R.V. Keskar vs Municipal Corpn. Of Gr. Bombay & ...
2017 Latest Caselaw 4432 Bom

                                                                   WP 856-97.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
                            WRIT PETITION NO. 856 OF 1997

       Shri R. V. Keskar
       of Mumbai Indian Inhabitant,
       residing at Flat No.5, BEST Officers
       Partners, Raut Road, Shivaji Park,
       Mumbai - 400 028.                                  .. Petitioner

               Vs.

       1. Municipal Corporation of Greater
       Mumbai, a statutory corporation,
       having its Main Office at 
       Mahapalika Marg, Mumbai - 400 001.

       2. The Bombay Electric Supply &
       Transport Undertaking, 
       BEST Bhavan, BEST Marg,
       Mumbai - 400 039.

       3. The General Manager,
       Bombay Electric Supply & Transport
       Undertaking, BEST Bhavan, BEST Marg,
       Mumbai - 400 039.

       4. The Deputy General Manager, (Supply)
       Bombay Electric Supply & Transport 
       Undertaking, BEST Bhavan, BEST Marg,
       Mumbai - 400 039.

       5. Chief Personnel Officer,
       Bombay Electric Supply & Transport
       undertaking BEST Bhavan, BEST Marg,
       Mumbai - 400 039.

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                                                                           WP 856-97.doc

 6. Mr. M. M. Ambare
 Superintendent Supply Vigilance
 Dept: B.E.S.T. Undertaking
 Mumbai - 400 039.

 7. Mr. S. D. Pawar
 Superintendent, Supply Project Dept:
 B.E.S.T. Undertaking, Mumbai 400 005.

 8. Mr. D. S. Khalap
 Superintendent Supply Erection
 (North) B.E.S.T. Undertaking
 Mumbai 400 010.

 9. Mr. P. V. Haldankar
 Superintendent Supply Operation
 and Maintenance Central South)
 B.E.S.T. Undertaking Pathak Wadi,
 Mumbai 400 002.

 10. Mr. E. G. Jeavan
 Superintendent Supply Computer
 Application Cell B.E.S.T. Undertaking,
 Mumbai 400 039.                                               .. Respondents


 Mr. Suresh Pakale, for the Petitioner.
 Mr. S.K. Tulsania, Senior Advocate with Ms. Kavita Anchan i/by 
 M/s. M.V. Kini & Co., for Respondent nos. 2 to 10.


                                   CORAM                         : A.A.SAYED AND
                                                                    M.S.KARNIK, JJ.

RESERVED ON : 3rd JULY 2017

PRONOUNCED ON : 13th JULY 2017

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JUDGMENT (PER M.S. KARNIK, J.) :-

The petitioner who was working as an Officiating

Superintendent at the time of the filing of the Petition, has filed

the Petition challenging the order dated 14th June 1996 passed

by respondent no.3 denying promotion to him as a Probationary

Superintendent. During the pendency of the Petition, the

petitioner was again considered for promotion and he was

promoted as Probationary Superintendent on 1/4/1998. The

petitioner was confirmed as Superintendent on 1/4/1999.

2. The petitioner is B.E. (Electrical) by qualification. He

was appointed as a Probationer Engineer on 22/9/1980. He was

confirmed as a Deputy Engineer on 22/9/1981. The petitioner

was promoted on 31/1/2010 as an Assistant Engineer in Grade

A5.

3. The petitioner was promoted as an Officiating

Superintendent by an order dated 22/12/1994 and directed to

work in Operation and Maintenance Department (Supply)

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North. It is the petitioner's case that he worked very sincerely

and to the entire satisfaction to his superiors even in the

officiating post as a Superintendent. On 29 th February, 1996, the

petitioner was communicated adverse remark for the period

1/1/1995 to 31/12/1995, "you take no more than minimum

interest in work as a result work suffers". By a communication

dated 12th March, 1996, the petitioner was informed that while

studying his confidential report it was observed that his

performance has been evaluated as below average. Specific

qualities under which the petitioner's performance is below

average is mentioned thus :

"Takes no interest in the work, Performs duties moderately"

"Likely to qualify for promotion in time".

"It is necessary to take work seriously".

4. The petitioner filed representation on 21 st March,

1996 submitting that the adverse remarks are vague and asked

for details about the officer who has written his confidential

reports and instances where work suffered. According to the

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learned Counsel for the petitioner, the remarks have been

written by the officers other than the Reporting Officer without

personally observing his work.

5. The petitioner was reappointed as a Superintendent

(Supply) purely on temporary basis by an order dated 30 th May,

1996.

6. The grievance of the petitioner is that though his

representation against the adverse remark was pending, six

officers were promoted as the Probationary Superintendent

against the permanent post by an order dated 14th June, 1996.

Out of these six officers, five officers being respondent nos. 6 to

10 were junior to him.

7. Respondent no.3 by communication dated

21/9/1996 informed the petitioner that the adverse remarks did

not deserve to be expunged. Learned Counsel for the petitioner

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contends that there is no justification for denying promotion to

the petitioner. According to him, the action on the part of the

respondents denying him promotion is malafide and his

confidential reports have been spoiled only because his superiors

found the petitioner inconvenient. Learned Counsel further

contended that the remarks in the confidential report is vague

and cannot be said to constitute adverse remark. Moreover,

according to the learned Counsel for the petitioner, the

confidential report is written by the officer other than the

reporting officer and therefore the said confidential report could

not form the basis of consideration the petitioner's case for

promotion. He further submits that even without deciding the

representation made by the petitioner against the adverse

remark the respondents have taken into consideration the said

confidential report while considering the petitioner's case for

promotion.

8. In the submission of the learned Counsel for the

petitioner, he has never been served with any adverse remark

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during his entire career except the said adverse remark. In fact

the petitioner was already working as a superintendent on an

officiating basis from 22/12/1994 and even on 30/5/1996 the

petitioner was reappointed as a Superintendent on a temporary

basis. Learned Counsel for the petitioner submits that during the

pendency of the Petitioner he was again considered for

promotion and on 1/4/1998 he was promoted as a Probationary

Superintendent. Upon satisfactory completion of probation

period, the petitioner was confirmed as a Superintendent on

1/4/1999. In the submission of the learned Counsel for the

petitioner the respondents are not justified in giving

prominence to an adverse remark in a single year when

year after year no adverse remarks were recorded. Much

emphasis was given by learned Counsel for the petitioner on the

guidelines dated 16th February, 1993 to submit that the

confidential report has been written in the breach of the said

guidelines.

9. Learned counsel for the respondents supported the

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decision to deny promotion to the petitioner. According to

learned Senior Counsel, the petitioner's case was considered and

he was not found fit for promotion. Learned Senior Counsel

submitted that there is no material on record to indicate that the

action of the respondents is in any manner malafide. He submits

that the petitioner infact has been promoted during the

pendency of the Petition and therefore, according to him no

weightage should be given to the contention of the petitioner

that the action of the respondents is malafide. Learned Senior

Counsel invited our attention to the affidavit-in-reply filed on

behalf of the respondents to contend that the petitioner's service

is not satisfactory enough and therefore he was not considered

for the said promotion. The petitioner's case was considered in

detail, with as many as three senior officers of the respondent

undertaking having examined the suitability of the petitioner for

promotion. It was only after each of them individually applied

their mind to the issue of the petitioner's promotion that the

decision not to promote the petitioner was taken. The

representation made by the petitioner was considered in detail

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by none less than the General Manager of the respondent

undertaking himself who independently came to the conclusion

that there was no infirmity in the said decision. The said

decision was duly communicated to the petitioner. Our attention

was invited to para 4 and 5 of the affidavit. The gist of which is

"The performance of the petitioner was found wanting and not

upto the mark. There was material to indicate that the work of

the petitioner was not satisfactory during this period and

accordingly in the confidential report of the petitioner for the

year 1995, an adverse remark was entered, since the petitioner's

senior officers felt that the petitioner failed to show his interest

in the work because of which his work suffers."

10. We called upon the respondents to produce the

original records in respect of the confidential reports. Learned

Senior Counsel accordingly has placed the petitioner's Annual

Confidential Report on record. We find that the Reporting

Officer has graded the petitioner and recommended the

petitioner as fit for promotion. The Countersigning Reviewing

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Officer has observed that the petitioner has been overrated. The

General/Special Remarks of the Countersigning/Reviewing

Authority indicates the grading given to the petitioner and it has

been observed thus :

"The officer is highly overrated. He is just a mediocre officer who taken no more than minimum interest in the work. The evaluation by Shri Bhagia, DEMN is overrated for everyone. As a result the work suffers. This point is taken into account while evaluating the performance of Shri Bhagia.

The petitioner was held not fit for promotion. It is not clear to us

as to whether the General/Special Remarks of the

Countersigning/Reviewing Authority are made by the Reviewing

Officer or an Officer superior to him viz. Deputy General

Manager (Supplies). Learned Senior Counsel for the

Respondents fairly conceded that he is not a position to state

who has actually written the remarks. Be that as it may we are

of the opinion that there is substantial compliance with the

procedure as laid down in the guidelines dated 16/2/1993 while

recording the confidential remarks.

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11. There is nothing adverse against the petitioner in his

career except when Annual Confidential Report is recorded for

the period 1/1/1995 to 31/12/1995. The petitioner was

working as an Officiating Superintendent with effect from

22/12/1994. Even as per the respondents the said appointment

of the petitioner to the post of Superintendent, Operation and

Maintenance Department (Supply) North with effect from 22 nd

December 1994 was a fortuitous appointment on a temporary

basis and on the clear understanding that the same was not to

be considered for the purpose of seniority. The last re-

appointment of the petitioner was once again on the said

temporary basis for the period 12th March, 1996 to 17th April,

1999.

12. In the affidavit-in-reply it has been stated by the

respondents that as a part of his duties, the petitioner was

expected to oversee the site operations when a technical defect

arose and supervise and guide the officers subordinate to him in

resolving the same. It is however observed that the petitioner is

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failed in carrying out these duties. A number of wrong

operations were carried out by the junior officers, subordinate to

the petitioner, because the petitioner either failed to instruct

and/or guide them properly or because the petitioner was not

available at site to assist and/or supervise them. This marked

reluctance of the petitioner to visit the site was not an isolated

incident but was consistently observed. In some cases, the

failure and/or refusal to visit the concerned site was despite

receiving specific instructions from his superiors. In several

cases, despite complaints and instances of tripping of

transformers, the petitioner did not visit the site concerned. Four

instances of tripping occurred in a single day at Sithaladevi

Receiving Station and the petitioner was not available to set

matters right.

13. We find from the record that the Reporting Officer

recommended the petitioner fit for promotion. Reviewing

Officers, however, were of the opinion that the petitioner was

not fit for promotion after recording adverse entries in the

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confidential report.

14. Undisputedly, the adverse remarks were

communicated to the petitioner against which his representation

came to be rejected. As indicated earlier, the petitioner was

working on an officiating basis as a Superintendent by an order

dated 22nd December, 1994. The petitioner's case was considered

for regular promotion (the post he was holding on an officiating

basis) but he was found unfit due to an adverse remarks. The

decision not to promote him was taken on 14th June, 1996 when

his juniors were promoted. Infact, petitioner was reappointed as

a Superintendent on an officiating basis on 30 th May, 1996.

There are some subsequent events which we are taking into

consideration to meet the ends of justice. The petitioner was

regularly promoted to the post of Superintendent by an order

dated 1st April, 1998 and confirmed in the said post on 1 st April,

1999. From the record it appears that except for the year 1995-

1996 when the petitioner was holding the charge of the

promotional post on an officiating basis nothing adverse is

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recorded. It therefore appears that year after year prior to 1995-

1996 and even thereafter the petitioner's record has not been

adverse. Infact the petitioner came to be promoted on regular

basis from 1st April, 1998. We may not be understood to mean

that adverse entry for one year cannot be taken into

consideration to deny promotion. It is in the peculiar facts of this

case and also due regard being had to the subsequent events

after the petition was filed that we feel the adverse remark for

the year 1/1/1995 to 31/12/1995 should be ignored while

considering the Petitioner's case for promotion. We are equally

conscious that the Reviewing Authority has written the

confidential reports on the basis of the material then available.

The fact that the Petitioner was already officiating in the

promotional post, coupled with the fact that he continued to

occupy the said post even after promotion was denied to him

and in close proximity thereafter the Petitioner was found fit for

regular promotion, are the circumstances which compelled us to

take this view. It is in these peculiar circumstances we took into

consideration the subsequent events in the interest of justice.

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The Petitioner has now superannuated from service w.e.f.

1/11/2013.

15. In these circumstances we are of the opinion that the

Petitioner's case for promotion may be considered afresh

ignoring the adverse remarks recorded during the period

1/1/1995 to 31/12/1995 and in the event the Petitioner is

found fit for promotion he may be notionally promoted to the

post of Superintendent from the date his juniors- Respondent

nos. 6 to 10 are promoted. We are not inclined to grant any

consequential relief as the Petitioner was already working on

officiating basis in the said post and has since superannuated.

Hence the following order.

ORDER

1. Writ Petition is partly allowed.

2. The Respondents to consider the case of the

Petitioner for promotion afresh ignoring the adverse remarks

recorded during the period 1/1/1995 to 31/12/1995.

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3. If the Petition is found fit to be promoted he may be

notionally promoted as a Superintendent from the date his

juniors-Respondent nos. 6 to 10 are promoted.

4. Rule accordingly made absolute with no order as to

costs.

 (M.S.KARNIK, J.)                                            (A.A.SAYED, J.)