Bombay High Court
Anis Ahmad Khan S/O Yusuf Khan vs State Of Mah., Through Its ... on 19 July, 2017
Bench: V.A. Naik
1907WP104.15-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 104 OF 2015
PETITIONER :- Anis Ahmad Khan S/o. Yusuf Khan, Age :- 57
years, Occ :- Service, Asstt. Teacher, Nagar
Parishad Urdu Vidyalaya, Chandur Bazar,
Distt. Amravati.
...VERSUS...
RESPONDENTS :- 1) State of Maharashtra, Through it's Secretary
Urban Welfare Department, Mumbai-032.
2) Municipal Council Chandur Bazar, Through
It's President.
3) Standing Committee, Municipal Council,
Chandur Bazar, Distt. Amravati.
4) Divisional Commissioner, Amravati Division,
Amravati.
5) Collector, Amravati, Distt. Amravati.
6) Education Officer (Secondary) Z.P. Amravati
Distt. Amravati, Amravati.
7) Chief Officer, Municipal Council Chandur
Bazar, Distt. Amravati.
8) Jamil Ahmad Shaikh Rasul, Deputy
Headmaster, Nagar Parishad Urdu
Secondary and Higher Secondary School,
Chandur Bazar, Distt. Amravati.
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Mr.R.J.Mirza, counsel for the petitioner.
Mr.K.L.Dharmadhikari, Assistant Government Pleader
for the respondent Nos.1, 4, 5 and 6.
Mr.M.I.Dhatrak, counsel for the respondent No.7.
None for the respondent Nos.2, 3 and 8.
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1907WP104.15-Judgment 2/7
CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 19.07.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner seeks a direction
against the respondent No.2-municipal council to promote the
petitioner to the post of deputy headmaster of Nagar Parishad Urdu
Secondary and Higher Secondary School, Chandur Bazar, District
Amravati with all consequential benefits.
2. The petitioner was appointed as an assistant teacher in
Municipal Council Urdu School at Chandur Bazar. When a vacancy
arose in the post of deputy headmaster, the petitioner being the senior
most assistant teacher was eligible for promotion to the said post. In
the seniority list of the relevant period, i.e. 2013 the petitioner was
placed at Sr.No.3 and the respondent No.8 was placed at Sr.No.6. The
municipal council, however, resolved not to promote the petitioner to
the post of deputy headmaster as the petitioner was found to be guilty
in an enquiry conducted against him and a punishment of reduction of
three increments was imposed on him. In the said resolution of the
municipal council dated 04/06/2013, it was decided that the
1907WP104.15-Judgment 3/7
respondent No.8 should be promoted to the post of deputy headmaster,
subject to the decision in the appeal filed by the petitioner before the
general body of the municipal council against the order imposing
penalty. The petitioner was exonerated by the general body and the
punishment imposed upon the petitioner was set aside by the order
dated 13/08/2014. As soon as the petitioner was exonerated, he made
representations to the municipal council to promote him to the post of
deputy headmaster as per the decision in the resolution of the
municipal council dated 04/06/2013. Since the municipal council did
not take any decision on the representation of the petitioner, the
petitioner filed this writ petition in January, 2015 as the petitioner was
about to retire on attaining the age of superannuation, on 31/07/2015.
According to the petitioner, as per the resolution of the municipal
council dated 04/06/2013, the petitioner was entitled to be promoted
to the post of deputy headmaster as the petitioner was admittedly
senior to the respondent No.8 and he was exonerated by the general
body of the municipal council, on 13/08/2014.
3. Shri Mirza, the learned counsel for the petitioner
submitted that the municipal council was not justified in not promoting
the petitioner to the post of deputy headmaster after he was exonerated
by the general body of the municipal council on 13/08/2014. It is stated
1907WP104.15-Judgment 4/7
that since the petitioner was admittedly senior to the respondent No.8,
the petitioner ought to have been promoted to the post of deputy
headmaster with effect from 14/08/2014. It is submitted that without
promoting the petitioner to the post of deputy headmaster, the
petitioner was wrongly made to retire as an assistant teacher, on
31/07/2015.
4. Shri Dhatrak, the learned counsel for the respondent-
municipal council, opposed the prayer made in the writ petition. It is
however stated that for complying with the resolution dated
13/08/2014, the proposal in respect of payment of appropriate salary to
the petitioner was forwarded to the education officer on 05/11/2014
and the same is pending before the said authority. It is admitted that
the general body of the municipal council had passed a resolution on
13/08/2014 withdrawing the punishment imposed upon the petitioner.
5. We are surprised that the respondent No.8, who is the
contesting respondent has not put in his appearance and also has not
filed any affidavit-in-reply. It is more surprising that the respondent
No.8, who is the deputy headmaster in one of the schools run by the
municipal council has sworn the affidavit filed by the respondent No.7-
municipal council. The chief officer of the municipal council is the
1907WP104.15-Judgment 5/7
respondent No.7 to the petition. An averment is made by the petitioner
in the petition that the entire exercise of preventing the promotion of
the petitioner and promoting the respondent No.8 was at the behest of
the respondent No.8. We find substance in the allegation made by the
petitioner in this regard. Normally, the chief officer of the municipal
council ought to have sworn the affidavit filed on behalf of the chief
officer of the municipal council. The affidavit is however sworn by the
respondent No.8, who is the deputy headmaster and against whom, the
petitioner has a grievance.
6. The facts of the case clearly show that the petitioner was
senior to the respondent No.8 and was entitled to be promoted to the
post of deputy headmaster. At the relevant time in June, 2013 the
petitioner was however kept back and the respondent No.8 was sought
to be promoted on the ground that the petitioner was punished by the
standing committee of the municipal council after he was found to be
guilty in a departmental enquiry and the punishment of withholding of
three increments was passed. The resolution of the municipal council
dated 04/06/2013 clearly records that since an appeal was filed by the
petitioner against the order imposing penalty on him, the respondent
No.8 would be promoted to the post of deputy headmaster subject to
the decision in the appeal filed by the petitioner against the order
1907WP104.15-Judgment 6/7
imposing penalty. If the promotion of the respondent No.8 was subject
to the decision in the appeal filed by the petitioner, after the
exoneration of the petitioner by the general body of the municipal
council on 13/08/2014, it was obligatory on the part of the municipal
council to have reverted the respondent No.8 to the post of assistant
teacher and promoted the petitioner to the post of deputy headmaster
as the petitioner was admittedly senior to the respondent No.8 and the
promotion of the respondent No.8 was subject to the decision in the
departmental appeal filed by the petitioner. We, however, find that no
steps whatsoever, were taken by the municipal council to ensure that
the petitioner is promoted to the post of deputy headmaster after his
exoneration, on 13/08/2014. Nothing is placed by the municipal
council on record to show that any efforts were made by the municipal
council to ensure that the petitioner is promoted to the post of deputy
headmaster. It is not necessary for the municipal council to take the
permission of the education officer for promoting the petitioner to the
post of deputy headmaster as the promotion of the respondent No.8 on
the said post was subject to the decision in the appeal filed by the
petitioner. In the circumstances of the case, the municipal council
ought to have promoted the petitioner to the post of deputy
headmaster, on 14/08/2014. The proposal of which a reference is made
in the affidavit-in-reply filed on behalf of the respondent No.7-chief
1907WP104.15-Judgment 7/7
officer of the municipal council does not relate to the promotion of the
petitioner and only relates to the payment of arrears of salary to him as
his salary was reduced after the punishment was imposed upon him by
the standing committee.
7. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The respondent No.2-municipal council is directed to grant a
deemed date of promotion to the petitioner to the post of deputy
headmaster with effect from 14/08/2014. Since the petitioner has not
actually worked on the post of deputy headmaster, the actual monetary
benefits flowing from the said order, till the date of retirement of the
petitioner would not be paid to the petitioner. However, the pension
and the other retiral benefits should be paid to the petitioner by
considering that the petitioner had retired on the post of deputy
headmaster, on 31/07/2015. The respondent Nos.1 to 7 should revise
the pension of the petitioner appropriately and pay the arrears of
pensionary benefits to the petitioner within four months. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
