Bombay High Court
Ramesh Shankarrao Pawar vs The State Of Mah., Through The ... on 14 December, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.697 OF 2015
Ramesh Shankarrao Pawar,
Aged 53 years, Occ. Govt. Service,
Assistant Director, Department of
Employment and Self Employment,
Address : - Type C-5/2, Govt.
Colony, Ravinagar, Nagpur-440 001. .......... PETITIONER
// VERSUS //
1.The State of Maharashtra,
Through the Principal Secretary,
Deptt. of Employment and Self-
Employment, New Administrative
Building, 14th Floor, Madam Cama
Road, In front of Mantralaya,
Mumbai - 32.
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2.The Commissioner,
Directorate of Employment and
Self-Employment, Konkan Bhavan,
3rd Floor (annexe), CBD Belapur,
New Mumbai 400 614.
3.Sanjay Kumar (IAS),
The then Principal Secretary,
Deptt. of Employment and Self-Employment
(Higher and Technical Education Deptt.),
4th Floor, Room No.411, Mantralaya,
Mumbai - 400 032. .......... RESPONDENTS
____________________________________________________________
Petitioner-in-person.
Mr.M.K.Pathan, A.G.P. for Respondents.
____________________________________________________________
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATED : 14th December, 2017.
ORAL JUDGMENT (Per R.K.Deshpande, J) :
1. Heard the petitioner appearing in person and
Mr.M.K.Pathan, learned A.G.P. for the respondents.
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2. In Original Application No.593 of 1998 decided by the
Division Bench of the Maharashtra Administrative Tribunal, Bench at
Nagpur on 7.2.2011, the petitioner was granted reliefs as under :
"11. In the light of what we have discussed as above and the
judgments cited by the applicant, we are of the clear view
that the finalization of the 1995 seniority list of Assistant
Employment Officers (Class-II) was in violation of the
prevailing rules of recruitment, and hence it cannot be
considered to be correct and legal. In the end, we therefore
order as follows :-
i) The application is partly allowed.
ii) The impugned seniority list of Asstt. Employment
Officers, Class-II (Group-B) published on 28/08/1998 is
quashed.
iii) The respondents are directed to construct and publish
the seniority list afresh after following the ratio between
nomination and promotion as prescribed in the recruitment
rules published vide G.R. dated 18/11/1971. Consequent to
this, Respondent No.4, who has been promoted to the cadre
of Employment Officer, Class-II (Group B) in violation of
these rules will be deemed to have been promoted
fortuitously and will be placed junior to the applicant.
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iv) After the seniority list is redrawn as directed above
Respondents Nos. 1 and 2 will consider the case of the
applicant for promotion to Class-I as per his seniority and
suitability, and will grant all consequential benefits that
may accrue to him, including the benefits of deemed date.
v) Respondents Nos. 1 and 2 will take action as above
within 6 months of issue of this order.
vi) We also make it clear that vide this order, we are
granting relief to the applicant mainly to enable him to
claim his rightful seniority with consequential benefits that
may accrue to him, and while no retired officer, including
Respondent No.4, is adversely affected if he loses his
seniority vis-a-vis the applicant.
vii) There will be no order as to costs."
3. After decision of the Tribunal, revised seniority list as on
1.1.1995 was published on 16.9.2011 for the Officers working in Class II
Post during the period from 1.1.1998 to 1.1.2011. The name of petitioner
was at Serial No.25 in such seniority list and the date of appointment in
Class II Post was shown as 23.11.1992. The name of respondent no.4
Mr.S.P.Kulkarni was not at all shown in the seniority list. However, by
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issuing separate Circular dt.8.11.2011, it was clarified that Mr.S.P.Kulkarni
be shown as junior to the petitioner in the seniority list published on
16.9.2011. According to the petitioner, this was not implemented by
showing in the seniority list the name of Mr.S.P.Kulkarni below the name of
petitioner.
4. The petitioner was given deemed date in the post of Assistant
Director - a Class I Post, as 1.4.1996 as per the Government Resolution
dt.1.3.2013.
5. According to the petitioner, the exercise carried out by the
department was not in terms of the decision given by the Maharashtra
Administrative Tribunal on 7.2.2011 in O.A. No.593 of 1998 and
therefore, he filed Contempt Petition No.07 of 2011. The Maharashtra
Administrative Tribunal has dismissed the said Contempt Petition on
24.12.2014 and hence, the petitioner is before this Court challenging the
decision in the Contempt Petition.
6. According to the petitioner, the respondent no.4
Mr.S.P.Kulkarni in the Original Application was promoted to the Class- I
Post of Assistant Director on 27.8.1993 and in terms of decision of the
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Maharashtra Administrative Tribunal on 7.2.2011, the petitioner was at
any rate required to be given deemed date atleast of 27.8.1993.
However, as per the Government Resolution dt.1.3.2013, he was given
the deemed date of 1.4.1996. It is further submission that though, as per
the Circular dated 8.11.2011, the seniority list published on 16.9.2011
was required to be amended by showing name of Mr.S.P.Kulkarni as
junior to the petitioner, that was not done, which was contrary to the
decision of the Maharashtra Administrative Tribunal. The another aspect
urged is that the petitioner was required to be given all consequential
benefits including the arrears in difference of pay between Class II and
Class I Posts from 27.8.1993 till 28.3.2012 i.e. the date of his actual
promotion in Class I Post.
7. The basic direction as we see from the operative portion of the
Judgment delivered by the Maharashtra Administrative Tribunal on
7.2.2011 reproduced above is that the seniority list of Assistant
Employment Officers (Class II) was required to be prepared by following
the ratio between nomination and promotion as prescribed in the
Recruitment Rules published vide Government Resolution
dt.18.11.1971. It was the stand taken by the respondents in response to
the Contempt Petition that, as a result of operation of Quota Rule of 1:2
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of promotion and nomination in Class II post, respondent no.4
Mr.S.P.Kulkarni, who was promoted to the post of Employment and Self-
Employment Guidance Officer on 1.4.1980 within the quota of promotee
and his name appears at No.57 in the seniority list of 1.1.1981, as a
result of which, he cannot be placed junior to the applicants.
8. We find that the factual dispute in respect of the entitlement of
the petitioner in terms of decision of the Maharashtra Administrative
Tribunal can be resolved, only after the decision on the operation of
quota rule. The contention of the petitioner is that the quota rule has
not been properly applied; where as, according to the respondents, the
seniority list is prepared by following the quota rule. Obviously, this
question was not gone into by the Maharashtra Administrative Tribunal,
rather, there was no occasion to go into it because the seniority list was
published on 16.9.2011 after the decision of the Maharashtra
Administrative Tribunal on 7.2.2011. Whether it is correctly prepared or
not, is the question which could be gone into only in substantive
proceedings by filing the Original Application. The matter could not be
adjudicated in the Contempt Petition.
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9. In view of the aforesaid position, we are of the view that the
Tribunal did not commit any error in dismissing the Contempt Petition.
However, in our view, the Tribunal could not have gone into the merits
of the matter and left the parties to get the questions adjudicated by
filing a separate Original Application, if so desired. We will have to,
therefore, observe that none of the observations made by the Tribunal in
Contempt Petition shall come in the way of parties while prosecuting the
claim in the separate petition. In the result, the Writ Petition is
dismissed.
10. It is made clear that none of the observations made by the
Maharashtra Administrative Tribunal in it's decision given on
24.12.2014 in Contempt petition No.7 of 2011 shall come in the way of
parties and the dispute as to whether the seniority list was prepared in
accordance with the Recruitment Rules or not is left open to be
adjudicated by the Tribunal in any separate proceedings, if filed. The
question of implementing the decision of the Maharashtra
Administrative Tribunal given on 7.2.2011 in O.A. No.593 of 1998
would depend upon such adjudication.
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No order as to costs.
JUDGE JUDGE
[jaiswal]
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