Chandrakant Jagannath Mahajan vs The State Of Maharashtra And Ors
2017 Latest Caselaw 7021 Bom

                                                              W.P. No.11186/2010
                                          1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.11186 OF 2010


 Chandrakant s/o Jagannath Mahajan
 Age 48 years, Occ. Service,
 R/o Yogeshwar Nagar,
 Near Apang Sanstha, Jalgaon,
 District Jalgaon                                  ...     PETITIONER

          VERSUS

 1.       The State of Maharashtra
          through the Secretary for
          Rural Development Department,
          Mantralaya, Mumbai

 2.       The Divisional Commissioner,
          Nashik Division, Nashik

 3.       The Chief Executive Officer,
          Zilla Parishad, Jalgaon,
          District Jalgaon                         ...     RESPONDENTS

                                .....
 Shri A.V. Hon, Advocate for petitioner
 Mrs. M.A. Deshpande, A.G.P. for respondents No.1 and 2
 Shri Vijay Sharma, Advocate for respondent No.3.
                                .....

                                 CORAM:       R.D. DHANUKA AND
                                              SUNIL K. KOTWAL, JJ.

DATED: 12th September, 2017.

ORAL JUDGMENT (PER R.D. DHANUKA, J.) :

1. By this Writ Petition filed under Article 226 of the

Constitution of India, the petitioner prays for a writ of certiorari

W.P. No.11186/2010

for quashing and setting aside the impugned communications

dated 15/10/200 and 30/10/2010, issued by the Chief Executive

Officer, Zilla Parishad, Jalgaon and the Divisional Commissioner,

Nasik Division, Nasik respectively. The petitioner also seeks a

writ of mandamus for order and directions against the Zilla

Parishad to forthwith promote the petitioner to the post of Senior

Assistant by giving him proper placement in the seniority on the

post of Senior Assistant and also giving all consequential service

benefits to which the petitioner is entitled to.

2. Some of the relevant facts for the purpose of deciding

this Writ Petition are as under :

On 6/2/1982 the petitioner has joined the duty as

Junior Assistant with the Zilla Parishad, Jalgaon. One Miss.

Ashalata Kiraje had filed a complaint against the petitioner with

Anti Corruption Bureau, alleging that the petitioner had

demanded bribe for her transfer. The petitioner was placed

under suspension on 9/7/2002. A departmental enquiry was

initiated against the petitioner by the Zilla Parishad. On

11/6/2003, in departmental enquiry conducted by the Zilla

Parishad, the petitioner was exonerated from all the charges

levelled against him.

W.P. No.11186/2010

3. Criminal proceedings were filed before the Sessions

court (Special Case No.15/2002). By an order dated 5/8/2004,

passed by the learned Special Judge, Jalgaon, the Sessions Court

exonerated the petitioner on merits and passed an order of

acquittal. The State Government filed an appeal and has

impugned the said order dated 5/8/2004 (Criminal Appeal

No.854/2004) in this Court and the same is admitted and is

pending for hearing and final disposal.

4. The petitioner filed a Writ Petition in this Court

bearing No.1166/2005 for writ of mandamus and for an order

and directions against the Zilla Parishad to reinstate the

petitioner in service on his original post forthwith by revoking the

suspension order dated 9/7/2002. By an order dated 22/9/2005,

passed by the Division Bench of this Court, the said Writ Petition

was made absolute in terms of prayer clause (B). It is not in

dispute that, pursuant to the order passed by this Court, the

petitioner has been reinstated in service by the Zilla Parishad.

After reinstating the petitioner in service, the Chief Officer of Zilla

Parishad passed an order on 15/10/2010, refusing to grant

promotion to the petitioner to the post of Senior Assistant by

giving proper placement in the seniority. Being aggrieved by

W.P. No.11186/2010

these two communications, the petitioner has filed this petition.

5. Learned counsel for the petitioner submits that,

though the petitioner has been reinstated in service in

compliance of the order dated 22/9/2005, passed by the Division

Bench of this Court, which has attained finality, the Zilla Parishad

has not granted promotion to the petitioner to the post of Senior

Assistant though the petitioner was entitled to the said promotion

in accordance with the seniority of the petitioner merely on the

ground that the State Government has already filed appeal

against the order of acquittal passed by the Sessions Court. It is

submitted that, there is no stay granted by this Court in the said

Appeal No.654/2004 filed by the State Government. He submits

that, merely on the ground that the appeal is filed, the petitioner

cannot be denied any promotion to the said post of Senior

Assistant.

6. Learned counsel for the Zilla Parishad invited our

attention to the affidavit-in-reply filed by the Zilla Parishad on

5/2/2011 and submits that, since the appeal filed by the State

Government is still pending, the petitioner cannot be granted any

promotion.

W.P. No.11186/2010

7. It is not in dispute that, when this Court allowed the

said Writ Petition No.1166/2005 filed by the petitioner, on

22/9/2005, the appeal filed by the State Government i.e.

Criminal Appeal No.854/2005 was already pending before this

Court. In spite of the said order, this Court directed the Zilla

Parishad to reinstate the petitioner in service. The said order

dated 22/9/2005, passed by this Court has not been challenged

by the Zilla Parishad before the Supreme Court.

8. In our view, since the petitioner was already

exonerated in the departmental enquiry as far back as on

11/6/2003 and has been already reinstated, the respondent No.3

could not have refused to grant promotion to the petitioner

though the petitioner was eligible for said promotion on the post

of seniority. In our view, merely because the appeal filed by the

State Government against the order of acquittal is pending,

petitioner cannot be refused to be promoted to the post.

9. We, however, make it clear that the promotion of the

petitioner to the relevant post would be subject to outcome of

Criminal Appeal No.854/2004 filed by the State Government. In

our view, the impugned communication of the Zilla Parishad is

totally illegal and without authority of law. We, therefore, pass

W.P. No.11186/2010

the following order :

10. Writ Petition is made absolute in terms of prayer

clauses (B) and (C). It is, however, made clear that, the

promotion being granted to the petitioner would be subject to

outcome of Criminal Appeal no.854/2004 filed by the State

Government against the order of acquittal of the petitioner

passed by the Sessions Court. If the order of acquittal in favour

of the petitioner is set aside in Criminal Appeal No.854/2004, the

petitioner would return the monetary benefits, if any, granted

pursuant to such promotion in favour of the petitioner and would

be reverted to the post held by him today

11. The Zilla Parishad to act on authenticated copy of this

order. This order shall be complied within within a period of two

weeks from today. No order as to costs.

          (SUNIL K. KOTWAL)                    (R.D. DHANUKA)
               JUDGE                                 JUDGE




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