Bombay High Court
Archana Shivaji Darade And Others vs The State Of Maharashtra Through ... on 19 July, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 11856 / 2022
1. Archana Shivaji Darade,
Age 43 years, Occu. Govt. Service as Awal Karkun,
R/o. Abhijeet Niwas, Vyankatesh Nagar,
Chatrapati Chowk Nanded
Tq. Dist. Nanded 431 605.
2. Prabhu s/o Kisanrao Panode,
Age 38 years, Occu. Govt. Service as Awal Karkun,
R/o. At post Devurwadi (Punarwasan),
Tq. Arni, Dist. Yawatmal 445 103.
3. Dipali Ramakant Pinjarkar,
Age : 38 years, Occ. Govt. Service as Awal Karkun
R/o Navin Hanuman Nagar,
Near Pathyapustak Mahamandal, Amrawati,
Tq. Dist. Amrawati. 444 604.
4. Hareshwar s/o Tukaram Khude,
Age : 41 years, Occ. Govt. Service as Awal Karkun
R/o Taroda (Bu.) Road, Krushna Nagar,
Nanded Tq. Dist. Nanded 431 605.
5. M. Jameeroddin Azaroddin Siddiqui,
Age : 41 years, Occ. Govt. Service as Awal Karkun
R/o House No.1-17-286, Siddiqui Building,
Nanded Tq. Dist. Nanded 431 605.
6. Pranita Pandurang Gawale,
Age : 36 years, Occ. Govt. Service as Awal Karkun
R/o NDA41/A-2/3-2, CIDCO, New Nanded,
Nanded Tq. Dist. Nanded 431 603.
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7. Subhadra Nagraj Beti,
Age : 49 years, Occ. Govt. Service as Awal Karkun
R/o Nyay Nagar, Vasarni, Nanded
Nanded Tq. Dist. Nanded 431 603.
8. Ganpatrao s/o Kondbarao Shelke,
Age : 38 years, Occ. Govt. Service as Awal Karkun
R/o Suryawanshi Niwas, Manjula Nagar, Bhokar,
Nanded Tq. Dist. Nanded 431 801.
9. Digamber s/o Govindrao Gadilwad,
Age : 34 years, Occ. Govt. Service as Awal Karkun
R/o At Pandharwadi (via Barad) Post Shemboli,
Tq. Mudkhed Dist. Nanded 431 745.
10. Preeti d/o Pradiprao Dahale,
Age : 31 years, Occ. Govt. Service as Awal Karkun
R/o 34/A, Bhagwant Nagar, Malegaon road,
Nanded Tq. Dist. Nanded 431 605.
11. Vijay s/o Rameshwar Surushe,
Age : 34 years, Occ. Govt. Service as Awal Karkun
R/o At Shivpuri, Post Chaygaon,
Tq. Mehkar, Dist. Buldhana 443 301.
12. Nagesh s/o Shivshankar Swami,
Age : 38 years, Occ. Govt. Service as Awal Karkun
R/o At Plot No.60, Tirumala Gardens,
Near Maheshwari Bhawan, New Kautha,
Tq. Mehkar, Dist. Buldhana 443 603.
13. Ganga Subhashrao Suryawanshi,
Age : 41 years, Occ. Govt. Service as Awal Karkun
R/o Malegaon Road, Vaibhav Nagar,
Behind Jain Temple, Taroda (Kh.) Nanded
Dist. Nanded 431 605.
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14. Ushatai Pralhadrao Subhedar,
Age : 44 years, Occ. Govt. Service as Awal Karkun
R/o A/p Yewati, Tq. Mukhed,
Dist. Nanded 431 715.
15. Munjabhau s/o Kishanrao Lokare,
Age : 40 years, Occ. Govt. Service as Awal Karkun
R/o Anusaya Nagar, Khanapur Area,
Parbhani Tq. Dist. Parbhani 431 401.
16. Kishan s/o Dagduji Gulgule,
Age : 39 years, Occ. Govt. Service as Awal Karkun
R/o Mahatama Phule Nagar, Asegaon Road,
Vasmat, Tq. Vasmat Dist. Hingoli 431 512.
17. Madhav s/o Balasaheb Pawar,
Age : 40 years, Occ. Govt. Service as Awal Karkun
R/o Near Gram Panchayat A/p Wazur,
Tq. Purna, Dist. Parbhani 431 514.
18. Vishal s/o Balakram Pendkar,
Age : 39 years, Occ. Govt. Service as Awal Karkun
R/o Swatantrya Sainik Colony,
Near Water Tank, Shobha Nagar,
Nanded Tq. Dist. Nanded 431 601. ...Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai 400 032.
2. The Divisional Joint Registrar,
Aurangabad Division, Aurangabad.
3. The District Collector,
Tq. and Dist. Nanded.
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4. Vanita Kashinath Panchal,
Age 44 years, Occ. Service as Revenue Assistant
R/o House No.3-6-401, Dhupia House,
Near Maruti Temple, Gurudwara Gate No.1,
Nanded 431 605.
5. Balaji s/o Digambar Bangarwar,
Age : 40 years, Occ.: Service as
Revenue Assistant (clerk),
R/o.: c/o Yewate Patil, Nileshwari Colony,
Behind Bhavsar Chowk, Nanded 431 605.
6. Namdev s/o Vitthal Palekar,
Age 49 years, Occ. Service as Awal Karkun
R/o Shrikrishna Nagar, Taroda (BK),
Nanded 431 605.
7. Balasaheb s/o Avdhut Puri,
Age 53 years, Occ. Service as Revenue Assistant
R/o House No.68/69, Ex-Servicemen Colony,
Padhegaon Aurangabad.
8. Ankush s/o Kachru Hiwale,
Age 44 years, Occ. Service as
Revenue Assistant (clerk)
R/o Snesh Nagar, Nanded.
9. Ganesh s/o Umakant Narhire,
Age 42 years, Occ. Service as
Revenue Assistant (clerk)
R/o Shiv Nagar, Nanded.
10. Sunita Kishanrao Parodwad,
Age 42 years, Occ. Service as
Revenue Assistant (clerk)
R/o Hanuman Gad, Nanded.
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11. Shankar s/o Vitthalrao Vaidya,
Age 47 years, Occ. Service as
Revenue Assistant (clerk)
R/o Prabhat Nagar, Nanded.
12. Ratnakar s/o Narayan Thakur,
Age 50 years, Occ. Service as
Revenue Assistant (clerk)
R/o Jayprakash Nagar, Asarjan, Nanded.
13. Jagdish s/o Gangadhar Bhale,
Age 38 years, Occ. Service as
Revenue Assistant (clerk)
R/o Deshmukh Galli, Gandhi Chowk,
Tq. Bhokar, Dist. Nanded. ...Respondents
_ _ _
Mr. Ajay S. Deshpande, Advocate for the Petitioners
Mr. S. G. Sangle, AGP for Respondent Nos. 1 to 3/State
Mr. Shailendra S. Gangakhedkar, Advocate for Respondent
Nos.5 to 7 and 11 to 13.
Mr. Janardhan N. Murkute, Advocate for Respondent No.9
_ _ _
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 04 JULY, 2023
PRONOUNCED ON : 19 JULY, 2023
JUDGMENT [PER : SHAILESH P. BRAHME, J.] :
. Heard the learned Counsel for the respective
parties. Rule. With their consent, Rule is made
returnable forthwith.
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2. The petitioners are challenging common judgment and
order dated 28.09.2022 passed by the learned Members of
Maharashtra Administrative Tribunal in O.A. No.457/2022,
460/2022 and 462/2022. By the impugned judgment and
order, the orders of reversion dated 13.05.2022 were
quashed, orders of promotion of few of the petitioners
were also quashed and direction was issued to the
Committee to take a decision afresh.
3. The petitioner nos. 9 to 14 were parties before the
Tribunal. Rest of the petitioners were not parties.
The respondent nos. 4 to 13 are the original applicants.
The parties are referred to according to their status
before the Tribunal.
4. It is the case of the applicants that they had
passed the requisite examination prescribed by the
Maharashtra Sub-Service Departmental Examination Rules
1988 (hereinafter referred to as SSD) and the Maharashtra
Revenue Qualifying Examination Rules of 1999 (hereinafter
referred to as RQE for the sake of brevity ), in the cadre
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of clerk. They were eligible for the promotion. After
following due procedure of law, they were promoted to
the post of Awal Karkun by separate orders issued from
2014 to 2017. A provisional seniority list was prepared
on 14.02.2020. Thereafter final seniority list was
prepared on 26.05.2020.
5. The Divisional Promotional Committee (hereinafter
referred to as DPC) conducted meeting on 21.03.2022. On
the basis of minutes of the meeting, on 13.05.2022
distinct orders were passed reverting the applicants.
On 13.05.2022 and 15.07.2022, orders of promotions were
passed in favour of the opponents.
6. Being aggrieved by orders of reversion and orders of
promotions, applications were filed before the Tribunal.
The main plank of the ground was that the seniority list
published on 26.05.2020, which was foundation for
impugned orders of reversion and promotions was quashed
by the Tribunal on 30.03.2022 in O.A. No.390/2020. This
development during the interregnum period from
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21.03.2022 to 13.05.2022 was not brought to the notice
of DPC. The applicants were not heard before passing of
orders of reversion.
7. The claim of the applicants was contested by the
opponents mainly on the ground that they were given
promotions by orders dated 13.05.2022 and 15.07.2022 on
the basis of their eligibility as per SSD and RQE Rules.
They were qualified for the promotion as per the
guidelines given by the larger bench in O.A.
No.554/2015. The applicants were not eligible to the
promotion.
8. The learned Members of the Tribunal recorded in
paragraph no.6 of the impugned judgment that the private
respondents in the original applications did not respond
and did not appear in the matter. It was recorded that
before passing the orders of reversion the opportunity
of hearing should have been given to the applicants. The
development of quashment of seniority list dated
26.05.2020 should have been brought to the notice of the
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DPC before passing impugned order dated 13.05.2022. It
was further held that when impugned orders were passed,
the seniority list dated 26.05.2020 was not in
existence. Other issues on the merits were not dealt
with by the Tribunal. The following order was passed.
ORDER
[i] Order dated 13-05-2022 impugned in the present
O.As. is quashed and set aside.
[ii] Consequently, the respondent authorities are
directed to place the applicants on their
original position and cancel the promotions
granted in favour of the private respondents.
[iii] We clarify that, it would be open for the
respondent authorities to take a fresh decision
by giving due opportunity of hearing to the
applicants as well as the private respondents
and holding fresh DPC for the said purpose.
[iv] There shall be no order as to costs.
9. Considering the pleadings and the documents placed
on record, following are the undisputed facts.
(i) SSD Rules are for confirming and retaining the
seniority. Whereas RQE Rules are for securing
eligibility to the promotion.
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(ii) OA No.354/2015 was a reference, which was decided by
a Larger Bench on 02.02.2017.
(iii) OA No.390/2020 was decided by the Tribunal on
30.02.2022. Seniority list dated 26.05.2020 was quashed
by part no.'C' of the operative order.
(iv) Rule 4(a) of SSD was held to be ultra vires. The
directions were issued to revise the seniority list as
per the provisions of SSD, with further direction to
consider the eligibility for the promotion.
(v) DPC held meeting on 21.03.2022 and implemented the
decision by impugned order on 13.05.2022. In the
meantime, the decision in OA No.390/2020 was rendered on
30.03.2022.
(vi) The promotions given to the applicants and opponents
were stated to be temporary in nature.
(vii) The petitioner nos. 1 to 8 were not parties before
the Tribunal. However petitioner no. 9 to 14 were
parties, but did not respond and appear.
10. Pertinently, OA NO. 390/2020 was decided by the
Tribunal on 30.03.2022. The operative part of the
judgment reads as follows.
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(A) Rule 4(a) of the Maharashtra Sub-Service
Departmental Examination Rules, 1988 are unambiguous and
therefore, attributing any restrictive interpretation to
the same by way of issue of clarification/ guideline,
including the Circular issued by the General
Administration Department of the State Government, dated
17.11.2017 without amending "The Rules, 1988", having
effect of interpreting the phrase 'number of chances' as
"number of consecutive chances" are, hereby, held to be
ultra vires to the said Ruels, 1988.
(B) Interpretation/ clarification provided by the
circular of General Administration Deparmtnet, dated
17.11.2017 to the phrase "Number of Chances" for passing
Sub-Service Departmental Examination as per Provisions
of Rule 4(a) of The Maharashtra Sub-Service Departmental
Examination Rules, 1988 is, hereby, quashed and set
aside and this decision shall have only prospective
effect in respective of identical cases/ claims.
(C) The seniority list dated 26.05.2020, prepared and
published by the respondent no.3, the District
Collector, Nanded w.r.t. 01.01.2019 is, hereby, quashed
and set aside.
(D) The order dated 26.05.2020, passed by the respondent
no.3, the District Collector, Nanded rejecting/ not
accepting the objection filed by the applicant to the
above mentioned seniority list dated 26.05.2020 is,
hereby quashed and set aside.
(E) The respondents are hereby directed to accordingly
revise the said seniority list for the post of Junior
Clerks, as per the provisions of Rule 4(c) of the
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Maharashtra Sub-Service Department Examination Rules,
1988, giving effect to the manner of counting "number of
chances" as decided by this order, for the purpose of
passing the sub-service departmental examination within
the period and chances prescribed under Rule 4(a) of the
"The Rules 1988".
(F) The respondents to consider the case of the
applicant for promotion to the post of Senior Clerk as
per the revised seniority, as per the seniority cum
merit criterion and applicable rules, orders and
guidelines. Accordingly, the applicant may be extended
all the consequential benefits as per the extant rules
in this regard.
(G) No order as to costs.
11. The scenario which emerges from the rival
contentions is that the seniority list is required to be
prepared as per guidelines given by the larger bench in
OA No.354/2015. It is not necessary to comment on the
validity of the promotion or the reversion given to the
parties involved in the petition. The respondent nos. 1
to 3 have not carried out the exercise of preparing
seniority list as per guidelines of various decisions
rendered. The affidavit-in-reply filed by the respondent
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nos. 1 to 3 before the Tribunal, does not make the
picture clear.
12. The learned AGP appearing for the respondent nos. 1
to 3 is unable to point out how the promotions and
reversions given to the parties are valid. It is the
case of the petitioners that they were promoted after
re-determination of the seniority list on 28.06.2022.
However, the orders of promotion dated 13.05.2022 and
15.07.2022 do not refer to the seniority list finalized
on 28.06.2022. The affidavit-in-reply filed by the
respondent nos. 1 to 3 before the Tribunal is vague on
this aspect, though there is reference to seniority list
dated 28.06.2022.
13. What emerges from the decisions rendered in OA
No.354/2015 and OA No.390/2020 that there is a need to
prepare revised seniority list considering the relevant
provision of SSD Rules and RQE Rules as interpreted by
the Tribunal. The said exercise is lacking.
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14. There is no infirmity in finding of the Tribunal
that the decision of 30.03.2022 passed in OA No.390/2020
was required to be considered before passing orders of
reversion and promotion. The directions given by the
Tribunal in operative part no.2 and 3 are in-consonance
with the orders passed in OA No.354/2015 and 390/2020.
15. The Tribunal rightly did not deliberate on issues
like validity of promotion or reversion, validity of the
seniority list or validity of the position of the
individuals in the seniority list etc. As a seniority
list prepared in accordance with the Rules guidelines
issued from time to time by various forum was not
available, it was reasonable to direct the authorities
to follow the direction and to prepare seniority list by
considering all the aspects of the matter.
16. We are of the opinion that the Tribunal has arrived
at a plausible conclusion. Otherwise also the promotions
given to the parties were temporary in nature. No
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serious prejudice can be said to have been caused to the
parties by the impugned order.
17. We do not find any merit in the matter. Thus the
writ petition is dismissed. Rule is discharged. No
order as to costs.
[SHAILESH P. BRAHME, J.] [MANGESH S. PATIL, J.]
NAJEEB/..
