Bombay High Court
Vasant Baburao Patil vs State Of Maha &Ors; on 4 January, 2018
Bench: S.P. Deshmukh
1 WP Nos.1452/2004 & 9081/2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1452 OF 2004
Vasant s/o. Baburao Patil,
Age: 50 years, Occu.:Assit.
Mechanical Engineer,
R/o. 101, Shukratara Apartment
Vasundhara Colony, N-7,
CIDCO, Aurangabad.
...PETITIONER
VERSUS
1. The State of Maharashtra
through Secretary,
State Transport,
Mantralaya, Mumbai.
2. The Vice-Chairman and
Managing Director,
Maharashtra State Road
Transport Corporation,
Wahatuk Bhawan,
Dr. Anandrao Nayar Road,
Mumbai Central, Mumbai-8
3. The Works Manager,
Central Workshop,
Chikalthana,
Aurangabad
(4. Suresh S/o. Dashrath Tingre,
Superintendant (Engine/Coach),
Central Workshop,
Chikalthana, Aurangabad.)
(Resp.No.4 dismissed vide
Registrar's order dated 25/08/2008).
...RESPONDENTS
...
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2 WP Nos.1452/2004 & 9081/2011
WITH
WRIT PETITION NO.9081 OF 2011
Vasant S/o. Baburao Patil,
Age: 57 years, Occu.:Service,
R/o. 101 Shukratara Apartment
Vasundhara Colony, N-7,
CIDCO, Aurangabad
...PETITIONER
VERSUS
1. The State of Maharashtra
through Secretary,
State Transport Mantralaya Mumbai
2. The Vice Chairman,
& Managing Director,
Maharashtra State Road Transport
Corporation Wahatuk Bhavan
Dr. Anandrao Nayer Road Mumbai-
Central, Mumbai-8
3. The General Manager
Personal and Industrial Relation
Maharashtra State Road Transport
Corporation Wahatuk Bhavan
Dr. Anandrao Nayer Road Mumbai-
Central, Mumbai-8.
4. Maharashtra State Road Transport
Corporation through Chairman,
Wahatuk Bhavan, Dr. Anandrao Nayar
Road, Mumbai Central, Mumbai -8
(Amendment carried out as per
order dated 20/04/2012)
...RESPONDENTS
...
Shri Vivek J. Dhage, Advocate h/f Mr. R.I. Wakode,
Advocate for Petitioner.
Shri. S.J. Salgare, Assistant Government Pleader, for
Respondent No.1.
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3 WP Nos.1452/2004 & 9081/2011
Shri. D.S. Bagul, Advocate for Respondents No. 2 and 3 in
WP No.1452/2004 and for respondents No.2 to 4 in WP
No.9081/2011.
...
CORAM: SUNIL P.DESHMUKH AND P.R. BORA, JJ.
DATE : January 4th, 2018
***
ORAL JUDGMENT: (Per Sunil P.Deshmukh, J.)
1. Petitioner had been appointed as an Assistant
Works Superintendent (Trainee) by respondent No.1
Corporation on 01-01-1980. Since 1985, he was promoted in
Class II, Junior category. He had been selected for advanced
training course at Advance Training Institute at Chennai. In
1991, the petitioner had been included in Special Inspection
Cell working under the superintendence of Chairman. Special
Inspection Cell comprised certain officers with credibility and
sincerity. Petitioner had also been sent to Ashok Leyland
Company for training. A certificate of appreciation had been
issued to him by respondent no.2, in respect of his performance
in duty at Pachora. His performance had been acknowledged
as commendable by the Regional Manager, Nashik, by writing a
personal letter. The then Legislative Assembly Member had
also congratulated petitioner. Petitioner had, however,
referred to in the self appraisal report about shortfall due to non
availability of special tools. In 1999, petitioner had been
posted at Aurangabad in State Transport Central Workshop.
Petitioner refers to that in 2000-2001 production of R/C Engines
had been increased by seven per cent.
2. Thereafter, Petitioner had received an annual
confidential report dated 02-05-2001 containing a remark
`average' for non achieving 60 per cent incentive level. Vide
representation dated 09-05-2001 petitioner had approached
the authority at Aurangabad, making grievance against the
adverse remark so communicated to him and seeking redressal.
The authority at Aurangabad had not responded to the first
representation dated 09-05-2001 and as such, petitioner had
once again approached said authority on 26-05-2001, which too
went unattended. In July, 2001, petitioner had submitted
representation with respondent No.2 - the Vice Chairman and
Managing Director of the Maharashtra State Road Transport
Corporation. The petitioner had with reasons explained
shortfall and had also referred to that the extraordinary
achievement expected had not been possible and had not been
achieved till the date by any one, requesting recalling of the
remark in annual confidential report. Petitioner has imputed
motives to respondent No.4 in respect issuance of such adverse
remark against the petitioner.
3. As aforesaid representations were being not
responded to, petitioner had made further representation on
27-07-2001 to Vice Chairman and Managing Director -
respondent no.2 giving details about his duties and
performances. According to petitioner, respondent No.4
(against whom the petition is dismissed for non service of
notice), had been entertaining grudge against petitioner
resulting into issuance of a memo, imputing unsatisfactory
work whereas, for same engine block, prizes have been
awarded. None of representations of petitioner had been
responded to.
4. One Mr. K.Y.Pawar who had been junior to the
petitioner in seniority list had been given promotion as Deputy
Mechanical Engineer under order dated 19-06-2002.
5. Before aforesaid promotion order had been issued,
it is the case of the petitioner that he was sought to be involved
ostensibly in an enquiry, charging him with indiscipline and lack
of supervising capacity, however, soon after aforesaid
promotion order dated 19-06-2002, a letter exonerating him
from the charges so levelled had been issued on 03-07-2002.
Petitioner contends that the strategy had been developed in
order to dodge him from getting promotion. Petitioner,
therefore, had filed a representation on 04-07-2002. He had
made another representation to respondent No.2 on 08-07-
2002. In 2003, another promotion order had been issued
granting promotion to juniors, superseding petitioner.
Petitioner, under the circumstances, had sent a letter to the
General Manager at Mumbai, pointing out that petitioner is
being deprived of his legitimate promotion. Petitioner's
grievances met with an action, causing injustice to him, as
those who could not be given promotion earlier, were being
given benefit of gradation, increasing their pay scales and 48
persons have been benefitted from the same; yet, petitioner
had not been considered for giving any such gradation benefit.
Not only this, the gradation benefits had been given to the
persons concerned with retrospective effect. Petitioner, in the
circumstances, had filed representation with Chief Security and
Vigilance Officer, Mumbai and thereafter as well had filed couple
of representations, however, to no avail.
6. Learned Counsel for the petitioner Mr. Vivek Dhage
contends that the criteria for promotion is seniority-cum-merit,
merit to be adjudged from the annual confidential reports of
five years of which at least three should be of `above average
grade'. Petitioner's annual confidential reports for the years
1997-1998, 1998-1999 and 1999-2000 had been of grade
`above average'; albeit, for immediate preceding year 2000-
2001 for the promotions of 2002, the same had been
purportedly communicated to be `average'. He submits that
the so called adverse remark `average' dated 02-05-2001
had been taken objection to and representations as required
under the Regulations as appearing in the circular dated 06-10-
1995 had been made to superior authorities.
7. The superior authorities had not taken cognizance
of the same, had not attended and / or responded to the same.
He submits that under the Regulations, petitioner was entitled
to submit representations and those were incumbent and
expected to be considered in accordance with the procedure
prescribed thereunder. He submits that the procedure for
passing adverse remarks, as referred to in the circular, had not
been followed in petitioner's case while communicating remarks
in the annual confidential report as `adverse' to him.
8. He submits that prescribed procedure to deal with
representation against adverse remarks communicated
requires the final evaluating authority to seek justification from
the first and countersigning authority. The justification of the
first authority, who wrote the adverse confidential report, and
comments of the then counter signing authority, are required to
be sought and then those are to be submitted to the Vice
Chairman and Managing Director and he is supposed to take
decision thereon.
9. He emphatically refers to that the prescribed
procedure under the Regulation has not at all been followed
either while communicating adverse remark or even after
submission of the representations. He submits that the
representations, which are several in number, have been
submitted to various authorities, including immediate first
authority and even the Vice Chairman and Managing Director.
Yet, none of them had been responded to.
10. He submits that the annual confidential reports of
the petitioner generally had been of the grade `above average',
however, in 2000-2001, the same had been scaled down
deliberately to `average' in order to avoid grant of promotion to
the petitioner. He further submits that motives have been
imputed to respondent No.4 and the same have gone un-
controverted. He submits that, in the circumstances, the so
called adverse remark, purportedly communicated in the face of
failure to decide on the representations, could not have been
acted upon, in fact and in law.
11. Mr. Vivek Dhage submits that petitioner had,
thereafter, been given ad hoc promotion in 2007, however, in
2009, he had been reverted for non germane reasons. The
same had been subject matter of challenge before this Court in
writ petition, however, deliberately certain enquiries were
shown to be pending against petitioner and, in the
circumstances, the Court had passed an order directing the
authorities to dispose of the enquiries pending against
petitioner as early as possible. According to instructions to
learned Counsel, enquiries were not being duly proceeded with.
He submits, under the circumstances, petitioner had been
before this Court in writ petition No.9081 of 2011 seeking
direction to the authorities to promote petitioner with effect
from the date on which Mr. K.Y.Pawar had been promoted and
to give to him all ancillary and consequential benefits arising
therefrom.
12. Mr. D.S.Bagul, learned counsel appearing for
respondent - State Transport Corporation and its authorities,
submits that there is no dispute that requirement for promotion
is `seniority-cum-merit', and merit is to be judged from the
confidential reports. According to the procedure, it has been
prescribed that annual confidential reports for three years
preceding the promotion shall have to be of the grade "above
average". This being the requirement for promotion in
accordance with the Regulations, while promotions were being
given in 2002, it was found that last preceding three years'
annual confidential reports of the petitioner were not in
conformity with the requirement since his annual confidential
report for the year 2000-2001, had been `average' and, as
such, he had not been considered to be eligible for promotional
post.
13. His next leg of submission is, while it was
contended on behalf of the petitioner that he had submitted
representations against the annual confidential report to the
authorities which are claimed to have been acting adverse
against his interest yet, it is not the case that such
representations had been made to the competent authority as
required under the circular / Regulations of 1995. Pursuant to
said Regulation, the representations ought to have been
addressed to the Regional Manager or General Manager or the
Works Manager. As such, while it emerges that representations
were not addressed to the concerned competent authorities,
there is hardly any scope for responding to the same and it
would not be proper to say that the representations were not
being responded to. He further goes on to submit that even
otherwise, the representations are supposed to be made within
30 days of communication of adverse remarks. This particular
stipulation also cannot be said to have been complied with
since the representations appear to be addressed to respondent
no.2, long after expiry of period prescribed.
14. The Learned Counsel further purports to point out
that even annual confidential reports for the period 2002-2003
2003-2004 of petitioner were of `average' grade. While, as a
one time measure, in respect of the employees to whom
adverse remarks were not communicated, a decision had been
taken by the Corporation to grade their reports as `good' and
the petitioner had received benefit of the same and had been
then temporarily promoted in 2007. When Departmental
Committee found that several enquiries were pending against
him and his annual confidential report for the years 2005-2006
and 2006-2007 were not `above average', it had been decided
to revert the petitioner.
15. He submits, Petitioner could not be considered for
promotion since he had fallen short of qualifying himself for
promotion and satisfying the requirement therefor. While
promotions were being given, the petitioner had not been
meeting with the criteria for promotion and, as such, his name
had not figured in the lists of promotions.
16. There is no dispute on that annual confidential
reports of petitioner for the years 1997-98, 1998-99, 1999-
2000 had been of the grade "above average" and that annual
confidential report is of "average" grade for the year 2000-
2001 had been communicated after 02-05-2001.
17. So far as seniority is concerned, the parties are not
at dispute that the petitioner had, indeed, been senior to
Mr. K.Y.Pawar who had been promoted in 2002.
18. Although petitioner had been at Sr.No.27, he could
not be promoted for he did not fulfill the condition of having
annual confidential reports of grade "above average" for
preceding three years, latest preceding year's report being of
grade `average'. As such, his junior Mr. K.Y.Pawar had been
selected for promotion to the next higher post for he fulfilled
the condition of having three annual confidential reports in
preceding years of above average grade; this is the
submission appearing in the affidavit in reply on behalf of
respondents No.2 and 3 in Writ Petition No.9081 of 2011 based
on the document annexed along with the same at page No.149;
especially, grade of the latest preceding year had been above
average.
19. The focus will have to be on the aspect whether the
petitioner would qualify for promotion with reference to the
prescribed criteria which is `seniority and merit' and merit to be
adjudged from the preceding three years' annual confidential
report as `above average' or better. Whether promotion can
be declined for claimed non fulfillment of requisite criteria of
three preceding years' annual confidential reports to be of the
grade "above average".
20. It appears, after hearing learned counsel for the
parties, annual confidential reports of the petitioner for years
1997-1998, 1998-1999, 1999-2000 had been of `above
average' grade; whereas, he had been communicated after
02-05-2001 about his annual confidential report to be of
`average' grade. It is not the case that the petitioner had not
made representations against annual confidential report of the
year 2000-2001; albeit, it is being claimed that the same were
not made to the competent authority.
21. The case pleaded and sought to be made out on
behalf of Petitioner is that while communicating such annual
confidential report, the procedure as prescribed under circular
dated 06-10-1995, at page No. 75 of writ petition No.1452 of
2004 (in paragraph No.24 of memo of writ petition and
synopsis, date of said circular is mentioned as
16-10-1995), when promotions were being given in 2002, has
not been followed, which reads thus:
" As instructed earlier, the Annual Confidential Report in respect of
class II & I officers are to be written written by the concerned Unit Head
/ sectional Head (i.e. Reporting Officer) and sent to the concerned
RM/WM/Dy.GM/ as the case may be through various countersigning
Authorities. The final evaluating Authority i.e. RM/WM/Manager in
respect of class II (Jr.) and Dy.GM. in respect of class II (Sr.) officer
after evaluating such A.C.R. the same will be sent to the services Board
Section before 30th April of every year. However, before forwarding
the A.C.R. to this section, the adverse remarks are to be communicated
to the concerned officer by evaulating Authority. "
22. The stipulation refers to that the concerned Unit
Head - Sectional Head is to write the annual confidential report
himself and send it to the officers of the rank of Regional
Manager, Works Manager, Deputy Regional Manager, through
various counter signing authorities, the final evaluating
authority is expected to send the same to the Services Board
Section before 30th of April every year, and before that, it is
expected to communicate adverse remarks to the concerned
officer. This particular aspect does not appear to have been
met with on behalf of the respondents.
23. Indisputably, the adverse remarks for 2000-2001
appear to have been prepared in May, 2001 and were
subsequently communicated to the petitioner.
24. It does appear that the petitioner had submitted
representations to the Deputy General Manager and respondent
no.2 - Vice Chairman and Managing Director, who had not
communicated anything in respect of the same to the
petitioner, nor had rejected the same for it being not competent
authority or for that matter being beyond the period prescribed.
25. Submissions on behalf of the respondents purport
to justify their inaction on the representations for not being
submitted to the competent authority, yet it is not their case
that respondent no.2 had not been a competent authority to
deal with the representations in respect of the annual
confidential reports. Said authority as well, had not rejected
the representation on the ground of it being not made to the
competent authority or, for that matter, within the period
prescribed under the circular.
26. Under said circular, the officer concerned to
whom annual confidential reports are communicated, is
expected to submit representation within 30 days and
thereupon a justification too is expected to be called by the final
evaluating authority from the first and counter signing
authorities and he is required to submit the same to the Vice
Chairman and Managing Director to take a decision as would
emerge from following extract of the circular dated 06.10.1995:
" Now, the concerned Aggrieved officer can submit
representation against the adverse remarks to the Final Evaluating
Officer addressed to the Competent authority within 30 days from
the receipt of such adverse communication. On receipt of such
representation, the Final Evaluating Authority i.e. RM/WM. or GM.
as the case may be call the justification of the First and
Countersigning Authority who have written the Adverse
Confidential Report and submit the same to VC & MD with his
observation/remarks about the confidential Report on examining
such remarks, justification and relevant record produced before the
VC & MD. as Appointing Authority, can be take decision on the
appeal and he can expunge/remove the adverse remarks if required
and the same will be communicated to the concerned Appellant.
The VC & MD. can take his decision within three months from the
receipt of appeal. The procedure as laid down vide Govt. in GAD's
Resolution No.CFR 1086/PK/43/Tera dated 15-7-86 and be
followed while expunging the confidential remarks. "
27. This procedure does not appear to have been
followed, contending that representations were not made to
competent authorities, yet the position emerges that
representations had, indeed, been made to respondent no.2 -
the Vice Chairman and the Managing Director, may be in July,
2001 and subsequently.
28. Those had not been responded to and dealt with.
Inaction is sought to be reasoned out saying that the same
being made beyond the period as appearing in the circular.
But, fact remains that respondent no.2 had not rejected the
representations on that ground at all.
29. Going by the logic, as is submitted on behalf of the
respondents that the representations had not been made to the
competent authorities under the circular; in such a case, very
circular stipulates preparation of annual confidential reports
before 30th of April each year and its communication to the
concerned officer. This stipulation does not appear to have
been scrupulously followed in present case. Certainly,
communication to petitioner in respect of the same is made
after annual confidential report had been prepared after
30.04.2001, which had been an act jumping stipulation.
30. It would not be proper for respondents to apply
different yardsticks of consideration in respect of stipulations
under circular of 1995.
31. Thus, the reasons justifying non consideration of
the petitioner's case for promotion, his annual confidential
report being adverse for 2000-2001, without considering his
representations against the same, should not form basis for
non consideration of petitioner's case for promotion. Pedantic
approach adopted by the respondents would not sub-serve
cause of justice.
32. It does not appear that requirements of procedure
about preparation, communication and decision on
representation in respect of adverse remarks to petitioner had
been properly followed. In the circumstances, we do not
consider that so far as the promotions of 2002 are concerned,
while the petitioner's case is declined to be considered for
annual confidential report of 2000-2001, against which
representations had been made and redressal had been
sought persistently but those had remained undecided and
un-responded, the same could not justifiably form basis for
declining promotion to the petitioner. As such, we do not
consider that in such a situation, the confidential report of
2000-2001 would be computed for consideration for promotion
and, as such, the same shall not act adversely affecting
petitioner's interest. In such a case his past three years grade
in annual confidential reports, would be relevant and would be
required to be considered for promotion, fulfilling the criteria.
Annual confidential reports for three years preceding 2000-
2001 are of grade `above average'.
33. In the circumstances, Writ Petition No.1452 of 2004
is, thus, allowed. We direct the respondents not to act upon
the annual confidential report of the petitioner for the year
2000-2001 and to grant promotion to the petitioner with effect
from 19-06-2002 and to give to him all incidental, ancillary
and consequential benefits.
34. The petitioner is stated to have retired in 2011 and,
as such, he would be entitled to the benefit of aforesaid as
would accrue to him in pecuniary terms.
35. Rule made absolute in aforesaid terms.
36. In view of aforesaid, no separate orders on Writ
Petition No.9081 of 2011 are necessary and the same stands
disposed of as such.
(P.R.BORA) (SUNIL P.DESHMUKH)
JUDGE JUDGE
...
agp/
