Vijaya W/O Ramesh Vaidya vs State Of Mah. Thr. Secy. Tribal ...
2017 Latest Caselaw 3942 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.405 of 2007

   Vijaya w/o Ramesh Vaidya,
   Aged about 60 years,
   Occupation Service,
   Presently working as
   Assistant Project Officer,
   Chandrapur,
   in the office of Integrated 
   Tribal Development Project,
   Chandrapur.                                    ... Petitioner


       Versus


  1. State of Maharashtra,
     through its Secretary,
     Tribal Development Department,
     Mantralaya, Mumbai.

  2. The Commissioner of Tribal
     Development Department,
     Old Agra Road, Nasik.

  3. Additional Commissioner,
     Tribal Development Department,
     Chandrapur.

  4. Project Officer,
     Integrated Tribal Development 
     Project, Chandrapur.

  *5. P.V. Nerkar,
       Assistant Project Officer,




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       Office of the Assistant Commissioner,
       Tribal Development Department,
       Amravati, District Amravati.

  *6. H.T. Mataghare,
       Project Officer,
       Integrated Tribal Development
       Project, Aheri, District Gadchiroli.

  *7. S.G. Dudhwadkar,
       Assistant Project Officer,
       Office of the Commissioner,
       Tribal Development Department,
       Nasik.   

  (* Deleted as per Court's order
  dated 8-7-2008).                                   ... Respondents


  Shri S.V. Sirpurkar, Advocate for Petitioner.
  Ms Geeta Tiwari, Assistant Government Pleader for Respondent 
  Nos.1 to 4.


                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 4 July, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The petitioner was reverted from the post of Assistant

Project Officer to the post of Warden by an order

dated 15-5-1993 at Annexture-IX to this petition. This was the

subject-matter of challenge in Original Application No.435 of

1993 preferred by the petitioner before the Maharashtra

wp405.07.odt

Administrative Tribunal. Shri Sirpurkar, the learned counsel

appearing for the petitioner, has invited our attention to the

application for amendment of the Original Application filed

before the Tribunal, incorporating the challenge also to the

supersession of the petitioner in the matter of promotion to the

post of Assistant Project Officer, though he admits that such a

relief was not claimed in the said application, but the persons,

who superseded the petitioner, were joined as the non-applicants

in the application. He, therefore, submits that such a claim is

also required to be considered by this Court.

2. The Division Bench of the Maharashtra Administrative

Tribunal has dismissed Original Application No.435 of 1993 by

its order dated 2-5-2006. The Tribunal considers the stand of the

respondents that in the meeting of the Departmental Promotion

Committed held on 11-1-1991, the case of the petitioner was

considered along with all other candidates for regular promotion

to the post of Assistant Project Officer. The petitioner received

grading 'C' on the basis of the scrutiny of five years' confidential

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reports, and even after showing special sympathy as a candidate

belonging to Scheduled Tribe category, she was not found fit for

promotion and, therefore, her name was deleted from the select

list.

3. The Tribunal perused the minutes of the Departmental

Promotion Committee, which were called, and holds that the

Tribunal cannot sit as an appellate authority over the decision of

the Departmental Promotion Committee and the only point

required to be considered was whether the petitioner was given a

fair treatment while considering her case for promotion. It holds

that the settled legal position is that the judicial review is limited

to deficiency in decision making process and not the decision

itself. The Tribunal also takes into consideration the aspect that

the adverse entries in the confidential reports of the petitioner

pertaining to the year 19891-1990 should not have been taken

into consideration by the Departmental Promotion Committee to

find out the fitness of the petitioner for promotion, particularly

when the representation against such adverse entries was

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pending and was not decided. The Tribunal finds that it is not

proper to issue direction to the respondents to re-consider the

case of the petitioner for promotion, keeping in view the facts

and circumstances of the case.

4. Shri Sirpurkar, the learned counsel for the petitioner,

does not dispute the fact that the promotion of the petitioner to

the post of Assistant Project Officer/Tribal Development Officer

on 1-6-1988 was purely on temporary basis, but he submits that

the same was made after taking into consideration the

confidential reports of the petitioner. He submits that the

petitioner, who worked on the post from the year 1988 to 1993,

could not be unfit for reversion to the lower post. He has relied

upon the decision of the Apex Court in the case of The Regional

Manager and another v. Pawan Kumar Dubey, reported in

(1976) 3 SCC 334. He submits that admittedly the Departmental

Promotion Committee took into consideration the adverse

remarks, which were not communicated to the petitioner and

against which the representation was pending. According to him,

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the denial was unjustified and contrary to the well settled

principles of law.

5. We have gone through the order of reversion

dated 15-5-1993 and the case of the petitioner is that her

reversion was consequential to her non-inclusion in the select list

for promotion to the post of Assistant Project Officer. The order

of reversion is innocuous. The promotion of the petitioner to the

post of Assistant Project Officer being temporary in nature, does

not confer any enforceable right to hold the said post on

substantive basis without being selected through the duly

constituted Departmental Promotion Committee. We. Therefore,

do not find any substance in the challenge to the reversion of the

petitioner.

6. We find that unless the selection of the persons

promoted to the post of Assistant Project Officer in supersession

of the claim of the petitioner are joined as party-respondents,

such a claim cannot be considered. The names of the respondent

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Nos.5, 6 and 7, who were promoted in supersession of the claim

of the petitioner, were deleted on 15-7-2008 as per the order

dated 8-7-2008 passed by this Court. Unless the selection and

promotion of these persons are set aside, it is not possible for this

Court even to grant deemed date or notional promotion to the

petitioner from the date on which she was superseded.

7. Be that as it may, we find that the Maharashtra

Administrative Tribunal has looked into the confidential reports

and the minutes of the Selection Committee and after perusing

the same, it did not find any reason to direct re-consideration of

the case of the petitioner on the ground that uncommunicated

adverse remarks were acted upon. The decision of the Apex

Court in the case of The Regional Manager and another v. Pawan

Kumar Dubey, cited supra, relied upon by the learned counsel for

the petitioner, is clearly distinguishable. The reversion is by way

of punishment, though the respondent in the said case was

working on ad hoc/temporary basis on the promoted post. We

have already seen that the order of reversion is innocuous and

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the petitioner herself accepts in the affidavit filed that it is the

consequence of non-inclusion of her name in the select list.

8. We, therefore, do not find any substance in the petition.

The same is dismissed. Rule stands discharged. No order as to

costs.

9. At this stage, the learned counsel for the petitioner,

makes a grievance that due to pendency of this petition, the

retiral benefits, which are otherwise available to the petitioner,

are not released by the respondents. We, therefore, direct the

respondents to carry out this entire exercise within a period of

three months from today, including the release of monetary

benefits. If the respondents fail to implement this order within

the stipulated period, the petitioner shall be entitled to the

interest at the rate of 24% per annum till the realization of the

amount.

                    JUDGE.                                  JUDGE.

   Lanjewar