Corporation dated 17.01.2013 and 27.02.2013
alongwith the impugned order dated 19.10.2016 to the extent
of ignoring the claim of the Petitioner are set aside. The
Petitioner shall, therefore, be deemed to have been promoted
as Dy. Engineer w.e.f. 22.02.2013 which is the date of
promotion granted to Respondent Nos. 6 and 7.
Consequentially, the petitioner would be placed below
Respondent No. 6 in seniority and above Respondent No. 7.
12 Needless to state that the Petitioner would be
entitled to all monetary benefits flowing from the said
promotion w.e.f. 22.02.2013.
13 Rule is made absolute in the above terms.
(RAVINDRA V. GHUGE,J.) (ANOOP V. MOHTA J.)
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