Bombay High Court
Keshav Yashwantrao Zond vs The State Of Maharashtra Through ... on 26 September, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
2023:BHC-AUG:20928-DB
1 WP / 7652 / 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7652 OF 2022
Keshav S/o Yashvantrao Zond,
Age : 57 years, Occup. : Extension Officer (Agri),
Panchayat Samiti, Gangapur,
R/o : Plot No. 13, Survey No. 182/2,
Mhasoba Colony, Harsul Parisar,
Currently R/o : Panchayat Samiti Area,
Gangapur, Dist. : Aurangabad .. Petitioner
Versus
1] The State of Maharashtra,
Through Principal Secretary,
Rural Department Ministry,
Mantralaya, Mumbai - 32.
2] The Divisional Commissioner (Revenue)
Divisional Commissionerate,
Delhi Gate, Aurangabad
3] The Chief Executive Officer,
Zilla Parishad, Aurangabad
4] The Block Development Officer,
Panchayat Samiti, Gangapur,
Dist. Aurangabad .. Respondents
...
Advocate for petitioner : Mr. Devidas R. Shelke
AGP for the respondent - State : Mr. S.G. Sangale
Advocate for the respondent no. 3 : Mr. P.R. Nangare
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 27 JUNE 2023
PRONOUNCED ON : 26 SEPTEMBER 2023
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. At the
joint request of the parties, the matter is heard finally at the stage of
admission.
2 WP / 7652 / 2022
2. By way of this petition under Article 226, the petitioner is
seeking a writ of certiorari as well as the mandamus questioning the
impugned order passed by respondent no. 3 - chief executive officer,
Zilla Parishad, Aurangabad dated 20.06.2022 holding that his
promotion to the post of extension officer was made due to a faulty
seniority list dated 10.10.2017. By resorting to the provisions of the
Mahrashtra Zilla Parishad District Services (Post Recruitment
Examination) Rules, 1985 ("Rules") he was demoted and reposted as
the village development officer, Panchayat Samiti, Paithan.
3. The learned advocate for the petitioner would submit that
the petitioner joined in the service of Zilla Parishad as gramsevak in
1986 and was due to retire in June 2023. He cleared the Zilla Parishad
District Service post recruitment examination in the year 1994. He was
thereafter promoted to the post of village development officer in the
year 2004. The Zilla Parishad prepared a seniority list on 10.02.2017
for the village development officers to be promoted to the post of
extension officer. He was standing at serial no. 2 in the seniority list.
Accordingly, he was promoted to the post of extension officer (Agri.) in
the year 2017, however, soon thereafter by the impugned order, he
was demoted to the post of village development officer on 13.12.2017.
4. The learned advocate for the petitioner would submit that
in writ petition no. 15060 of 2017, he had challenged the order of
3 WP / 7652 / 2022
demotion. On 13.06.2018, respondent no. 3 - chief executive officer
made a statement before this Court that the order of demotion was
cancelled. The writ petition was therefore disposed of on 13.06.2018.
However, on 20.06.2022, by the impugned order, respondent no. 3
again demoted the petitioner to the post of village development officer.
5. The learned advocate for the petitioner would submit that
since it is a matter of public employment, respondent no. 3 - chief
executive officer was expected to have followed the principles of
natural justice. No opportunity of being heard was ever extended even
though it was a serious matter of demotion. Respondent no. 3 is even
guilty of misleading this Court. In spite of the earlier order of demotion
having been cancelled by making a statement before this Court he was
bold enough to pass a fresh order for the same purpose and, therefore,
the impugned order is clearly arbitrary and capricious and against the
principles of natural justice.
6. The learned advocate would submit that even a copy of
the impugned order was not served upon him which clearly indicates
mala fides on the part of respondent no. 3 - chief executive officer in
passing the impugned order.
7. The learned advocate for the Zilla Parishad referring to the
impugned order as well as the affidavit in reply on behalf of respondent
no. 3, by the officer of the cadre of deputy chief executive officer
4 WP / 7652 / 2022
submitted that the petitioner who was appointed as a gramsevak in the
year 1986 was required to pass examination under the Maharashtra
Zilla Parishad District Service (Post Recruitment Examination) Rules,
1985, in three chances and within a period of four years from the date
of appointment, by virtue of rule 4 of the Rules. Rule 5(3) provided for
the consequences on failure to pass the examination in the stipulated
chances and within the period, which included even termination from
service. He had failed to pass the examination in the requisite number
of chances and within the period of 4 years from the date of
appointment. He had appeared for the examination in 1989, 1999,
1991 and 1993 although he subsequently cleared it. Rule 5(3) was
subsequently amended on 16.02.1999 and one of the consequences
that was provided for failure to clear the examination as mentioned
herein-above is in the form of loss of seniority. The seniority list
prepared wherein the petitioner stood at serial no. 2 was ignoring the
rule 5(3) as amended in the year 1999. The error was noticed and is
merely rectified by passing the impugned order. It is not a matter of
demotion, only the seniority list has been corrected pursuant to which,
as a consequence the impugned order has been passed.
8. The learned advocate would submit that the promotion of
the petitioner to the post of extension officer (Agri.) on 17.11.2017 was
purely temporary in nature. He was made known that he was liable to
be reverted at any stage and even he had executed such a writing on
5 WP / 7652 / 2022
16.11.2017 which is annexed as R-1. He would therefore submit that
the seniority list of village development officer prepared which was not
in accordance with the rules and has merely been corrected.
9. The learned advocate for the Zilla Parishad would then
submit that the order of demotion challenged by the petitioner in writ
petition no. 15606 of 2017 was cancelled since the High Court had
granted the status quo and the writ petition was merely disposed of.
The respondent no. 3 was not precluded from passing fresh order
setting right the seniority and consequential reversion, which has been
passed strictly in accordance with the rules and cannot be questioned.
10. The learned advocate would lastly submit that pursuant to
the directions issued by this Court in writ petition no. 3688 of 2011, the
government issued the circular dated 31.03.2017. Accordingly, a
seniority list of the village development officers was prepared on
01.01.2021. The petitioner stood at serial no. 12. He did not raise any
objection to that seniority list. There were only four posts of extension
officer (Agriculture) which were vacant. Considering the fact that the
petitioner was at serial no. 12, the respondent no. 3 had no option but
to pass the impugned order merely in accordance with the directions of
this Court and the government rules.
11. We have carefully considered the rival submissions and
perused the papers.
6 WP / 7652 / 2022
12. The fact that the petitioner was required to clear the post
recruitment examination within three attempts and four years and was
unable to do so, has not been controverted by the petitioner by filing
any rejoinder.
13. True it is that by virtue of rule 5(3) as was in existence prior
to 1999 in such a situation of an employee failing to clear the post
recruitment examination within the stipulated attempts and the period
was to face the consequences such as (a) he would not be confirmed
in the service on the post; (b) he was not entitled to release of future
increments and the increments would be released from the date of
passing the examination; and (c) termination from service. It was,
therefore, in this sense the employee was bound to clear the post
recruitment examination in the manner provided therein else was even
liable to be terminated from the service.
14. It appears that this consequence of drastic action of
termination was subsequently diluted by way of amendment of the
rules in the year 1999 which thereafter provided loss of seniority as the
consequence instead of termination.
15. Rule 5 of the Rules dated 08.11.1985 read as under :-
"5. Consequences of failure to pass the examination -
(1) A Parishad employee who fails to pass the examination
within the period and chances specified in rule 4, shall not,
7 WP / 7652 / 2022
until he passes the examination or is exempt from passing
the examination under rule 6:-
(a) be confirmed in the post which he is holding.
(b) be allowed to draw his next increment in the scale of post
which he is holding.
(2) Increments so withheld under paragraph (b) of sub rule (1)
shall become payable to a Parishad employee with effect from
the date on which he passes the examination and future
increments shall occur as if no increment was withheld. The
arrears of increment shall not be admissible for the period
during which his increment was so withheld.
(3) Notwithstanding anything contained in sub-rule (1) or (2), a
Parishad employee appointed to the post by nomination after
the appointed date who fails to pass the examination within the
period and chances specified in rule 4 shall be liable for
termination of his services."
This was diluted in the year 1999 whereafter sub-rule (3) of rule 5 is
amended to following effect :-
"3. In rule 5 of the principal rules, for sub-rule (3), the
following sub-rule shall be substituted, namely :-
(3) A Parishad employee who fails to pass the examination
within the period and chances specified in rule 4, shall loose the
seniority in the cadre of his post to all those Parishad
Employees in the said post who pass the examination before
him and also to all those who are senior to such Parishad
Employee, below whom he is placed, and who may pass the
examination after him but within the period specified in rule 4."
16. Though the petitioner cleared that examination
subsequently it was not within the requisite chances and period. In
fact, for failure to do so, he was liable to be terminated from the
employment, however, could continue to be in the employment of the
Zilla Parishad.
8 WP / 7652 / 2022
17. By way of implementation of the rules amanded in the year
1999, respondent no. 3 seems to have prepared the seniority list
ignoring the consequences provided under rule 5(3) and had promoted
the petitioner. After realizing the error, the seniority list has been
corrected. The petitioner never challenged it at least such a statement
in the reply has not been controverted. The impugned order cannot be
said to be an order of demotion in the sense it merely gives effect to
the rules by providing the correct seniority list which has not been
questioned by the petitioner. It is only as a consequence respondent
no. 3 has declared the petitioner's promotion to the post of extension
officer (agriculture) to be not in consonance with the rules and has
asked him to resume the duty as a village development officer. It is not
a matter of taking any decision against the petitioner who had even
failed to question the seniority list wherein he was placed at serial no.
12.
18. Reliance of the learned advocate for the petitioner on the
decision of this Court in the matter of Anil Manikrao Kulkarni Vs.
State of Maharashtra and others; 2010(3) Mh.L.J. 51 is clearly
misplaced. Though the same rules were under consideration, the
issue therein was that though respondents no. 3 to 7 therein had not
passed the post recruitment examination and though the petitioner
therein had cleared it he was not granted benefit of even the fitment
9 WP / 7652 / 2022
though he was ranking above them who were subsequently exempted
from passing the examination having crossed the age of 45 years.
Here it is a matter of grant of promotion in accordance with the
seniority list in which the petitioner stands at serial no. 12 and there
were only four vacant posts. He was found to have been promoted only
on adhoc basis that too after furnishing a bond on 16.11.2017 agreeing
for demotion to the original post. Admittedly, he had also executed an
undertaking agreeing for reversion in case it was found to be not in
accordance with the rules.
19. On the contrary, in a similar fact situation, in the matter of
Babasaheb Sheshrao Patil and others V. The State of Maharashtra
and others in writ petition no. 3688 of 2011 dated 26.08.2011, a
co-ordinate bench of this Court had dismissed the petition by imposing
costs.
20. We are in respectful agreement with the view taken in that
matter and dismiss the petition.
21. Rule stands discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
