Bombay High Court
Mr. Sachin Ganpati Davande vs The Chairman & Managing Director, ... on 13 November, 2017
Bench: S.C. Dharmadhikari
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9204 of 2017.
Sachin Ganpati Davande, ]
9/259, Arabole Mala, ]
Sangli Road, Ichalkaranji, ]
Taluka Hatkangale ]
District Kolhapur ]
Pin 416 115. ] ..PETITIONER.
VERSUS.
1) The Chairman & Managing Director, ]
Maharashtra State Electricity Distribution]
Company Limited, 6th Floor, Prakshgad, ]
Prof. Anant Kanekar Road, ]
Bandra (East), Mumbai 400 051. ]
2) The Executive Director (Human Resources),]
Maharashtra State Electricity Distribution]
Company Limited, 6th Floor, Prakashgad, ]
Prof. Anant Kanekar Road, ]
Bandra (East), Mumbai 400 051. ]
3) The Chief General Manager (Tech/Estb), ]
Maharashtra State Electricity Distribution,]
Company Limited, 4th Floor, Prakashgad, ]
Prof. Anant Kanekar Road, ]
Bandra (East), Mumbai 400 051. ]
..RESPONDENTS.
Mr. Meelan Topkar, Advocate for the Petitioner.
Ms. Anjali Raghunath Shiledar Baxi for Respondent No. 1 to 3.
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CORAM : S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
RESERVED ON: 10 th October, 2017.
PRONOUNCED ON: 13 th November, 2017.
JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)
1) The petitioner, working as Junior Engineer with
Respondent No.1-the Maharashtra State Electricity Distribution
Limited ("the MSEDCL") has approached this Court, being
aggrieved by non consideration of his candidature for the post of
Deputy Executive Engineer (now termed as Additional
Executive Engineer). It is the case of the petitioner that he was
appointed as Junior Engineer in the Respondent-Company
which is a Government Undertaking with effect from 6th June,
2006. Further according to the petitioner, he was falsely
implicated in a criminal case which was registered by the Anti
Corruption Bureau (ACB) on the basis of complaint made by one
consumer on 2nd July, 2011, alleging that the petitioner had
demanded some amount for providing an electric meter and
based on which criminal case No.2/2011 was registered against
him. The petitioner was suspended with effect from 2nd July,
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2011 and charge-sheet was served upon him by Regional
Executive Director, Pune and Competent Authority on 23rd
December, 2013 in view of the provisions of Service Regulations
of 2005 applicable to the MSEDCL Employees. A Departmental
Inquiry was ordered against the petitioner and the Inquiry
officer was appointed vide letter dated 18th July, 2014 and the
said Departmental Inquiry was completed on 11th September,
2014 and the report was submitted to the Competent Authority.
It is the contention of the petitioner that though the enquiry was
concluded in September, 2014, the final order of punishment
was passed on 15th November, 2016 and penalty of stoppage of
annual increment for a period of three years with cumulative
effect was imposed on the petitioner and it was also ordered that
the period of suspension be treated as punishment. It is also the
contention of the petitioner that though he was suspended on 2 nd
July, 2011 the suspension was revoked by order dated 9 th
November, 2015.
2) As per the contention of the petitioner an
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advertisement was issued by the respondent vide No. 10/2012
inviting applications for various posts and the petitioner applied
in pursuance of the said advertisement for the post of Deputy
Executive Engineer (now termed as Additional Executive
Engineer), by way of direct recruitment. The petitioner
appeared for the written test held on 13 th January, 2013 and
was interviewed for the post on 3rd April, 2013 and his name was
placed in the wait list at serial No. 11 on completion of the
selection process. According to the petitioner, fifteen candidates
were selected in pursuance of the said selection process, out of
which 14 candidates were issued the orders of appointment on
4th August, 2014. However, the petitioner was informed that his
selection was kept on hold by following the procedure of sealed
cover since he was facing Departmental Inquiry. According to
the petitioner, though the inquiry was completed on 11th
September, 2014 it did not culminate into final orders by the
Disciplinary Authority and therefore in spite of his repeated
representations he was not issued with an order of appointment
to the post of Deputy Executive Engineer in spite of his selection.
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3) The petitioner states that Criminal case registered
against him by the Anti Corruption Bureau, Kolhapur resulted
in judgment and order dated 10th July, 2014 by the learned
Additional Sessions Court, Jaisingpur and the petitioner was
acquitted from the charges levelled against him and the Law
and Judiciary Department, Government of Maharashtra,
decided not to file any appeal against the said judgment of the
Sessions Court. According to the petitioner, in spite of the fact
that the inquiry against him was completed in one sitting on 11 th
September, 2014 and show cause notice was issued to him on
25th July, 2016, the proceedings of the Departmental Inquiry
was prolonged for no reason and it was only on 15th November,
2016 the final order of penalty was imposed on him. According
to the petitioner, as per the Maharashtra State Electricity
Distribution Company Ltd, Classification and Recruitment
Regulations, 2005, on conclusion of disciplinary proceedings,
the sealed covers ought to have been opened. However, the said
procedure was also not followed by the respondents and no order
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of appointment was issued in his favour. The petitioner also
alleges discrimination by respondent No.1 and contends that one
Shri Kunal Pensalwar who was also suspended pending the
inquiry into the allegations of corruption was issued with an
appointment order to the post of Deputy Executive Engineer on
15th July, 2017.
In the aforesaid facts, the petitioner prayed for
directions to the respondents to implement the decision of
Competent Selection Committee with regard to his selection in
pursuance to advertisement No. 10/12 and issue an order of
appointment in his favour with retrospective effect when the
candidates from the selection list prepared by the Selection
Committee were issued with orders of appointment together
with all consequential benefits of seniority, arrears of pay scale
etc.
4) Heard the learned Advocate Mr. Meelan Topkar, for
the petitioner and Advocate Ms. Anjali Baxi for the Respondent.
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In response to the petition the respondents have filed
an affidavit of one Shri. Ankush Kondiba Nale, Chief General
Manager, MSEDCL on 22nd September, 2017. In the said
affidavit, it is stated that the petitioner was caught red handed
in ACB trap and Criminal Case was filed against him and
therefore he was subjected to departmental action in terms of
MSEDCL Regulations, 2005. It is also stated in the affidavit that
the petitioner applied for the post of Deputy Executive Engineer
under Direct Recruitment Quota in pursuance of Advertisement
No. 10/2012, however, as per the Regulation of 2005 the case of
the petitioner was kept under Sealed Cover in view of pendency
of Departmental proceedings. It is also stated in the affidavit
that the validity of selection list expired on 31st December, 2014
and the Departmental proceedings were concluded against the
petitioner on 15th November, 2016 when the final penalty was
imposed on him. It is contended that the petitioner did not
challenge the final penalty. It is not disputed that the petitioner
was acquitted in criminal case.
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As far as the case of Shri Kunal Pensalwar is
concerned, in respect of whom the petitioner has alleged that
favourable treatment was given to him, the affidavit sets out the
case of Shri Pensalwar and it is stated that he was selected as
Deputy Executive Engineer by Advertisement No.4 of 2014 and
his name was included in select list which expired on 2 nd May,
2016. It is stated that Shri Pensalwar was charge-sheeted by
ACB, Kolhapur in Case No.29/2013 and he was acquitted of the
charges by the Criminal Court on 24 th April, 2015. According to
the affidavit, the Departmental proceedings resulted into
imposition of penalty of withholding increments of Shri Kunal
Pensalwar for five years and the order imposing penalty was
passed on 3rd May, 2016. It is stated that selection list was valid
at the time of imposition of penalty. The case of Shri Pensalwar
was considered by adopting the "Sealed Cover Procedure" and he
was issued with an order of appointment to the post of Deputy
Executive Engineer.
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5) On consideration of the contentions of the petitioner
and the stand of the respondent in the affidavit, it is necessary
to refer to the service regulation known as Maharashtra State
Electricity Distribution Co. Ltd. Employees Service Regulations
2005 (for short, Service Regulations 2005) which governs the
service conditions of the employees of MSEDCL.
6) Rule 29 (a) of the said Regulations provides that
when a selection committee recommend the name of a suitable
candidate selected after due advertisement for direct
recruitment and the candidates are kept on waiting list against
the post for direct recruitment, such list may be deemed valid
for period of 12 months and the Executive Director and the
concerned Executive Directors are authorized to extend the
validity of the waiting lists of candidates for further period of
one year, whenever it is considered necessary. The said rules
also provide for "Sealed Cover Procedure" to be adopted in
respect of candidates who are in zone of consideration for
promotion and against whom disciplinary action/vigilance
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report/criminal proceedings are pending or whose conduct is
under investigation. The said rule prescribes that the competent
selection committee shall assess the suitability of the employees
without taking into consideration the pendency of disciplinary
action case/vigilance investigation/criminal prosecution and the
grading awarded will be kept in a sealed cover which is not to be
opened till termination of the disciplinary case/criminal
prosecution etc.
7) The dates and events involved in the present case are
not in dispute. The petitioner was implicated in a criminal case
by the ACB, Kolhapur on the basis of a complaint alleging
demand of illegal gratification from one of the consumer and
criminal prosecution was launched against the petitioner.
Simultaneously he was charge-sheeted by the Department for
misconduct on demand of illegal gratification from one Shri
Choughule who had approached the petitioner for providing
electrical connection. Pending the disciplinary proceedings and
the criminal prosecution under section 7, 13 (1) (d) read with
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section 13 (2) of the Prevention of Corruption Act, 1988, the
petitioner was placed under suspension. The Departmental
Inquiry initiated against the petitioner was completed and the
Inquiry Officer recorded that charge No. 1, 2 and 4 were proved
whereas charge no.3 was not proved and the Inquiry Report was
forwarded to the Competent Disciplinary Authority and the
Disciplinary Authority issued a show cause notice to the
petitioner as to why the penalty of withholding of annual
increment for a period of five years with cumulative effect be not
imposed upon him vide show cause notice dated 25th July, 2016.
The petitioner submitted his response in pursuance of the said
show cause notice and a final order imposing penalty was passed
on 15th November, 2016, wherein the petitioner was inflicted
with penalty of withholding of increments for a period of three
years. Pending these proceedings, the petitioner participated in
the selection process initiated for the post of Deputy Executive
Engineer by way of direct recruitment and was selected in the
said process to find place in the wait list candidates and the
respondents permitted participation of the petitioner in the
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selection process by following "Sealed Cover Procedure" as per
the Service Regulations, 2005. As per the said procedure the
sealed cover is to be opened only on culmination of the
disciplinary proceedings and in the case of the petitioner the
disciplinary proceedings resulted into final order only on 15th
November, 2016. As per the Service Regulations, 2005 the
selection list is to remain valid only for a period of one year and
on the date on which the disciplinary proceedings against the
petitioner culminated into finality and were finally concluded on
15th November, 2016, the waiting list which included the name
of the petitioner which was prepared in pursuance of
Advertisement No.10/2012 had already expired and therefore
the case of the petitioner did not deserve consideration for
appointment to the post of Deputy Executive Engineer.
8) The Counsel for the petitioner would argue that the
charge-sheet was issued to the petitioner on 23 rd December,
2013, it took almost three years for the respondents to take final
decision and it was only on 15th November, 2016 the penalty
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was imposed on the petitioner and this has resulted into denial
of the right of appointment to the higher post to the petitioner
though he was successful in the selection process. The learned
Counsel for the petitioner has referred to the Circular issued by
the respondent through its Executive Director on 17th March,
2016 based on the directives issued by the Hon'ble Apex Court
on 16th December, 2015 in a civil appeal, by which directions to
complete the departmental enquiry within a period of six
months and in certain identifiable causes within the reasonable
extended period, in any case not more than one year. It is not
the case of the petitioner that delay in the departmental inquiry
was intentional or that it was with some oblique motive. On
issuance of charge-sheet, the Inquiry Officer was appointed on
18th July,2014 and on 11th September, 2014 inquiry was
concluded. Show cause notice was issued to the petitioner on
25th July, 2016 as to why the proposed penalty of withholding of
increments for five years be not imposed on the petitioner and
within approximate period of three months, on consideration of
representation of the petitioner to the show cause notice, the
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final order of punishment was passed on 15 th November, 2016.
However, the petitioner has not attributed any mala-fides to the
respondent in not completing the inquiry within a shortest time
and we assume that there was an inordinate delay in completing
the inquiry specifically when the inquiry report was already
submitted on 11th September, 2014. However, as the
respondents have stated in their affidavit, the select list in terms
of advertisement dated 10th December, 2012 was prepared on
15th June, 2013 and as per the rules it was valid till 15 th
June,2014. However, its validity was extended by another six
months and it expired on 31st December, 2014. However, on the
day when the select list which included the name of the
petitioner expired, the inquiry as the petitioner was just
concluded and in any case when the inquiry report was
submitted on 11th September, 2014 it would have necessarily
required further procedure to be followed including supply of
copy of inquiry report to the delinquent, affording opportunity to
hearing to the delinquent on the proposed penalty and
thereafter passing a final order. In such circumstances, when as
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per the respondent's validity of the select list expired on 31 st
December, 2014 and the conduct of the petitioners was still
under investigation as the disciplinary proceedings had not
concluded. It cannot be said that it was the deliberate attempt
on the part of the respondent to deprive the petitioner of the said
benefit since the life of this select list is already determined by
the MSEDCL Employees Service Regulations 2005 and the
vigilance investigation against the petitioner had not been
concluded.
As far as the comparison of the petitioner with Kunal
Pensalwar is concerned, we have perused the affidavit of the
respondent and we have noted that on the date on which the
sealed cover of Shri Pensalwar was opened, the select list in
which his name featured was yet to expire and therefore his case
was considered for promotion since name was finding place in a
select list which was valid and hence he was issued with an
order of appointment to the post of Deputy Executive Engineer.
The same is not the case with the petitioner and the case of Shri
Pensalwar is clearly distinguishable from that of the petitioner.
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9) The Counsel for the petitioner has placed reliance on
judgment in the case of Purshottam Vs. Chairman, M.S.E.B.
& Anr reported in (1999) 6 Supreme Court Cases 49
wherein the Hon'ble Apex Court was dealing with the issue
where a duly selected person for being appointed was illegally
kept out of employment on the ground that the panel for
selection has expired in the meantime. However, in the peculiar
facts, the Apex Court had observed that a duly selected
candidate would not be denied appointment on the ground that
the panel term has expired. However, in the present case, the
life of select list is determined by the Service Regulations of
2005 and the respondents have been consistently following the
said period mentioned in the Regulation and it is not that only to
deprive the petitioner the fruits of selection, the stand is taken
by the respondent that the select list has expired.
In our view, the judgment of the Apex Court do not
assist the petitioner's case.
10) For the aforesaid reasons, there is no merit in the writ
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petition and same deserves to be dismissed. Same is hereby
dismissed with no order as to costs.
[SMT.BHARATI H. DANGRE,J.][S.C. DHARMADHIKARI, J.]
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