Bombay High Court
Sagar S/O Ramamurti Butoliya vs State Of Maharashtra, Thr. ... on 5 September, 2023
Bench: Avinash G. Gharote, Urmila Sachin Phalke
1 29-3710-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3710/2022
Sagar s/o Ramamurti Butoliya
Vs.
The State of Maharashtra and others
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. Mohan Sudame, Advocate for petitioner
Mrs.K.R. Deshpande, AGP for Respondents / State
CORAM: AVINASH G. GHAROTE &
URMILA JOSHI-PHALKE, JJ.
DATED : 5th SEPTEMBER, 2023
Heard Mr. Sudame, learned counsel for the
petitioner and Mrs. Deshpande, learned Assistant
Government Pleader for the respondents / State.
2. The petition challenges the refusal of the
learned Maharashtra Administrative Tribunal to grant
deemed date to the petitioner regarding his
employment to Group C cadre by the order dated
23/08/2017, which has been rejected by the
judgment dated 25/04/2022 (page 105). The brief
facts giving rise to the petition indicate that the
petitioner was appointed to a Group D post with the
respondents No.2 and 3, as a Laboratory Assistant, on
compassionate basis, by the order dated 03/06/2014
(page 39). The petitioner on account of his
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educational qualifications claimed entitlement to be
appointed to Group C post and therefore, had
approached the learned Tribunal by O.A.
No.305/2015, which came to be partly allowed by
the judgment dated 31/03/2017 (page 41) and the
respondents were directed to consider the petitioner's
claim for Class III (Group C) post in view of his
representation dated 11/7/2014, which appointment
was directed to be issued within two months from the
date of the order. It was, however, directed that the
petitioner would not be entitled to arrears of pay for
the upgradation post retrospectively (page 48). The
petitioner, thereafter, was appointed in Class III
(Group C) by the order dated 23/8/2017 (page 49),
as a Typist cum Clerk. The petitioner has, therefore,
filed O.A. No. 882/2019, claiming deemed date of
appointment from 12/6/2014. This O.A. has been
dismissed by the impugned judgment dated
25/4/2022, resulting into the present petition.
3. Mr. Sudame, learned counsel for the
petitioner submits that the rejection of the petition by
the learned Tribunal is upon in an incorrect
proposition of law inasmuch as the same has been
rejected on the ground of Order 2 Rule 2 of Code of
Civil Procedure (CPC). It cannot be disputed and as is
held in G.S. Rathore Vs. Union of India and another
2007(6) Mh.L.J. 313, that the provisions of CPC are
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limited in its applicability in regards to the matters
over which the learned Maharashtra Administrative
Tribunal has jurisdiction, as under :
"6. Chapter IV of the Act deals with
the matters relating to procedure and
powers of the Administrative Tribunal.
Section 22 of the Act opens with the
negative language, stating that the tribunal
shall not be bound by the procedure laid
down in the Code of Civil Procedure, 1908.
It is to be guided by the principles of natural
justice and, furthermore, the tribunal is
vested with the power to regulate its own
procedure in relation to the various aspects.
In other words, it is not the Legislative intent
that the provisions of the Code should be
applicable stricto senso. The paramount
precept of administrative procedure before
the tribunal is the principle of natural justice,
added by the own prescribed procedure of
the tribunal. [Of course, further to add to the
same provision of Section 22(3) of the Act,
to what extent the tribunal shall be vested
with the power of the Civil Court).
The application of the provisions
of the Code would, therefore, be limited and
restricted to the extent specified specifically
in the provisions of Section 22(3) of the Act.
The object of the Legislation is clear that it
intended to exclude, by using specific
language, application of the Code per-se and
made restricted provisions applicable to the
tribunal and to give liberal construction to
this provision, would neither be fair nor
permissible. In fact, it may amount to
defeating the very object and purpose of the
substantive provisions of Section 22 and the
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scheme of the Act. The very purpose of
constitution of the tribunal was for
expeditious disposal of matters or disputes
or complaints arising in respect of
recruitment and conditions of services of
persons appointed to the public service and
posts. The tribunal, therefore, would
exercise powers of civil court only limited by
the requirements of Clause (a) to (i) of Sub-
section (3) of Section 22 of the Act. With
some emphasis, the contention of the
learned Counsel for the petitioner was that
Section 22(3)(b) of the Act empowers the
tribunal to require discovery and production
of documents and this by necessary
implications, would include power to serve
interrogatories."
The rejection on this ground therefore,
would be incorrect.
4. We have, however, heard the learned
counsel for the petitioner on merits and are unable to
agree with his contention that the petitioner would
be entitled to deemed date appointment in Class III
(Group C) w.e.f. 12/6/2014. This is so for the reason
that though the application may have been made
earlier in point of time by the petitioner for
compassionate appointment, the same is not a matter
of right, therefore, the petitioner cannot claim any
entitlement to a particular vacancy (See Nilima
Khapekar Vs. Executive Director, Bank of Baroda,
Baroda and others, 2022(3) Mh.L.J. 441).
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5. The fact that the petitioner has been
directed to be considered for being appointed in a
Group C vacancy, by the learned Maharashtra
Administrative Tribunal would only indicate that
such appointment would be from the date when it is
so made and cannot relate back to 12/06/2014.
Mere making of an application for appointment on
compassionate basis would not entitle the petitioner
for deemed date appointment from the date of the
application, for the reason that as and when the
vacancies arise, the appointment within the
permissible limits have to be made. That apart, the
petitioner has already rendered his services in Group
D and therefore, this is not the case of upgradation,
but a case of fresh appointment to a Class C vacancy.
In that light of the matter, we do not see any reason
to interfere in the impugned order. The petition is
dismissed. No costs.
(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 06/09/2023 11:21:12
