Vijay Parmeshwar Thool vs Nagpur Municipal Corporation, ...
2023 Latest Caselaw 10152 Bom

2023:BHC-NAG:14400-DB


                                                                                    wp.4117.2022,Judgment.odt
                                                                (1)

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            NAGPUR BENCH : NAGPUR

                                            WRIT PETITION NO. 4117 OF 2022

                             Vijay Parmeshwar Thool,
                             Aged about 54 Years,
                             Occupation - Service, Resident of
                             Plot No.6, Milind Nagar, Khamla,
                             Nagpur.                                                ..... PETITIONER

                                                         // VERSUS //

                      01    Nagpur Municipal Corporation,
                            through is Commissioner,
                            General Administration Department,
                            Civil Lines, Nagpur.

                      02    Additional Commissioner,
                            (City) Nagpur Municipal
                            Corporation, Civil Lines, Nagpur.

  Respondent No.3
                      03    Shri P. R. Gaidhane,
  deleted as per            Aged about 57 Years,
  Court       Order         Occupation - Service,
  dated 29.08.2023.         Resident of Plot No.293,
                            Annapurna Floor Mill, Reshimbagh
                            Road, Nagpur 440009.                                    .... RESPONDENTS

                      ---------------------------------------------------------------------------------------
                             Shri Amit A. Choube, Advocate for petitioner.
                             Shri J. B. Kasat, Advocate for respondent Nos.1 and 2.
                             Respondent No.3 - Deleted.
                      ---------------------------------------------------------------------------------------


                                                    CORAM :        AVINASH G. GHAROTE AND
                                                                   URMILA JOSHI-PHALKE, JJ.

RESERVED ON : 05.09.2023 PRONOUNCED ON : 03.10.2023

JUDGMENT : [ PER: URMILA JOSHI-PHALKE, J.]

1. RULE. Rule made returnable forthwith.

wp.4117.2022,Judgment.odt

2. The matter is finally heard by the consent of the parties.

3. By this writ petition, the petitioner is seeking direction to

rectify the seniority list and grant the petitioner the benefit of deemed

promotion for the post of Assistant Superintendent from 25.10.2013.

The petitioner also claimed promotional benefits.

4. The petitioner was initially appointed on the post of

Fireman in the Fire Department on 28.05.1992 of Nagpur Municipal

Corporation in a reserved category. On 24.12.2003, he was appointed

on the post of Revenue Inspector. During the course of his employment,

applications were invited by the Nagpur Municipal Corporation for filling

up the backlog of posts of backward class in Nagpur Municipal

Corporation. In all 114 posts were advertised, among them the 9 posts

of Revenue Inspectors were also advertised along with the relevant

criteria for selection. The petitioner had participated in the said process

of selection and was selected and appointed on the establishment

department of Nagpur Municipal Corporation as a Revenue Inspector

since 24.12.2003. As per contention of the petitioner, on 12.10.2006 the

respondent Nagpur Municipal Corporation prepared the seniority list of

Revenue Inspectors and Senior Clerks and it was published wherein the

petitioner was shown at serial No.108. On 04.03.2013, the seniority list wp.4117.2022,Judgment.odt

of Revenue Inspector was updated and published wherein the petitioner

was shown at serial No.8, whereas junior employees were shown at

serial Nos.5, 6 and 7. On 20.03.2013, he had raised an objection to the

seniority list published. On 18.10.2013, an official note showing

recommendation for the post of Assistant Superintendent was published.

In the said list, two posts were shown to be reserved and on the said

reserved posts the employees namely Shri G. G. Patil and Shri N. B.

Bhovate who were juniors to the present petitioner were promoted. The

promotion orders to Shri G. G. Patil and N. B. Bhovate for the post of

Assistant Superintendent were issued. The petitioner again made a

representation and requested for correction in seniority list of Revenue

Inspector by filing representation on 25.06.2018. However, the

representations dated 25.06.2018 and 20.03.2013 remained

unanswered. Again on 25.04.2019, the petitioner has raised objection to

the seniority list of the year 2018 whereby again one Dhananjay Jadhav

who was junior to the petitioner was shown senior to the petitioner. As

per the grievance of the petitioner, though he had preferred the

representations time and again which remained unanswered the junior

employees were promoted without arising any reasons. Lastly, on

09.08.2019 petitioner was promoted to the post of Assistant

Superintendent. As per the contention of the petitioner, if timely

correction had been made in the seniority list, he would have been wp.4117.2022,Judgment.odt

promoted in 2013 itself. On 13.09.2019, Shri G. G. Patil was promoted

to the post of Tax Superintendent, though petitioner was senior.

Therefore, petitioner again made a representation for the correction of

the seniority list. The petitioner made representations thereafter on

11.06.2021, 29.06.2021 and 22.09.2021, but the respondent - Nagpur

Municipal Corporation had not taken cognizance of the same and

despite various representations intentionally promoted the junior

employees by ignoring the claim of the present petitioner, who was

entitled for the said promotion. In fact, the representations made by the

petitioner were not decided by the respondent - Nagpur Municipal

Corporation. In the year 2023, again seniority list was published and

deemed seniority was given to the petitioner from 25.10.2013. By the

said order, petitioner was promoted as Assistant Superintendent. As per

the contention of the petitioner, though the grievance of the petitioner

that he is to be given deemed promotion from 25.10.2013 is redressed in

the year 2023, but during these years he has undergone mental agony

and his representations are not considered though the respondent -

Nagpur Municipal Corporation was under obligation to consider the said

representation and rectify the seniority list. The Nagpur Municipal

Corporation had not assigned any reason for non consideration of the

said representations. Thus, the action on the part of the respondent -

wp.4117.2022,Judgment.odt

Nagpur Municipal Corporation is arbitrary, illegal and against the natural

justice.

5. As per the contention of the respondent Nos.1 and 2 that

though the petitioner was shown junior in the seniority list first time on

04.03.2013 he never raised any objection to the said seniority list. As

soon as the respondents came across the mistake, they rectified the same

and now deemed promotion from 25.10.2013 is already given to the

present petitioner therefore, the grievances of the petitioner are

redressed. In view of that, petition deserves to be dismissed.

6. Heard learned Counsel Shri Amit Choube for the petitioner.

He reiterated the contentions and submitted that the present petitioner

who was entitled for the timely promotion was ignored by the

respondents without assigning any reason and intentionally he was

shown a junior in the seniority list. He was also ignored for the

promotion without assigning any reason. Admittedly, petitioner is

promoted in the year 2023 and deemed seniority was given to him from

25.10.2013 however, during these days the petitioner who had made

several representations had under gone mental agony as his juniors are

promoted and no reason was assigned therefore, the exemplary costs is

to be imposed on the respondents, due to which, the respondent -

wp.4117.2022,Judgment.odt

Nagpur Municipal Corporation would not commit such type of the acts

in future and other employees would not suffer due to the same.

7. Per contra, learned Counsel Shri Kasat for the respondents

submitted that the present petitioner never objected for the seniority list,

so he waived his right of objection. As soon as the respondent came

across the mistake, they have rectified the same and deemed seniority is

given to the petitioner, therefore, nothing survives in the petition and the

petition liable to be dismissed.

8. Having heard the learned Counsel for the petitioner and on

perusal of the documents, it is apparent that there is no dispute that

initially on 28.05.1992 the petitioner was appointed as a Fireman on the

establishment of Fire Department run by the Nagpur Municipal

Corporation. The appointment order is placed on record. By order

dated 20.11.2003, the petitioner was appointed on the post of Revenue

Inspector. There is no dispute that first time in the year 2006 i.e. on

30.09.2006 common seniority list of Revenue Inspector and Senior Clerk

was prepared by the respondent and it was published. As per the said

seniority list, present petitioner was shown at serial No.108 and one Shri

N. B. Bhovate, Shri G. G. Patil and Shri D. A. Jadhav were shown at

serial No.110, 112 and 115 i.e. next to the present petitioner. The said wp.4117.2022,Judgment.odt

seniority list was updated on 01.02.2013 wherein Shri Dhananjay

Jadhav who was at serial No.115 in the seniority list dated 30.09.2006

was shown at serial No.5, Shri G. G. Patil who was at serial No.112 was

shown at serial No.6 and N. B. Bhovate who was at serial No.110 was

shown at serial No.7. The said seniority list was published on

01.02.2013. The petitioner has objected the said seniority list by filing

representation which was received by the respondent on 20.03.2013. It

is apparent that though petitioner has objected the seniority list dated

01.02.2013 wherein he was shown junior to the employees who were

junior to him, admittedly, there is no communication on record to show

that the respondents have taken cognizance of the said representation.

Thus, it is apparent that the respondents neither answered the said

representation nor rectified the list, nor replied the communication to

the present petitioner. Admittedly, Shri G. G. Patil and N. G. Bhovate

were promoted in the year 2013 itself by issuing order dated

25.10.2013. There is no dispute that Shri G. G. Patil and Shri Bhovate

were junior to the present petitioner in the seniority list of year 2006.

The said mistake showing the present petitioner a junior is continued in

the seniority list which was published on 2016. Thereafter, also the

petitioner has made representation to rectify the mistake. From the

record it reveals that several representations were made by the present

petitioner but the respondent - Nagpur Municipal Corporation neither wp.4117.2022,Judgment.odt

rectified the list nor answered the representations and continued the

similar mistake in the seniority list which was published in 2018.

Finally, the petitioner was promoted to the post of Assistant

Superintendent on 09.08.2019 and subsequent to that the seniority list

was corrected in the year 2020. There is no dispute that the present

petitioner was promoted after filing of this petition in the year 2023 as a

Superintendent but the grievance of the petitioner is that if timely

correction had been made in the seniority list, he would have been

promoted in 2013 itself. Due to the mistake committed by the

respondent, he was not promoted prior to Shri G. G. Patil on a higher

post as a Tax Superintendent. In fact, he was entitled for the promotion

of Superintendent in the year 2019 itself. But, due to the mistake on the

part of the respondent, Shri G. G. Patil was promoted to the post of Tax

Superintendent though petitioner was senior to him. The petitioner has

admitted that now deemed seniority is already given to him from

25.10.2013 from the date on which Shri G. G. Patil and Shri N. B.

Bhovate was promoted. The petitioner's contention is that during these

days as his juniors were promoted, he had undergone mental agony for

no reason, it was not his fault due to which he was not promoted but

the approach of the respondents to the representations made by him is

to be taken into consideration and therefore, exemplary costs is to be

imposed on the respondents.

wp.4117.2022,Judgment.odt

9. There is no dispute that in making the promotions, it should

be ensured that suitability of the candidates for promotion is considered

and it should be in impartial manner. The obligation is on the employer

to ensure that the candidates who are suitable for the promotions and

the said promotions to be made in impartial manner. Here in the present

case, though mistake was pointed out by the petitioner immediately after

publishing the seniority list of year 2013. The respondents have not

taken cognizance of the said objection. Though learned Counsel Shri

Kasat vehemently submitted that the petitioner never objected the

seniority list published in the year 2013, however, the copy of the

communication filed on record by the petitioner shows that the

respondents' inward and outward department has received the said

communication on 20.03.2013 i.e. on the same day when the

representation was made by the petitioner. Subsequent to the said

representation instead of rectifying the mistake respondents continued

the same seniority list and shown the petitioner junior to the employees

who were juniors to him. The various representations made by the

petitioner are remained unanswered and no reason is assigned by the

respondents. This approach of the respondent requires to be deprecated.

There is no dispute that the person to enter in the service with some

ambitions and to achieve the highest position in the profession in which

he is working. If the promotion was declined due to some misconduct wp.4117.2022,Judgment.odt

on the part of the employees then the employees cannot make any

grievance about the same. But when the employer is unable to point

out any default on the part of the employees and juniors are promoted

then definitely it causes mental agony to the petitioner. The petitioner

has every right to know why he was shown as a junior in the seniority

list. The said valuable right of the petitioner was not considered by the

respondents - Nagpur Municipal Corporation and intentionally not

granted the promotion to him.

10. Considering this approach of the respondents, though

petitioner is promoted and the grievance of the petitioner is redressed, to

deprecate the practice of the respondents, costs deserves to be imposed

on the respondents. In view of that, we proceed to pass following order.

ORDER

(i) The Writ Petition is dismissed.

(ii) Considering the approach of the respondents which is partial and against the natural justice, the cost of Rs.50,000/- (Rs. Fifty Thousand) is imposed on the respondents.

(iii) The respondents shall deposit the costs within two weeks from the date of the decision of this petition.

Rule is discharged.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.) Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Sarkate.

Date: 03/10/2023 19:33:00