Rhushikesh Suresh Hendre vs The Commissioner Mcgm And 7 Ors
2022 Latest Caselaw 13144 Bom

                                                                               17-wp-2990-2021.doc


                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       ORDINARY ORIGINAL CIVIL JURISDICTION

                                              WRIT PETITION NO. 2990 OF 2021

                       Rushikesh S. Hendre                                ..      Petitioner.
                             v/s.
                       The Commissioner,
                       Municipal Corpn. of Greater
                       Mumbai & Others                                    ..      Respondents.


                       Mr. Sanjiv Sawant with Mr. Abhishek Matkar and Malhar Bageshwar, for
                       the Petitioner.
                       Mr. B. D. Birajdar with Mrs. Rupali Adhate, for the Respondent-MCGM.
                       Mr. Satam, Head Clerk (Garden Dept), present.
          Digitally
          signed by
          SMITA
SMITA     RAJNIKANT                                    CORAM: S.V. GANGAPURWALA, ACJ &
RAJNIKANT JOSHI
JOSHI     Date:
          2022.12.19
                                                               S.G.CHAPALGAONKAR,J.

10:32:42 +0530 DATED : 16th DECEMBER, 2022.

P.C:-

The Petitioner challenges the seniority lists published by the Respondents. The learned Counsel for the Petitioner submits that the Petitioner is required to be given preference in the seniority lists on the basis of the merit lists dated 16th March, 2005. The learned Counsel submits that those persons who had got less marks than the Petitioner, were placed higher in the merit lists, thereby depriving the Petitioner of his valuable rights.

2 According to the learned Counsel for the Petitioner, merit list can not be compromised. The learned Counsel submits that the seniority lists were never finalized. According to the learned Counsel, in the selection process, for the post of Assistant, the Petitioner secured 82 marks whereas Respondent No.7 secured 65 marks and Respondent No.8

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secured 70.75 marks. The Petitioner being higher on merits, ought to have been placed above these Respondents.

3 The learned Counsel for the Petitioner submits that the Petitioner was promoted in the year 2014. Thereafter, the Petitioner also raised objection with the seniority lists.

4 The learned Counsel for the Petitioner submits that Respondent No.7 is promoted to the post of Dy. Superintendent (Garden) in the year 2021.

5 The learned Counsel for the Petitioner submits that, that has given further cause for the Petitioner to agitate. The learned Counsel relies upon the judgment of the Apex Court in the case of Kuldip Chand v/s. Union of India reported in (1995) 5 SCC 680.

6 The learned Counsel for the Corporation submits that the seniority lists were published in the year 2007, 2009 and 2011. The Petitioner at no material time raised objection to the seniority lists. On the basis of the said seniority lists, the Petitioner was promoted in the year 2014. The Petitioner in the year 2015, raised an objection which was also replied by the Corporation.

7 We have considered the submissions. It appears that, Petitioner was appointed in the year 2005 as Assistant. Thereafter, seniority lists have been consistently published by the Corporation in the year 2007, 2009, 2011 and 2014. In the seniority lists, Respondent Nos. 7 & 8 were shown senior to the Petitioner. Petitioner did not raise any objection to the seniority lists and the Petitioner was promoted in the year

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2014 to the post of Assistant Superintendent (Garden). The Petitioner, if was aggrieved, could have raised objection at the first instance in the year 2007 itself.

8 In case of Kuldip Chand (supra), the Apex Court observed that the seniority lists were published on 23rd December, 1983 but no vacancy had arisen thereafter and, therefore, the mere rejection of the claim for seniority does not dis-entitle the Petitioner to claim his seniority. The Court further observed that, the mere fact that he did not challenge the seniority list because for non-consideration of the claim for the post of accountant, his legitimate right cannot be denied.

9 In the present case, consistently, seniority lists were published. The Petitioner on the basis of the said seniority lists, got the advantage and the benefit of promotional post. At that time, no objection was raised. It is only thereafter the Petitioner getting benefit of promotion. Subsequently, Petitioner is raising objection to the seniority lists. The same would be too late in the day.

10 In the light of the above, Writ Petition is disposed of. No costs.

(S.G.CHAPALGAONKAR,J.)                            (ACTING CHIEF JUSTICE)




S.R.JOSHI                                                                 3 of 3