Shriram Ramdas Kathar vs The State Of Maharashtra And ...
2017 Latest Caselaw 2762 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                         WRIT PETITION NO.6672 OF 2015

Shafiq Mahmed Momin,
Age : 52 years, Occu.: Service,
Working as Sectional Engineer,
Ward-C, Municipal Corporation, 
Aurangabad, R/o. Aurangabad,
Taluka and District Aurangabad                          PETITIONER

       VERSUS

1.     The State of Maharashtra,
       Through Principal Secretary,
       Urban Development Department,
       Mantralaya, Mumbai - 32

2.     Aurangabad Municipal Corporation,
       Through, it's Commissioner

3.     Shri Pathan Maheboobkhan,
       Age : 57 years, Occu.: Municipal
       Secretary Aurangabad Municipal 
       Corporation, R/o.: Motiwala Nagar,
       Near Aman Masjeed, Aurangabad,
       Taluka and District Aurangabad

4.     Shri S.L. Pawar,
       Age Major, Occu.: Service as 
       Water Engineer, Ward-B,
       CIDCO Bhavan, Aurangabad,
       Taluka and District Aurangabad

5.     Shri R.N. Sandha,
       Age    years, Occu.: Service as 
       Deputy Engineer (Water)
       R/o Town Hall, Aurangabad,
       Taluka and District Aurangabad

6.     Sudhakar Onkar Pawar,
       Age Major, Occu.: Service as 
       Sectional Engineer Ward-F,
       Garkheda, Aurangabad,
       Near Jawaharnagar Police Station,
       Aurangabad, Taluka and District Aurangabad




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7.     Shri B.K. Gaikwad,
       Age Major, Occu.: Service as 
       Administrative Officer, 
       Aurangabad Municipal Corporation, 
       Taluka and District Aurangabad                  RESPONDENTS

                                     AND
                       WRIT PETITION NO.11308 OF 2015

Shri Shriram Ramdas Kathar,
Age : 56 years, Occu.: Service,
Working as Sectional Engineer,
Municipal Corporation, Aurangabad
R/o.: N-4, CIDCO, Aurangabad
Taluka and District Aurangabad                         PETITIONER

       VERSUS

1.     The State of Maharashtra,
       Through Principal Secretary,
       Urban Development Department,
       Mantralaya, Mumbai - 32

2.     Aurangabad Municipal Corporation,
       Through, it's Commissioner

3.     Shri Pathan Maheboobkhan,
       Age : 57 years, Occu.: Municipal
       Secretary Aurangabad Municipal 
       Corporation, R/o.: Motiwala Nagar,
       Near Aman Masjeed, Aurangabad,
       Taluka and District Aurangabad

4.     Shri S.L. Pawar,
       Age Major, Occu.: Service as 
       Water Engineer, Ward-B,
       CIDCO Bhavan, Aurangabad,
       Taluka and District Aurangabad

5.     Shri R.N. Sandha,
       Age    years, Occu.: Service as 
       Deputy Engineer (Water)
       R/o Town Hall, Aurangabad,
       Taluka and District Aurangabad




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6.     Shri Sudhakar Onkar Pawar,
       Age Major, Occu.: Service as 
       Sectional Engineer Ward-F,
       Garkheda, Aurangabad,
       Near Jawaharnagar Police Station,
       Aurangabad, Taluka and 
       District Aurangabad

7.     Shri B.K. Gaikwad,
       Age Major, Occu.: Service as 
       Administrative Officer, 
       Aurangabad Municipal Corporation, 
       Taluka and District Aurangabad

8.     Shri Sayed Fahimoddin Siddiqui,
       Age 58 years, Occu.: Dy. Engineer,
       Town Planning Section, Town Hall,
       Aurangabad, R/o.: Priyadarshani 
       Colony, Padegaon, Aurangabad,
       District Aurangabad                        RESPONDENTS

       (Resp.Nos.3 and 8 in Writ Petition No.11308 of 
       2015 are deleted as per Courts Order dated 
       08.02.2016)


                          ----
Mr. V.D. Sapkal, Advocate for the Petitioners
Mrs.A.V. Gondhalekar, A.G.P. for the respondent No.1
Mr. S.S. Tope, Advocate for respondent No.2 in 
W.P.No.11308/2015
Mr. Dilip Patil Bankar, Advocate for respondent No.2 
in W.P.No.6672/2015
Mr.V.A.Bhadgaonkar, Advocate for Respondent No.6 
in both writ petitions
Mr.J.M. Murkute, Advocate for Respondent No.3 in 
W.P.No.6672/2015
Mr.S.V.Deshmukh, Advocate for Respondent No.5 
in W.P.No. 11308/2015
Mr.R.S. Deshmukh, Advocate for Respondent No.4 in 
W.P.No.6672/2015
                          ----




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                                         CORAM  :  S.V.GANGAPURWALA AND
                                                   SANGITRAO S. PATIL, JJ.

RESERVED ON : 18th APRIL, 2017 PRONOUNCED ON: 6th JUNE, 2017

COMMON JUDGMENT ( PER : SANGITRAO S. PATIL, J.

) :

Rule, returnable forthwith. With the consent

of the learned counsel for the contesting parties,

heard finally.

2. The common question of law and fact are

involved in these petitions. Hence, they are being

decided by this common judgment.

3. The petitioners have claimed the following

reliefs :-

[B] To direct respondent No.2 to give benefit of deemed date of Junior Engineer w.e.f. December, 1985 or 29.10.1988 by issuing appropriate Writ or direction or order in the nature of Writ as the case may be;

[C] To direct respondent No.2 to give benefit of post of Deputy Engineer after completing 13 years service as Junior Engineer by considering the deemed date of Junior Engineer as December 1985 or 29.10.1988 by issuing appropriate Writ or direction or order

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in the nature of Writ as the case may be;

[D] To direct respondent No.2 to pay arrears from 19.09.1980 till 05.10.1988 considering pay-scale of Rs.365-66-760 by issuing appropriate writ or direction or order in the nature of writ as the case may be;

[E] To quash set aside promotion issued in favour of Shri R.N. Sandha Deputy Engineer dated 25.10.2012 (Exhibit W) holding that his promotions as Junior Engineer and Deputy Engineer are illegal by issuing appropriate writ or direction in the nature of writ as the case may be;

[F] To direct respondent No.2 not to promote any person as Deputy Engineer till the claim of the petitioner is considered by the Corporation pending hearing and final disposal of this writ petition.

4. The learned counsel for the petitioners Shri

V.D. Sapkal submits that the petitioner Shri Shafiq

Mahmed Momin (hereinafter referred to as "P/1") joined

the services with respondent No.2-Aurangabad Municipal

Corporation, initially as a Surveyor on 11.08.1981 and

thereafter as Building Inspector on 06.05.1983, while

the petitioner in Writ Petition No.11308 of 2015,

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(hereinafter referred to as "P/2") joined as a Building

Inspector on 19.09.1980. The posts of Building

Inspector, Water Surveyor and Technical Assistant are

treated as equivalent and would form a feeder cadre for

the promotional post of Junior Engineer. The incumbents

holding these posts were permitted to appear for the

professional examinations after serving for five years

from the date of appointment as per the prevailing

Rules. P/1 and P/2 passed the professional examinations

in the years 1987 and 1985 respectively and became

eligible for being promoted.

5. One Maheboobkhan Pathan, who joined the

service with respondent No.2 as a Surveyor on

06.09.1984, though had not completed the service for a

period of five years, was allowed by respondent No.2 to

appear for the professional examination in the year

1985 itself. He passed that examination and then he was

promoted as Planning Assistant on 29.02.1988.

6. The petitioners were given pay-scale of

Rs.290-495, while one K.M. Kathar, who was also serving

as Surveyor was given pay-scale of Rs.365-66-760. It

was only after the petitioners made representations,

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their pay-scale was increased to Rs.365-66-760 with

effect from 29.10.1988. The learned counsel submits

that the petitioners are entitled to get arrears of

salary from the date of their initial appointment till

05.10.1988 as per increased pay-scale.

7. The learned counsel further submits that one

Shri S.L. Pawar was initially appointed as Tracer and

then Sub-Overseer on 07.07.1983 and 06.08.1993. Shri

R.N. Sandha was initially appointed as Tracer and then

as Sub-Overseer on 22.01.1986 and 15.12.1992

respectively. Shri S.O. Pawar was appointed as Surveyor

on 13.01.1982. Shri B.K. Gaikwad was initially

appointed as Tracer and then as Sub-Overseer on

07.07.1983 and 06.01.1986 respectively. One Shri Sayed

Fahimoddin Siddiqui was appointed as Building Inspector

on 19.09.1980. He submits that Shri R.N. Sandha, B.K.

Gaikwad and Maheboobkhan Pathan were allowed to appear

for the professional examinations prior to their

completing five years of service as Sub-Overseer/

Surveyor. The learned counsel submits that S.L. Pawar

and B.K. Gaikwad were shown as juniors to the

petitioners in the seniority list dated 01.01.1989.

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However, both of them were promoted as Junior Engineers

on 18.01.1989, while the petitioners were promoted as

Junior Engineers on 01.04.1989. Due to that the

petitioners become juniors to S.L. Pawar and B.K.

Gaikwad in the cadre of Junior Engineers, which was

reflected in the seniority list dated 01.01.1994.

8. The learned counsel further submits that after

serving as Junior Engineers for five years, the

petitioners were designated as Sectional Engineers as

per the orders dated 19.07.1995 and 05.10.1995

respectively with effect from 01.01.1994. However,

Maheboobkhan Pathan who was junior to the petitioners

was designated as Sectional Engineer as per order dated

10.11.1995 with effect from 01.03.1993. The seniority

list of Sectional Engineers were prepared in the year

1996, wherein the said Maheboobkhan Pathan, S.L. Pawar

and B.K. Gaikwad were shown as seniors to petitioners.

9. He, further, submits that R.N. Sandha was

shown to have been promoted from the category of

Scheduled Tribe as Junior Engineer though one B.G.

Boingwar was already holding the post of Junior

Engineer from that category. Shri S.L. Pawar,

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Fahimoddin Siddiqui and R.N. Sandha were promoted to

the post of Deputy Engineer on 21.12.2005, 22.02.2010

and 25.10.2012 respectively, though initially they were

juniors to the petitioners.

10. The learned counsel submits that the

petitioners have been subjected to injustice by

respondent no.2 by promoting their juniors prior to

them and by showing their juniors as seniors to them in

the above referred seniority lists. The petitioners

made representations to respondent No.2 against the

seniority lists as well as the promotions given to

their juniors, but no decision was taken by respondent

No.2. He submits that as per the recruitment Rules the

petitioners were entitled to be promoted to the post of

Deputy Engineer after completing 13 years of service as

Junior Engineers.

11. The learned Counsel submits that the

petitioners are entitled to get deemed promotion as

Junior Engineers from the date on which their junior

namely Maheboobkhan Pathan got promoted to the post of

Junior Engineer i.e. 29.02.1988. He further submits

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that the petitioners are entitled to get promoted to

the post of Deputy Engineer, after completing service

as Junior Engineer for a period of 13 years from the

deemed date of promotion i.e. 29.02.1988. He submits

that the promotion of R.N. Sandha is totally illegal

and therefore, is liable to be set aside. He claims

that the petitions may be ordered to be given arrears

of salary and other monetary benefits.

12. The learned counsel for respondent No.2

relying on the replies and additional replies filed on

behalf of respondent No.2 strongly objects to the

maintainability of the petitions on the ground of delay

and laches. He submits that the claims made by the

petitioners are liable to be rejected solely on the

ground of delay. In support of this contention, he

relied on the judgment in the case of State of

Maharashtra Vs. Digambar, AIR 1991 SC 1991. The learned

counsel for respondent No.2 submits that the promotion

of Maheboobkhan Pathan, S.L. Pawar, B.K. Gaikwad and

Faimoddin Siddiqui to the post of Junior Engineer after

a period of more than 25 years and that of S.O. Pawar

and R.N. Sandha after a period of 17 years and 13 years

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respectively, cannot be questioned by filing writ

petitions after such inordinate unexplained delay. The

seniority lists published in the years 1989, 1994,

1996, 2002 and 2009 also cannot be allowed to be

challenged in the year 2015. He submits that if the

petitioners wanted to challenge the promotions of the

above-named incumbents as well as the seniority lists,

then they should have filed writ petitions for that

purpose immediately after accrual of the cause of

action. The learned counsel for respondent No.2

justified the promotions of the above-named incumbents,

who were initially juniors to the petitioners but

subsequently due to promotions, became seniors to them.

The learned counsel further submits that there are no

posts of Deputy Engineers available on the

establishment of respondent No.2 in view of Government

Resolution dated 04.05.2006. However, P/1 and P/2 are

actually serving as in-charge Deputy Engineers since

2006 and 2013 respectively. They are getting the pay-

scale of Rs.15600-39100 with Grade Pay of Rs.5400/-,

which is applicable to the post of Deputy Engineer. P/2

has retired on attaining the age of superannuation on

28.02.2017. P/2 would be getting the retiral benefits,

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which are applicable to the post of Deputy Engineer

only. As such no prejudice would be caused to the

petitioners. On these grounds, he prays that petitions

may be dismissed.

13. The learned counsel for respondent No.2

referred to the observations made in para Nos.12, 21,

22 and 23 of the judgment in the case of State of

Maharashtra Vs. Digambar, (supra) which read thus :-

"12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is

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also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy

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the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State."

21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blame-worthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily.

22. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was

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not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment under appeal, was that although certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by the State Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to the State Government and various agencies in that regard eversince till the date of filing of the writ petition by him.

23. In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occured between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot

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overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occured 20 years earlier, and the State's non- compliance with petitioners' demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the Governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it."

14. If the facts of the present cases are tested

on the touchstone of the principles referred to above

laid down by the Hon'ble Apex Court, we are of the

considered view that these writ petitions suffer from

inordinate delay and laches on the part of petitioners.

The challenges to the above referred seniority list as

well as promotional postings of the respondents namely

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Maheboobkhan Pathan, S.L. Pawar, R.N. Sandha, S.O.

Pawar, B.K. Gaikwad and Faimoddin Siddiqui to the post

of Junior Engineer effected between the period from

1987 to 2002, cannot be considered at this belated

stage in exercise of powers of this Court under Article

226 of the Constitution of India. When the

representations made by the petitioners were not

considered by respondent No.2, the petitioners ought

have approached this Court under its writ jurisdiction

within a reasonable period after accrual of the cause

of action from time to time. The petitioners slept over

their rights for considerably long a period and made

the things irreversible. No explanation, much less

plausible and satisfactory, has been given by the

petitioners for such a long delay. In such

circumstances, in view of the principles referred to

above laid down by the Hon'ble Supreme Court, the writ

petitions, which suffer from inordinate delay and

laches, cannot entertained and claims made by the

petitioners cannot be considered.

15. Respondent No.2 has come with a specific case

that P/1 and P/2 are actually working as in-charge

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Deputy Engineers, since the years 2006 and 2015

respectively. Respondent No.2 further has specifically

mentioned that P/2, who got retired on 29.02.2017 on

attaining the age of superannuation, would be getting

the retiral benefits on the basis of the pay-scale

meant for the post of Deputy Engineer. As such, no

prejudice is going to be caused to the petitioners

since they would be getting monetary benefits, which

are available to the post of Deputy Engineer. In the

above circumstances, we are not inclined to grant any

relief in favour of the petitioners. Hence the

following order:

(i)              The petitions are dismissed.


(ii)             Rule is discharged accordingly.


(iii)            No costs.



                 Sd/-                                  Sd/-
        [SANGITRAO S. PATIL]                 [S.V. GANGAPURWALA]
               JUDGE                                 JUDGE

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