Himmat Dalichand Mali vs Municipal Corporation Of Greater ...
2023 Latest Caselaw 1094 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION
                      WRIT PETITION NO. 2977 OF 2022


Himmat Dalichand Mali                                                      .....Petitioner
     V/s.
1. Municipal Corporation of Greater
Mumbai and Ors.                                                            ....Respondents
                                  -----


Mr. A.L. Gore and Mr. Chintamani K. Bhangoji, Advocate for the
        petitioner.
Ms. Dhruti Kapadia and Ms. Rupali Adhate i/by. Mr. Sunil
        Sonawane, Advocate for respondents no.1 to 3-M.C.G.M.
Ms. Soran Kumudha Krushna, respondent no.4 in person.
Mr. Gajanan Pawade, Administrative Officer, M.C.G.M. and Ms.
        Salma Haju, Head Clerk, M.C.G.M. (Legal Department) are
        present in Court.


                      CORAM :     S.V. GANGAPURWALA, ACTING C.J. &
                                  SANDEEP V. MARNE, J.

Judg. Resd. on : 27 January, 2023.

th

Judg. Pron. on : 2 nd February, 2023.

Judgment ( Per : Sandeep V. Marne, J.)

1. Petitioner, working as Assistant Law Officer in Municipal Corporation of Greater Mumbai (M.C.G.M) seeks antedating of his Rane 2/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

promotion to that post by grant of deemed date of 3 rd July, 2008 with further relief of promotion to the post of Deputy Law Officer. He also sets up a challenge to the seniority list of Assistant Law Officers published on 13 July, 2021. Order dated 8 March, 2022 th th

passed by the respondent-Municipal Corporation, rejecting his demands is also under challenge.

2. Petitioner, belonging to Vimukta Jati category came to be appointed on the post of Junior Law Officer in M.C.G.M. on 31 st

December, 1998. Though, he had submitted Caste Certificate at the time of his appointment, the validity certificate from the competent scrutiny committee was neither issued nor submitted to the respondent-Municipal Corporation.

3. Disciplinary proceedings were initiated against the petitioner on 8 February, 2008. In the meantime, his case was th

considered for promotion to the post of Assistant Law Officer by the Departmental Promotion Committee meeting convened on 18 th

June, 2008. However, on account of pendency of disciplinary proceedings, he was not recommended for promotion. The disciplinary proceedings culminated into imposition of penalty of withholding increments for three years on permanent basis. The penalty period got over on 30 November, 2011.

th

4. Another disciplinary proceedings were initiated against him vide Memorandum of Chargesheet dated 30 January, 2013 in th

which penalty of censure and fine of Rs.5,000/- was imposed on Rane 3/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

him. Amount of fine was recovered from the salary payable to him for May, 2013.

5. Petitioner had failed to submit the Caste Validity Certificate from competent scrutiny committee in respect of the caste claim and the same came to be issued on 4 February, 2016 th

and submitted with the respondent-Municipal Corporation on 1 st

March, 2016. After submission of the Caste Validity Certificate, his case was considered for promotion to the post of Assistant Law Officer and promotion was granted to that post vide order dated 21 November, 2016. By subsequent order dated 28 May, 2018 the st th

petitioner was granted financial upgradation in the pay scale of Assistant Law Officer (time bound promotion) w.e.f 31 October, st

2011.

6. Draft Seniority List of Assistant Law Officer was published on 13 July, 2021. Petitioner raised his objection to the th

draft Seniority List on 16 July, 2021. The seniority list was finalised th

on 22 March, 2022. In the final seniority list, petitioner's name nd

figures at serial no.45, considering the date of his promotion to the post of Assistant Law Officer as 21 November, 2016. As against this, st

the name of respondent no.4 figures at serial no.9 by considering her date of promotion as 3 rd July, 2008. The petitioner claims promotion to the post of Assistant law Officer w.e.f 3 rd July, 2008 and consequent correction in the seniority list and further promotion to the post of Deputy Law Officer. His representation raising demands came to be rejected by communication dated 8 th Rane 4/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

March, 2022, which is also subject matter of challenge in the present petition.

7. Appearing for the petitioner, Mr. Gore the learned Counsel would submit that petitioner became due for promotion to the post of Assistant Law Officer on 3 rd July, 2008 which was unlawfully denied to him without any valid reason. This has resulted in respondent no.4, who was otherwise junior to him, superseding him in the seniority list of Assistant Law Officers. He has also raised alternate plea that after the period of penalty in respect of first disciplinary proceedings was over on 30 November, th

2011, the petitioner ought to have been promoted to the post of Assistant Law Officer, as neither any proceedings were pending nor the petitioner was undergoing punishment during the period 30 th

November, 2011 to 31 st May, 2013. He would submit that even though time-bound promotion is granted to him w.e.f. 31 October, st

2011, seniority list is prepared taking into consideration his date of promotion as 21 November, 2016. He would submit that submission st

of Caste Validity Certificate was not in his control and he cannot be blamed for late issuance of the same. He therefore prays for antedating promotion of the petitioner either w.e.f. 3 July, 2008 or st

atleast from 30 th November, 2011 and consequent change in the seniority list.

8. Per-contra, Ms. Kapadia the learned Counsel appearing for MCGM would oppose the petition submitting that the petitioner is not entitled to be granted promotion during the Rane 5/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

currency of penalty which got over on 30 th November, 2011. That petitioner got a right of promotion only after submission of Caste Validity Certificate w.e.f. 21 October, 2016. So far as demand for st

antedating the promotion as Assistant Law Officer w.e.f. 31 st

October, 2011, Ms. Kapadia, would raise the plea of gross delay and latches on the part of the petitioner in raising demand for the same. She would submit that the petitioner never made any representation seeking promotion w.e.f. 31 October, 2011. She st

would submit that the petitioner has filed the present petition at the verge of his retirement raising stale claims with a view to defeat lawful rights of respondent no.4, whose chances of promotion would be marred.

9. We have also heard respondent no.4, who appears in person. She would submit that she is due to the promotion of Deputy Law Officer being at serial no.9, in the seniority list, whereas, petitioner's name figures at serial no.45. She prays for not entertaining the petitioner's petition.

10. Rival contentions of the parties now fall for our consideration.

11. First, we shall consider petitioner's prayer for grant of promotion to the post of Assistant Law Officer w.e.f 3 rd July, 2008.

No doubt, this prayer is hopelessly barred by delay and latches. Not a single representation is placed on record demanding that promotion immediately after 3 July, 2008. However, we proceed rd Rane 6/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

to momentarily ignore the objection of delay and latches to consider if there is any merit in the claim of the petitioner for promotion w.e.f. 3 July, 2008. Undeniably, petitioner was rd

undergoing disciplinary proceedings vide Memorandum of chargesheet dated 8 February, 2008, he was inflicted with penalty th

of stoppage of increments permanently for three years vide order dated 6 November, 2008. The penalty was effective till 30 th th

November, 2011. Since petitioner was undergoing penalty, there is no question of effecting his promotion during currency of the penalty. In this connection, Ms. Kapadia has relied upon Circular dated 30 December, 1988 issued by M.C.G.M under which no th

employee whose increment is withheld as a measure of punishment should be confirmed, or promoted during the period for which the increment is withheld. Thus, the petitioner was entitled to be promoted till 30 th November, 2011 during the period when his increments were withheld. Thus, even on merits, petitioner's claim for promotion as Assistant Law Officer w.e.f. 3 rd

July, 2008 deserves summary rejection.

12. Now, we come to the alternate relief (though not sought for in the petition but orally urged by the learned Counsel for the petitioner) for promotion w.e.f. 30 November, 2011. No doubt, the th

petitioner was not undergoing any penalty or disciplinary pro- ceedings during the period 1 December, 2011 to 29 January, 2013.

st th

However, we do not find even a single representation being made by the petitioner immediately after 30 November, 2011 demand-

th

ing promotion as Assistant Law Officer. The first representation on Rane 7/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

the entire subject matter appears to have been made by the peti- tioner for the first time on 10 March, 2021 in which he demanded th

promotion from the year 2008. The next representation is to the draft seniority list made on 16 July, 2021 under which again de-

th

mand was made for grant of deemed date of promotion and se- niority on 3 rd July, 2008. Even his demand for promotion from 3 rd

July, 2008 was made for the first time in the year 2021. Thus, the al- ternate oral prayer of the petitioner for grant of promotion atleast w.e.f. 30 January, 2011 not premised on any representation as all th

his representations are for promotion w.e.f. 3 July 2008. Having not rd

made any representation, Petitioner cannot seek writ of man- damus in that regard. We may make a profitable reference to the recent Division Bench judgment of this Court in Federation of Re- tail Traders Welfare Associate, through its authorized Signatory Mansukh Bhai and Another Vs. State of Maharashtra & Ors, 2022 SCC OnLine Bom 388 : (2022) 2 CLR 644 expounding law on manda- tory requirement of demanding justice before seeking writ of man- damus. This court has held as under:

"2. It seems now to have become a habit in this Court to seek the high prerogative remedy of a mandamus without averring that the petitioner has made a demand for justice but this has been denied; or even making a demand at all, let alone ex- plaining how the case fits in the few limited and well-known exceptions to the general rule. So far, we have allowed peti- tioners to make the necessary amendments. But this dereliction persists, as if writ law of several centuries' vintage is utterly in-

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consequential. So that there is absolutely no mistaking us on this score, we list a few of the very many decisions that make it plain that a demand for justice and its refusal are a sine-qua- non for the grant of a mandamus : Commissioner of Income Tax v. Scindia Steam Navigation Co. Ltd; (1962) 1 SCR 788: [1961 ALL MR ONLINE 167 (S.C.)] Kamini Kumar Das Choud- hary v. State of West Bengal & Ors. (1972) 2 SCC 420 : [1972 ALL MR ONLINE 417 (S.C.)] ; Saraswati Industrial Syndicate Ltd. v. Union of India (1974) 2 SCC 630 : [1974 ALL MR ONLINE 359 (S.C.)]; State of Haryana v. Subhash Chander Marwaha & Ors. (1974) 3 SCC 220 : [1973 ALL MR ONLINE 272 (S.C.)]; Amrit Lal Berry v. Collector of Central Excise, New Delhi & Ors. (1975) 4 SCC 714 : [1974 ALL MR ONLINE 549 (S.C.)]; State of Haryana v. Chanan Mal & Ors (1977) 1 SCC 340 : [1976 ALL MR ONLINE 151 (S.C.)]; Mani Subrat Jain & Ors. v. State of Harayana & Ors.(1977) 1 SCC 486 :[1976 ALL MR ONLINE 629 (S.C.)] ; RXA De Monte Furtado v. Administrator, Goa, Daman & Diu & Ors. 1982 SCC Online Bom 316 : (1983) 2 LLN 623 : 1983 Lab IC 1329; Director of Settlements, AP & Ors. v. MR Appa- rao & Anr. (2002) 4 SCC 638;paragraph 17, Sesa Shipping Ltd. & Anr. v. Board of Trustees of the Port of Mormugao & Anr. (2003) 105 (1) Bom LR 61; Jaripatka Dalit Kalyan Mahila Mandal v. State of Maharashtra; Bharat Petroleum Corpora- tion Ltd. v. State of Maharashtra & Ors. (2004) 5 Bom CR 441 : [2004 (2) ALL MR 433]; Bharat Petroleum Corporation Ltd & Anr. v. State of Maharashtra & Ors; (2009) 4 Bom CR 616 : 2009 SCC Online Bom 756; [2009 (4) ALL MR 640), Qambeer Jeevaji & Ors. v. State of Maharashtra & Ors. (2010) 5 Mah LJ 484 : (2011) 3 Bom CR 299 : [2010 (4) ALL MR 529],; The Rane 9/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

United Goans Shanti Concern v. Chief Secretary, Government of Goa & Ors. 2012 SCC Online Bom 1325; Rajasthan State In- dustrial Development & Investment Corporation & Anr. v. Diamond & Gem Development Corporation Ltd & Anr. (2013) 5 SCC 470.; Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi CHSL, Jaipur & Ors. (2013) 5 SCC 427 : [2013 ALL SC 1048]; Rajesh Punraj Khobra- gade & Ors. v. State of Maharashtra & Ors. 2016 SCC Online Bom 5798; Warsi CHS (Proposed) v. Mumbai Municipal Cor- poration & Ors.2016 SCC Online Bom 4811; DN Jee- varaj v. Chief Secretary, Government of Karnataka & Ors. (2016) 2 SCC 653; More Jeevan Yashwant & Ors. v. Mumbai Municipal Corporation & Anr. 2017 SCC Online Bom 10101; Surendra Govekar & Anr. v. Village Panchayat of Anjuna- Caisua & Ors. 2017 SCC Online Bom 8286 : [2018 (3) ALL MR 292]; All India IDBI SC, Nav Buddhist & OBC Officers' Welfare Association v. IBDI Bank Ltd (2017) 3 Bom CR 425 : 2017 SCC Online Bom 1830 : [2017 (4) ALL MR 400].. There are certainly many more. We may be labouring the point more than some- what, but it seems to us inconceivable that all this learning should count for absolutely nothing.

3. In DN Jeevaraj (supra), the Supreme Court put it like this:

"37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [(2004) 2 SCC 150 : 2004 SCC (L&S) 363] that : (SCC p. 160, paras 12-13) Rane 10/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

"12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from ei- ther in discharge of a public duty or by op- eration of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has estab- lished no specific remedy and whether jus-

              tice   despite   demanded            has       not       been
              granted."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of man- damus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [(1974) 2 SCC 630] in the following words : (SCC pp. 641-42, paras 24-25)

"24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceed- Rane 11/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

ings for prerogative writs are subject in English prac- tice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Hals- bury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede ap- plication.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal'.

25. In the cases before us there was no such de-

mand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Ar- ticle 226 of the Constitution."

(Emphasis added)

13. Apart from failure to make representation demanding promotion w.e.f. the year 2011, the alternate relief is also barred by Rane 12/13 WP-2977-2022--ADV-GORE & MS. KAPADIA(1).doc

the principles of delay and latches and the same cannot be granted.

14. Even otherwise, the grouse of the petitioner is partly mitigated on account of issuance of order dated 28 th May, 2018.

Though the petitioner was granted regular promotion to the post of Assistant Law Officer w.e.f. 21 November, 2016, he has been st

granted the benefit of time-bound promotion (financial upgradation) to the post of Assistant Law Officer w.e.f. 31st October, 2011. Therefore, though the petitioner would not get seniority to the post of Assistant Law Officer, he has been granted benefit of pay-fixation on that post w.e.f. 31 st October, 2011. He accepted the same without any demur. He cannot now be permitted to take a volte face and demand regular promotion to the post of Assistant Law Officer w.e.f 31 October, 2011 at such a st

distant point of time.

15. The contention of the petitioner that he was unaware of his position in the seniority list till the year 2021 as a justification for not filing proceedings at earlier point of time, cannot be accepted. Petitioner himself admits that seniority list for the post of Junior Law Officer of the year 2006 was in existence. Petitioner must have acquired the knowledge of several promotions being effected during the years 2008 to 2016 of his junior counterparts to the post of Assistant Law Officer. It therefore cannot lie in the mouth of the petitioner that he was oblivious of his seniority position.

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16. Consequently, we do not find any merit in the petition. It is dismissed without any orders as to costs.

(SANDEEP V. MARNE, J.) (ACTING C.J.) NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2023.02.04 12:35:11 +0530