Bombay High Court
Urmila Marotrao Gaikwad vs The District Collector Parbhani And ... on 23 January, 2025
2025:BHC-AUG:1976-DB
WP-10630-2023 judg.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10630 OF 2023
Smt. Urmila Marotrao Gaikwad
Age : 36 years, Occ. : Service (as Talathi,
Tahsil Office, Parbhani),
R/o : House No.644, Near Hinglaja
Mata Mandir, Datta Dham Parisar,
Vasmat Road, Parbhani.
Mobile No.8097421111.
E-mail Id : [email protected] ..Petitioner
Versus
1. The District Collector
Parbhani, Administrative Building,
Collector Office Campus,
Station Road, Gandhi Park,
Parbhani.
2. Shri Praveen Radhakrishna Khade,
Age : Major, Occu. : Service,
Circle Officer, Palam,
C/o. : Tahsil Office, Purna,
District Parbhani. ..Respondents
...
Advocate for Petitioner : Mr. Avinash S. Deshmukh
AGP for Respondent No.1 : Mr. A.S. Shinde
...
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : JANUARY 07, 2025
PRONOUNCED ON : JANUARY 23, 2025
JUDGMENT :
- (PER S.G. MEHARE, J.)
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of the parties.
WP-10630-2023 judg.odt
2. The petitioner has impugned the order of the Collector
Parbhani/respondent no.1 dated 21.06.2021 by which the review for
the promotion to the post of Circle Inspector has been rejected on the
ground that since she has changed the circle, she could not claim the
seniority on the basis of the date of her appointment. He has referred
to the Government Resolution dated 15.05.2019, clause 8(9) while
passing the impugned order. He also clarified that for Talathi cadre,
the Sub Divisional Officers are the appointing authorities. Hence, the
seniority of Talathis are maintained at the sub divisional level.
3. Against the said order, the petitioner has preferred
Original Application No.408 of 2021 before the Maharashtra
Administrative Tribunal Mumbai, Bench at Aurangabad. The Tribunal
also dismissed the same. The petitioner also impugned the said order.
4. Few facts for the reference to decide the dispute were
that the petitioner applied for the post of Talathi in pursuance of the
advertisement issued by respondent no.1 in 2009. She was selected
on 16.06.2010. The respondent no.1/Collector conducting the
selection process selected her as Talathi and forwarded her name to
the Sub Divisional Officer, Selu for issuance of appointment order and
posting her. On the basis of the above order, Sub Divisional Officer,
Selu issued an order and posted her at Sajja Wai in Selu Taluka. The
petitioner has contended that the order of the Collector was her
appointment letter. Therefore, the Collector is the appointing
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authority. However, on 29.05.2017 she applied for transfer to
Parbhani Sub Division from Selu Sub Division. Her request was
accepted on 31.05.2019. The petitioner contends that since it was a
inter-division transfer, she could not be deprived of the seniority from
the date of her joining to Sub Division, Selu. She would submit that it
was just an order of transfer. When the seniority list was to be
prepared, the provisional list of seniority was published. She has
raised the objection and she was put at Serial No.345 in which the
date for her promotion was fixed as on 19.06.2010. However, the
District Promotion Committee erroneously did not follow the seniority
list prepared by the Collector and denied her promotion. The sum
and substance of the petitioner is that though she has changed one
sub-division to another sub-division, it does not affect her seniority.
The Collector is the appointing authority. Hence, the list maintained
at the district level should have been considered for the promotion
based upon the seniority. Therefore, both impugned orders are
arbitrary, illegal and perverse.
5. The learned AGP has filed affidavit in reply for the
respondents. The respondents have denied the submissions of the
petitioner. They have a case that as per Rule 2(a) of the Revenue and
Forest Department (Recruitment) Rules, 1984, the 'Appointing
Authority' means Sub Divisional Officer or the Assistant Collector of
respective Revenue Sub Division under the Revenue and Forest
WP-10630-2023 judg.odt
Department for the post of Talathi's. As per Government Resolution
dated 19.10.2007, the District Selection Committee was formed under
the Chairmanship of the Collector. Hence, the selection was done by
the District Selection Committee. After the selection by the said
Committee, the appointment and postings were given by the sub-
division within the district. As per the letter addressed to the Sub
Divisional Officer, the Sub Divisional Officer issued the appointment
and posting to the candidates selected by the District Selection
Committee. They would submit that since the appointing authority
for the post of Talathi is Sub Divisional Officer, bare selection process
done by the District Selection Committee under the Chairmanship of
the Collector cannot be said to be an appointing authority. The Sub
Divisional Officer, Selu was her appointing authority. On her request,
she has been transferred to the Sub Division at Parbhani with a
specific condition that she would not be entitled to the seniority in the
sub-division where she has been transferred on the basis of her date
of appointment. While considering the seniority, a specific
endorsement was put in the consolidated seniority list by the
Collector that her seniority would be considered for promotion from
14.08.2019. Everything was specific and clear. The petitioner acted
upon the conditions imposed in the transfer order. She has also
furnished the undertaking to that effect also. The District Selection
Committee considered the amended seniority list for the promotion to
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the Circle Inspector. No injustice has been caused to the petitioner.
Her seniority was considered as per the provisions of law. She was
well aware of the consequences of transfer she sought from one circle
to another. Hence, the petition deserves to be dismissed.
6. The arguments of the learned counsel for the petitioner
revolves around the issue that since the selection has been done by
the Collector, he is the appointing authority. Therefore, the order of
transfer dated 31.05.2019 is just ordinary transfer and having no
effect on her seniority. Therefore, her contention was accepted and
she was shown at Serial No.345 in the seniority list. Therefore, giving
promotion to the persons who were below her is arbitrary and in
violation of the provisions of law. He has referred to the documents
placed on record. He also referred to the Government Resolution
dated 15.05.2019.
7. The above Government Resolution is about the
permanent absorption of the government employee transferred on his
request from one division to another division. He has referred to
clause 5 of the said Government Resolution which speaks that if any
seniority list is maintained at the district level, in such a case, except
such district, the employee may be absorbed permanently to any of
the district in the State. However, by the same appointing authority,
the employee cannot be permanently absorbed by another appointing
authority in the same district. In short, he would say that the
WP-10630-2023 judg.odt
petitioner has been transferred from one sub-division to another sub-
division in the same district. Hence, she cannot be considered as
permanently absorbed in another sub division. He would refer to
clause 9 of the said Government Resolution which is about transfer of
employee from one place to another and the seniority. This clause is
very specific that once the employee has been permanently absorbed
to another appointing authority, his seniority would be decided from
the date he joined the place where he has been permanently
absorbed.
8. He would also rely on the regulations of the recruitment
of Talathi of Group (C) employees dated 09.08.2024. By this
notification, the appointing authority for the Talathi is the District
Collector. He also referred to the Government Resolution dated
18.09.2023 which is for transferring the post of Talathi at district
level. By this resolution, the government has issued the direction to
all Sub Divisional Officers that since the recruitment of the Talathi is
done at district level, if their seniority list is maintained at the district
level, the Talathi may get an opportunity to work in different Talukas
in the district. Again the term 'appointing authority' has been defined
as District Collector. This resolution has been brought into operation
prospectively without affecting the seniority list already prepared.
9. Learned counsel for the petitioner relied on the case of
Krishna Rai (Dead) through Legal Representatives and Ors Vs.
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Banaras Hindu University and Others, (2022) 8 SCC 713 and argued
that there can be no estoppel against law. Therefore, the arguments
of the learned AGP that once the terms of the transfer have been
accepted, the petitioner cannot deny such conditions as those are
against the law. He would submit that the promotion list was
prepared in a particular manner. Therefore, the department cannot
deny the same. However, considering the facts of the case, we are of
the view that this case would not help the petitioner.
10. Learned AGP would submit that there are two findings on
the facts at the time of appointment of the petitioner. The Sub
Divisional Officer was her appointing authority. Her selection was
done by the District Selection Committee under the Chairmanship of
the Collector. Hence, he is not the appointing authority.
11. The Selection Committee under the Chairmanship of the
Collector has just referred the name of the petitioner to the Sub
Divisional Officer, Selu for appointment and accordingly, she has been
appointed. The Recruitment Rules were very specific wherein the
appointing authority for the Talathi is Sub Divisional Officer. The law
is also well established for transfer from one division to another. The
persons seeking transfer from division to another division, such an
employee shall be the last in the seniority list where he or she has
been transferred. The petitioner has given an undertaking specifically
that she would not claim the seniority on the basis of her date of
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appointment in Sub Division, Parbhani. She would be considered in
the seniority list as per the seniority maintained in the Sub Division at
Parbhani Division. In other words, she was correctly listed in the
seniority list from the date she joined Sub Division, Parbhani. No
illegalities have been committed in not granting her promotion.
12. The learned AGP would rely on the case of L.
Vishwanathan Vs. Union of India (UOI) and Ors, 2007 (3) SLJ 245
(CAT) and argued that the petitioner is bound by the terms and
conditions of transfer. The petitioner has exercised her right of
option. She has obtained the entry on the basis of election. She
cannot be allowed to turn from her undertaking. Similarly, he relied
on the case of State of Uttar Pradesh through its Secretary and Others
Vs. Meraj Ahmad, 2017 (9) SCC 322.
13. The recruitment of the petitioner was as per the Selection
Committee constituted under the Chairmanship of the District
Collector. The Revenue and Forest Department (Recruitment) Rules,
1984 were admittedly applied to the recruitment to the post of Talathi
in which the appointing authority is the Sub Divisional Officer or the
Assistant Collector or respective Sub Division under the Revenue and
Forest Department. No doubt, the selection has been done by the
Collector. By the order dated 16.06.2010, the Collector issued an
order to the concerned candidates as well as the Sub Divisional
Officer and directed the Sub Divisional Officer, Selu to issue the
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appointment order on certain terms and conditions mentioned
therein. The petitioner has accepted the same. The Sub Divisional
Officer, Selu has issued her an appointment order dated 29.06.2010.
Thereafter, she has discharged her duties there. Reading the term
'appointing authority' in the Recruitment Rules above, undoubtedly,
the appointing authority for Talathi is the Sub Divisional Officer. Till
the petitioner was transferred, the Sub Divisional Officer was the
appointing authority. Therefore, the subsequent decisions of the
government by notification dated 09.08.2024 and Government
Resolution dated 18.09.2023 which were prospective would not assist
the petitioner to accept that the Collector was the appointing
authority.
14. The next question is, what should be the date of seniority
for the promotion. The papers placed on record were clear that the
seniority list was maintained at the district level. However, in the
seniority list placed on record, the petitioner has been placed at Serial
No.345 in which a specific endorsement is put that she has been
transferred inter-sub-division and joined Parbhani since 14.08.2019.
It is apparent that they are promoted as Circle Inspectors on the basis
of the seniority list maintained at sub divisional level. The rules of
seniority were very specific that an employee transfer from one
division to another division would be at the bottom in the seniority
where such person has been transferred.
WP-10630-2023 judg.odt
15. The order of the Maharashtra Administrative Tribunal
reveals that it has discussed the Government Resolution dated
15.05.2019 regarding the inter-sub-division transfer request. Clause
8 of the said Government Resolution was also referred to which
speaks that after the transfer from one division to another division of
such employee, the seniority of such employee shall be determined on
the basis of the date of joining the place of transfer. However, for the
purpose of pay fixation, leave and pension, the seniority shall be
considered as per rules of the concerned department. The petitioner
unequivocally had admitted the terms of transfer, particularly that she
would not claim the seniority on the basis of her appointment and
shall not be considered in the seniority list maintained at the sub
division level, Sub Division Office, Parbhani. Since the facts have
been perused by both authorities, we need not to re-appreciate it.
16. The case laws relied upon by the learned AGP appears
squarely applied to the case at hand. Since, we have already held that
the appointing authority of the petitioner was the Sub Divisional
Officer, there was no mistake in not considering the seniority of the
petitioner for promotion from the date of her appointment. However,
it was correctly considered from the date of her joining Sub Division,
Parbhani. We do not find that a discrimination is made while
promoting the Talathis to the post of Circle Inspector. At the cost of
repetition, we state that the policy decision of the government by the
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notification dated 09.08.2024 and the Government Resolution dated
18.09.2023 would not assist the petitioner, as those are prospective.
17. For the above reasons, the petition stands dismissed.
18. No order as to costs.
19. Rule stand discharged.
(SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.)
Mujaheed//
