Bombay High Court
Pandit Mukundrao Takankhar vs The State Of Maharashtra And Others on 10 February, 2025
2025:BHC-AUG:3796-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 377/2014
1. Pandit Mukundrao Takankhar,
Age : 59 years, Occu. Superintendent,
Attached with Court
of District Judge-1,
Khandhar, Dist. Nanded ...Petitioner
Versus
1. The State of Maharashtra
Through its Secretary
Law and Judiciary Department
Maharashtra State, Mantralaya,
Mumbai.
2. The District Judge -1 Khandhar,
District Nanded.
3. The Principal District & Sessions
Judge, Nanded.
4. Prabhakar Sambhaji Tuptewar,
Age : 55 years, Occu. Service,
Registrar, District Court,
Nanded. ...Respondents
...
Advocate for Petitioner : Mr. Mayur V.Salunke h/f Mr. V.D.Salunke
AGP for Respondent No. 1 : Mr. S.R.Yadav-Lonikar
Advocate for Respondent No. 2 and 3 : Mr. R.J.Godbole
...
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CORAM : S.G.MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 6 JANUARY 2025
PRONOUNCED ON : 10 FEBRUARY 2025
JUDGMENT [Per Shailesh P. Brahme, J.] :
1. Rule.
2. Rule is made returnable forthwith. Heard both sides finally at
the admission stage with the consent of parties
3. The petitioner is invoking jurisdiction of this Court under
Articles 226 and 227 of the Constitution of India for quashing the
order denying him promotion to the post of Registrar and soliciting
direction to confer the benefits of promotion from 09.02.2012 with
further consequential reliefs.
4. The petitioner was appointed as English Section Writer on
31.01.1979 at District and Sessions Court, Nanded. He was made
permanent in due course of time. He was promoted to the post of
Senior Clerk on 01.07.1988 and thereafter to the post of Assistant
Superintendent on 26.08.1996. He was further promoted to the post
of Superintendent on 01.09.2005. He was due for the further
promotion to the post of Registrar being senior most eligible
candidate. However respondent no. 4 was promoted to the post of
Registrar on 09.02.2012 . Against the denial of promotion, appeal was
preferred under Rule 21 of Maharashtra Civil Services (Discipline
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and Appeal), Rules,1979 (for brief 'Rules of 1979') to Registrar
General. By order dated 24.09.2012 appeal was dismissed which is
the cause for the petitioner to approach this Court.
5. Learned counsel for the petitioner submits that the order
passed by Appellate Authority is against principles of natural Justice.
Without hearing petitioner and without making available the
relevant record to him, impugned order was passed. It is further
submitted that the relevant document like minutes of meeting of the
Advisory Committee were withheld. Appeal was decided in a non-
transparent manner. He would further submit that the order passed
by the Appellate Authority is perverse as no reasons are assigned. It
is a single line order. It is further submitted that the appellate
authority failed to adhere to the parameters laid down in rule 23 (2)
of Rules of 1979.
6. Learned counsel for the petitioner submits that order of
promotion of the respondent no. 4 is against paragraph no. 580 (ii) (c)
of the Civil Manual. For the irrelevant reasons the petitioner has
been denied the promotion. It is further submitted that for the first
time in affidavit-in-reply the respondents are supplying fresh reasons
for denying promotion which is impermissible. He relies on the
judgment of this Court in the matter of Anil Kumar Atre Vs.
District and Sessions Judge and Another in Writ Petition No. 2534
of 2000 reported in 2002 (3) Mh.L.J 750.
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7. In response to the submissions of the petitioner, the contesting
respondent nos. 2 and 3 represented by Mr.Godbole refers to
affidavit-in-reply. He submits that the promotion given to the
respondent no. 4 was perfectly in accordance with paragraph no. 580
(ii) (c) of the Civil Manual. He would submit that respondent no. 4
was found to be more eligible on merits than the petitioner. The
advisory committee made objective scrutiny in which petitioner
secured 23.50 out of 50 marks and respondent no. 2 secured 37 out of
50 marks. Para wise remarks were submitted by learned Principal
District Judge, Nanded before the appellate authority. An official
note was put up by Registrar (Inspection-I) before learned Guardian
Judge. Considering it, dismissal of the appeal was approved on
24.09.2012. It is further submitted that minutes of the meeting of the
advisory committee was supplied to the petitioner. It is therefore
submitted that there is no procedural illegality or perversity in
granting promotion to the respondent no. 4 and the writ petition is
liable to be dismissed.
8. Learned AGP appearing for the respondent no. 1 adopts the
submissions of respondent nos. 2 and 3. Respondent No. 4 though
served did not enter into appearance.
9. Learned counsel for the petitioners relied on the judgments of
this court in the matter of Anil Kumar Atre Vs. District and
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Sessions Judge and Another (supra). Respondent nos. 2 and 3 relied
on the judgment of this court in the matter of Prakash Jagannath
Mane vs. The Hon'ble Registrar General High Court of Judicature
at Bombay Appellate Side, Mumbai 400 032 and others in Writ
Petition No. 6073 of 2012.
10. There is no dispute about the initial appointments of the
petitioner and the respondent no.4. Petitioner was senior to
respondent no.4. The advisory committee conducted interviews of
aspiring candidates including petitioner and the respondent no. 4.
The respondent no. 4 was promoted to the post of Registrar vide
order dated 09.02.2012. Being aggrieved, administrative appeal was
filed by the petitioner and it was rejected on 24.09.2012 by order
passed as follows :
" On the basis of the record 'A' as above is approved"
*The approved submission A is as follows :
Your Lordship may, therefore reject the representation of Shri
P.M.Takankhar, Superintendent and direct me to inform him through the
Principal District and Sessions Judge, Nanded accordingly.
11. The promotion of the staff in a District Court is regulated by
para 580 of the civil manual. As per para 580 sub-clause (ii) (b), the
District Court is empowered to appoint a committee. The selection of
an employee for promotion is regulated by clause (c) which is as
follows :
580. In the matter of promotions and confirmations, the District Judge should take
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into consideration the following principles :-
(i).............
(ii)(a) .............
(b)...............
c) While selecting an employee for promotion, the District dudge shall take into
consideration:
(i) The entire service record, and more the previous 5 years; particularly
annual confidential reports for
ii) Leave and punctuality record, for the previous 5 years:
(iii) Special reports called from the officers under whom the employees
within zone of consideration are currently working:
(iv) Nature of duties of the promotional post vis-a-vis the abilities of
employees within zone of consideration.
d) In case promotions are not made according to seniority a minute indicating
reasons for selection shall be recorded by the District Judge.
The seniority of Senior Clerks should be determined from the date of their
appointment to that post i.e the Senior Clerk and not reference to seniority in
the cadre of Junior Clerk.
12. The advisory committee considered the comparative merits of
the petitioner and the respondent no. 4 in its meeting dated
08.02.2012. It considered previous record, performance in the
interview, disciplinary actions and by recording minutes
recommended to promote the respondent no. 4. This exercise is in
consonance with sub-clause (d) of para 580 of the civil manual. The
minutes of the meeting were confidential. Therefore, those were not
supplied to the petitioner but later on those were made available to
him.
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13. Considering the provisions of paragraph 580 of the civil
manual merit-cum-seniority is the criterion for granting promotion
to the post of Registrar. The claims of the petitioner and the
respondent no. 4 were assessed objectively and for recording the
reasons the respondent no. 4 was preferred. We find that in
paragraph no. 13 of the minutes, consciously the reasons for
deviating the seniorities have been recorded.
14. The record of minutes of the meeting was placed before the
authority alongwith the official notings. Considering the
comparative merits independently, office report was prepared on
07.09.2012 by Registrar (Inspection General). It is reiterated that the
respondent no. 4 was found to be more suitable. Considering the
parameters of promotion and based on the independent assessment,
it was suggested to reject the representation vide 'A'. It was approved
by learned Guardian Judge on 24.09.2012.
15. In case of administrative matters, official notings with requisite
data and reasons are placed before the competent authorities. The
appellate authority is not expected to further record any
independent reasons either for allowing or rejecting the appeal. The
official notings dated 07.09.2012 shows application of mind and are
based on record made available to the authority. Therefore single line
order dated 24.09.2012 can not be castigated as unreasoned order. We
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are satisfied that before rejecting the appeal, the appellate authority
with the assistance of the Registry (Inspection) appreciated the
matter on merits and consciously passed the order of rejection of
appeal.
16. The Advisory Committee made objective assessment in its
meeting and relevant portion is reiterated in paragraph nos. 7 to 13.
It is not disputed that the comparative assessment is placed on
record by way of affidavit filed by respondent nos. 2 and 3 before this
Court. The following comparative table is relevant.
Petitioner Respondent No. 4
Annual Confidential Grade B - twice A - Plus for all five years.
Reports Grade A - twice
Grade A Plus - Once
Punishments Suffered three punishments :- Nil
i. Censure vide order dt.28.01.1987 for
loss of proceedings.
ii One increment withheld temporarily
vide order dt. 13.02.1997 for
misappropriation of Rs.25/-
iii Warning vide order dt. 31.05.1999
for non compliance of inspection
notes.
Marks in Interview 23.50 out of 50 37 out of 50
Special Report He maybe considered for promotion. He is fit for promotion.
remark
(By the respective
Presiding Officers
under whom they
worked.)
Balance Leave Earned leave - 218 Earned leave - 275
Medical -12 Medical -147
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17. Our attention is adverted to Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979. Petitioner had preferred appeal
under rule 17 (iv) (b) which is as follows :
17. Orders against which appeal lies
(iv) an order which-
a) ......
(b) denies promotion to which he is otherwise eligible according to the recruitment
rule and which is due to him according to his seniority;
18. Different parameters are prescribed for consideration of appeal
for is against the order imposing any of the penalties specified under
Rule 5 and for appeal against order specified in Rule 17. Rule 23 sub-
rule (2) regulates consideration of appeal which is against penalty
imposed under rule 5. This appeal is against the disciplinary action
whereas Rule 23 sub-rule (3) prescribes the consideration of appeal
which is as follows :
23. Consideration of appeal :
(1) ........
(2) .......
(3) In an appeal against any other order specified in rule 17 of these rules, the
appellate authority shall consider all the circumstances of the case and make such
orders as it may deem just and equitable.
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19. When appeal is preferred against the disciplinary action,
opportunity of hearing to the delinquent, application of the
parameters stipulated under rule 23 sub-rule (2) (a) to (c) and
passing of the reasoned order are imperative. These parameters can
not be adopted for appeal under Rule 17. It is not the intention of the
legislature that appeal against denial of promotion should be heard
in a manner prescribed by sub-rule 2 of rule 23. Therefore we are not
inclined to accept that personal hearing was required to be extended
or while confirming the order passed by learned District Judge,
elaborate reasons are required to be assigned. Sub-rule (3) of rule 23
carves out a distinct category of appeals and the procedures to be
undertaken.
20. Considering sub-rule (3) of rule 23 what is expected of
appellate authority is to consider all the circumstances of the case
and make such orders as may deem just and equitable. In the present
case para wise remarks were forwarded by Principal District Judge,
Nanded. The minutes of the advisory committee were before the
appellate authority. On the basis of this material, the submission was
prepared by learned Registrar (Inspection-1) on 07.09.2012.
Thereafter, learned Guardian Judge approved rejection of appeal.
This is sufficient compliance of sub-rule (3) of rule 23 and no fault
can be found.
21. Petitioner relied on the judgment of Anil Kumar Atre (supra).
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It was reference before the Larger Bench. In that case petitioner was
subjected to disciplinary action by conducting enquiry. He was held
guilty for the charges and removed from the services. Being
aggrieved he had preferred appeal and his appeal was dismissed.
One of the submissions of the petitioner was that no opportunity of
hearing was extended to him by High Court on administrative side.
Finally larger bench concluded that opportunity was not given to the
petitioner and order passed by the appellate authority was quashed.
The matter was remanded.
22. The distinguishing facts are that the matter before the larger
bench was regulated by rule 23 (2) of 'Rules of 1979'. It was case of
punishment preceded by disciplinary enquiry and therefore
parameters of sub-rule (2) of rule 23 were attracted for consideration
of the appeal whereas in the case at hand it was an appeal under
section 17 (iv) (b) which is regulated by sub-rule (3) of Rule 23. We
have already recorded that for the appeal against denial of
promotion a different procedure and parameters are carved out.
Hence, ratio laid down by the larger bench is not applicable to the
case.
23. Learned counsel for the respondents relied on the judgment of
Prakash Jagannath Mane (supra). In that case the then petitioner
was denied promotion to the post of Registrar and he was
superseded by fourth respondent. It was also matter of promotion as
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provided by para 580 of Civil Manual read with rule 3 (ii)(h) of
Recruitment Rules for Recruitment to Class III and Class IV of
Services in the Subordinate Judicial Service. The controversy before
the Division Bench was as to whether the promotion to the post of
Registrar would be based on principles of seniority-cum-merit or
merit-cum-seniority. Following is the relevant extract :
6. ...........................
Thus, the District Judge is empowered to promote a Superintendent to the post of
Registrar. We have already quoted paragraph 580 of the Civil Manual. Paragraph
583 provides that the Principal District Judge shall invariably consult the Judicial
Officer under whom the employee is working the matters concerning promotions.
On the conjoint reading of paragraph 580 and rule 3 (ii) of Appendix A, it is not
possible to accept the submission of the learned counsel for the petitioner that the
promotion to the post of Registrar will be governed by only seniority-cum-merit
rule. In fact, the Rules do not specifically lay down whether seniority-cum-merit
should be the criteria or whether it should be merit-cum-seniority as far as the
promotion to the post of the Registrar is concerned.
24. The Division Bench further relying on the judgment of Hon'ble
Supreme Court in the matter of K.Samantaray vs. National
Insurance Co.Ltd. reported in (2004) 9 SCC 286 has made following
observations in paragraph no.10 as follows :
10 Even assuming that the seniority cum merit rule was applicable, the
Appointing Authority was entitled to fix its own criteria for adjudging the claim
on seniority-cum-merit while giving primacy to the merit as well. The
Recruitment Committee was conscious of the hierarchy of administration of the
District Court which is required to be held by a person possessing adequate
efficiency and experience. Therefore, in writ jurisdiction, we find no fault with
the selection of the fourth respondent who is found to be the most meritorious
and suitable candidate after considering the seniority, confidential reports,
Special Reports, leave record and performance in the interview. Petition is
rejected.
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25. We are agreement with the ratio laid down in above
paragraph. By implication in the present case the promotion to post
of Registrar in a district court, is by merit-cum-seniority. The proviso
to rule 3 (ii) of Civil Manual fortifies our view which is as follows:
Provided that he is properly qualified and is, in the opinion of
the District Judge fit for promotion to the higher post.
. It gives primacy to the merit over the seniority when conjointly
read with paragraph 580 (c) of Civil Manual.
26. Considering the procedure adopted by learned Principal
District Judge as well as appellate authority, we do not find any
arbitrariness or illegality. There are concurrent findings of facts. We
are not impressed by the submissions of the petitioner. The upshot of
the above discussion is that the petition lacks merit. We therefore,
pass following order :
ORDER
a) Writ petition is dismissed.
b) Rule is discharged.
c) There shall be no order as to costs.
[ SHAILESH P. BRAHME, J.] [ S.G.MEHARE, J.]
VSJ
