Shri Sadashi Santaram Survase vs 1. Governement Of Maharashtra And ...
2021 Latest Caselaw 10830 Bom

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                                                                 13.WP5488_2011.docx
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Vidya Amin
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO. 5488 OF 2011
                                            WITH
                            CIVIL APPLICATION (St.) NO.16416 of 2017
                                            WITH
                            CIVIL APPLICATION (St.) NO.12258 of 2017

                  Sadashiv Santaram Survase                 ...        Petitioner
                       vs.
                  Government of Maharashtra & Ors.          ...        Respondents

                  Mr.    Suresh Dhole     a/w.   Mr.  Pravin   Mengane            for   the
                  petitioner/applicant.
                  Mr. B.V. Samant, AGP for the respondent/State.

                                     C0RAM : DIPANKAR DATTA, CJ &
                                             G. S. KULKARNI, J.

DATE : AUGUST 11, 2021

PC :

1. The petitioner is aggrieved by the judgment and order

dated April 20, 2011 passed by the Maharashtra

Administrative Tribunal (for short 'the tribunal') whereby the

Original Application No. 455 of 2010 filed by respondent no.3

stood allowed. By the impugned order, the final seniority list

dated January 1, 2008 of the cadre of "Industries Deputy

Director (Technical) Class I" published in July,2008, was

quashed and set aside to the extent of the inter se seniority

between respondent no.3 and the petitioner, interalia with a

direction that the inter se seniority of respondent no.3 and the

13.WP5488_2011.docx

petitioner shall be reckoned with reference to October 9, 1997

and December 5, 1997 respectively, being the dates of their

continuous officiation in the cadre. We find it appropriate to

note the operative directions of the tribunal, which are as

under:-

"4. In the light of above, we decide and direct as follows:

(a) The impugned final seniority list as on 1st January, 2008 in respect of the cadre of Industries Deputy Director (Technical), Class I published in July, 2008 is quashed and set aside to the extent of the inter se seniority of the Applicant and Respondent No. 3 is concerned and it is directed that the inter se seniority of the Applicant and Respondent no. 3 shall be reckoned with reference to 9 th October, 1997 and 5th December, 1997 respectively, the dates of their continuous officiation in the cadre.

(b) The letter dated 22nd October, 1997 of Industries, Energy and Labour Department, Government of Maharashtra by which extension of joining time was allowed to respondent no. 3, as also its letter dated 24 th November, 2009, by which the representation of the applicant against the change made in the inter se seniority of the applicant and respondent no. 3 in the final seniority list published in July, 2008 was rejected, are also quashed and set aside.

(c) The case of the applicant for promotion to the post of Superintending Industries Officer (Group A) shall be considered afresh by Respondent no. 1 with reference to his seniority reckoned with reference to 9 th October, 1997 as the date of his continuous officiation in the cadre of Deputy Director (Technical), Class I and, if he is found fit, he shall be promoted and posted within three months of the communication of this judgment to Respondent no. 1. If necessary, the promotion will be effected by reversion of Respondent no. 3 from the post of Superintending Industries Officer (Group A).

(d) In case it is decided to promote the applicant as Superintending Industries Officer (Group A) without reverting his junior/s, the Applicant shall be assigned an

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appropriate deemed date of promotion and all admissible consequential benefits shall be given to him. This direction shall be implemented within three months of the issue of promotion order."

2. The relevant facts are required to be noted: The

Maharashtra Public Service Commission recommended the

petitioner and respondent no.3 alongwith two others for

appointment as "Industries Deputy Director (Technical), Class

I", in pursuance of which the State Government by

Government Resolution dated August 27, 1997 notified the

appointments of the petitioner and respondent no.3. In

pursuance of such Government Resolution, the Development

Commissioner (Industries) issued an office order dated

September 19, 1997, posting respondent no.3 as General

Manager, District Industries Centre, Sindhudurg, Oras and the

petitioner as Industries Deputy Director (Technical),

Directorate of Industries, MMRDA Division, Mumbai.

Respondent no.3 joined the post assigned to him on October

9, 1997 whereas the petitioner joined the post on December

5, 1997.

3. On January 1, 2008 a provisional seniority list of the

cadre of "Industries Deputy Director (Technical), Class I", was

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published thereby calling upon responses to the provisional

seniority list which were to be submitted to the Development

Commissioner (Industries). In such provisional seniority list,

respondent no.3 was shown at Sr.no.58 and the petitioner was

shown at Sr.no.55. By Government Resolution dated July 15,

2008, the seniority between respondent no.3 and the

petitioner came to be finalized as it stood in the provisional

seniority list.

4. Respondent no.3 being aggrieved by his seniority being

placed at Sr. no. 58 below the petitioner, submitted a

representation dated July 14, 2009 requesting that the

seniority be changed by showing him to be senior to the

petitioner, on the ground that the petitioner had failed to join

duties within one month of the posting order. Respondent no.

3 asserted that in accordance with the provisions of Rule 4(2)

(a) of the Maharashtra Civil Services (Regulation of Seniority)

Rules,1982 (for short "the said Rules"), the petitioner,

having failed to join within the prescribed 30 days from the

date of appointment, he had lost his initial seniority, making

respondent no.3 senior to him. Such representation of

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respondent no.3 was rejected by respondent no.1 by its letter

dated November 24, 2009, which recorded that the petitioner

was granted extension of time till December 13, 1997 vide

letter dated October 12, 1997 to join his first posting and that

the petitioner had accordingly joined within the extended

period on December 5, 1997, and as permissible under the

Rules. It was hence, recorded that respondent no.3 could not

claim seniority over the petitioner. Respondent no.3 being

aggrieved by such communication, approached the tribunal by

the original application in question.

5. The primary contention of respondent no. 3 before the

tribunal was to the effect that the extension granted to the

petitioner to join duties was invalid, as it was not granted by

the Competent Authority. Respondent no. 3 asserted that the

Competent Authority, as contemplated under Rule 4(2)(a) of

the said Rules was the State Government and not the Deputy

Director (Technical) or the Section Officer of the State

Government who had granted two extensions. The tribunal,

considering Rule 4(2)(a), accepted respondent no. 3's

contention and allowed the Original Application.

13.WP5488_2011.docx

6. Mr. Dhole, learned counsel for the petitioner, in assailing

the impugned orders passed by the tribunal, has contended

that the seniority as originally fixed on January 1, 2008 and

subsequently confirmed in July 2008, ought not to have been

disturbed by the tribunal for two fold reasons - firstly, for the

reason that the extension dated November 7, 1997 granted

to the petitioner by the Deputy Director (Technical) and

second extension which was granted by the Section Officer of

the Department of Industries, Mantralay, Mumbai, upto

December 13, 1997 were acted upon and in pursuance of

which the petitioner had joined service on his first posting;

Secondly, it is submitted that neither respondent no. 3 had

challenged such extensions nor the State Government had

withdrawn and/or cancelled such extensions. It is, hence, his

submission that the tribunal could not have overlooked such

vital issues in allowing respondent no. 3's Original Application.

7. Mr.Dhole has fairly stated that there are subsequent

developments, namely, that the petitioner has now been

promoted to a higher post of Joint Director (Industries),

whereas respondent no. 3, for reasons not relevant for the

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present proceedings, is working on a lower post to the

petitioner, namely, on the post of General Manager, District

Industries Centre. He, however, submits that it is quite

possible that if the situation as brought about by the

impugned order is not remedied, it is likely that the petitioner

may suffer prejudice in the remaining tenure of his service.

8. On the other hand, Mr. Samant, learned AGP for the

State would refer to the affidavit filed on behalf of the State

Government, which in fact supports the contentions as urged

on behalf of the petitioner. Mr. Samant would not dispute that

the extensions, which were granted, were acted upon.

9. Respondent no. 3 although is served is not

represented, however, his reply affidavit is placed on record,

which has been considered by us. The case of respondent no.

3 is not different from what was asserted by him before the

tribunal.

10. We have heard learned counsel for the parties. We have

also perused the record.

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11. At the outset, it would be appropriate to note the

relevant Rules, being Rule 3(a), which defines "Competent

Authority" and Rule 4(2)(a) to the extent it is relevant. They

read thus:

"3 (a). "Competent authority" means an authority competent to make appointment to any post, cadre or service"

"4. General principles of seniority:

(1) .......

(2) Notwithstanding anything contained in sub-rule

(1),

(a) The inter se seniority of direct recruits selected in one batch for appointment to any post, cadre or service, shall be determined according to their ranks in the order of preference arranged by the Commission, Selection Board or in the case of recruitment by nomination directly made by the competent authority, the said authority, as the case may be, if the appointment is taken up by the person recruited within thirty days from the date of issue of the order of appointment or within such extended period as the competent authority may in its discretion allow."

12. Having noted the rules, we may observe that this is a

peculiar case for the reason that although stricto sensu, the

Deputy Director and/or the Section Officer cannot be the

Competent Authority to grant extension as per the provisions

of Rule 4(2), however, the fact remains that such extensions

were acted upon inasmuch as the petitioner was permitted to

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join duties beyond the 30 days time as prescribed by Rule

4(2)(a), for the reason that he was not relieved from his

earlier service with the Government Engineering College,

Pune. The seniority of respondent or the petitioner was fixed

by respondent no.1 as per the recommendation of the

Maharashtra Public Service Commission, which was according

to their respective ranking.

13. It thus appears to us to be quite peculiar that as

extensions granted as per the provision of Rule 4(2)(a)

permitting the petitioner to join beyond the period of 30 days,

were acted upon, brought about a situation of deemed

relaxation in favour of the petitioner to join duties within the

prescribed period of 30 days by exercising the power under

Rule 8 of the said Rules. If the contentions as urged on behalf

of respondent no. 3 and as accepted by the tribunal is to be

accepted, the legal consequences would be quite grave

inasmuch as it would be required to be construed that

although the petitioner joined duties on December 5, 1997,

and worked for all these years since 1997, he would be

required to be treated to have illegally joined, which is

nobody's contention. It was never the case of respondent

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no.3 that the extension(s) granted to the petitioner be

declared to be illegal.

14. Be that as it may, with the passage of time much water

has flown under the bridge. The petitioner is admittedly in a

senior cadre by virtue of his subsequent promotion and

respondent no. 3 is working in a cadre subordinate to that of

the petitioner. By reason of subsequent promotions the issue

of seniority in the present facts is rendered academic. This

position certainly cannot be disturbed. We, accordingly,

dispose of this petition, with a direction that the State

Government shall not act upon the impugned order passed by

the tribunal, in the event an occasion in future arises, of any

conflict of seniority between the petitioner and respondent no.

3.

15. Writ Petition is disposed of in the above terms. No

costs.

16. Civil application (St) No.16416 of 2017 and Civil Application

(St.) No.12258 of 2017 would also not survive. They are

accordingly disposed of.

(G. S. KULKARNI, J.)                      (CHIEF JUSTICE)