Ashok S/O Marotrao Wankar And ... vs Chief Executive Officer, Z. P. ...
2017 Latest Caselaw 7030 Bom

 Judgment                                          1                                wp6829.15.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 6829 OF 2015

 1.    Ashok S/o. Marotrao Wankar, 
       aged about 55 years, Occupation : Service, 
       R/o. Shankar Nagar, Bypass Road, 
       Chandrapur. 

 2.    Kishor S/o. Shrawan Ladkde, 
       Aged about 55 years, Occ. : Service,
       Resident of Jatpura Ward No.1, 
       Chandrpaur. 
                                                                       ....  PETITIONER.
                                    //  VERSUS //
 1. Chief Executive Officer, 
    Zilla Parishad, Chandrapur. 

 2. Additional Commissioner, 
    Nagpur Division, Nagpur. 

 3. Vilas Bhaurao Lakhdive,
    Aged about 47 years, Occ.: Service, 
    Sectional Officer, Education Department,
    Zilla Parishad, Chandrapur. 

 4. Sunil Baburao Jogi,
    Aged about 52 years, Sectional Officer, 
    GAD, Zilla Parishad, Chandrapur, 
    Resident of Bhavsar Ward, Ghutkula,
    Chandrapur.

      (Respondent No.3 has not mentioned his
      residential address even before the Additional
      Commissioner, Nagpur Division, Nagpur 
      whose order is under challenge)
                                                     .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri N.C.Phadnis, Advocate for Petitioners.
 Shri M.V.Mohokar, Advocate for Respondent No.1. 
 Shri V.P.Maldhure, A.G.P. for Respondent No.2.
 Shri V.D.Raut, Advocate for Respondent Nos.3 & 4.  
 ___________________________________________________________________



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  Judgment                                               2                                wp6829.15.odt




                              CORAM : S.C.GUPTE, J.

DATED : SEPTEMBER 12, 2017.

ORAL JUDGMENT :

1. Heard learned counsel for the parties.

2. RULE. Rule made returnable forthwith. Taken up for hearing

by consent of learned counsel for the parties.

3. The writ petition challenges an order passed by Additional

Commissioner, Nagpur Division, Nagpur on 30 th October, 2015 directing the

first respondent Zilla Parishad to fix the seniority of the parties, namely,

petitioner Nos. 1 and 2 on the one hand and respondent Nos. 3 and 4 on the

other.

4. The matter has a chequered history and bears mention as

follows :

4.1 The petitioners were appointed, respectively, on

14th January, 1980 and 19th February, 1981 as Junior Clerks

belonging to the category of OBC. On the other hand,

respondent Nos. 3 and 4 were, respectively, appointed on 1 st

January, 1987 and 24th November, 1981 as Junior Assistants

from OBC and Open Categories. On 23 rd January, 2006, the

Judgment 3 wp6829.15.odt

petitioners were promoted to the posts of Superintendent.

Since the petitioners were appointed in OBC category, they had

to submit verification of their caste by means of Caste Validity

Certificates. They could, however, submit their caste validity

certificates on 18th July, 2007 and 23rd September, 2010,

respectively. Respondent Nos. 3 and 4 were promoted,

respectively, on 23rd January, 2006 and 27th October, 2006 to

the posts of Superintendent. Respondent No.3, who was also

originally appointed in OBC category, submitted his caste

validity certificate on 15th September, 2004.

4.2 The Zilla Parishad, by its order dated 23 rd March,

2011, changed the inter se seniority of the parties herein for

further promotions. It placed them as Superintendents in the

order of seniority on the basis of the dates of submission of

their respective caste validity certificates, holding that the

promotions were given to the employees from the dates on

which they submitted their caste validity certificates.

4.3 This order of the Chief Executive Officer, Zilla

Parishad, Chandrapur was challenged by the petitioners herein

along with two others in Writ Petition No. 1051 of 2012 filed

before this Court. A Division Bench of this Court by its order

Judgment 4 wp6829.15.odt

dated 1st August, 2012 inter alia found that there was no rule

or regulation enabling the Chief Executive Officer to assign any

deemed date of promotion on the basis of the dates of the

orders of the Caste Scrutiny Committee. The Division Bench

held that the date of promotion must, in the absence of any

rule to the contrary, be reckoned from the date the promotion

order was issued. Since the promotion order in this case was

issued on 23rd January, 2006 that date had to be reckoned as

the date of promotion. The Division Bench, accordingly,

allowed the writ petition and declared that the date of

promotion of all including the petitioners herein shall be the

date on which they were issued the promotion order, that is to

say, in the case of the present petitioners, 23 rd January, 2006

and that the petitioners be granted benefits of promotional post

including pay and other benefits from this date. This order was

challenged by way of a review application by the Chief

Executive Officer, Zilla Parishad. The review application was

rejected by another Division Bench of this Court on 7 th

December, 2012. A Special Leave Petition preferred against the

order of review was dismissed by the Supreme Court on merits,

holding that no ground for interference was made out under

Article 136 of the Constitution of India.

  Judgment                                               5                                wp6829.15.odt




                   4.4             In the meantime, on 5th March, 2013,  effect was

given to the Division Bench order of this Court dated 1 st August,

2012. By two orders dated 5 th March, 2013, after setting right

the order of seniority on the basis of the Division Bench order

of 1st August, 2012, the petitioners' promotions as

Superintendent for the purposes of seniority were treated as of

23rd January, 2006 and the promotional postings given earlier

to respondent Nos. 3 and 4 (they were earlier promoted as

Section Officers on 17th September, 2011) were cancelled and

they were reverted to their original posts of Superintendent.

These orders of cancellation and reversion were challenged by

respondent Nos. 3 and 4 before this Court in a writ petition,

being Writ Petition No.1286 of 2013. By an order dated 21 st

January, 2014, a Division Bench of this Court, without going

into the merits of the controversy, directed the petitioners

before it (respondent Nos. 3 and 4 herein) as also others

(which included the petitioners herein) to appear before the

Chief Executive Officer of Zilla Parishad and the latter was

directed to pass appropriate orders after extending opportunity

of hearing to all concerned in accordance with law. The status-

quo order earlier granted by this Court was to continue till the

Chief Executive Officer passed such fresh orders. With these

directions and keeping all contentions open, the petition was

Judgment 6 wp6829.15.odt

disposed of.

4.5. The Chief Executive Officer, thereafter, heard all

the parties and considered the rival contentions and by his

order dated 3rd November, 2014 confirmed the two orders

dated 5th March, 2013, referred to above. Based on this order,

by another order of the same date, the Chief Executive Officer

maintained the reversion of respondent Nos. 3 and 4 herein.

The orders of the Chief Executive Officer were challenged by

respondent Nos. 3 and 4 before the Divisional Commissioner,

Nagpur Division, Nagpur in an appeal under Sections 14(b)

and (c) of the Maharashtra Zilla Parishads District Services

(Discipline and Appeal) Rules, 1964. Pending that appeal, the

Additional Commissioner passed a status quo order. Finally, by

his impugned order dated 30th October, 2015, the Additional

Commissioner partly allowed the respondent's appeal, set aside

the two orders passed by the Chief Executive Officer, Zilla

Parishad, Chandrapur on 3rd November, 2014 and remanded

the matter to the Chief Executive Officer for a fresh hearing.

This order, as we have noted above, is impugned in the present

petition.

5. Before we examine the merits of the impugned order passed by

Judgment 7 wp6829.15.odt

the Additional Commissioner, it needs to be noted at the very outset that

when the matter was remanded to the Chief Executive Officer for a fresh

decision in accordance with law on the petition of respondent Nos. 3 and 4

herein (Writ Petition No.1286/2013), the Chief Executive Officer was neither

empowered nor expected to go behind the earlier decision of the Division

Bench of this Court given on 1 st August, 2012 on the petition of the

petitioners herein (W.P. No.1051/2012). The order passed by this Court in

that petition was confirmed by the Supreme Court in its order passed on the

Chief Executive Officer's Special Leave Petition on 07/03/2014. The

operative order as well as principle decided in this Court's order, i.e. the

actual determination of the deemed date of promotion of the petitioners (i.e.

23rd January, 2006) and the rationale for the same, had attained finality. It

is beyond the pale of any doubt that all concerned parties including the

petitioners herein were to be granted benefits of the promotional posts on

the basis that the petitioners herein were promoted as Superintendents on

23rd January, 2006. It is also beyond dispute that if their promotion dates are

to be considered as of 23 rd January, 2006, on the considerations of inter se

seniority, the petitioners were entitled to promotion to the post of Section

Officer in preference over respondent Nos. 3 and 4. The purpose of sending

back the order of reversion passed by the Chief Executive Officer in case of

respondent Nos. 3 and 4 herein was to hear all parties on merits before

taking a decision on promotion or reversion of the parties based on the

Division Bench order of 1st August, 2012. (When effect was given to that

Judgment 8 wp6829.15.odt

order and the inter se seniority was determined and reversion was

accordingly ordered in the impugned orders of 5 th March, 2013, respondent

Nos. 3 and 4 were not heard.) When the Chief Executive Officer was asked

to hear all the parties and to decide the matter afresh, what was expected of

him (and in fact, directed to him) was that he should decide the matter in

accordance with law. That very law required the Chief Executive Officer to

decide the controversy on the footing that promotions to the posts of

Superintendent were given to the petitioners on 23rd January, 2006.

8. Considering the rival contentions of the parties, if the

petitioners' promotions to the post of Superintendent were to be treated as of

23rd January, 2006, it is beyond the pale of any controversy that it is the

petitioners who have the right of further promotion over respondent Nos. 3

and 4. Based on this position, the Chief Executive Officer, in fact, passed his

final orders dated 3rd November, 2014. The Additional Commissioner in

appeal appears to have gone into the question of promotion as though the

dates of the promotion of the petitioners as Superintendents was a matter

open to debate. The Additional Commissioner appears to have gone behind

the order of the Division Bench dated 1 st August, 2012 and, audaciously

enough, appears to have ruled that the dates of promotion of the petitioners

have to be reckoned with effect from the dates of submission of caste validity

certificates by them. So much for the rule of law!

Judgment 9 wp6829.15.odt

9. In any view of the matter, the order passed by the Additional

Commissioner is simply unsustainable. It entails nothing but travesty of

justice. A matter which is fully and finally determined by the Division Bench

of this Court and even confirmed by the Supreme Court is sought to be

reopened and that purportedly on the footing that this Court had remanded

the matter of reversion on the respondents' writ petition for a fresh

determination in accordance with law. Learned counsel for the respondents

made a feeble attempt to justify this rationale by submitting that all

contentions of the parties were expressly kept open by this Court when the

matter was remanded on the respondents' petition (Writ Petition No. 1286 of

2013). The contentions kept open by this Court by its order on Writ Petition

No. 1286 of 2013 were contentions in that petition and not contentions in

Writ Petition No. 1051 of 2012, which was, as noted above, finally disposed

of by an order, which was sustained by the Supreme Court.

10. The orders passed by the Chief Executive Officer, Zilla Parishad,

Chandrapur on 3rd November, 2014 do not call for any interference. Apart

from the argument that the petitioners' earlier promotions to the post of

Superintendent ought to be reckoned from the dates of their respective

submissions of Caste Validity Certificates, there is no other cause either

pleaded or pressed by respondent Nos. 3 and 4. That argument being no

more open, there is effectively no cause shown against the orders of

cancellation of posting and reversion. The impugned order of the Additional

Judgment 10 wp6829.15.odt

Commissioner setting aside those orders and remanding the matter to the

Chief Executive Officer for a fresh hearing, thus, serves no purpose and

suffers from a grave illegality.

11. In the premises, the impugned order of the Additional

Commissioner is quashed and set aside and Appeal No.22 of 2014-15 is

dismissed. The orders passed by the Chief Executive Officer, Zilla Parishad,

Chandrapur on 3rd November, 2014 are confirmed. The Chief Executive

Officer, Zilla Parishad, Chandrapur is directed to forthwith give effect to the

orders of 3rd November, 2014.

12. Rule is made absolute in the above terms. In the circumstances

of the case, the parties shall bear their own costs.

13. Learned counsel for respondent Nos. 3 and 4 applies for stay of

this order. The central issue, and in effect the only issue, in the matter

having been finally decided by this Court and confirmed by the Supreme

Court, there is not even a statable case to carry the matter higher. In the

premises, the application is rejected.

JUDGE RRaut..