Bombay High Court
Baba S/O Namdeorao Naitam And ... vs The Principal Secretary ... on 27 July, 2017
Bench: V.A. Naik
WP 3124/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3124/2017
1. Baba s/o Namdeorao Naitam,
Occ-Service, R/o Onkar Nagar,
Chandrapur, District Chandrapur.
2. Ajay s/o Keshorao Neralwar,
R/o Karwa, Tq. Sindewahi,
Distt. Chandrapur.
3. Vilas s/o Girdhar Pedurwar,
Occ.: Service, R/o Sindewahi,
Palideo Mohalla, Bharatmata Chowk,
Sindewahi, Distt. Chandrapur.
4. Prakash Jivandas Sendurkar,
R/o. Shivajinagar Kahde,
Th-Brahmapuri, Distt.Chandrapur.
5. Chandrakant s/o Narayan Rasekar,
Occ.: Service, R/o. Sindewahi,
Vivek Nagar, Tq. Sindewahi,
Distt. Chandrapur.
6. S.P. Karodkar,
R/o. Gadchiroli.
7. S.S. Girsawade,
R/o. Chandrapur (Tukumward),
Behind Matoshri Karyalaya.
8. Kartik S/o Munneshwar Aawle,
Occ.: Service, R/o Durgapur Major
Stores, Chandrapur.
9. Balkrishna Wasudeo Gedam,
R/o Khadsangi (Ropwatika),
Tq. Chimur, Distt. Chandrapur.
10. Moreshwar s/o Jannath Mhaske,
R/o Bondala (Kh) Post-Nandgao,
Th-Mul, Distt. Chandrapur.
11. T.Rajurkar,
R/o Lanjela Ward, Gadchiroli. PETITIONERS
.....VERSUS.....
1. The Principal Secretary (Forest),
Revenue and Forest Department,
State of Maharashtra, Mantralaya,
Mumbai-32.
2. The Principal Chief Conservator of Forest,
Civil Lines, Nagpur.
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WP 3124/17 2 Judgment
3. The Chief Conservator of Forest,
Chandrapur Circle, Chandrapur,
Distt. Chandrapur.
4. The Chief Conservator of Forest,
Gadchiroli Circle, Gadchiroli,
Distt. Gadchiroli.
5. Nitin Tulshiram Gadpayale,
R/o Shastri Nagar, Sarda Colony,
Armori, Tq. Armori, Distt. Gadchiroli.
6. Pundlik M. Khobragade,
Forester, R/o Bramhapur Division,
Bramhapuri, Tq. Bramhapuri,
Distt. Chandrapur.
7. Manohar Lingayya Ghodselwar,
R/o Sai Nagar, Gadchiroli.
8. Baba Haribhau Deogade,
Occ.: Service, R/o Vidya Nagar,
Bramhapuri, Distt. Chandrapur.
9. Pitambar Gomaji Kumare,
C/o B.D. Ugaonkar's House,
Ram Nagar, Gadchiroli. RESPONDENTS
Shri N.R. Saboo, counsel for the petitioners.
Mrs. H.Prabhu, Assistant Government Pleader for the respondent nos.1 to 4.
Shri Bharat Kulkarni, counsel for the respondent nos.5 and 9.
Shri G.G. Bade, counsel for the respondent nos.6 and 7.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 27 TH JULY, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned counsel for the parties.
2. By this writ petition, the petitioners challenge the common
order of the Maharashtra Administrative Tribunal, Nagpur, dated
06.01.2017 allowing Original Application Nos.545 of 2015, 761 of 2015,
802 of 2015, 805 of 2015 and 97 of 2016.
WP 3124/17 3 Judgment
3. Few facts giving rise to the writ petition are stated thus:-
The petitioners are the Foresters working in North
Chandrapur Circle. The seniority of the Foresters and the Forest Guards
has to be prepared circlewise. In Chandrapur district, there are two
circles, one being the North Chandrapur Circle and the other being the
South Chandrapur Circle. The petitioners were appointed as Forest
Guards and were promoted as Foresters in North Chandrapur Circle. The
respondent nos.5, 6, 7, 8 and 9 are the Forest Guards and the Foresters
working in North Chandrapur Circle. Initially, the respondent nos.5 to 9
were appointed as Forest Guards in South Chandrapur Circle but, on their
request, they were transferred to North Chandrapur Circle. The seniority
list of Foresters and Forest Guards was prepared in the year 2015. In the
said seniority list maintained in the North Chandrapur Circle, the names
of the respondent nos.5 to 9 were shown below the names of the
petitioners as they were placed at the bottom of the seniority list when
they were transferred from South Chandrapur Circle to North Chandrapur
Circle. Three of the respondents were reverted from the posts of Forester
to the posts of Forest Guard on the basis of the seniority list prepared in
the year 2015. Being aggrieved by the orders of reversion and also by
their placement below the petitioners in the seniority list in view of their
transfer from South Chandrapur Circle to North Chandrapur Circle, the
respondent nos.5 to 9 filed separate original applications before the
Maharashtra Administrative Tribunal. The petitioners, who were placed
WP 3124/17 4 Judgment
above the respondent nos.5 to 9, were not joined as parties to the original
applications filed by the respondent nos.5 to 9. It was the case of the
respondent nos.5 to 9 before the Tribunal that their seniority should have
been reckoned from the date of their appointment in the South
Chandrapur Circle and they could not have lost their seniority merely on
their request transfer from South Chandrapur Circle to North Chandrapur
Circle. The original applications filed by the respondent nos.5 to 9 were
allowed by the Tribunal. As per the directions of the Tribunal, the
respondent nos.2 to 4 prepared a fresh seniority list of the Foresters and
Forest Guards in the North Chandrapur Circle. The petitioners were
placed below the respondent nos.5 to 9 in the seniority list prepared by
the respondent nos.2 to 4 in pursuance of the order of the Tribunal.
Since the petitioners were not made parties to the proceedings filed by
the respondent nos.5 to 9 and the order of the Tribunal had seriously
prejudiced the petitioners, the petitioners have filed the instant petition
challenging the common order of the Tribunal in the original applications
filed by the respondent nos.5 to 9.
4. Shri Saboo, the learned counsel for the petitioners, submitted
that the Tribunal was not justified in allowing the original applications
filed by the respondent nos.5 to 9 without directing them to join the
Foresters and the Forest Guards who would have been affected by the
preparation of a fresh seniority list. It is submitted that the original
WP 3124/17 5 Judgment
applications filed by the respondent nos.5 to 9 ought to have been
dismissed by the Tribunal in view of the non-joinder of the necessary
parties. It is submitted that the impugned order is passed behind the back
of the petitioners without giving them an opportunity of hearing and the
said order has caused serious prejudice to the petitioners inasmuch as, by
the preparation of the fresh seniority list on the basis of the order of the
Tribunal, the petitioners, who were senior to the respondent nos.5 to 9 in
the seniority list prepared in the year 2015 are placed below the
respondent nos.5 to 9 in the newly prepared seniority list. It is
submitted that the Tribunal was not justified in allowing the original
application filed by the respondent nos.5 to 9 by misreading the transfer
orders of the respondent nos.5 to 9. It is stated that it is clearly
mentioned in the appointment orders of some of the respondents that
they would lose their seniority in view of their transfer from the South
Chandrapur Circle to the North Chandrapur Circle. It is stated that a
wrongful observation is made by the Tribunal in the impugned order that
there is no such condition in the orders transferring the respondent nos.5
to 9 from South Chandrapur Circle to the North Chandrapur Circle. It is
submitted that by a circular dated 14.10.2013, the Chief Conservator of
Forest had asked all the Forest officials to abide by the rule of placing the
employee in the Forest Department at zero seniority at the place of his
transfer in another circle or district, if it is a request transfer. It is stated
that the circular clearly mentions that the Forest officials are not adhering
WP 3124/17 6 Judgment
to the rule that the employees in the Forest Department that are
transferred from one circle to the other would lose their seniority. It is
stated that it is apparent from the circular dated 14.10.2013 that the said
policy was in existence for long. It is submitted that in the circumstances
of the case, since the petitioners were not made parties to the proceedings
before the Maharashtra Administrative Tribunal, the order of the Tribunal
is liable to be set aside and the matter is liable to be remanded to the
Tribunal if the respondent nos.5 to 9 are desirous of joining the
petitioners as parties to the original applications or else the original
applications filed by the respondent nos.5 to 9 should be dismissed by this
Court.
5. Mrs.Prabhu, the learned Assistant Government Pleader
appearing for the respondent nos.1 to 4, submitted that before the
Tribunal, a reply was filed on behalf of the respondent nos.1 to 4, clearly
stating therein that when a Forester or Forest Guard is transferred from
one circle to another on his own request, he would lose his seniority in
the circle from where he is transferred. It is stated that the seniority of
such an employee would be reckoned from the date of his joining the
duties in the circle where he is transferred, on his request. The learned
Assistant Government Pleader submitted that appropriate orders may be
passed in the circumstances of the case.
WP 3124/17 7 Judgment
6. Shri Kulkarni and Shri Bade, the learned counsel for the
respondent nos.5 and 9 & 6 and 7 respectively, have supported the
order of the Tribunal. It is submitted that the Tribunal rightly
considered that there were no circulars pertaining to the policy of an
employee losing his seniority if he was transferred from one circle
to another till the circulars and resolutions were passed in the
year 2015. It is submitted that since the respondent nos.5 to 9
were transferred some time in the year 2006-07, the Tribunal has rightly
held that the circulars / resolutions of the year 2015 would not
apply to them. It is submitted that after the Tribunal allowed the
original applications filed by the respondent nos.5 to 9, the respondent
nos.1 to 4 have prepared a fresh seniority list and if the petitioners
are aggrieved by the fresh seniority list, they may make a representation
to the respondent nos.1 to 4 in that regard and if their representations
are not favourably considered, they may file the original applications
before the Tribunal. The learned counsel sought for the dismissal of the
writ petition.
7. On hearing the learned counsel for the parties, it appears
that the Tribunal was not justified in allowing the original applications
filed by the respondent nos.5 to 9, specially when the respondent nos.5
to 9 had not joined the Foresters and Forest Guards who would have been
seriously prejudiced and affected by any favourable order that could
WP 3124/17 8 Judgment
have been granted in favour of the respondent nos.5 to 9. It was
necessary for the Tribunal to have directed the respondent nos.5 to 9
to join the petitioners and the other concerned Foresters and Forest
Guards who would have been affected if a favourable order was passed in
favour of the respondent nos.5 to 9. The Tribunal, however, did not
consider that the respondent nos.5 to 9 had not joined the necessary
parties to the original applications. Also, the circular of the Chief
Conservator of Forest which speaks of the policy that was in existence
for long, dated 14.10.2013 was not considered by the Tribunal while
deciding the original applications. Also, the Tribunal has recorded
a statement of fact which is contrary to the facts on record. In the
orders of transfer of some of the respondents, it was clearly mentioned
that in view of their transfer to the North Chandrapur Circle, they
would lose their seniority and they would be placed at the bottom
of the seniority list in the North Chandrapur Circle. The Tribunal
failed to consider that the respondents in whose transfer orders, the
said condition was incorporated had never challenged the said condition
till they filed the original applications in the year 2015-16. The
Tribunal further failed to consider that if there was no policy in the
year 2006-07 that a transferred employee would lose his seniority
if the transfer was on request, such a condition could not have
found place in the orders of transfer of some of the respondents.
We find that the Tribunal has erroneously held that in the transfer
WP 3124/17 9 Judgment
orders of all the employees such a condition was not incorporated.
We clearly find the incorporation of the said condition in the transfer
order of the respondent nos.5 and 9. In any case, since the order
of the Tribunal is based on an assumption that there is no condition
in the order of transfer of the respondent nos.5 to 9 that they
would lose their seniority and since the Tribunal has not taken into
consideration the reply filed by the respondent nos.1 to 4 as also
the fact that the respondent nos.5 to 9 had not joined the necessary
parties to the original applications, it would be necessary to quash
and set aside the order of the Tribunal and remand the matter to the
Tribunal for a fresh decision on the original applications, in
accordance with law. The Tribunal may grant an opportunity to the
respondent nos.5 to 9 to join the necessary parties and accordingly
pass orders in their original applications. We are not inclined to
uphold the objection raised by the respondent nos.5 to 9 that it
would be necessary for the petitioners to first challenge the fresh
seniority list and if their objection is not favourably considered by the
respondents, to file original applications before the Tribunal. The said
exercise would be an empty formality as the fresh seniority list is
prepared by the respondent nos.1 to 4 on the basis of the orders of the
Tribunal and till the orders of the Tribunal exist, the seniority list would
not be disturbed.
WP 3124/17 10 Judgment
8. Hence, for the reasons aforesaid, the writ petition is allowed.
By quashing and setting aside the order of the Tribunal, the matter is
remanded to the Tribunal for a fresh decision in the original applications
filed by the respondent nos.5 to 9, on merits. The respondent nos.5 to 9
and the petitioners undertake to appear before the Tribunal on
10.08.2017 so that notices to the said parties could be dispensed with.
The respondent nos.5 to 9 may join additional parties to the original
application. It is needless to mention that with the remand of the matter
to the Tribunal, the interim orders that were passed by the Tribunal,
would revive.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
