Subhash Baban Mohitkar vs The State Of Maharashtra, Thr. ...
2023 Latest Caselaw 9858 Bom

2023:BHC-NAG:13984-DB
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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 7572                  OF 2019

                         Subhash Baban Mohitkar,aged 44 years,
                         Occup. Service, R/o Gram Panchayat Majri
                         P.S.Bhadravati Dist. Chandrapur.                     Petitioner
                                          -Versus-

                1.       The State of Maharashtra though its
                         Secretary,    Rural       Development,
                         Department, Mantralaya, Mumbai.
                2.       Zilla Parishad Chandrapur through its
                         Chief Executive Officer, Chandrapur.
                3.       Ravindra Murlidhar Deharkar, Age 45
                         years, Occup.Service, R/o Gram Panchayat
                         Mhatardevi Panchayat Samiti Chandrapur.                Respondents

               ---------------------------------------------------------------------------
                                Mr.T.J.Patil, counsel for the petitioner.
                         Mr. A.A.Madiwale, AGP for the respondent No.1.
                           Mr.B.N.Jaipurkar counsel for respondent No.2.
                                         Respondent No.3 served.
               ---------------------------------------------------------------------------

                                           CORAM : A.S.CHANDURKAR AND
                                                   VRUSHALI V. JOSHI, JJ.
                                           Reserved on : 8th September, 2023
                                           Pronounced on : 25th September, 2023


               JUDGMENT (Per : Vrushali V.Joshi, J.)

Heard.

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2. Rule. Rule made returnable forthwith. The petition is

heard finally with the consent of the learned counsel for the parties.

3. By this writ petition, the petitioner is challenging the

appointment of the respondent No.3, thereby granting the

promotion to the respondent No.3 under the Cadre of 10%

reservation of the Gram Panchayat employee. The petitioner was

appointed in Gram Panchayat Majri,Panchayat Samiti Bhadravati

Distt.Chandrapur on 20.01.1995 on the post of Water Supplier.

In the same year, he was confirmed on the said post. The petitioner

has worked in the said post for about 25 years. There was a vacancy

of Arogya Sevak in Zilla Parishad and the petitioner was eligible to

get promotion on the post of Arogya Sevak under the 10%

reservation scheme for the employee of the Gram Panchayat.

4. Educational qualification for the post of Arogya Sevak is

10th Pass. The petitioner has acquired all the necessary

qualifications to be appointed on the post of Arogya Sevak as he has

also completed his MS-CIT Computer course in the year 2014.

Zilla Parishad prepared the seniority list on 29.12.2018. The

petitioner was at serial No.19. The respondent No.2, in the month

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of January 2019 called the petitioner in his office for document

verification for promotion under 10% reservation scheme for Gram

Panchayat employees. The petitioner has submitted all the

necessary documents.

5. The petitioner was not promoted on the post of Arogya

Sevak. The respondent No.3 on 28.02.2019 was appointed to the

post of Arogya Sevak in the office of respondent No.2 instead of

petitioner. The respondent No.3 has not passed the MS-CIT

examination, which is necessary for the post of Arogya Sevak. On

29.03.2019, the petitioner has conveyed his grievance to the

respondent No.1 that respondent No.3, who is not senior to the

petitioner is promoted in place of the petitioner.

6. The Divisional Commissioner, Nagpur issued a

communication dated 06.05.2019 to the respondent No.2 and

requested the respondent No.2 to conduct an enquiry and to take

necessary steps according to the rules and regulation. The

Divisional Commissioner further requested that after such enquiry,

the respondent No.2 should convey the same to the petitioner and

the Divisional Commissioner Nagpur. The respondent No.2 had

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not conducted any enquiry as requested by the Divisional

Commissioner or any reply has been given by the respondent No.2

to the communication by the petitioner. The petitioner was at

Serial No.19 at seniority list and the respondent No.3 was at Serial

No.20. The educational qualification of both are SSC, however, the

petitioner had passed the MS-CIT exam of Computer Course,

however, the respondent No.3 has not passed the said

examination. The action on the part of respondent No.2 is illegal

by promoting the respondent No.3 instead of petitioner. Hence,

has filed this writ petition.

7. The respondent No.2 has filed his reply and opposed the

petition stating that as per the Government Directives dated

13.03.2008 the age limit for appointment of the 10% eligible

employees from Gram Panchayat employee is 45 years. The said

Government Directive further says that the Calender year will be

from 1st January to 31st December, and the eligible employee, who

attains the age of 45 years even on 1 st January of the year in which

the advertisement is published for recruitment will be eligible for

recruitment in that year. The petitioner has attained the age of 45

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years on 30.11.2018 and the advertisement for recruitment was

published in the year 2019. Therefore, as the petitioner has

attained the age of 45 years in the year 2018, he is not eligible for

recruitment in the year 2019.

8. As per the complaint dated 29.03.2019, lodged by the

petitioner, the Divisional Commissioner, Nagpur on 06.05.2019

had directed the respondent to enquire in the matter and take the

decision and communicate the same to the Office of the Divisional

Commissioner, Nagpur. Accordingly, respondent took the

decision and the same was communicated on 29.06.2019. There is

no merit in the writ petition. Hence, prayed to reject the writ

petition.

9. None appeared for respondent No.3 though served.

10. It is the case of the petitioner that though the respondent

No.3 was junior to him, he was promoted. As per Sub-Rule 2 of

Rule 10(A) of the Maharashtra Zilla Parishad and Panchayat

Samiti's Rules, 1964, the Class III and IV posts in district services

are to be filled by nomination and not less than 10% of the total

posts declared to be vacant in the cadre pertaining to Zilla Parishad Kavita.

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shall be filled from the Panchayat Samitis. The petitioner is

working in Panchayat Samiti as Water Supplier for 24 years. His

name was included in the seniority list in 2018. The respondent

No.3 was at Serial No. 20 in Seniority list. The petitioner was not

considered for the promotion as he was age barred, as he had

completed 45 years of age, when the advertisement was published.

The learned counsel appearing for the petitioner has pointed out

that as per the Government Directives, the Calendar year is from 1 st

January to 31st December and eligible employee, who attains the

age of 45 years even on 1st of January of the year in which the

advertisement is published for recruitment will be eligible for

recruitment in that year which would be till 31 st December. The

CEO has issued letter to Executive Officer of Panchayat Samiti

dated 15.12.2018 and has directed that it is mandatory to give

promotion to the employees, who had completed 45 years on 31 st

December, 2018 and if any person remains to be promoted due to

inaction of Gram Panchayat, then it would be the responsibility of

head of said Gram Panchayat. The petitioner has attained the age of

45 years in November 2018 and due to inaction on the part of

respondents, advertisement published on 02.03.2019.

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11. The Government has issued guidelines on 13.03.2008

and declared to consider the age of employee if he has completed

45 years on 1st January of the calendar year of publishing

advertisement. According to this letter, the petitioner was entitled

to be considered for promotion as he could have been considered

eligible till 31st December, 2018 as he had completed age of 45 on

30.11.2018. It is to be noted that the respondent No.3 was

appointed on 28.02.2019 while the advertisement was issued on

02.03.2019 by the Zilla Parishad. As per additional affidavit filed

by the respondent No.2 on 23.03.2023, the date of appointment of

respondent No.3 is 28.02.2019 which proves that even before

issuance of advertisement, the respondent No.3 was appointed.

This clearly indicates that the respondent No.3 was appointed in

the earlier process of 2018 disregarding the petitioner's claim. The

promotion of the respondent No.3 is contrary to law and

procedure and is required to be set aside.

12. It is not in dispute that the petitioner is senior in service to

the respondent No.3. He has cleared the MS-CIT examination

which is the requirement while the respondent No.3 has not passed

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the same. It clearly shows that the petitioner's seniority was ignored

by the respondent No.2. Hence the order passed by the respondent

No.2, promoting the respondent No.3 is set aside. Direction is

given to the respondent No.2 to appoint the petitioner on the post

of Arogya Sevak in Zilla Parishad Chandrapur. The respondent

No.3 is already working in the said Zilla Parishad, therefore,

direction is given to place him on a vacant post, if available by

issuing him a fresh order.

13. In view of above, the writ petition is allowed in aforesaid

terms. Rule accordingly. No costs.

(VRUSHALI V. JOSHI, J) (A.S.CHANDURKAR, J)

Kavita.