Bombay High Court
Sanghmitra R Sandansing vs The Municipal Corporation Of ... on 17 March, 2023
Bench: Sandeep V. Marne
Kishor V. Kamble 1/33 WP 3266 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3266 OF 2022
Sanghmitra R. Sandansing, )
Age 55 years, Occu. Service )
R/o. 502, Shivshakit Cooperative Housing )
Society, Opp. Bhabhai Cemetery, )
Borivali (West), Mumbai - 400 092 ) ...Petitioner
VERSUS
1. The Municipal Corporation )
of Greater Mumbai, )
Through its Municipal Commissioner, )
MCGM Head Office, )
Mahapalika Marg, CST-Mumbai-400001 )
2. Ld. Municipal Commissioner, )
MCGM Head Office, )
1. Mahapalik Marg, )
CST - Mumbai-400001 )
3. Ld. Deputy Municipal Commissioner )
(General Administration) )
Having office at )
MCGM Head Office, )
Mahapalik Marg, )
CST - Mumbai-400001 )
4. Sunitl Kacheshwar Sonawane, )
Age adult, )
Deputy Law Officer, )
MCGM Head Office, )
Mahapalik Marg, )
CST - Mumbai-400001 )... Respondents
...
Mr. Mihir Desai Senior Advocate a/w. Mr. Mihir Joshi i/b. Gurubala Birajdar
for Petitioner.
Mr. A. V. Bukhari Senior Advocate a/w. Mr. Burhan Bukhari i/b. Mrs. Shilpa
Redkar for Respondent MCGM.
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Mr. Joaquim Reis, Senior Advocate a/w. Mr. Bemardo Reis i/b. Ms. Aditi
Naikare for Respondent No.4.
Smt. Deepa Nigudkar from MPS Section of MCGM.
...
CORAM : S. V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
RESERVED ON : 3rd MARCH, 2023.
PRONOUNCED ON : 17th MARCH, 2023.
JUDGMENT : (per - SANDEEP V. MARNE, J.)
1. Rule. Rule is made returnable forthwith. By consent of parties,
Petition is heard finally.
2. This is fight between petitioner and respondent No.4 for promotion to
the coveted post of Law Officer in one of the largest Municipal Corporations
in the country-Municipal Corporation of Greater Mumbai (MCGM). This is
second round of litigation. Petitioner, who is admittedly senior to respondent
No.4 in the cadre of Deputy Law Officer, is challenging the minutes of
Departmental Promotion Committee (DPC) convened on 12th May, 2022 for
consideration of her case for promotion to the post of Law Officer. She also
challenges communication dated 13th May, 2022 rejecting her claim for
promotion to the post of Law Officer. Communication dated 17 th May, 2022
rejecting her request of grant of additional charge of the post of Law Officer
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is also under challenge. Petitioner seeks her promotion to the post of Law
Officer by constitution of afresh DPC in accordance with law.
3. Narration of brief factual background as a prologue to the judgment
would be necessary. Legal department in MCGM is fairly large and consists
of 356 staff members. It is spearheaded by one Law Officer. The
hierarchical of legal department in MCGM is as under:
Law Officer (1 post)
Joint Law Officer (3 posts)
Deputy Law Officer (13 posts)
Assistant Law Officer (89 posts)
Junior Law Officer (2 posts)
Though Junior Law Officer is lowest post in the hierarchy, it is
common ground that the entry level post in the legal department is Assistant
Law Officer.
4. Having recruited in the services of respondent-Municipal Corporation
on the post of Assistant Law Officer on 25 th February, 1995, Petitioner
climbed the hierarchical ladder by earning promotions to the posts of
Deputy Law Officer on 1st June, 2012 and Joint Law officer on 28 th
December, 2020. Respondent No. 4 came to be appointed on the post of
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Assistant Law Officer in the year 1998 and was further promoted to the post
of Deputy Law Officer on 1st November, 2014.
5. As per resolution No. A-22 adopted by the respondent Municipal
Corporation on 28th September 1984 and Government Resolution dated 8 th
May, 1985, the post of Law Officer is to be filled in the following manner:
"APPOINTMENT TO THE POST OF LAW OFFICER SHALL BE MADE
(A) BY PROMOTION AMONG THE DEPUTY LAW OFFICER IN
THE LEGAL DEPARTMENT OF THE CORPORATION
(i) Who have held that post not less than 5 years and
(ii) Possess adequate knowledge of Marathi to enable them to
read, write and speak that language with facility.
OR
(B) BY SELECTION FROM AMONG CANDIDATES, WHO
(i) Unless already in the service of Municipal Corporation of
Greater Mumbai are not more than 45 years of age to (50 years
in case of candidates belonging to backward Classes )
(ii) Possess a degree in law of statutory university
(iii) Possess experience of administrative cum legal work in
responsible position in a Government, Semi Government
establishment or an Industrial Organisation for a period of not
less than 10 years and
(iv) Have adequate knowledge of Marathi so as to be able to read,
write and speak that language with facility."
6. The post of Law Officer fell vacant on 30 th September, 2021 due to
superannuation of earlier incumbent Aruna K. Sawala. File notes dated 14 th
September, 2021 and 23rd September, 2021 were submitted by the Chief
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Personnel Officer for constitution of DPC for recommending the suitable
officer for promotion to the post of Law Officer. In the meantime, additional
charge of the post of Law Officer was handed over to respondent No.4 on
7th October, 2021.
7. Petitioner felt aggrieved by handing over charge of the post fo law
officer to her junior and also apprehended denial of regular promotion on
account of implication in several departmental proceedings/show cause
notices. She therefore filed writ petition No. 23165 of 2021 challenging 7
show cause notices issued to her in March 2018 as well as memorandum of
charge sheet for conducting Disciplinary Enquiry. She also filed writ petition
(L) No. 23789 of 2021 challenging order dated 7th October 2021 by which
respondent No.4 was handed over additional charge of the post of Law
Officer. Both writ petition No. 23789 and 23165 of 2021 were heard together
and were reserved for orders on 26th October 2021.
8. In the meantime, DPC was convened on 13 th October 2021 for
consideration of 3 candidates- petitioner, respondent No.4 and one A. P.
Gadgaonkar for promotion to the post of Law Officer. Because of pendency
of Departmental Enquiry, it was decided to keep the case of petitioner in
sealed cover. The DPC recommended name of respondent No.4 for being
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promoted to the post of Law Officer. The Municipal Commissioner placed
proposal for promotion of respondent No.4 before the Law Committee,
which adopted resolution accepting the proposal on 26 th October 2021. The
General Body of the Municipal Corporation thereafter adopted resolution
sanctioning promotion of respondent No.4 as Law Officer on 30th December,
2021. Order dated 31st December 2021 came to be issued promoting
respondent No.4 as Law Officer. Though the promotion is termed as
temporary, the parties are at ad idem that all promotions are being treated
as temporary on account of pendency of litigation on the issue of
permissibility of reservations in promotion.
9. It appears that this court was not made aware of holding of DPC and
grant of promotion as Law Officer to respondent No.4. This court
pronounced its judgment on 4th February 2022 and set aside the 7 show
cause notices as well as memorandum of charge sheet dated 12 th March,
2021 issued to petitioner. The respondent Municipal Corporation was
directed to consider her case for promotion to the post of Law Officer
without the influenced by 7 cause notices and memorandum of charge
sheet. The order dated 7th October 2021 handing over additional charge of
Law Officer to respondent No.4 was continued for a period of 2 months. The
Municipal Corporation was directed to take appropriate decision afresh
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regarding appointment of incharge Law Officer. The order of this court was
unsuccessfully challenged by the respondent Municipal Corporation in the
Apex Court by filing SLP(C) No. 5484-5485 of 2022, which came to be
dismissed on 18th April 2022. However, on request made at the behest of
the Municipal Corporation, the time limit for continuation of additional
charge of respondent No.4 as well as for taking fresh decision for
appointment of incharge Law Officer was extended by period of 4 weeks.
10. Towards implementation of the order of this court, the respondent
Municipal Corporation convened DPC on 12 th May 2022, which considered
the case of petitioner alone for promotion to the post of Law Officer. The
DPC however did not recommend her name for such promotion. By letter
dated 13th May 2022 the recommendations of DPC was conveyed to the
petitioner. Her request for appointment as incharge Law Officer also came
to be turned down by communication dated 17 th May 2022. Petitioner has
accordingly challenged the recommendation of the DPC held on 12 th May
2022 as well as communications dated 13 th May 2022 and 17th May 2022 in
the present petition.
11. Appearing for petitioner, Mr. Desai the learned senior advocate would
submit that non consideration of case of petitioner for promotion to the post
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of Law Officer by the DPC is in gross violation of judgment and order
passed by this court. That the respondents have merely completed a
formality of consideration of petitioner's case. That the order of this court
envisaged conduct of review DPC by which comparative assessment of
petitioner and respondent No.4 ought to have been undertaken. However,
the DPC considered the case of petitioner alone and arrived at an
erroneous conclusion that she is not fit for promotion to the post of Law
Officer.
12. Mr. Desai would further contend that the relevant service period to be
considered for assessing fitness of officer for promotion is only 5 years,
whereas the DPC deliberated dug into past records of Petitioner for
adjudging her unfit for promotion. That this court had specifically made
observations that imposition of old penalties on her would not have any
effect on her entitlement for promotion and such specific directions of this
court haven been violated. That while past penalties imposed on Petitioner
is considered as a reason for denying her promotion, the penalty imposed
on Respondent No. 4 has conveniently been ignored. Mr. Desai would
further contend that petitioner has been promoted on the post of Deputy
Law Officer on 1st June, 2012 and as a Joint Law Officer on 28th December,
2020 and that if past penalties did not come in the way of those promotions,
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the same could not have been a reason for denial of promotion to the post
of Law Officer. In support of his contention, Mr. Desai would rely upon
judgment Badrinath vs. Government of Tamil Nadu & Ors. (2000) 8 SCC
395.
13. The petition is resisted by Municipal Corporation. Mr. Bukhari, the
learned senior advocate appearing for the respondent Municipal
Corporation would submit that consideration of petitioner's case for
promotion to the post of Law Officer has been done strictly in accordance
with the order passed by this court. That the entire service record of the
Petitioner was directed to be taken into consideration by this court. That
several punishments have been imposed on petitioner from time to time,
which has been taken into consideration by the DPC.
14. Mr. Bukhari would further submit that Law Officer is a vital post in the
organisation of the respondent Municipal Corporation as 356 staff in various
hierarchal positions report to the Law Officer. Law Officer is also required to
render his opinion from vital issues of the Municipal Corporation. That
therefore the Municipal Corporation is entitled to take into consideration the
entire service record of officer for considering his/her fitness for promotion
to the post of Law Officer.
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15. So far as consideration of case of petitioner alone by the DPC is
concerned, Mr. Bukhari would submit that this was done in pursuance of
specific direction of this court which envisaged consideration only
petitioner's case for promotion. Therefore, there is no question of
reconsideration of case of respondent No.4. He would further submit that in
the event of petitioner being found suitable for promotion, the Municipal
Corporation would have reverted respondent No.4 while granting promotion
to petitioner. He would further submit that the factum of grant of regular
promotion to respondent No.4 was specifically brought to the notice of the
Supreme Court in the SLP filed by respondent-Municipal Corporation. That
though the promotion of respondent No.4 is termed as temporary, the same
is done only on account of pendency of litigation pertaining to reservation in
promotion and that the promotion is otherwise regular for all purposes.
Mr. Bukhari would further submit that petitioner has failed to challenge the
promotion of respondent No.4 or the minutes of DPC recommending his
promotion.
16. In support of his contentions, Mr. Bukhari would rely upon the
following judgments:
i) Rama Negi vs. Union of India & Ors., (2022) 5 SCC 150,
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ii) Union Public Service Commission vs. Jawahar Santhkumar & Ors.,
(2020) 18 SCC 356;
iii) Dr. Prasannashu vs. Selection Committee for Vice Chancellor,
National Law University, Delhi & Anr. High Court of Delhi (W.P. (C)
5497/2020 & CM 19796/2020) dated 25.09.2020;
iv) Union of India and Anr. vs. K.K. Verma, 2018 SC OnLine Bom 374;
v) Union of India & Ors. vs. S.P. Nayyar, (2014) 14 SCC 370;
vi) M.V. Thimmaiah & Ors. vs. Union Public Service Commission & Ors.
(2008) 2 SCC 119;
vii) Union of India & Anr. vs. S.K. Goel & Ors. (2007) 14 SCC 641;
viii) R.S. Dass vs. Union of India & Ors. 1986 (Supp) SCC 617;
17. Mr. Reis, the learned Senior Advocate appearing for respondent No.4
also opposes the petition. He would submit that petitioner had filed
Contempt Petition (L) No.32324 of 2022 before the Supreme Court alleging
contempt of the order dated 4th February 2022 describing the act of
Municipal Corporation in promoting respondent No.4 as contemptuous. That
the Apex Court disposed of the contempt petition by order dated 1 st June,
2022 without granting any relief in her favour. That interpretation of order os
this court by Municipal Corporation is plausible, not warranting any
interference by this court. That petitioner has not questioned the promotion
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of respondent No.4 in the present petition. That the comparative
assessment of petitioner and respondent No.4 would otherwise indicate that
respondent No.4 is more suitable for being promoted to the post of Law
Officer.
18. Rival contentions of the parties now fall for our consideration.
19. As per the rules / administrative instructions governing appointment to
the post of Law Officer, the post is to be filled by way of promotion from
amongst Deputy Law Officers who have held that post for not less than 5
years. It appears that the Municipal Corporation has proposed modification
to the recruitment rules by making Joint Law Officer as feeder cadre for
promotion to the post of Law Officer. However, it is common ground that the
State Government has not yet approved the draft of recruitment rules.
Therefore, as of today, the post of Law Officer has to be filled in accordance
of rules / administrative instructions reproduced above.
20. There is no dispute to the position that petitioner is senior to the
respondent No.4, both on the basis of her initial appointment as Assistant
Law Officer as well as promotion to the post of Deputy Law Officer. The
additional edge that petitioner possesses over respondent No.4 is of
promotion to the post of Joint Law Officer. Respondent No.4 was never
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promoted to the post of Joint Law Officer. However, since the feeder cadre
for promotion to the post of Law Officer is Deputy Law Officer, petitioner's
promotion to the post of Joint Law Officer is inconsequential.
21. There is no dispute that both petitioner as well as respondent No.4
possess the requisite criteria as 5 years' service on the post of Deputy Law
Officer for consideration of their cases for promotion to the post of Law
Officer. The post of Law Officer fell vacant on 30th September, 2021 and the
proposal for convening DPC was sent on 14th September, 2021. Before the
DPC could be convened, the respondent Municipal Corporation handed
over charge of the post of Law Officer to respondent No.4 on 7 th October,
2021.
22. Petitioner was facing as many as 7 show cause notices in addition to
one memorandum of charge sheet and apprehended denial for the regular
promotion as Law Officer. She was already denied additional charge of post
of Law Officer. She therefore instituted writ petition (L) Nos. 23789 of 2021
and 23165 of 2021 challenging show cause notices/memorandum of charge
sheet as well as order dated 7th October 2021 handing over charge of the
post of Law Officer to respondent No.4. During pendency of those Petitions,
the respondent Municipal Corporation convened and conducted DPC for
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consideration of case of petitioner, respondent no. 4 and one more officer
for regular promotion to the post of Law Officer on 13th October 2021. DPC
kept Petitioner's name in sealed cover while recommending name of
Respondent No. 4 for promotion. It appears that the factum of conduct of
DPC and its recommendations were not brought to the notice of this Court.
We do not know whether Petitioner was made aware of conduct and
recommendations of DPC before 26th October 2022. However why
Respondent-Municipal Corporation chose to keep this court in dark about
such an important development in the matter is a mystery. After conclusion
of arguments, judgment in those writ petitions was reserved by this court on
26th October 2021.
23. Before this court could pronounce it's judgment and absence of any
prohibitory orders, the respondent-Municipal Corporation acted on
recommendations of the DPC and issued order dated 31 st December, 2021
promoting respondent No.4 to the post of Law Officer. Except being subject
to outcome of pendency of litigations pertaining to reservations in
promotions, the promotion is regular for all practical purposes. Again, the
factum of grant of promotion to respondent No.4 on 31 st December, 2021
was not brought to the notice of this court by any of the parties. Oblivious of
promotion of respondent No.4, this court pronounced its judgment on 4 th
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February, 2022 setting aside 7 show cause notices and memorandum of
charge sheet dated 12th March, 2021. Petitioner's case was directed to be
considered for promotion as Law Officer without being influenced by 7 show
cause notices and the memorandum of charge sheet.
24. There is dispute amongst the rival parties about the manner in which
the direction of this Court to consider Petitioner's case for promotion was
supposed to be implemented. We shall first examine the exact purport of
the directions issued by this court in judgment and order dated 4th February
2022. We reproduce the directions issued by this court in its judgment and
order dated 4th February, 2022:
ORDER
(a) Seven Show Cause Notices issued in the month of March,
2018, issued to the Petitioner (Exhibit "D" to Writ Petition
(Lodging) No. 23165 of 2021) and Memorandum of Charges
dated 12" March 2021 (Exhibit-"T" to Writ Petition (L) No.
23165 of 2021) are quashed and set aside.
(b) It is directed that the Petitioner be considered to the post of
Law Officer of Respondent No.1-M.C.G.M. without getting
influenced by the said seven Show Cause Notices or
Memorandum of Charges as the same are quashed and set
aside.
(c) Order dated 7" October, 2021, (Exhibit "A" to Writ Petition
(Lodging) No. 23789 of 2021) appointing Respondent No.3 as
Incharge Law Officer is Continued for a period of two months.
(d) Respondent No.2 Municipal Commissioner is directed to take
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appropriate decision afresh regarding appointment of the
Incharge Law Officer within a period of two-months from today.
25. As observed above, this court was not aware of conduct of DPC on
13th October 2021 or its recommendations or promotion order dated 31 st
December 2021. This court therefore assumed that the post of Law Officer
was yet to be filled in by regular promotion. This is a reason why this court
directed to consider the case of petitioner alone in clause (b) of paragraph
47. Again, since this court was under an impression that respondent No.4
was merely holding an additional charge of the post of Law Officer in
pursuance of order dated 7th October 2021, it directed in clause (c) that the
order dated 7th October 2021 shall be continued only for a period of 2
months. The direction in clause (d) relates to taking a fresh decision for
appointment of incharge Law Officer, obviously as an interim measure
during pendency of decision for regular promotion.
26. The judgment of this court was assailed by respondent Municipal
Corporation before the Apex Court. Though it was averred in the
memorandum of SLP that respondent No.4 was already promoted as Law
Officer on 31st December, 2021, when the SLP was heard on 18th April,
2022 the respondent Municipal Corporation on it's own volition sought
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extension of time for implementation of directions in clause (c) and (d). It
appears that the Supreme Court was not made aware of the factum of grant
of regular promotion to respondent No.4 when the order in SLP was passed
on 18th April, 2022. On the contrary, the respondent Municipal Corporation
apparently treated as if respondent No.4 continued to hold mere additional
charge of the post of Law Officer on account of judgment of this court. The
order passed by the Supreme Court on 18th April, 2022 reads thus:
"Having heard Mr. C. A. Sundaram, learned Senior Advocate in
support of the petitions, Mr. Shekhar Naphade, learned senior
Advocate for the respondent No.1 on caveat and Mr. Sudhanshu C.
Choudhari, learned Advocate for respondent No.2 on caveat, we see
no reason to interfere in the matter.
However, at the request of Mr. Sundaram, we extend the period
pertaining to Direction No. © issued by the High Court in
paragraph 47 of its decision by further period of four weeks,
consequently, Direction No. (D) will also stand modified
accordingly.
Except for these modifications, rest of the directions are left intact.
The special leave Petitions are accordingly dismissed.
Pending applications, if any, also stand disposed of."
(emphasis ours)
27. Be that as it may be. We do not wish to delve further into the reasons
why the respondent Municipal Corporation did not bring the factum of
promotion of respondent No.4 as Law Officer to the notice of the Supreme
Court during the course of hearing on 18th April 2022. Since Respondent
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Municipal Corporation chose not to bring promotion of Respondent No. 4 to
notices of both this Court as well as to the Supreme Court (except in
pleading), we now proceed to examine the exact manner in which direction
(b) of judgment of this court could be implemented in the given fact-
situation.
28. We have already observed that direction (b) was issued by this Court
being oblivious of fact of promotion of Respondent No. 4 effected on 31 st
December 2021 and under an assumption that the post was yet to be filled
up. In these circumstances when the respondent Municipal Corporation
convened DPC for implementation of order of this court on 12 th May 2022 it
was incumbent upon the respondent Municipal Corporation to reconsider
cases of both petitioner and respondent No.4 for promotion to the post of
Law Officer. In short, what ought to have been done was to review
recommendations of the DPC which was conducted on 13 th October 2021.
This is because Petitioner's name was kept in sealed cover by DPC held on
13th October 2021 due to pendency of disciplinary proceedings, which were
set aside by this Court vide Judgment dated 4 th February 2022. The
respondent Municipal Corporation however proceeded to consider the case
of petitioner alone in the DPC held on 12 th May 2022. This, in our view, is
gross error committed by the respondent Municipal Corporation. It ought to
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have appreciated the fact that direction in para 47 (b) was issued by this
court in view of the fact that the factum of grant of regular promotion to
respondent No.4 was never brought to its knowledge.
29. Even otherwise when this court envisaged consideration of case of
petitioner for promotion to the post of Law Officer, the same could not have
been considered on standalone basis without undertaking the process of
comparative assessment between petitioner and respondent No.4. Even
the case of the 3rd officer ought to have been considered. This is because
the post of Law Officer is to be filled on the basis of seniority cum merit.
Seniority cum merit consideration would be of bench mark. Net seniority is
be considered. When the criteria is seniority cum merit, the consideration
would be if benchmark is met, seniority to be considered. We do not know
the exact benchmark fixed by either of the DPCs, but it appears that
petitioner has also met the requisite benchmark as the DPC dated 12th May
2022 has held that petitioner meets the requisite criteria for promotion.
Petitioner is senior over respondent No.4. The only way respondent No.4
could supersede petitioner is by adjudging him more meritorious than
petitioner. However since in the DPC held on 13 th October 2021 the name
of petitioner was kept in sealed cover, no occasion arose for doing any
comparative assessment between two officers. In that DPC, the case of
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Petitioner was not considered at all. As a result, there is no comparative
assessment between two officers. In absence of such comparative
assessment, respondent No.4 cannot supersede his senior counterpart
(petitioner) by consideration of cases of two officers on standalone basis. In
our view therefore the action of respondent Municipal Corporation in
considering case of petitioner alone in the DPC convened on 12 th May, 2022
clearly suffers from error.
30. Now we proceed to examine the manner in which the DPC held on
12th May 2022 considered the case of petitioner. Towards implementation of
directions of this court, office note was put up on 28 th April, 2022 and two
proposals were made. In proposal 'A' it was recommended that the post of
Law Officer be filled on pure temporary basis subject to the litigation relating
to reservation in promotion pending before the Apex Court. In proposal 'B' it
was recommended that upon grant of promotion to petitioner as Law
Officer, respondent No.4 be reverted on the post of Deputy Law Officer. It
was also proposed to convene DPC after approval of proposals 'A' and 'B'.
It appears that the proposal was approved by the various hierarchal officers
upto Municipal Commissioner on 4 th May 2022. The DPC was held on 9 th
May, 2022, which decided to obtain legal opinion on various issues
especially on the issue as to whether the case of the petitioner could be
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considered for promotion when respondent No.4 was already functioning as
Law Officer. It was also decided to seek opinion on the issue as to whether
the entire service record of the petitioner could be taken into consideration.
31. It appears that after obtaining opinion, the DPC was reconvened on
12th May 2022 with following members:
Municipal Commissioner, Additional Commissioner (ES),
Additional Commissioner (P),
Additional Municipal Commissioner (City/WS),
Joint Commissioner (G. A.).
It appears that Municipal Corporation received opinion stating that
there was no occasion for the DPC to meet for the consideration of
petitioner's case for promotion as Law Officer in view of the fact that the
post was not vacant. The DPC did not agree with the opinion and decided
to consider petitioner's case for promotion. The relevant portion of the
minutes of the DPC held on 12th May 2022 (as translated by the petitioner)
reads thus:
"Hence, as per the above mentioned point & the order issued
by Hon'ble High Court dt. 04.02.2022 case of Smt. Sanghmitra
Rajesh Sandansing, Joint Law Officer for the promotion to the post of
Law Officer has been put before the Promotion Committee for
perusal.
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In the report submitted by Learned Senior Counsel, with regard
to point No.B) the following has been mentioned-
"In so far as, the post of Law Officer is concerned, there was
neither existing vacancy on 04.02.2022 nor there was possibility that
post becoming vacant shortly. Therefore there is no occasion for
D.P.C. to meet to consider the candidate for appointment to the post
of Law Officer and therefore, it is not legally possible for the Quriest
Corporation to called meeting of D.P.C. to consider the Petitioner for
promotion to the post of Law Officer."
In the above report, it is mentioned that, since the post of Law
Officer is not vacant, there is no need to organize a Promotion
Committee. However, Promotion Committee showed disagreement
towards this & by giving respect to the order of Hon'ble Court it is
decided to take decision after considering the case of Smt.
Sanghmitra Rajesh Sandansing, Joint Law Officer to the post of "Law
Officer".
In the report submitted by Learned Senior Counsel, with regard
to point No.C) the following has been mentioned-
"The Corporation will decide on the basis of record of service of
the person whether the person is suitable for the post of Law Officer
and it is only on the Corporation finding that the person is suitable for
the post, that the appointment to the post of Law Officer can be
made."
Similar opinion is also given in the Court proceedings reported
in the case of UNION OF INDIA vs. K.V. JANKIRAMAN & ORS.
"2 While considering an employee for promotion his whole
record has to be taken into consideration."
Thus, in pursuance to the said opinion, Joint Municipal
Commissioner (General Administration) has produced details of
service record during the service period of Smt. Sanghmitra Rajesh
Sandansing, Joint Law Officer and especially submitted detailed
report in resoect of Enquiry matters before the Promotion Committee.
Against Smt. Sanghmitra Rajes Sandansing, Joint Law Offcer
as of today 12 Enquiry cases has been initiated. The details of the
action taken in the said Enquiry matters are as below-
Kishor V. Kamble 23/33 WP 3266 of 2022.doc
Appeal filed
3 After punishment, the sentence reduced after 1
filing of Appeal
7 Preliminary Enquiry (Absent without leave, 2
without service brake)
8 Preliminary Enquiry in which directed to give 1
statement.
9 Pursuant to the directions of the Hon'ble High 1
Court, set aside the Departmental Enquiry
against her in respect of Raghuvanshi Mill
Out of this, details of some of the cases are as under
Shri.B.B Yevle. Pharmacist, M. T. A Municipal
General Hospital, Mulund had made misappropriation in the
calculation of Municipal Medicines and therefore he was
dismissed from the services of Municipal Corporation. In that
regard Shri.B.B Yevle, Pharmacist, filed an Appeal in the
Hon'ble Labour Court. In the said Court case, Smt. Sanghmitra
Rajesh Sandansing, Joint Law Officer has represented
Municipal Corporation. In the said case, the Hon'ble Labour
Court has directed to reinstate Shri.B.B Yevie, Pharmacist, and
to pay back his wages from the date of his dismissal till his date
of rejoining Municipal Services. Since Smt. Sanghmitra Rajesh
Sandansing, Joint Law Officer has not represented and put the
case of the Corporation in proper manner, a charge sheet of
Departmental Enquiry No.CHOE/RRD/413 dated 30.09.1998
has been initiated against her. In the said Departmental Enquiry
she was held guilty and withheld her annual increment of one
year permanently.
Kishor V. Kamble 24/33 WP 3266 of 2022.doc
Though she is duty bound to use the punching card
provided by Corporation by herself only in the absence of Smt.
Sanghmitra Rajesh Sandansingh, Joint Law Officer it was
punched by unauthorized person. As per her entry on muster
roll, when actually she was absent in the office, false
attendance was shown. Also she made a statement that the
punch card was lost and obtained new card and cheated with
the Administration. Because of false attendance, a fulfledged
departmental enquiry was initiated. In the said fulfledged
enquiry she was "blamed". (No.CHOE/DE/SVM/1568 dated
23.07.2007)
3. Smt Sanghmitra Rajesh Sandansingh, Joint Law Officer,
had punched her punching card through another employee at
10.24 but actually she came on duty late. Till july 2006,
because of frequent absence of Smt.Sanghimitra Rajesh
Sandansingh, Joint Law Officer, there was an adverse impact
on the court proceeding and office work and therefore, a
Departmental enquiry was initiated against her and therefore as
a punishment her one annual increment was temporarily
withheld.
4. in the case of unauthorized construction in G-South Ward
Manjarakar compound, 55 Dr.E.Mozes Road, Worli, proper
court proceedings has not been made by Smt.Sanghmitra
Rajesh Sandansingh, Joint Law Officer, Her said act was found
to be gross misconduct followed, irresponsible and negligent
and dereliction in duty and therefore, as per summery enquiry
bearing No. CHOE/DE/SHQ/1824 Dated 15.10.2007 she was
Imposed punished, fine amount of Rs.1000/- and recovered
same from her August 2009 salary.
5. Though she was aware that, the construction made by
Shri Husain, on the land owned by the Municipal Corporation
was unauthorized construction, this fact was not brought to the
notice of the court and on the other hand the documents
submitted by the petitioner were accepted in the court without
any verification, no cross-examination was conducted. Her said
act was found to be gross misconduct, Irresponsible and
negligent and dereliction in duty and therefore, as per order
passed by Deputy Commissioner (Central Recruitment
Authority) bearing No DMC/CRA/5770/dated 28.03.2013 as a
Kishor V. Kamble 25/33 WP 3266 of 2022.doc
punishment, her one annual increment dated 01.07.2013 was
permanently withheld.
Out of the remaining enquiry matters of Smt.Sanghmitra
Rajesh Sandansingh, Joint Law Officer, she was exonerated in
one case and in other case she was omited from enquiry.
Similarly, in one case of preliminary enquiry, she was directed
to submit her statement. In other two preliminary enquires,
Absent Without Leave was done and Departmental Summery
enquiry under number CHOE/DE/RVB/4704/Gen/281/MBN was
set aside as per the Order dated 04.02.2022 passed by Hon'ble
High Court.
The promotion committee Members discussed following
points-
At first, the Promotion Committee has made inspection of
seniority and grading of last five years Confidential Reports of
Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer and
noted that Smt. Sanghmitra Rajesh Sandansingh, Joint Law
Officer, is complied with the prescribed criteria for the post of
Law Officer. Also the Promotion Comittee has noted that Smt.
Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer, had
complied with the prescribed criteria while promoted on the
post of Joint Law Officer, from 01.01.2021.
However, pursuant to direction issued in paragraph
No.37 the Order passed by the Hon'ble High Court, it is
decided to take final decision after considering the service
record and above mentioned enquiries of Smt Sanghmitra
Rajesh Sandansingh, Joint Law Officer.
Legal department is an extremely important as well as
sensitive department Leagal departmet is known as the back
bone of Municipal Corporation. It is the responsibility of Law
Officer to ensure that while handling various matters as
representative of Municipal corporation there is no loss caused
to Municipal Corporation. Therefore, in order to ensure smooth
functioning of the Legal department, there is a requirement of
having an efficient and honest Head Of the Department. Such
Law officer by their behavior improve the morality and working
capacity of the Junior Officers. Hence it is important to decide
thoughtfully while appointing the head of the head of
Department.
Kishor V. Kamble 26/33 WP 3266 of 2022.doc
Since, Smt.Sanghmitra Rajesh Sandansingh, Joint Law
Officer has already undergone punishment in the departmental
enquiries and if such officer has been promoted as a Head Of
Department, there is no creditability in her junior subordinates.
Due of which, the image of the Department will be tarnished
and there will be adverse effect on the day to day work of the
Legal Department.
Considering the above noted enquiry matters during the
entire service period and the punishments imposed on
Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer it is
unanimously decided that, it is not feasible to give promotion to
the post of "Law Officer" which is very important post of Head
of Department.
Thereafter by giving vote of thanks, the work of
Promotion Committee was finished."
32. Thus, perusal of the minutes of the DPC held on 12 th May 2022 would
indicate that the DPC took into consideration the entire service record of the
petitioner which included 5 punishments imposed on her as under:
(i) Withholding of one increment permanently. (charge sheet
dated 30th September, 1998).
(ii) Censure on 23rd July 2007.
(iii) Withholding of one increment temporarily on account of
absence in July 2006.
(iv) Fine of Rs.1000/- in minor penalty proceeding in
pursuance of charge sheet dated 15th October 2007.
(v) Withholding of one increment permanently vide order
dated 28th March 2013.
33. It appears that some more proceedings were initiated against the
petitioner, which resulted in her exoneration or setting aside of penalties.
The DPC also took into consideration Confidential Reports of the petitioner
Kishor V. Kamble 27/33 WP 3266 of 2022.doc
for 5 years and held that she was meeting benchmark. After considering
service record of the petitioner, the DPC decided not to recommend her
name for promotion to the post of Law Officer.
34. It would also be necessary to reproduce the relevant portion of the
DPC held on 13th October 2021 which recommended name of respondent
No.4 for promotion:
"अनु . dz. ३ वरील Jh- सु निल कचे श्वर सोनावणे , उप कायदा अधिकारी हे
खु ल्या वर्गाचे vlwu rs दि. २५.०५.२००४ रोजीच्या से वाज्ये ष्ठता स्थितीनु सार
से वाज्ये ष्ठ आहे त. Jh. सु निल कचे श्वर सोनावणे , उप कायदा अधिकारी हे कायदा
अधिकारी या पदासाठी आवश्यक असणारी उप कायदा अधिकारी या पदावरील ५
o"ksZ vgZdkjh से वा पूर्ण करतात. खात्याच्या चौकशी izek.ki= dz.एलओ/एलईए /
४१२२ दि.१५.०६.२०२१ नु सार rlsp दि. १५.०६.२०२१ रोजीच्या सँ प कार्य iz णाली
चौकशी izek.ki=k नु सार Jh- सु निल कचे श्वर सोनावणे , उप कायदा अधिकारी
यां च्या विरुद्ध कोणतीही न्यायालयीन, फौजदारी किंवा लाचलु चपत iz करण
iz लंबित नाही. तसे p lnj अधिका-याविरुद्ध izk थमिक अथवा खात्यांतर्गत
चौकशी iz लं बित अथवा iz स्ताविले ली नाही तसे च ते शिक्षाधीन नहीr त्यां च्या
मागील पाच वर्षाच्या गोपनीय अहवालांची iz तवारी तपासण्यात आली असता,
सदर पदासाठी vko';d असले ली iz तवारी Jh. सु निल कचे श्वर सोनावणे , उप
कायदा अधिकारी हे धारण करीत आहे त. त्यामु ळे त्यांना 'कायदा अधिकारी या
रिक्त असले ल्या पदावर से वाज्ये ष्ठते नुसार निव्वळ तात्पु रत्या स्वरुपातील
पदोन्नतीसाठी बाहे र अटीसापे क्ष पा= ठरविण्यात आले ."
Kishor V. Kamble 28/33 WP 3266 of 2022.doc
35. Comparison of the minutes of the DPC held on 12 th May 2022 and
13th October 2021 would indicate that the confidential reports of 5 years of
both the officers were taken into consideration. However, while the DPC
held on 12th May 2022 went on to consider entire service record of the
petitioner, consideration of service record of respondent No.4 was
apparently restricted to only 5 years in the DPC held on 13 th October 2021.
The DPC held on 13th October 2021 recorded status of respondent No.4 as
on the date of DPC when he was not undergoing any punishment or penal
or criminal proceedings. However, what is altogether ignored by the DPC
held on 13th October 2021 is the factum of imposition of penalty of
permanent withholding of increment vide order dated 26 th November 2018
which was subsequently reduced to that of fine of Rs.1000/- vide order
dated 19th May 2019. Thus, while punishments imposed on petitioner in the
past period have been taken into consideration by the DPC held on 12 th
May 2022, punishment imposed on respondent No. 4 on 19th August 2019
was ignored by the DPC held on 13th October 2021. Thus past punishments
imposed on Petitioner dating back to 10-24 years (1998 to 2013) are relied
upon by DPC but punishment imposed on Respondent No. 4 just 2 years
before the date of DPC is ignored. This has happened because DPCs met
on two different dates to consider cases of two officers.
Kishor V. Kamble 29/33 WP 3266 of 2022.doc
36. We are therefore of the considered view that the cases of petitioner
and respondent No.4 are considered for promotion to post of Law Officer by
applying different yardstick, which cannot be countenanced in law.
Respondent Municipal Corporation ought to have apply same yardstick for
two officers while considering their cases for promotion.
37. Mr. Bukhari has strenuously contended that this court cannot sit in
appeal over the recommendations of DPC. In support of his contention, he
has relied upon several judgments. There cannot be two opinions on the
settled legal position propounded in those judgments. Though this court
would not go into merits of decision taken by the DPC, it can certainly
examine the procedure adopted by DPC while considering cases of officers
for promotion. In the event of procedure being found flawed, this court
would be justified in interfering. We thus cannot turn blind eye to the fact
that the cases of two officers are considered by applying different
yardsticks. In doing so, we are not sitting in appeal over the decision of the
DPC held on 12th May 2022. All that we are holding is that the procedure
adopted by the DPC is erroneous and that therefore cases of both the
officers deserve to be reconsidered.
Kishor V. Kamble 30/33 WP 3266 of 2022.doc
38. Mr. Desai has relied upon judgment of the Apex Court in Badrinath
(supra) in support of his contention that past penalties imposed on the
petitioner have lost efficacy on account of her subsequent promotion to the
post of Joint Law Officer. At our request, Mr. Bukhari has placed on record
minutes of DPC held on 25th November 2020 for promotion on the post of
Joint Law Officer. After going through it's minutes, we find that imposition of
past penalties on petitioner were not considered by the DPC which
recommended her case for promotion to the post of Joint Law Officer on
25th November 2020. However, at the same time we cannot equate the post
of Joint Law Officer with that of Law Officer, the incumbent on which heads
the legal department of substantially large size with as many as 356 staff
working under her/him. The respondent Municipal Corporation and the DPC
are empowered to determine its own criteria for adjudging fitness of officers
for promotion to the post of Law Officer. We therefore do not wish to make
any observations about the exact norms to be applied by the DPC while
reconsidering the cases of petitioner and respondent No.4 for promotion to
the post of Law Officer.
39. Respondent No.4 has already been promoted to the post of Law
Officer by order dated 31st December 2021. Both MCGM and Respondent
No. 4 have raised objection about absence of challenge to DPC minutes
Kishor V. Kamble 31/33 WP 3266 of 2022.doc
dated 13th October 2021 and promotion order of Respondent No. 4. So far
as minutes of DPC are concerned, it is not necessary to challenge the
same. True it is that Petitioner ought to have challenged promotion order
dated 31st December 2021 of Respondent No. 4. However, since we have
held that cases of Petitioner and Respondent No. 4 for promotion deserve
to be reconsidered, dismissal of present petition for the reason of absence
of challenge to promotion order of Respondent No. 4 would be too
technical. We therefore proceed to mold the relief appropriately.
Accordingly, promotion of respondent No.4 as Law Officer shall be
provisional and subject to outcome of recommendations made by DPC. He
shall be entitled to hold the post provisionally till final decision is taken by
the Municipal Corporation for effecting promotion to the post of Law Officer
as directed by us.
40. In the result we proceed to pass following order:
(i) The respondent Municipal Corporation shall convene
review DPC to review minutes of DPCs held on 13 th
October 2021 and 12th May 2022.
(ii) The review DPC shall reconsider the cases of petitioner
and respondent No.4 for promotion to the post of Law
Kishor V. Kamble 32/33 WP 3266 of 2022.doc
Officer and make appropriate recommendations.
(iii) On receipt of the recommendations so made by the
review DPC, the respondent Municipal Corporation shall
issue the order of promotion in the name of
recommended officer to the post of Law Officer. The
entire exercise shall be carried out within the period of 4
months from today.
(iv) In the meantime, the promotion of respondent No.4 to
the post of Law Officer shall be deemed to be
provisional and subject to outcome of recommendations
of regular DPC.
(v) Respondent No.4 shall continue to hold the post of Law
Officer on provisional basis till issuance of appropriate
order by the Municipal Corporation based on
recommendations of regular DPC.
(vi) In the event of petitioner being found fit for being
promoted to the post of Law Officer, such promotion
shall be granted to her with effect from 31 st December
2021 with all consequential benefits, except backwages.
In the event respondent No.4 is found fit for the
Kishor V. Kamble 33/33 WP 3266 of 2022.doc
promotion to the post of Law Officer, he shall be
deemed to have been promoted on the post of Law
Officer with effect from 31st December 2021 with all
consequential benefits.
(vii) With the above directions. the writ petition is partly
allowed. Rule is accordingly made absolute in above
terms.
SANDEEP V. MARNE, J. S. V. GANGAPURWALA, ACJ
