Pratapsinh Damodar Golekar vs State Of Maharashtra & 7 Others
2017 Latest Caselaw 5000 Bom

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

                         WRIT PETITION NO.1657 OF 1998

Pratapsinh  Damodar Golekar 
Aged about 50 years, occu: Govt. Service
Deputy Commissioner of State Excise 
(Sr. Grade) C/o Commissioner,
State Excise, Old Custom House, Fort, 
Mumbai-400 023.                                              ...PETITIONER

                     VERSUS

1)      State of Maharashtra 
        Through the Chief Secretary 
        General Administration Department
        Mantralaya, Mumbai. 

2)      The State of Maharashtra 
        Through  Secretary 
        Home Department (Transport and State Excise)
        Mantralaya, Mumbai. 

3)      Chairman, 
        Maharashtra Public  Service Commission 
        Bank of India Building 
        Opposite High  Court, Mumbai. 

4)      Shri P.B. Sawant,
        Retired Joint Commissioner of State Excise 
        (Alcohol) R/o Y-34, Sector 9 
        CBD Belapur, Navi Mumbai
        Dist.Thane. 

5)      Shri V.V.  Malkalpatte
        Aged about 54 years, Joint Commissioner 
        of State Excise (Admn)
        C/o Commissioner of Excise, 




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         Old Custom House, 
         Fort, Mumbai. 

6)       Shri V.G. Shingore
         Retired Dy. Commissioner of State Excise 
         (Sr.Grade) R/o 17, Ashish Co-op. Housing Society
         Shrinagar, Thane (West) 400 604. 

7)       Shri S. A. Patil 
         Aged about  52 years, Dy. Commissioner of 
         State  Excise (Sr.Grade) 
         C/o Commissioner fo State Excise 
         Old Custom House, Fort, Mumbai. 

8)       Shri  P. V.  Mishra 
         Aged about 51 years, Dy. Commissioner of 
         State Excise (Sr. Grade) 
         C/o  Commissioner of State Excise 
         Old Custom House, Fort
         Mumbai.                                      ...RESPONDENTS
                                                                    . 


...................................................................................................................
Mr. R.C. Madkholkar, Advocate for Petitioner 
Mr. V. P.  Maldhure, Assistant Government Pleader for Respondent Nos.1 
and 2  
...................................................................................................................

                                             
                   CORAM :   R.K. DESHPANDE &   MRS.SWAPNA JOSHI, JJ. 

                   DATED :    25 th
                                    July, 2017
                                               


 ORAL JUDGMENT    (   PER R.K. DESHPANDE, J.  ) : 

1. The petitioner filed Original Application No.220 of 1995

before the Maharashtra Administrative Tribunal, Bench at Nagpur,

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challenging the promotion of respondent No.4 - P. B. Sawant and

respondent No. 5 - V. V. Malkalpatte, to the post of Joint Commissioner

of State Excise, Maharashtra State, with effect from 1-2-1991 by

notification dated 8-2-1991. The Maharashtra Administrative Tribunal

has dismissed the said Original Application by its judgment and order

dated 12-3-1998. Hence, the present writ petition challenging the

judgment and order passed by the Maharashtra Administrative Tribunal

and also claiming a direction to the respondent Nos.1 and 2 to consider

the petitioner for appointment by way of promotion to the post of Joint

Commissioner with effect from 1-2-1991 by setting aside the

appointments of the respondent Nos. 4 and 5 to the said posts.

2. This petition concerns with the appointment to the Super

Class-I post of Joint Commissioner, State Excise ("the post in question")

effected on 1-2-1991, which was denied to the petitioner. Being a Super

Class-I post, it was required to be filled in by way of selection, strictly on

the basis of merit from amongst the candidates working in Class-I post of

the Superintendent of State Excise, which formed the zone of

consideration. The number of candidates to be considered for selection

were four times the number of vacancies available and to be filled in.

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The Class-I post of Superintendent, State Excise was at the relevant time

in the pay scale of Rs.2200-4000. Above it, was the post of Divisional

Deputy Commissioner, State Excise in the pay scale of Rs.3200-4625/-.

The last Super Class-I post was that of the Joint Commissioner, State

Excise, carrying the pay scale of Rs.3700-5000.

3. It is not in dispute that the first provisional seniority list of

the officers working in Class-I post of Superintendent was prepared on

13-2-1990 and it was circulated for objections to be submitted on or

before 13-3-1990. The respondent Nos.4 and 5 were at serial Nos.1 and

2, whereas the petitioner was at serial No.11 in the said seniority list.

The first consideration for promotion to the post of Divisional Deputy

Commissioner took place on 1-4-1990 and the petitioner was selected

and appointed to the said post on 8-5-1990. The respondent Nos.4

and 5 were not promoted but continued to work in Class-I post of

Superintendent. The first consideration for promotion to the Super

Class-I post of Joint Commissioner took place on 1-2-1991, in which the

respondent Nos.4 and 5 were promoted against the two posts which

were created. This was the subject-matter of challenge before the

Maharashtra Administrative Tribunal by filing the Original Application

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and also in this petition challenging the dismissal of the Original

Application by the Tribunal.

4. The stand of the respondent Nos. 1 and 2 before the

Maharashtra Administrative Tribunal to defend the claim of the

petitioner for consideration to the post in question was that the seniority

list of persons working in Class-I post of Superintendent prepared on

13-2-1990 included the name of respondent Nos. 4 and 5 at Serial Nos. 1

and 2, whereas the name of the petitioner was at Serial No.11.

On 1-2-1991, the respondent Nos. 1 and 2 considered the names of eight

candidates in the order of seniority and the respondent Nos. 4 and 5

being found meritorious amongst them, were selected and appointed by

notification dated 8-2-1991 to occupy the post in question. The

petitioner being at Serial No.11 in the seniority list was beyond the zone

of consideration and, therefore, the question of appointing him by way

of promotion to the post in question did not arise.

5. Before the Tribunal, it was the case of the petitioner that on

the date of consideration i.e. 1-2-1991, he was working as Deputy

Commissioner, which was a post above Class-I post of Superintendent. It

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was his case that he was possessing the grading of "Outstanding A+" in

the confidential records pertaining to the period of 5 years preceding the

date of consideration on 1-2-1991 and none of the respondents could

compete him in such grading. The petitioner alleged in his Original

Application that though the annual confidential reports of the

respondent Nos. 4 and 5 were less meritorious, they were promoted on

the basis of seniority only and there was no comparative assessment of

merits. The petitioner alleged that the respondent No. 4 - P. B. Sawant

in the Original Application suppressed the material fact that his height

was less than 165 cms., which is the statutory requirement in clause (2)

of the Rules of Physical Fitness framed under Article 309 of the

Constitution of India on 2-4-1980, and hence he was not eligible for

promotion to the post in question. The petitioner alleged that the

adverse confidential report awarded to the respondent No.5 -

V. V. Malkalpatte in the year 1986-87 were expunged without even any

representation in writing by him and in breach of the procedure.

6. In response to the Original Application, the respondent

Nos. 1 and 2 filed their return. In paragraph 4 of the said return, the

stand was taken as under :

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"It is further submitted that though assuming but no admitting that the petitioner has outstanding (A+) Confidential Reports for the last preceding 5 years and even if the petitioner is required to be placed at the sixth place above, he does not reach the place of non- applicants Nos. 4 and 5, apart from the fact that the petitioner was also not in the zone of consideration."

The Tribunal records the finding that the submission of the petitioner

that his confidential reports for five years preceding the appointment of

the respondent Nos. 4 and 5 were 'Outstanding' has not been

controverted by the respondent nos. 1 and 2. The Tribunal holds that

the confidential reports of the petitioner were not produced by the

respondent Nos. 1 and 2 along with the minutes of the meeting of the

Establishment Board, which recommended the respondent Nos. 4 and 5

for promotion to the post in question.

7. The Tribunal refers to the contention of the petitioner that

respondent No. 4 - P. B. Sawant was involved in two serious cases and he

had shot himself by revolver in or around 1981; as a result of which, the

departmental enquiry was initiated against him and it was kept pending

for many years and was dropped in or around 1990. The Tribunal also

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refers to the contention of the petitioner that the respondent No.5 was

given adverse remarks for the years 1985, 1986 and 1987 by the

Additional Collector of Nagpur, for cancellation or suppression of French

Police Licences. The Tribunal takes into consideration the stand of the

respondent Nos. 1 and 2 that the Government has taken a conscious

decision to promote the respondent No.4 in spite of the pending enquiry

and that the expungement of the adverse remarks against respondent

No.5 was the privilege of the Government.

8. The Tribunal considered the stand of the respondents that

the petitioner being at Serial No.11 in the seniority list of the post of

Superintendent, State Excise, prepared on 13-2-1990, was beyond the

zone of consideration. According to the Tribunal, the Government

Resolution dated 1-10-1989 produced by the petitioner, does not

prescribe the maximum number of officers to be considered for

appointment by way of promotion and it was open for the respondents to

have considered more than six officers, including the petitioner,

especially when the petitioner had been a Deputy Commissioner earlier

than at least four of those, who were above him in the seniority list.

The Tribunal holds, "We find that zone of consideration has lost much of

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its significance in view of the Government Resolution dated 18-10-1988

that jumping of queue by six places is permissible for the officers with

outstanding record" .

9. The Tribunal holds in paragraph 15 of its judgment,

"It will appear from the record made available to us that respondent

Nos. 4 and 5 were given the promotion in spite of their comparatively

less meritorious C.Rs. than those of the applicant and it will appear that

the criteria laid down for promotion by strict selection were not

followed." The Tribunal, however, holds, "... it is debatable as to whether

the high standard laid down by the Government for selection for

promotion creates a right for officers with outstanding records to claim

promotion over their seniors who are considered suitable for promotion

by the Government, in spite of their less meritorious record." According

to the Tribunal, the claim of the petitioner was that he was not given

promotion in supersession of his seniors and that it was not a case of

supersession in the matter of promotion. It is on the basis of such

findings that the Tribunal has rejected the claim of the petitioner for

appointment by promotion to the post in question with effect from

1-2-1991.

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10. Initially, we heard the matter on 6-6-2017, when the

following order was passed :

" The claim of the petitioner in this petition is for the promotion to the post of Joint Commissioner (State Excise) with effect from 01-02-1991, that is the date on which the respondent nos.4 to 8, juniors to the petitioner were promoted to the said post. Prima facie, the criterion for promotion is that of merit. The contention of the petitioner is that the petitioner possessed the outstanding record and without following the procedure of preparing the select list, the respondent nos.4 to 8 who were juniors to him, were promoted. Service record pertaining to the period of five years prior to 01-02-1991 would be relevant. The learned Counsel for the respondents invites the attention of this Court to these factual aspects.

Shri Maldhure, the learned Assistant Government Pleader for respondent nos.1 to 3, seeks time in this matter.

Put up this matter on 15-06-2017 so as to enable the learned Assistant Government Pleader to obtain necessary instructions and to argue the matter."

Thereafter, we passed an order on 15-6-2017 as under :

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" In continuation of the order dated 6-6-2017, we pass the following order :

The respondent No.2 is directed to produce before this Court the annual confidential reports of the petitioner as well as the respondent Nos.4 to 8 for the period from 1-1-1985 to 31-12-1990, which are considered before passing the order of promotion of the respondent Nos.4 and 5 on 1-2-1991.

The copies of the annual confidential reports should be filed along with the affidavit of the responsible officer.

Put up the matter on 29-6-2017, at the request of the learned Assistant Government Pleader for the respondent Nos.1 and 2."

In response to the aforesaid two orders, the respondent No.1 has filed an

affidavit of the Joint Secretary, Home Department, Government of

Maharashtra, stating that on 21-6-2012, the Mantralaya building was hit

by major fire, as a result, many records and proceedings, documents and

other important stored information of Home Department came to be

burned down to ashes. It is also the stand that the annual confidential

records of the petitioner had been gutted in the untoward fire incident.

It is further stated in the affidavit that the endeavour was made to call

the records of the petitioner from the State Excise and the reply is

received that the record has not been traced.

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11. We have gone through the Government Resolution

dated 28-1-1975, which prescribes the principles to be observed in the

matter of promotion from a lower to a higher grade, service or post. It is

issued by the General Administration Department of the State

Government in consultation with the Maharashtra Public Service

Commission. Paragraphs (2) and (6) of the said Government Resolutions

being relevant, are reproduced below :

"(2) Promotions above the first promotions to Class I should be by strict selection i.e. only those persons who possess positive merit and achieve tangible good results should be considered suitable for promotion irrespective of their seniority provided they fulfil the criteria of length of service prescribed if any."

"(6) In the case of promotions by selection, interse seniority of the officers who are considered fit for promotion should be the maintained subject to grant of accelerated promotion to those who possess an outstanding record."

12. The Government Circular issued by the General

Administration Department on 11-9-1975, placed on record, deals with

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the principle governing the preparation and revision of select list. It

states that the Government has decided, in consultation with the

Maharashtra Public Service Commission, that all appointments above the

first promotion to Class-I post of service should be awarded strictly by

selection. The guidelines laid down for preparation of selection list,

relevant for this case, are reproduced below :

"(1) A Committee consisting of ____ should in July in each year review the claims of all ____ for promotion to posts of ____ and should draw up a Select List of those who are considered by the Committee fit for promotion. The list should not be of excessive length and should ordinarily be limited to the vacancies likely to occur during the next two years.

(2) The list should be drawn up with due regard to the general principles regarding promotions laid down in Government Resolution, General Administration Department No. DTB-1074-D, dated the 28th January 1975 and Government Resolution, General Administration Department No. BCC-1072-J, dated the 23rd May, 1974.

(3) Names entered in the list should ordinarily be arranged in the order of seniority in the case of ____ as between officers brought on the list at the same time, but it will be open to given an officer higher rank than that warranted by seniority if he is considered to be of outstanding merit."

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13. In continuation of the aforesaid Government Resolution and

Circular, another Resolution was issued by the General Administration

Department on 1-4-1976 in consultation with the Maharashtra Public

Service Commission, and paragraphs 3(a) and 3(b) of the said

Government Resolution being relevant, are reproduced below :

"3(a) Promotions above the first promotion to Class-I Service have to be on the basis of strict selection as described in clause (2) of the Government Resolution, General Administration Department, No.SRV.1074/D, dated the 28th January, 1975. With a view to enabling the Government Servants possessing positive merit to be considered for promotion earlier, in amplification of clause (2) of the said Government Resolution, it has been decided that the field of selection should be widened so as to ensure that, when ever any posts are to be filled by promotion is four times the number of vacancies, likely to occur during the next two years, or the number of the senior-most officers appointed to the lower-grade, post of service during four consecutive years, whichever is greater.

(b) For being considered as a person possessing positive merit, a Government servants record should be free from serious blemish, and should show that the person concerned is able, not only to discharge efficiently the duties of the post held by him for the time being, but to shoulder the duties and responsibilities of a higher post."

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14. Another Government Resolution dated 19-9-1977 modifies

paragraph 3(b) of the Government Resolution dated 1-4-1976 as under :

"3(b) : for a Government Servant to be considered as possessing positive merit, the overall assessment of his record should show that he possesses positive qualities like initiative, drive integrity and efficiency to a noticeably higher degree than necessary for discharging efficiently the duties of the post held by him and also shoulder the responsibilities of a higher post. The persons should be clearly fit for promotion to a higher post and should not be a border line case."

15. The Government Resolution dated 18-5-1983 lays down the

principles to be followed while effecting promotions from lower post to

higher post in service. After seeking advice of the Maharashtra Public

Service Commission, the Government decided as under in clause (B) of

the said Government Resolution :

"B) In all the promotions, while including the officers in the select-list, possessing the outstanding remarks, shall, instead of giving placement upto 4th higher place as per existing norms, be given placement upto 6th higher place in the select-list."

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16. The aforesaid position was reiterated in the Government

Resolution dated 18-10-1988; the relevant portion of which, is

reproduced below :

"As per Government resolution No.SRV-1077/CR- 343/79/12, dated 18 May, 1983, while including the officers with outstanding C.R. for various promotions in the select-list, upper position upto the 6th place can be given. Now, the Government has reconsidered the question of giving upper position in the select list and the following decision has been taken.

(1) In all the promotions, those with outstanding remarks shall be given higher ranking upto the 6th place while including their names in the Select List."

17. In the light of all the Government Resolutions and Circulars

laying down the procedure for recruitment and criteria for appointment

by way of promotion, issued in consultation with the Maharashtra Public

Service Commission, we examine the findings of the Tribunal and

consider the case of the petitioner and the stand of the respondent Nos.1

and 2. The other respondents neither did participate in the proceedings

before the Tribunal nor before this Court and they did not even file their

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reply.

18. It is a fact that neither the confidential records of the

petitioner and the respondent Nos.4 and 5 nor the minutes of meeting

dated 1-2-1991 in which the consideration took place, were either

produced before the Maharashtra Administrative Tribunal or before this

Court in spite of specific orders. The Tribunal records a specific finding

after taking into consideration the averments made in the Original

Application and the return filed by the respondent Nos.1 and 2 that the

petitioner was graded as "Outstanding A+" during the period of five

years preceding the date of consideration, i.e. 1-2-1991. The Tribunal

also records a specific finding that the respondent Nos.4 and 5,

viz. P. B. Sawant and V. V. Malkalpatte respectively, were given promotion

in spite of their comparatively less meritorious C.Rs. than the petitioner,

that too without following the criteria for promotion by strict selection

on merits. These findings are not challenged by any of the respondents

either by filing return before this Court by way of separate petition. We,

therefore, concur with such findings recorded by the Tribunal and hold

by drawing an adverse inference that the petitioner was more

meritorious than the respondent Nos.4 and 5 on the basis of the

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confidential reports.

19. In our view, there was a complete deviation of the principles

of selection on the basis of merits to a Super Class-I post in question. In

fact, the zone of consideration prepared was the placement in the

seniority list of Class-I officers in the post of Superintendent, which was

contrary to the aforesaid Government Resolution and norms. As per the

guidelines laid down in consultation with the Maharashtra Public Service

Commission, a select list of the candidates working in Class-I post of

Superintendent, State Excise, fit for promotion on the basis of their

confidential reports was required to be prepared. For the purposes of the

zone of consideration, such a select list was required to be operated, and

on the basis of comparative assessment of merits of the candidates in the

zone of consideration, the selection and appointments were required to

be made.

20. There was a total failure on the part of the respondent

Nos. 1 and 2 to - (i) prepare a select list as contemplated by the

guidelines at Serial Nos. 1, 2 and 3 of the Government Resolution

dated 11-9-1975, 18-5-1983 and 18-10-1988, which are reproduced

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above, and (ii) make comparative assessment of merits as per the norms

prescribed in the Government Resolution dated 28-1-1975, 1-4-1976 and

19-9-1977. If the petitioner had been given the benefit of these

Government Resolutions on the basis of his "Outstanding A+" grade for

five years preceding the date of consideration, he would have definitely

come in the zone of consideration, and on comparative assessment on

merits, according to us, doubtlessly, the petitioner could have been

selected for appointment by way of promotion to the post in question on

1-2-1991.

21. The post of Divisional Deputy Commissioner was above the

Class-I post of Superintendent and was required to be filled in by

selection on merits from amongst the candidates in the zone of

consideration. On 1-4-1990, the consideration took place for promotion

to this post, in which the petitioner was selected and ultimately

appointed by an order dated 8-5-1990. The respondent Nos.4 and 5

were not selected and they continued to work in the Class-I post of

Superintendent, which was lower in rank. The Tribunal records the

finding that the petitioner had been a Divisional Deputy Commissioner

earlier than at least four of those, who were above him in the seniority

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list of Class-I post of Superintendent. The Tribunal holds that in fact the

reason of the zone of consideration assigned, had lost its significance in

view of the Government Resolution dated 18-10-1988, which permitted

the petitioner to jump the queue by six places. The Tribunal overlooked

and missed such findings recorded by it.

22. The question is whether the Tribunal was right in rejecting

the claim of the petitioner on the ground that the promotion is not a

matter of right and even if the petitioner possesses the outstanding

record, he cannot claim appointment by way of promotion over the

seniors, who are considered suitable for promotion by the Government in

spite of their less meritorious record.

23. In the decision of the Constitution Bench of the Apex Court

in the case of Ajit Singh II v. State of Punjab, reported in

(1999) 7 SCC 209, it has been held that the word 'employment' under

Article 16(1) of the Constitution of India being wider, there is no dispute

that it takes within its fold, the aspect of promotions to posts above the

stage of initial level of recruitment. It further holds that Article 16(1)

provides to every employee otherwise eligible for promotion or who

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comes within the zone of consideration, the fundamental right to be

'considered' for promotion. It holds that equal opportunity here means

the right to be considered for promotion and if a person satisfies the

eligibility and zone criteria but is not considered for promotion, then

there will be a clear infraction of his fundamental right to be 'considered'

for promotion, which is his personal right. We are of the view that in

the light of this decision of the Apex Court, there was a clear violation of

the fundamental rights of the petitioner contained in Article 14 read with

Article 16(1) of the Constitution of India while promoting the

respondent Nos. 4 and 5 to the post in question on 1-2-1991. The view

taken by the Tribunal is contrary to the law laid down by the Apex Court.

24. In our view, the findings recorded by the Tribunal in

rejecting the claim of the petitioner for appointment by way of

promotion to the post in question with effect from 1-2-1991 cannot be

sustained and the appointments of the respondent Nos.4 and 5 to post in

question by issuing notification dated 8-2-1991 are required to be

quashed and set aside. The respondent No.4 retired from service on

30-6-1997 from the post of Joint Commissioner, whereas the petitioner

attained the age of superannuation on 31-1-2007, on which date he was

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granted promotion and appointment to the post in question. The

respondent Nos.4 and 5 neither did oppose the claim of the petitioner,

nor did defend their appointment to the post in question - either before

the Tribunal or before this Court. All the confidential reports of the

petitioner and the respondent Nos.4 and 5 have been destroyed along

with the minutes of meeting dated 1-2-1991, in which the respondent

Nos.4 and 5 were selected for the post in question. In such situation, we

have to consider as to what relief the petitioner can be granted in the

present petition, after a period of about 26 years.

25. Normally in such cases, after setting aside appointments by

promotion on the basis of selection on merits, the matter should go back

to the respondent Nos.1 and 2 for reconsideration as on 1-2-1991 and

there cannot be an order directing appointment of the petitioner to such

post. However, keeping in view of the findings of the Tribunal, which we

have confirmed, and the fact that all the records are destroyed, it is not

possible to send the matter back for reconsideration. But the matter

cannot be left out by saying that our hands are tied or that this is an

incident of service or life or that there is delay. It is always said that the

justice delayed is justice denied, but the delay cannot defeat justice. We

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must see that the justice is not only done, but it must appear to have

been done. The petitioner, who has struggled for maintaining his

grading as "Outstanding A+" with a legitimate expectation of attaining

the highest position in service cannot be left with frustration by saying

that there is no solution. The High Court cannot be a stamper of the

illegal appointments and permit the respondent Nos.4 and 5 to enjoy it

in Super Class-I post because the matter is pending since last 26 years.

In such cases, if the reliefs are not granted to the litigants, the faith in

the judicial institution shall be eroded. We have, therefore, to allow this

petition and grant the appropriate reliefs to the petitioner.

26. Before exercising our jurisdiction under Articles 226 and

227 of the Constitution of India, we must look into the aspect of delay.

The promotions to the post in question were made on the basis of the

provisional seniority list of persons working in the Class-I post of

Superintendent, State Excise, on 13-2-1990. The objections to the said

list were not finalized. Perusal of the order dated 8-2-1991, appointing

the respondent Nos.4 and 5 to the post in question, shows that the

appointments were purely on temporary basis, subject to finalization of

the recruitment rules and the gradation list. The order clearly states that

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the promotion shall be treated as purely fortuitous in nature.

On 18-2-1994, a provisional seniority list showing the position of officers

as on 31-7-1993 in Gazetted Class-I Cadre of State Excise Department

was published inviting objections thereon. It is for the first time this

seniority list gives the deemed date of promotion to the respondent

Nos.4 and 5 as 1-2-1991 in the post of Joint Commissioner, State Excise.

The cause of action for approaching the Tribunal arose on 18-2-1994 and

as per the provisions in the Administrative Tribunals act, there has to be

a demand of claim by making representation before approaching the

Tribunal. The petitioner raised an objection by way of detailed

representation submitted on 11-3-1994, and after waiting for certain

period, filed Original Application No.220 of 1995 before the Tribunal on

or about 5-4-1995. We do not find that there was any delay in filing

such Original Application, and even if it was there, the same was

condoned by the Tribunal and ultimately the Original Application was

decided on 12-3-1998, and this petition filed on 8-6-1998 is being

decided now.

27. In the result, we allow this petition and pass an order as

under :

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O R D E R

(1) The findings recorded by the Maharashtra Administrative Tribunal in its judgment dated 12-3-1998 delivered in Original Application No.220 of 1995, denying the claim of the petitioner for grant of deemed date of promotion to the post of Joint Commissioner, State Excise, with effect from 1-2-1991, is hereby quashed and set aside. The said Original Application is allowed.

(2) The appointments of the respondent Nos.4 and 5 to the post of Joint Commissioner, State Excise, by notification dated 8-2-1991 on the basis of their selection on 1-2-1991, are hereby quashed and set aside.

(3) The respondent Nos.1 and 2 are directed to grant to the petitioner a deemed date of appointment as 1-2-1991 in the post of Joint Commissioner, State Excise, and to pay him the entire difference in the salary for the period from 8-2-1991 to 31-1-2007.

(4) The petitioner shall be entitled to all consequential benefits flowing from the grant of the aforesaid reliefs, including the rise in the pension, if any, along with the interest thereon in terms of the relevant provisions of the Maharashtra Civil Services (Pension) Rules, 1982.

(5) The entire exercise be carried out within a period of three months from today.

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28. Rule is made absolute in the aforesaid terms. However, in

the circumstances of the case, there shall be no order as to costs.

29. Put up after three months to see compliance.

                         JUDGE                   JUDGE



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