Bombay High Court

Rahul Shivaji Salunkhe And Ors vs The State Of Maharashtra Thr ... on 10 January, 2023

Bench: Sandeep V. Marne

         Digitally
         signed by
         VINA
VINA     ARVIND       Vina Khadpe
ARVIND   KHADPE
                                                     1 / 17
         Date:
KHADPE   2023.01.13                                                       (9) wp 11216.2022 (f).doc
         17:54:41
         +0530

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 11216 OF 2022

                      1.     Shri Rahul Shivaji Salunkhe                   ... Petitioners
                             Age - 39 years, Occupation -
                             Service/C.E.A.
                             Dy. Eng. C-1, Worli, Mumbai
                             Residing at M/7/A, 501, Mauli Building,
                             Pratiksha Nagar, Sion, Mumbai
                      2.     Shri Lalit Prabhakar Varule,
                             Age-49 years, Occupation - Service/C.E.A.
                             Dy. Eng. Sub. Div. No.1, Dindori, Nashik,
                             Residing at Flat No.3, Vrunda Apt.,
                             Manik Nagar, Opp. Atul Dairy,
                             Kamthwada, Nashik.
                      3      Shri. Milind Namdeo Marathe,
                             Age-53 years, Occupation-Service/ C.E.A.,
                             Dy. Eng. Andheri (P.W.), Sub.Div.
                             Andheri (W), Mumbai
                             Residing at 8 Type 2 Caterers, 3rd Floor,
                             PWD Co-Op., Opp. Tahasil Offce,
                             Dadabhai Road, Andhei (W),
                             Mumbai - 400058.
                      4.     Shri Yogesh Kashiram Thakare,
                             Age - 35 years, Occupation - Service /
                             C.E.A.
                             Dy. Eng. Sub. Div. Surgana, Nashik
                             Residing at 11, Raj Vihar Row House,
                             Near S.T. Workshop, Peth Road,
                             Omkar Nagar, Nashik - 422 004.
                      5.     Shri Prashant Karbhari Chavan
                             Deputy Engineer, Dindori - 1, Nashik.
                             Age-31 years, Occupation-Service / C.E.A.
                             Residing at A/9/1, Raj Sarathi Society,
                             Indirangar, Nashik -9.
                      6.     Shri Dilip Y. Patharawat,
                             Additional and Dy. Engineer, Sub-Division,
                             South (P.W.), Mumbai.
                             Residing at B 167/6, Government
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       Quarters, Bandra (E), Mumbai 400 051.
                 Versus
1.     The State of Maharashtra,
       Through Principal Secretary,
       Public Works Department (Civil),
       Having offce at Mantralaya,
       Mumbai - 400 032.
2      Deputy Secretary (Establishment),
       Public Works Department (Civil)
       Having offce at Mantralaya,
       Mumbai - 400 032
3      The Executive Offcer
       The State of Maharashtra,
       Public Works Department,
       Having offce at Mantralaya,
       Mumbai - 400032
4      Shri Rajendra Laxmanrao Patil
       Age-about 55 yeas, Occupation - Junior
       Engineer, PWD, Central Mumbai Division,
       Worli, Mumbai
       Residing at Gagan Mahal C-2 (Ground
       Floor), S.P. Road, Worli, Mumbai 400 032.
5      Shri Arun Sheshrao Kharat
       Age - about 55 years, Occupation - Junior
       Engineer, PWD, N. H. Division, Thane,
       N. H. Sub-Division, Murbad
       Residing at B-201, Madhuban CHSL,
       Opp. Railway Power House,
       Ballyani Road, Manda-Titwala (E),
       Taluka - Kalyan, Thane.
6      Yogesh Abhimanyu Ahire,
       Age - 40 years, Occupation - Sectional
       Engineer Class II, Having Offce at
       Executive Engineering P.W. Division,
       District - Jalgaon
7      Ashok Gokul Borate,
       Age - 40 years, Occupation - sectional
       Engineer Class II, Having Offce at
       P.W. Sub Divisional Bhoom,
       Tal. Bhoom, District - Osmanabad.
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8      Arun Tejamal Jadhav
       Age - 46 years Occupation - Sectional,
       Engineer Class II, Having Offce at
       Sub Divisional Engineer,
       P.W. Sub Divisional, Chalisgaon.
9      Rajeshkumar Hemkant Rasse
       Age-54 years, Occupation - Sectional,
       Engineer Class II, Having Offce at
       Sub Divisional Engineer,
       P.W. Sub Divisional, Arvi,
       P.W. Circle, Chandrapur.
10 Arun Madhukar Karanjekar
   Age - 57 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Divisional,
   Lakhandar, District - Bhandara
11 Krushna Laxman Dhole
   Age - 57 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Divisional, (Rural), Nagpur
12 Kamlesh Bhaurao Nagrale
   Age - 40 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   District Laboratory (P.W.)
   Chandrapur.
13 Sunil Vishweshwarrao Betwar
   Age - 44 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sod, P.W. (Tribal)
   Sub Divisional, Allapalli,
   Tal.Ahere, District - Gadchiroli
14     Bupendra Gangadharrao Kumbhare
       Age-44 years, Occupation - Sectional,
       Engineer Class II, Having Offce at
       Sub Divisional Engineer,
       P.W. Sub Divisional,
       A/P/T Bramhopur,
       District - Chandrapur.
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15 Arvind Jejeram Ramteke
   Age - 52 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Divisional,
   Taluka - Nagphid,
   District - Chandrapur
16 Ravidas Parsharam Tembhurne,
   Age-52 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Assistant Engineer Grade-1,
   P.W. Sub Division No.2,
   Taluka - Gadchiroli,
   District - Gadchiroli
17     Kiran Moreshwar Moon,
       Age - 42 years, Occupation - Sectional,
       Engineer Class II, Having Offce at
       Executive Engineer,
       National Highway Division,
       Nagpur.
18 Kailas Pandurang Kulkarni
   Age-43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   P.W. (North) Division,
   Behind Bandhkaam Bhavan,
   Nashik
19 Durgesh Deorao Walmandare,
   Age - 43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sdo, P.W. Sub Division,
   Wadsa, District - Gadchiroli.
20 Bahirji Udhav Shinde,
   Age - 40 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   Public Works Department,
   Aurangabad Road, Fakirwada,
   Ahmednagar.
21 Dnyaneshwar Gunwant Thakare,
   Age - 47 years, Occupation - Sectional,
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                                             (9) wp 11216.2022 (f).doc


       Engineer Class II, Having Offce at
       Executive Engineer,
       P.W. (East) Division,
       Nashik Bandhkam Bhavan Campus,
       Trymbak Road, Nashik.
22 Manoj Hiralal Patil
   Age - 48 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Division,
   Taluka - Jamner, District - Jalgaon.
23 Nilesh Dattatraya Metkar,
   Age-46 years, Occupation - Sectional,
   Engineer Class II, Having offce at
   Public Works (North) Division,
   Trambak Road, Nashik.
24 Jamal Mahebub Shaikh
   Age - 40 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   Road Development Division,
   No.4 Andheri (W), Mumbai
25 Vinod Marotrao Naik,
   Age-51 yeas, Occupation - Sectional,
   Engineer Class II, Having Offce at
   National Highway,
   Sub Division, Pune
26 Hemant Laxman Dashputre
   Age - 44 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   Public Works Division (East),
   Trimbak Road, Nashik.
27 Arun Sudhir Shirsath,
   Age - 46 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   P.W. (North) Division, Nashik
28 Mrs. Farheen Majid Kazi,
   Age - 35 years, Occupation - Sectional,
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                                             (9) wp 11216.2022 (f).doc


       Engineer Class II, Having Offce at
       Executive Engineer,
       Construction Division, Osmanabad.
29 Rjaram Tukaram Gawade,
   Age - 47 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub-Divisional Engineer,
   P.W. Offce Vita,
   Taluka - Khanapur, District - Sangli.
30 Vijaykumar Vilasrao Vanmore
   Age-46 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Deputy Engineer, P.W.
   Sub Division, at Malkapur,
   Taluka - Shahuwadi,
   District Kolhapur
31 Abubakar Babaso Shaikh,
   Age - 43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Division,
   Kavathemhankal, District - Sangli.
32 Rahul Damodar Pachorkar,
   Age - 45 years,Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer Public
   Works Division,
   Taluka -Sangamner,
   District - Ahmednagar.
33 Pramod Rajaram Doiphode,
   Age - 47 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Division,
   Radhanagari,
   District - Kolhapur
34 Nandkishor Latari Dhengle,
   Age - 49 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   P.W. Sub Division No.3, Nagpur
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35 Vilesh Ramprasad Amrute,
   Age - 43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   P.W. Division No.3,
   Sub Division Umred, Nagpur
36 Vinod Deochandji Meshram,
   Age - 43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer, Public Works
   Divisional No.2, Civil Line, Nagpur.
37 Nitin Wasudevrao Zode,
   Age - 41 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   P.W. Integrated Unit, Nagpur.
38 Sachin Arjun Sapkale,
   Age - 40 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Sub Divisional Engineer,
   P.W. Sub Division, Dhorangaon,
   District - Jalgaon
39 Manohar Dhuryabhan Tayade,
   Age - 46 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Assistant Engineer Grade-1,
   P.W. Sub Division, Savada.
40 Sharda Amil Bhute,
   Age - 38 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   P.W. Circle, Nagpur
41 Prajakta Shashikant Kokane,
   Age - 43 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   Public Works Department,
   Opp. Tara Pan
   Near S. T. Stand, Sangamner,
   District Ahemednagar.
42 Sandip Chandrakant Ashtekar,
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       Age-51 years, Occupation - Sectional,
       Engineer Class II, Having Offce at
       Executive Engineer, Public Works Division,
       Near Bus Stand, Sangamner,
       District - Ahmednagar.
43 Dilip M. Somkuwar,
   Age-57 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   National Highway Division,
   Nagpur.
44 Mrs. Dimple Mohan Nair,
   Age - 42 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Deputy Engineer,
   P.W. Sub Division No.2, Behind
   Ramnagar Police Station,
   Mul Road, Chandrapur.
45 Sandip Shriram Bathe,
   Age-40 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Executive Engineer,
   World Bank Project Division
   (PWD), Akola.
46 Swapnil Bapurao Tambe,
   Age - 35 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Having offce at Assistant
   Engineer Grade - I, P.W.D. Sub
   Division, Baramati, District - Pune.
47 Rajendra Laxman Chaudhari,
   Age-39 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division,
   Bhigwan
48 Mukesh Laxman Pawar,
   Age - 39 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division (East),
   Triambak Road, Nashil.
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49 Kishor Krushnarao Kalbande,
   (handicaped)
   Age-53 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division,
   Wardha.
50 Vijay Keshaorao Chopkar,
   Age-45 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Special Project (P.W) Division,
   Yawatmal.
51 Ku. Shital Jagdishrao Kukade,
   Age - 35 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division,
   Achalpur.
52 Aminoddin Bahoddin Kazi,
   Age-44 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division,
   Yawtmal.
53 Aniruddha Madhukarrao Kolkhede                 ... Respondents
   Age - 51 years, Occupation - Sectional,
   Engineer Class II, Having Offce at
   Public Works Division,
   Amravati.

Mr. Amit A. Gharte for the Petitioners.
Mr. B. V. Samant, AGP for the Respondent Nos.1 to 3-State.
Mr. Om Lonkar for the Respondent Nos.4 & 5.
Mr. Bhooshan Bandiwadekar for the Respondent Nos.6 to 53.

                   CORAM : S.V. GANGAPURWALA, ACJ. &
                           SANDEEP V. MARNE, J.

DATED : 10 JANUARY, 2023

PC :-

1. By this Petition, the petitioners assail order dated 3 rd Vina Khadpe 10 / 17 (9) wp 11216.2022 (f).doc

August, 2022 passed by the Maharashtra Administrative

Tribunal at Mumbai (Tribunal) in Miscellaneous Application

No.456 of 2022 fled in Contempt Application No.8 of 2021. By

that order, the Tribunal has proceeded to entertain the Misc.

Application fled by the intervenors (respondent Nos.4 to 53

herein) seeking to intervene in the Contempt Application fled

by the petitioners. The petitioners also assail order dated 24 th

August, 2022 by which the Misc. Applications fled by the

intervenors have been allowed.

2. Appearing for the petitioners, Mr. Amit A. Gharte, the

learned counsel would submit that the petitioners has fled the

Contempt Application No.8 of 2021 for non-implementation of

order dated 13th February, 2020 passed by the Tribunal in

Original Application No.848 of 2018. He would submit that by

that order, the Tribunal has directed the offcial respondents to

rectify the mistake in the seniority list and promote the eligible

candidates including the applicants in Original Application in

accordance with rules. He would submit that as direction was

not implemented, the Contempt Application No.8 of 2021 was

required to be fled. He would submit that the contempt is the

matter between the applicants to the Original Applications and Vina Khadpe 11 / 17 (9) wp 11216.2022 (f).doc

the Offcial respondents with which the intervenors have no

concern. He would submit that by permitting the intervention,

the Tribunal has enlarged the scope of Contempt Petition by

seeking to go beyond the order of which the contempt is

alleged.

3. Per contra, Mr. Om Lonkar Ld. Counsel appearing for

respondent Nos.4 & 5 and Mr. Bhooshan Bandiwadekar ld.

Counsel appearing for respondent Nos.6 to 53 would oppose

the Petition and support the order passed by the Tribunal.

They would submit that the petitioners failed to implead the

intervenors as a party respondents to Original Application

No.848 of 2018 and sought orders from Tribunal behind their

back. That there has been erroneous implementation of order

dated 13th February, 2020 which has resulted in reversion of

some of the intervenors by issuance of show cause notice. It is

therefore submitted that the presence of intervenors is vital to

while deciding the contempt petition. It is also contended by

Mr. Lonkar that some of his clients have already instituted

Original Application No.763 of 2022 challenging the orders of

their reversion.

Vina Khadpe 12 / 17 (9) wp 11216.2022 (f).doc

4. We have also heard Mr. B. V. Samant, learned AGP for the

Respondent Nos.1 to 3-State.

5. It is apparent that the petitioners had fled Original

Application No.848 of 2018 challenging the promotional list

10th April, 2018, 2nd August, 2018 and 19th June, 2018, and

further a direction to prepare a fresh promotional list. It

appears that Original Application No.840 of 2018 was

instituted without impleading affected parties. Tribunal has

disposed of Original Application No.840 of 2018 by passing the

following order;

8. O.A. is disposed of with directions to the Respondent No.1 to rectify the mistake in Seniority List, if any, and to promote the eligible candidates including applicants in accordance to rules.

6. Perusal of order dated 13th February, 2020 would

indicate that no specifc direction was issued by the Tribunal to

effect the promotions of the petitioners. Despite absence of

specifc direction for promotion of the petitioners, Contempt

Application No.8 of 2021 was instituted by them alleging non-

implementation of order dated 13th February, 2020. The

Tribunal proceeded to pass the following order in the Contempt

Application No.8 of 2021 on 25th July, 2022 ; Vina Khadpe 13 / 17 (9) wp 11216.2022 (f).doc

5. We are of the view that this stand cannot be acceptable when there is no stay. The Respondent-State is bound under obligation to take steps for compliance of the order. As per instructions from the learned C.P.O. it appears that the promotion was wrongly given to nearly 112 Civil Engineering Assistants to the post of Junior Engineer. The said promotion as per the order of the Tribunal was given as a deviation of the rules. Hence, it is obligatory on the part of the Respondent-State to issue notice of reversion to all these 112 Junior Engineers who were wrongly promoted by way of compliance of the order of this Tribunal.

7. The order passed by the Tribunal on 25 th July,2 022 in

Contempt Application apparently resulted in issuance of show

cause Notice dated 28th July, 2022 to 85 individuals. This

triggered fling of Misc. Application Nos.456 of 2022 and 496

of 2022 seeking intervention by such affected candidates in

the Contempt Application. It also appears that the affected

individuals have also instituted a separate Application No.763

of 2022 challenging the reversion orders.

8. The law with regard to course of action to be adopted by

the employees who are affected by orders passed by the

Tribunal in proceedings instituted behind their back is well

settled by the Judgment of the Apex Court in its case of K. Ajit

Babu and Others V. Union of India and Others 1. In Paragraph 6

1 (1997) 6 SCC 473 Vina Khadpe 14 / 17 (9) wp 11216.2022 (f).doc

of the Judgment, the Apex Court has held as under;

"4. ....... Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. It may help one class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the courts or the tribunals may not be strictly judgments in personam affecting only the parties to the cases, they would be judgments in rem. In such a situation, the question arises: What remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affects their rights in the matter of their seniority.......

5. The Tribunal rejected the application of the appellant merely on the ground that the appellant was seeking setting aside of the judgment rendered by the Central Administrative Tribunal, Ahmedabad in the case of P.S. John (supra) in TA No. 263 of 1986. It is here that the Tribunal apparently fell in error. No doubt the decision of the Tribunal in the case P.S. John was against the appellant but the application fled by the appellant under Section 19 of the Act has to be dealt with in accordance with law.

6. Consistency, certainty and uniformity in the feld of judicial decisions are considered to be the benefts arising out of the "Doctrine of Precedent". The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also. Whenever an application under Section 19 of the Act is fled and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in the earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger Bench/Full Bench and place the matter before the Chairman for constituting a larger Bench so that there may be no confict upon the two Benches. The larger Bench, then, has to consider the correctness of the earlier decision in disposing of the later application. The larger Bench can overrule the view taken in the earlier judgment and declare the law, which would be binding on all the benches (see John Lucas1). In the present case, what we fnd is that the Tribunal rejected the application of the appellants thinking that the appellants are seeking setting aside of the decision of the Tribunal in Transfer Application No.263 of 1986. This view taken by the Tribunal was not correct. The application of the appellant was required to be decided in accordance with law."

Vina Khadpe 15 / 17 (9) wp 11216.2022 (f).doc

9. In our view, the affected employees being respondent

Nos.4 to 53 in the present Petition have rightly instituted

separate Original Application No.763 of 2022. The issue is

therefore whether it was necessary for those employees to

seek intervention in contempt application as well? The answer

to the question would be in the negative. By hearing such

affected employees in contempt application, the Tribunal

cannot enlarge the scope of such contempt application, which

is restricted in examining whether there is willful and

intentional violation of its order passed in OA. In that view of

the matter, there is no question of permitting them to

intervene in Contempt Application No.8 of 2021 instituted by

the petitioners.

10. True it is that the Tribunal faces a unique situation

where implementation of its order passed in OA 840 of 2018 is

apparently resulting in reversion of employees who were not

heard while deciding the OA. However the situation can very

well be salvaged by hearing and deciding OA No. 763 of 2022.

What we also fnd that while disposing of OA 840 of 2018, the

Tribunal has not issued any specifc direction for promotion of

Applicants therein or reversion of any individuals. It appears Vina Khadpe 16 / 17 (9) wp 11216.2022 (f).doc

that there are competing claims between the two sets of

employees over the issue of seniority. The seniority list has

been directed to be corrected by order passed in OA 840 of

2018. The issue of very same seniority list is also involved in IA

763 of 2022.

11. The Tribunal has already observed in its order dated 24 th

August, 2022 as under;

3. M.A. No.496 of 2022 and M.A. No.456 of 2022 are hereby allowed. Apparently we are of the opinion that separate O.A. is required to fle.

4. Learned Advocate Mr. Lonkar submits that he has already fled O.A. No.763/2022 which is on today's board under the caption 'Due Admission' wherein next date is fxed as 30.08.2022.

5. Adjourned to 30.08.2022 along with O.A. No.763/2022.

(emphasis supplied)

12. Thus, the Tribunal has already posted Contempt

Application No.8 of 2021 along with Original Application

No.763 of 2022. Both set of proceedings can be heard together.

Petitioners herein can be directed to be added as party

Respondents to OA 763/2022 by the Tribunal. Intervention by

respondent Nos.4 to 53 in Contempt Application No.8/2021 is

neither warranted nor permissible. Order dated 24 th August

2022 to that extent deserves to be set aside. Vina Khadpe 17 / 17 (9) wp 11216.2022 (f).doc

13. Accordingly, we proceed to pass the following order;

ORDER

(i) Order dated 24th August, 2022 passed in M.A.

No.496 of 2022 and 456 of 2022 is set aside;


      (ii)    Applicants in OA No, 763 or 2022 shall implead
              Applicants     in   OA    No.    840/2018       as      party
              Respondents;

(iii) Tribunal shall proceed to hear Contempt Application No.8 of 2021 along with OA No.763 of 2022 and make an endeavor to decide the same as expeditiously as possible.