Bombay High Court
Vijay Bhau Kadu And Others vs Prashant Pradeep Kakani And Others on 26 February, 2025
2025:BHC-AUG:5426-DB
1065.WP-9157-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9157 OF 2022
WITH
CIVIL APPLICATION NO. 2182 OF 2024
Prashant s/o Pradeep Kakani
Age 38 Years Occupation : Service as
Deputy Planner
R/o Flat No.2, Sheetal Apartment,
Samratnagar, Opposite Roplekar Hospital,
Dargah Road, Aurangabad - 431 005.
...Petitioner
Versus
1 The Joint Managing Director - 1,
The City and Industrial Development,
Corporation of Maharashtra Ltd.,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614.
2 The Manager (Personnel),
The City and Industrial Development,
Corporation of Maharashtra Ltd.,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614.
3 Mrs. V. A. Turkane,
Age : 44 years, Occ - Service as
Associate Planner,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614.
4 Miss. A. K. Shinde
Age : 34 years, Occ - Service as
Associate Planner,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614. ...Respondents
Page 1 of 19
1065.WP-9157-2022.odt
WITH
CIVIL APPLICATION NO. 13027 OF 2024
IN
WRIT PETITION NO. 9157 OF 2022
1 Vijay s/o Bhau Kadu
Age 53 Years, Occupation : Deputy
Planner, CIDCO Mumbai
R/o A-1203,
White Wood's, ShagunChs.,
Plot No.204, Sector 23, Ulwe,
Navi Mumbai - 410206.
2 Pavan S/o Jugalkishor Taori,
Age 37 Years Occupation : Deputy
Planner, CIDCO Mumbai
R/o C-1304, Mayuresh Delta,
Plot No.1, Sector-10/B, Ulwe,
Navi Mumbai - 410206.
3 Amod s/o Vijaykumar Pandit,
Age 41 Years Occupation : Deputy
Planner, CIDCO Mumbai
R/o Padamshri, Plot No.74, Scheme
No.4, Sector 21, Yamuna Nagar,
Nigdi, Pune -411044.
4 Shraddha w/o Atul Sonare @
Shraddha d/o Rupchandrao
Wankhade,
Age 40 Years Occupation : Deputy
Planner, CIDCO Mumbai
R/o 607, Prabhat B Wing,
GawandBaug, Thane West, Near
Upvan - 400606.
5 Pranali w/o Hemant Kubde @
Pranali d/o Baban Borkar
Age 36 Years Occupation : Deputy
Planner, CIDCO Mumbai
Page 2 of 19
1065.WP-9157-2022.odt
R/o 301/08/KH4, Celebration
Apartment, Sector 17, Khargar, Navi
Mumbai-410210. ...Applicants
Versus
Prashant s/o Pradeep Kakani,
1 Age 38 Years, Occupation : Deputy
Planner, CIDCO Aurangabad
R/o Flat No.2, Sheetal Apartment,
Samratnagar, Opp. Roplekar Hospital,
Dargah Road, Aurangabad - 431005.
2 The Joint Managing Director - 1,
The City and Industrial Development
Corporation of Maharashtra Ltd., R/o
CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400614.
3
The Manager (Personnel),
The City and Industrial Development
Corporation of Maharashtra Ltd., R/o
CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400614.
4 Mrs. V. A. Turkane,
Age : 44 years, Occ - Service as
Associate Planner,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614.
5 Miss. A. K. Shinde
Age : 34 years, Occ - Service as
Associate Planner,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614.
6 Mrs. D.V. NaikNimbalkar,
Age : 37 years, Occ - Associate
Planner,
R/o CIDCO Bhavan, CBD Belapur,
Navi Mumbai - 400 614. ...Respondents
Page 3 of 19
1065.WP-9157-2022.odt
APPEARANCES :
Advocate for Petitioner in WP Mr. C.V. Dharurkar
Advocate for Respondent Mr. Ajay S. Deshpande
No.2/CIDCO
Advocate for the Mr. Prasanna Kutti, holding for
Respondent No.5 Mrs. Chaitali Choudhari Kutti
Advocate for the Mr. Ravindra M. Deshmukh and
Applicants in CA Mr. Aditya R. Deshmukh
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME JJ.
Date On Which The Arguments Were Heard : 14 FEBRUARY 2025
Date On Which The Judgment Is Pronounced : 26 FEBRUARY 2025
J U D G M E N T (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith.
2. This petition pertains to grievance of the Petitioner of wrong
fixation of his seniority and denial of promotion to him. Respondent
Nos. 3 to 5 his contemporaries, though juniors, were promoted
depriving him the promotional post. In such a situation, Petitioner is
seeking quashment of orders dated 28.04.2021; 07.07.2021 and
26.07.2022 passed by the Respondent No.2 and orders of promotion
issued to the Respondent Nos. 3 to 5. He is also seeking direction for
re-fixation of pay scale, increments and arrears of salary as a
consequential relief. The controversy involves around promotion from
post of Deputy Planner to Associate Planner.
1065.WP-9157-2022.odt
3. The factual prizm of the case is that Petitioner and the
Respondent Nos. 3 to 5 were the aspirant of selection process
commenced by advertisement dated 05.03.2014 for the post of
Deputy Planner. They were placed in the merit list in the following
manner which is extracted from Exhibit - B1 of the paper-book.
Sr. No. Name of the Candidate Party in the present Marks Remark
Petition secured
2 Mr. Chadekar 103 Promoted
4 Mr. Turkane Respondent No.3 100 Promoted
5 Mr. Shinde Respondent No.4 98 Promoted
6 Mr. Halwane 97.5
8 Miss Gavde Respondent No.5 97 Promoted
4. Petitioner was working with Mumbai Metropolitan Region
Development Authority (MMRDA) when he participated in the selection
process. After his selection by the Respondent No.2, he was
appointed as a Deputy Planner by the order dated 28.07.2014. He was
third in rank of merit as referred above. He wanted to comply with the
formalities of resigning his erstwhile job. Therefore, he could not
immediately join Respondent No.2/CIDCO. Then he submitted
application on 19.08.2014 seeking three months time for joining. He
submitted application dated 27.08.2014 seeking permission for joining
the duties by 01.01.2015. He was persuading his erstwhile employer for
waiving off the notice period but his request was turned down by letter
dated 03.11.2014 by MMRDA. Respondent No.2/CIDCO permitted the
Petitioner to join the duties up to 01.01.2015 vide letter dated 21.11.2014,
in response to Petitioner's application dated 27.08.2014.
1065.WP-9157-2022.odt
5. Accordingly Petitioner joined post of Deputy Planner on
05.12.2014 vide his joining report. He also prayed for protection of his
pay and the seniority as per merit list. Respondent No.3 joined post of
Deputy Planner on 28.08.2014. Respondent No.4 joined it on 08.08.2014
and Respondent No.5 joined it on 05.08.2014. The internal
communication of the Respondent No.2 indicates that Petitioner was
to get seniority as per merit list. Such a communication was made to
him vide letter dated 28.07.2015.
6. However, in the provisional seniority list, Petitioner was placed at
Serial No.22 at a lower pedestal than Respondent Nos. 3 to 5. He
immediately objected the provisional seniority on 30.03.2017. Again
provisional seniority list was published which was also objected by him
vide application dated 27.01.2021.
7. Respondent No.2 overruled the objection by distinct impugned
orders. Resultantly Respondent Nos. 3 to 5 being senior to the
Petitioner were conferred promotion to the post of Associate Planner
vide order dated 11.04.2022 respectively. Their promotion is also
questioned in petition.
8. Mr. Dharurkar learned Counsel for the Petitioner submits that no
final seniority list was prepared and the Respondent Nos. 3 to 5 who
were juniors to the petitioner in the merit list, were promoted arbitrary
and illegally. He would submit that he was permitted to join by
01.01.2015. He is senior to the Respondent Nos. 3 to 5 in view of
Condition Nos. 10 and 11 of the appointment order read with Rule 22 of
CIDCO Seniority, Promotions and Recruitment Rules, 1977 (Rules of
1977). The Respondents are stopped by orders dated 02.06.2015 and
1065.WP-9157-2022.odt
28.07.2015 in attributing delay in joining to the Petitioner. It is further
submitted that action of the Respondent No.2 is arbitrary and
discriminatory. He would submit that the appointment order and orders
dated 02.06.2015 and 28.07.2015 are signed by the same Officer and
his authority has not been challenged by anybody. It is submitted that
Petitioner is entitled to the seniority over the Respondent Nos. 3 to 5
and consequentially promotion to the post of Associate Planner.
Reliance is placed on the following judgments :
(i) P. Srinivas Vs. M. Radhakrishna Murthy
AIR 2004 SC 2767
(ii) Sadashiv Santaram Survase Vs. Government of Maharashtra
2021(6) ABR 591
(iii) K.P. Dubey and Ors. Vs. Union of India and Ors.
2011(5) ILR Delhi 632
9. Respondent No.2 has filed affidavit-in-reply. Based on it, the
submissions are made by Mr. Ajay Deshpande, Counsel for
Respondent No.2/CIDCO. He would submit that extension given to the
Petitioner was illegal and against proviso to Rule 22. The concerned
Officer had no authority to grant extension. The seniority of the
Petitioner is liable to be counted from the date of joining. He had
submitted resignation on 05.09.2014, when already appointment order
was issued to him on 28.07.2014. The Petitioner was not keen in
joining the duties immediately and he was at fault. It is further
submitted that the official noting or the comments cannot confer
seniority to the Petitioner. Those are against the Rules and the
conditions of appointments. He was rightly placed in the seniority list
and the Respondent Nos. 3 to 5 are rightly promoted.
10. None appeared for the Respondent Nos. 3 and 4, though they are
1065.WP-9157-2022.odt
duly served. Respondent No.5 has contested the petition by filing
affidavit-in-reply. He has also tendered written notes of argument. He
would canvas that Petitioner should have joined on or before
28.08.2014, but he worked with previous organization till 04.12.2014.
There was no promise for protecting his seniority. His claim of
seniority is illegal and against Rules. It is submitted that the request of
the Petitioner for the seniority has been rightly rejected by the
impugned orders. His claim is against Condition No.12 of the
appointment order. Date of joining is the crucial date and accordingly
Respondent No.5 was senior and entitled to promotion. It is further
contended that in consecutive seniority lists, Respondent No.5 was
better placed than the Petitioner and therefore she was given
promotion in the year 2022. Thereafter, she was confirmed in the year
2023. He would further submit that petition is bad for non-joinder of
the necessary parties. The Petitioner had only two options, either to
pay of three months salary to MMRDA and leave the job or to join
Respondent No.2/CIDCO after three months notice period. Hence his
claim is illegal. It is further submitted that similar course of action was
taken in case of Mrs. Rashmi Wanjari. The Petitioner is not entitled to
claim seniority or promotion because he himself chose to join
belatedly.
11. The Petitioner has filed Civil Application No.2182/2024. By order
dated 27.09.2024, Respondent No.2/CIDCO was restrained from
taking final decision on granting promotion to the post of Associate
Planner. Due to the prohibitory order, Civil Application No. 13027/2024
was filed by Intervenors who are aspirants of promotion. It is
contended by Mr. Aditya Deshmukh Counsel appearing for Intervenors
that they are necessary parties and prohibitory orders be vacated so
1065.WP-9157-2022.odt
as to usher them to the promotion.
12. We have considered rival submissions of the parties. The
Petitioner was selected and appointed by order dated 28.07.2014. As
per his application dated 27.08.2014, he was permitted to join by
01.01.2015. He joined on 05.12.2014. In an order of merit in the
selection list, he was placed at Serial No.3. Respondent No.3 was at
Serial No.4. Respondent No.4 was at Serial No.5 and Respondent No.5
was at Serial No.8. The Petitioner is meritorious than the private
Respondents. Respondent Nos. 3 to 5 joined at earlier point of time
than the Petitioner.
13. The Petitioner had requested for seniority as per the merit list
and protection of his pay. His request for pay protection was rejected.
Vide communication dated 28.07.2015, he did not work for the period
for which he is seeking protection. No endeavour has been made by
the learned Counsel for the Petitioner to point out any provision in the
service Rules or Statute entitling him for the pay protection. On the
contrary his entire focus was on the claim of seniority as per merit list.
We, therefore, hold that his prayer for protection of pay cannot be
granted.
14. The Petitioner has placed on record provisional seniority list
prepared on 01.03.2017; 18.01.2021 and prepared in the year 2020 which
according to him, were defective and detrimental to his claim of
seniority. During the course of hearing, we made query to learned
Counsel for Respondent No.2 Mr. Deshpande as to whether any final
seniority list was prepared. On instructions, he replied that no final
seniority list has ever been prepared. The objections of the Petitioner
1065.WP-9157-2022.odt
to the provisional seniority list were overruled. Without preparing final
seniority list, Respondent No.2/CIDCO proceeded to grant promotion
to the Respondent Nos. 3 to 5 and others. This conduct is detrimental
to the defense of the Respondents.
15. Proceeding with the promotion without preparing final seniority
list amounts to arbitrariness. There is no point and purpose in
preparing the provisional seniority list, if the promotions are to be
given without there being any final seniority list. Thus the exercise of
the promotion undertaken by the Respondent No.2 is non-transparent.
It was not possible for the petitioners to know who are the necessary
parties to the petition, when promotion given to private Respondents
was challenged. Had final seniority list been prepared a candid picture
would have been before the stakeholders as to who are the affected
Officers and their position in the seniority list.
16. It is contended by the Respondents that there are delay and
latches in presenting the petition. The seniority list prepared on
01.03.2017 was objected by the Petitioner. Thereafter subsequent
seniority lists were also objected. When his objections were overruled,
he approached this Court. Before that, Respondents did not prepare
any final seniority list which could have been cause of action for him to
approach earlier. We, therefore, overrule the objection of delay and
latches.
17. The Petitioner has placed on record CIDCO Seniority, Promotions
and Recruitment Rules, 1977 (Rules of 1977). The relevant extract is as
follows :
"10. First, we shall deal with the issue whether by virtue of not joining
1065.WP-9157-2022.odt
within the time frame given in the initial offer of appointment, the order of
appointment stood annulled and, therefore, the petitioner cannot put forth his
claim for seniority and has to resign to his fate. It is not in dispute that the
petitioner, as per the terms of the offer of appointment, was to join on 1st
August, 1983 or latest by 10th August, 1983. It is evincible that he had
sought an extension on the ground that he was out of Delhi. On the basis of
his letter, the competent authority, vide letter dated 20th August, 1983,
communicated to him as follows:
DIRECTORATE OF HORTICULTURE
CENTRAL PUBLIC WORKS DEPARTMENT
No.8(2)/83-DH/Estt./6184-86.
New Delhi, dated the 20th Aug.83
To,
Shri Kesho Prashad Dubey,
Quarter No.G-726, Sriniwaspuri,
NEW DELHI.
Sub: Recruitment of Sectional Officers (Hort.)- Extension of
Joining time.
Ref.: Your letter dated 19.8.83
Please refer to this office Memo. No. 8(2)/83-DH-Estt./ ˇ5341,
dated 18-7-83. Instead of joining on 1-8-83 or latest by 10-8-83,
you are hereby allowed to join duty as Sectional Officer (Hort.)
in the Office of Deputy Director of Horticulture, West Division,
I.P. Bhawan, C.P.W.D., New Delhi on or before 23-8-83 failing
which the vacancy will be allotted elsewhere.
Other terms and conditions of the offer of appointment will
remain unaltered.
Sd/-
K. SADDY
DIRECTOR OF HORTICULTURE
C.P.W.D. C-117, I.P. BHAWAN,
NEW DELHI-110002"
"12. On scrutiny of the aforesaid clauses, it is clear as day that if a
candidate requests for an extension of time and an extension is granted, the
same cannot exceed a period of nine months and the candidates who joined
within the said period would have their seniority fixed under the seniority
rules. Thus, the argument in oppugnation by Mr. Kapoor that the appointment
stood annulled and the respondent has to resign to his fate to accept his
seniority position melts into insignificance as the office memorandum clearly
saves the appointment and also the fixation of seniority as per the rules and
norms because the petitioner had joined within the period postulated in the
office memorandum dated 6th June, 1978.."
1065.WP-9157-2022.odt
18. The relevant conditions of the order of appointment are as
follows :
"10. If you are found medically fit, you should join duty immediately and in
any case before 08.08.2014. In case you are unable to join the duty within
this period, necessary permission in writing may be obtained from the Manager
(Personnel) for extension of time in joining date."
"12. The inter-se seniority of the candidates selected shall be determined
according to the ranking in order of preference arranged by the selection panel
if the candidate joins within one month of issue of Appointment Letter.
Thereafter, the seniority will be according to the joining date."
19. By Condition No.10, a provision of seeking permission is made for
those who are unable to join within period of one month. This second
proviso to Rule 22 speaks about parameter of merit in the wait list for
determining interse seniority. It also provides a rider that there shall
not be undue delay in joining and delay upto 30 days is condonable.
The conjoint reading of conditions in the appointment order and
proviso to Rule 22 would disclose that if the appointee is not guilty of
undue delay in joining and solicited permission of joining the services
which is not more than 30 days, then interse seniority would be on the
basis of his position in the merit list.
20. In the case at hand, we have to examine as to whether the
Petitioner is guilty of undue delay and as to whether there was any
permission for joining within the period not more than 30 days. By
appointment order dated 28.07.2019, Petitioner was supposed to join
by 27.08.2014. On 19.08.2014, he submitted application seeking three
months for joining. This application was made within the time
stipulated for joining. Respondent No.2/CIDCO did not respond this
application. He was required to make another application on
27.08.2014 seeking permission to join the duties on 01.01.2015. He was
granted permission as requested vide communication dated
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21.11.2014. Pertinently the application was allowed by the Respondent
was also submitted within one month from 28.07.2014. Respondent
No.2/CIDCO took almost 87 days in granting him permission to join the
duties. This delay of 87 days is attributable to the Respondent
No.2/CIDCO and not to the Petitioner. There is no explanation in the
affidavit-in-reply as to why the applications made by the Petitioner,
were not considered in time, either way.
21. The Petitioner was granted permission to join on 01.01.2015. But
he joined on 05.12.2014 within stipulated period. Simultaneously we find
that the Petitioner is punctual in making his application, seeking
permission to join the duties and ultimately joined it within one month
from the grant of permission on 21.11.2014. We find that there is
compliance to second proviso of Rule 22. The Petitioner is entitled to
claim the seniority on the basis of his merit in the wait list.
22. The Petitioner was issued appointment order under the
signature of Mr. T.L. Parab, Manager (Personnel). He was granted time
to join vide order dated 21.11.2014 issued by the same Officer. No
doubt was expressed for the authority of said Officer in granting
exemption either in the impugned orders or thereafter. In the reply for
the first time, Respondent No.2/CIDCO comes with a plea that said
Officer had no power to grant any extension. We made specific query
in this regard to learned Counsel Mr. Deshpande as to any provision in
the Rules in this regard or any action taken against the said Officer.
He fairly admitted that neither any action is taken, nor the extension
granted was cancelled. No provision exists in this regard. Therefore,
the submissions of the Respondent No.2/CIDCO in this regard cannot
be approved.
1065.WP-9157-2022.odt
23. The Petitioner has placed on record internal correspondence and
official noting at Exhibit - I and J. The claim regarding seniority and
pay protection was made by the Petitioner on 05.12.2014. Vide
communication dated 02.06.2015, Regional Officer (Establishment)
approved the claim of seniority on the basis of merit list. By further
communication dated 19.05.2015, Higher Officers agreed to grant
interse seniority as per his merit. Vide letter dated 28.07.2015
Manager (Commercial) assured the seniority of the Petitioner. This
internal communication enures to the benefit of the Petitioner.
Respondent No.2/CIDCO is estopped from contending that Petitioner
is not entitled to claim interse seniority on the basis of merit list/ wait
list.
24. We have already recorded finding that conjoint reading of the
conditions of appointment order and Rule 22 disclosed that Petitioner
is entitled to claim interse seniority on the basis of his position in the
merit list. The impugned orders are contrary to the internal
communication. The observations in the impugned order in respect of
the official noting and comments on the seniority are unsustainable
and perverse.
25. The Petitioner has made out a case that considering his position
in the merit list, he is also entitled to the promotion at par with
Respondent Nos. 3 to 5. They were given promotion on 11.04.2022
casting aside the claim of the Petitioner. It is contended by Counsel
for the Respondent No.2 that only five promotional posts were
available. We are shown Exhibit-U annexed to the petition. It is
informed by learned Counsel for the Respondent No.2/CIDCO that Mrs.
D.R. Bhugaonkar did not join the promotional post. According to the
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merit of select list, Petitioner is entitled to be placed at Serial No.3 in
the list shown in the office order dated 05.05.2022. The Respondent
No.2/CIDCO has to make consequential changes by granting seniority
to the Petitioner as well as promotion to the further posts. While
operating interse merit, the last Officer promoted to the post of
Associate Planner has to be reduced in rank considering her position in
the select list.
26. Respondent No.5 opposed petition on the ground of Petitioner
was at fault in non-joining the duty in time and kept on drawing salary
from MMRDA. It is further alleged that he intended to take benefits of
both posts. We have already recorded that there was no delay on part
of Petitioner after securing extension he joined the duties. It is the
Respondent No.2 who sat over the application of the Petitioner for 87
days without any justification. It transpires from record that Petitioner
attempted to get three months notice period waived from his earlier
employer, but the request was rejected. We do not find that there are
any lapses on the part of Petitioner. Already he is denied protection of
pay. The submissions of the Respondent No.2/CIDCO in this regard,
are liable to be rejected. We also do not find substance in the
contention that Petitioner belatedly given resignation. These are not
pleas raised by the Respondent No.2/CIDCO. Neither resignation of
the Petitioner from earlier services, nor his joining in the present one is
objected by the Respondent No.2/CIDCO.
27. Another plea of Respondent No.5 is non-joinder of necessary
parties. This plea has not been taken by the Respondent No.2/CIDCO.
The Petitioner has challenged the promotions given to the Respondent
Nos. 3 to 5. Respondent No.5 failed to demonstrate as to how any
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prejudice would be caused if the claim of the Petitioner is allowed. We
find no substance in the contention of non-joinder of necessary
parties. It is up to the Respondent No.2/CIDCO which illegally denied
the claim of seniority of the Petitioner to place him in the seniority list
as per his merit in the select list. Respondent No.2/CIDCO has to
prepare a final seniority list on the basis of the same. If the Petitioner
is found to be senior to the private Respondents, then Petitioner will
have to be conferred benefit of promotion within the permissible limits
of the promotional posts. Respondent No.2/CIDCO will have to take
call as to whether the promotional orders of the private Respondents
are maintained or to be revoked to adjust the Petitioner. It has to
undertake this exercise within period of one month. The interim orders
passed on 27.09.2024 shall remain in force till the exercise is
completed by the Respondent No.2/CIDCO.
28. Though, we heard Intervenors, we do not find that any prejudice
would be caused to them. Their anxiety is to vacate interim order
dated 27.09.2024. The care has been taken in our order to streamline
the process of seniority and promotion. We, therefore, dispose of their
Civil Applications.
29. Petitioner is relying on the judgment in the matter of P. Srinivas
(supra), AIR 2004 SC 2767. In that case the question was extension
granted by the Government on the request of employee for joining the
posts. That is not a fact in issue in the present case. In the present
case, it is nobody's case that there was no power of extension to join
the duties. Considering difference in the facts, the judgment is not
applicable to the Petitioner.
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30. Petitioner is also relying on the judgment in the matter of
Sadashiv Santaram Survase (supra). In that case, the Petitioner was
denied seniority because he had failed to join service within one month
of his appointment. He was extended time to join the duties. His claim
was accepted by the employer. Being aggrieved, Respondent No.3
therein, had approached Tribunal. We have gone through paragraph
nos. 12 and 13. We propose to follow the ratio therein. In the case at
hand also, if the extension of time in joining the duties granted to the
Petitioner is faulted then his appointment would become illegal. This is
not the contention of any of the Respondents. Therefore extension
given to the Petitioner is within purview of the power.
31. Petitioner is also relying on the judgment in the matter of K.P.
Dubey and Others (supra). In that case also, Petitioner was granted
extension for joining the duties. Accordingly he had joined the duties.
Following observations are made : Paragraph Nos. 12 and 15.
"10. If you are found medically fit, you should join duty immediately and in
any case before 08.08.2014. In case you are unable to join the duty within
this period, necessary permission in writing may be obtained from the Manager
(Personnel) for extension of time in joining date."
"12. The inter-se seniority of the candidates selected shall be determined
according to the ranking in order of preference arranged by the selection panel
if the candidate joins within one month of issue of Appointment Letter.
Thereafter, the seniority will be according to the joining date."
32. Mr. Kutti, learned Counsel for Respondent No.4 relied on the
judgment of Ramayan Prasad Vs. The State of Bihar and Ors., 2022
Latest Case law 4156 Patna, to buttress the submission that
Petitioner did not challenge the seniority list. Our attention is adverted
to Paragraph No.5 of the judgment. It is distinguishable on facts to the
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case at hand. The Respondent No.2/CIDCO did not prepare final
seniority list. The provisional lists were challenged by the Petitioner.
This judgment is of no avail to the Respondent No.5.
33. In view of the reasons assigned above, we pass following order :
ORDER
i Writ Petition is allowed partly.
ii Orders of the Respondent No.2/CIDCO passed on
28.04.2021; 07.07.2021 and 26.07.2022 are quashed and set
aside.
iii Respondent No.2/CIDCO shall determine interse
merit of the Petitioner on the basis of his position in the
merit/seniority list.
iv Respondent No.2/CIDCO shall prepare seniority list
within period of two weeks from today and thereafter shall
consider the claim of the Petitioner for promotion to the
post of Associate Planner. It shall be at liberty to revisit the
promotions given to the Respondent Nos. 3 to 5 for
accommodating to the Petitioner to the promotional posts.
v Respondent No.2/CIDCO shall complete entire
exercise stipulated above within one month from today and
till then, interim orders operating from 27.09.2024 shall
continue.
vi Respondent No.2/CIDCO shall consider the
consequential benefit claimed by the Petitioner on its merits
and shall disburse the same expeditiously.
1065.WP-9157-2022.odt
vii Rule is made absolute in above terms.
viii Civil Application stands disposed of.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
34. After pronouncement of the judgment, learned Counsel Mr. Kutti
appearing for Respondent No.5 prays for granting stay to the
operation and execution of this order for further period of six weeks.
Learned Counsel for the Petitioner opposes the said request.
35. There was interim orders operating since 27.09.2024. In the
operative part of this judgment, we have directed that interim orders
would continue for further period of one month. We have not upset the
promotion of Respondent Nos. 3 to 5 at this moment. It would be up to
Respondent No.2/CIDCO to take decision.
36. In that view of the matter, we are not inclined to grant request of
Respondent No.5.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
Najeeb..
