Mobile View
Main Search Forums Advanced Search Disclaimer
Bombay High Court
C vs Aurangabad on 5 August, 2013
Bench: A. H. Joshi, S.P. Deshmukh

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

rt

WRIT PETITION NO. 351 OF 2004 ou

Gopalrao Ambadasrao Borikar Age 70, Occ. Retd. Dy. Collector, Panchavati Ganganivas,

Shivajinagar, Parbhani.

C

.. PETITIONER/S

VERSUS

h

1] The State of Maharashtra through the Secretary of Government ig

of Maharashtra Revenue & Forest Department,

Mantralaya,

H

Mumbai-32.

2] The Commissioner,

Aurangabad Division,

y

Aurangabad.

ba

.. RESPONDENT/S

Petitioner party in person. Mr. K.G. Patil, AGP for respondent Nos. 1 and 2. om

CORAM :- A.H. JOSHI &

SUNIL P. DESHMUKH, JJ.

JUDGMENT RESERVED ON :- 23RD JULY, 2013 JUDGMENT PRONOUNCED ON :-5thAUGUST, 2013. B

JUDGMENT [ PER A.H. JOSHI, J] :- 1] Taken up for hearing by consent of parties.

::: Downloaded on - 07/08/2013 19:23:20 ::: 2

2] This is a petition under Articles 226 and rt

227 of the Constitution of India. The petitioner is a retired Government Servant. He has ou

approached this court against the order passed by the Maharashtra Administrative Tribunal, C

dismissing the Transfer Application No. 1080 OF 1991.

h

3] Petitioner's prayers before the Tribunal ig

were for quashing the orders of promotions granted H

to his juniors and claiming mandatory reliefs for giving him the effect of promotion to the post of y

Tahsildar including a deemed date corresponding to ba

the date of supersession. Due to efflux of time, the relief by way om

of quashing has become ineffective. 4] Brief reference to petitioner's service B

record would suffice for the purpose of this petition, which is as follows :- [a] Petitioner is an Ex-Hyderabad State employee, who had entered into service on ::: Downloaded on - 07/08/2013 19:23:20 ::: 3

1st November, 1950 as a Levy Inspector. He was permanently allocated to the State rt

of Bombay after re-organization of States.

ou

[b] He was promoted in the cadre of Naib Tahsildar, w.e.f. 20th November, 1969. He C

claims and it is not disputed that he has crossed qualification as well as Efficiency Bar, well before his h

promotion.

ig

[c] Juniors to the petitioner in the H

cadre of Naib Tahsildar, who had not crossed Efficiency Bar and eligibility bar were promoted in 1975 during the y

process of adhoc promotions. ba

[d] Petitioner was subsequently promoted as Tahsildar on 14th January, 1982. om

[e] Petitioner was given deemed date as 28th August, 1979 for the post of Tahsildar, and was ultimately promoted B

as Deputy Collector w.e.f. 10th August, 1985.

[f] Petitioner is assigned deemed date for the post of Deputy Collector in 1983, subject to final order as may be passed ::: Downloaded on - 07/08/2013 19:23:20 ::: 4

in Petitioner's Writ Petition No. 736 of 1985 (as is seen from the copy of rt

Government Gazette pertaining to declaration of seniority list at Page No. ou

133 of paper book) and he is satisfied with it.

C

[g] At the time of retirement, i.e. on 31st August, 1989, the petitioner was holding the post of Deputy Collector. h

5]

ig

Petitioner's claim for promotion was declined by the Divisional Commissioner, H

Aurangabad during the process of adhoc selection under the order issued on 10th November, 1975, and y

his candidature was again declined during the ba

meeting of the Departmental Promotion Committee, held on 19.11.1975. Even during subsequent om

Departmental Promotion Committees and orders issued on 15th March, 1976, petitioner stood superseded.

B

6] Petitioner's grievance is as regards his promotion to the post of Tahsildar on a date corresponding to the date when juniors to ::: Downloaded on - 07/08/2013 19:23:20 ::: 5

petitioners were given ad-hoc promotion and were later on given promotion on regular basis. rt

ou

7] Though the case has a long and chequered history, the question involved in the petition is extremely limited.

C

8] Petitioner was aggrieved due to his h

supersession during ad-hoc as well as regular ig

promotions granted in 1975 as well as 1976. H

Therefore, he filed Special C.A. No. 429 of 1977 (writ petition) in this court. y

9] Said Special C.A. No. 429 of 1977 was ba

partly allowed with direction to consider claim of the petitioner for promotion in next meeting. om

10] The petitioner's claim for promotion was liable to be considered however it was not B

favourably considered during the process of selection undertaken by the Departmental Promotion Committee headed by the Divisional Commissioner, Aurangabad. In fact, consideration of petitioner's ::: Downloaded on - 07/08/2013 19:23:20 ::: 6

claim was imperative in view of the concession made before the court in Special C.A. No. 429 of rt

1977, and operative orders of quashing of order ou

dated 8th September, 1975. C

11] Thus, in the selection process held some time in or after 1980, the petitioner was again declined promotion. Therefore, the petitioner h

filed W.P. No. 736 of 1985, which was transferred ig

to Maharashtra Administrative Tribunal on its H

constitution and said transferred writ petition was registered as Transfer Application NO. 1080 of y

1991.

ba

12] The Transfer Application No. 1080 of 1991 was opposed by the State on merits. The Tribunal om

has dismissed the Transfer Application, by judgment and order dated 3rd January, 2002. B

The petitioner is before this court against the said judgment and order. 13] On perusal of the judgment of the Tribunal, it is seen that the Tribunal took the ::: Downloaded on - 07/08/2013 19:23:20 ::: 7

resume of facts and has referred to the judgment rendered by this court in petitioner's earlier rt

writ petition (Special C.A. No. 429 of 1977) and ou

held that in view of said judgments, any enquiry and adjudication in the Transferred Application C

was hit by the doctrine of resjudicata and constructive resjudicata. Relevant text of the judgment of the h

Tribunal reads thus :

ig

H

"7. The petition is also hit by the doctrine of resjudicata/constructive resjudicata. One can not agitate the y

same cause again and again. The prayer clause (B) in the present petition stems ba

from and is also dependent on the prayer clause (A) being granted. Therefore the om

prayer clause (B) would not survive if prayer clause (A) does not survive. This prayer clause (A) is substantially the same as in the earlier petition SCA No. B

429 of 1977 at para.23(b). The said matter already having been concluded a fresh petition in the matter is not maintainable.

[Para.7 of the judgment of the Tribunal ::: Downloaded on - 07/08/2013 19:23:20 ::: 8

in T.A. No. 1080 of 1991 appearing at page no.161 of the paper book is quoted.] (Emphasis by way of underline is rt

supplied by us)

14] While summing up, the Tribunal held as ou

under :-

"8.(ii) On going through the said order C

it is clear to us that the Hon'ble High Court has refused to interfere with the selection process carried out at the h

DPC's meeting held on 19.11.1975. The ig

Hon'ble High Court has expressly allowed the promotions ordered as a result of the H

said DPC meeting to stand. The Hon'ble High Court has also expressly affirmed the non-selection/supersession of the y

petitioner at the said DPC meeting." ba

[Para. 8 of the judgment and order of the Tribunal in T.A. No. 1080 of 1991 appearing at page no.162 of the om

petition paper book is quoted]. [Emphasis on underlined portion is supplied by us.]

15] Now, this court has to examine, as to B

whether the finding recorded by the Tribunal as regards resjudicata and constructive resjudicata is in conformity of the facts of the case, record and the law.

::: Downloaded on - 07/08/2013 19:23:20 ::: 9

16] In the course of hearing, the petitioner rt

has emphasized on bare text of the discussion, observations and findings as recorded in para. No. ou

24 and operative order contained in para No.25 of the judgment of this court rendered in Special C

C.A. No. 429 of 1977.

17] On perusal of paragraph No.24 of Special h

C.A. No. 429 of 1977, it transpires that this ig

court had recorded the concession of the H

Government Pleader to the effect that :- [a] The process of promotion to the y

post of Tahsildar undertaken by the DPC, ba

which was challenged in the said Special C.A., was already disapproved om

and superseded due to the direction given by the Public Service Commission, B

[b] The Departmental Promotion Committee, under the control of the Divisional Commissioner, Aurangabad was directed to consider the promotion ::: Downloaded on - 07/08/2013 19:23:20 ::: 10

proposals afresh and petitioner's case would be considered.

rt

ou

18] Observations which are relied upon by the petitioner are seen in para.24 of said judgment. Said paragraph is quoted hereinbelow :- C

"24. We have however, been told by h

the learned Assistant Govt. Pleader that the promotions made on 3rd and 4th ig

December, 1977 have all been directed to be reconsidered by the Public Service H

Commission. Indeed there is a positive statement in the affidavit to the effect that the Commission has recommended that y

fresh proposals should be drawn up by the ba

committee in supercession of the proposals already drawn by the Government on 3rd October, 1977.

om

Earlier a statement has already been made that the Commissioner, Aurangabad Division, was under a B

Government letter dated 8th February, 1977 directed to convene another meeting and draw up fresh proposal in supercession of those already drawn on 3rd and 4th December, 1976. The position today, therefore, ::: Downloaded on - 07/08/2013 19:23:20 ::: 11

is that the promotion made on 3 rd

and 4

th

December, 1976, which are also challenged rt

by the petitioner in this petition, already stand superseded by the ou

Government itself. So also, the promotion so far as the petitioner is concerned, stand are those made on 19 th

C

November, 1975. The respondents have in their affidavit no doubt made a statement that the petitioner's case will be h

considered for promotion when the ig

selection committee against meets. This statement made in the H

return is hardly likely to reassure the petitioners who finds that inconsistent statements have been made with regard to y

other disciplinary proceedings taken against him.

ba

We have, however, no doubt that the petitioner's case for promotion will om

be considered alongwith other reasons wholly ignoring the fact that any proceedings were taken against him. B

Normally, it is difficult to resist an argument from the petitioner that the Commissioner, who had once held him guilty of misconduct on two occasions, will overlook that fact while ::: Downloaded on - 07/08/2013 19:23:20 ::: 12

considering the petitioner's case for promotion.

rt

However, since we find ghat the Commissioner has on his own withdrawn ou

those proceedings, we are entitled to assume that either the ephemeral warning, which we have now quashed, nor the two C

show cause notices or any orders passed thereon events connected with them will in any way weigh with the Selection h

Committee while deciding the claim of the ig

petitioner.

We are now told by the learned H

Assistant Government Pleader that he had informed the Commissioner that on merits, the action taken by him could not be y

sustained.

ba

The confidential reports of the petitioner which have been shown o us om

for subsequent periods appear to indicate that he has been adjusted as a good officer who is fit for promotion. He has been described in 1975 as an industrious B

and hard working officer. In 1978, he has been described as an experienced hand who deserved to be promoted and in 1979-80, he has been described as a sincere and good worker. ::: Downloaded on - 07/08/2013 19:23:20 ::: 13

We are sure that the apprehension of the petitioner expressed rt

before us that his having approached to this court against his supercessions will ou

adversely affect his prospects will turn out to be wholly unfounded, especially when the order of ephemeral warning has C

been set aside by this court and the two proceedings in respect of which he has made a grievance in this petition, have h

now been withdrawn by the respondents ig

themselves."

[Para.24 of the judgment and order passed by this court in Special C.A. No. 429 of H

1977, appearing at page 159 of the petition paper book is quoted] [Note :-

a] sub-paragraphing is done by us for y

convenience while reading. b] Emphasis on underlined portion is ba

supplied by us.]

om

19] The operative order in the said judgment contained in paragraph No.25 reads as follows :- B

"25. The result, therefore, is that this petition is partly allowed by quashing the order of the Collector dated 8th September, 1975 and the respondents are directed to consider the claim of the petitioner for promotion at the next ::: Downloaded on - 07/08/2013 19:23:20 ::: 14

meeting of the Selection Committee. The petitioner will get the costs of this rt

petition from the respondents." [quoted from page No.160 of the paper ou

book of writ petition.]

20] Contents of para.24 of the judgment in C

Special C.A. No. 429 of 1977, consists of a composition of recording the reasons of challenge h

contained therein, the belief and/or aversion of ig

the State as regards subsistence of challenge and as to how due to commitment made by the Government H

before the Court, it was not necessary to issue a writ, and conclusion that the petitioner's case y

would be considered afresh by the DPC, under the ba

control of the Divisional Commissioner. It is thus evident that this court, has om

not only considered the concession of the Government but has also dealt with the B

apprehension of the petitioner, that he may not get fair treatment at the hands of the Divisional Commissioner.

21] Contents of para.25 of the order quoted ::: Downloaded on - 07/08/2013 19:23:20 ::: 15

in the foregoing para., will have to be read in conjunction with para. no. 24. If it is to be rt

treated that petitioner's all prayers were turned ou

down, then a question would arise as to whether findings/observations based on the concession by C

State, all, were an exercise done by this court in futility ? The answer has to be in favour of the petitioner holding that this court held everything h

in favour of the petitioner and left the Committee ig

to do its business in the light of findings H

recorded in the judgment. y

22] The observations contained in para.24 ba

will have been read to be part and parcel of operative order as obiter. om

23] Thus, the Division Bench of this Court has in reassuring words has observed that the B

Divisional Commissioner, who initially took inappropriate steps has withdrawn that action and, therefore, the apprehension of the petitioner will turn out to be unfounded. ::: Downloaded on - 07/08/2013 19:23:20 ::: 16

24] The sum effect of contents of para Nos.24 rt

and 25 has to be taken into account while reading and noticing as to what is the dictum of this ou

court rendered in Special C.A. No. 429 of 1977. From the collective reading of these two C

paragraphs what would imperatively emerge is that the findings of the court are recorded compositely h

in para. Nos. 24 and 25 together. If the ig

operative order, as found in para.25 is read in isolation, as is done by the Tribunal it would H

result in causing grave injustice to the petitioner.

y

ba

25] Upon reading of said paragraph No.25, one more interpretation thereof emerges. Said om

paragraph No.25 contains a reiteration of the direction to reconsider petitioner's claim/case, based on concession as recorded by the court in B

paragraph No.24 and affirmative observations about petitioner's Annual Confidential Reports. Therefore, the portion contained in the paragraph No.25, which we have quoted in foregoing para No. ::: Downloaded on - 07/08/2013 19:23:20 ::: 17

19, and which is underlined for emphasis does not admit any other conclusion holding that all other rt

prayers in Special C.A. were rejected. ou

26] While recording a finding that C

petitioner's claim for promotion in 1975 is expressly declined by this court in Special C.A. No. 429 of 1977, the Tribunal has based its h

judgment on conjecture than on record. ig

The said finding is a product of H

erroneous reading of paragraph No.24 as well as No.25 of said judgment of this court. y

ba

27] It is evident that the Tribunal attributed to this court, the words which this om

court never wrote or expressed. 28] We reiterate that it would be unjust and B

erroneous to hold that in the judgment in Special C.A. No. 429 of 1977 petitioner's claim for reconsideration alongwith other candidates as of 1975, was rejected.

::: Downloaded on - 07/08/2013 19:23:20 ::: 18

29] The result is obvious that the rt

petitioner's case was liable to be considered by ou

the Departmental Promotion Committee. It is not shown that it was once again considered and once C

again declined. At least any such inference cannot be drawn from the impugned judgment. h

30] In the situation as before us, where the ig

State or Tribunal did not consider the claim of H

the petitioner, his case has to go back either to the Tribunal or before the D.P.C. for y

consideration in accordance with law. ba

31] We have to be alive to the fact that the om

petitioner was dragged from pillar to post during last three decades. The attitude of the Government towards the petitioner was not only callous but B

was also vindictive and full of acrimony and of total hostility. It was not shown before Tribunal or before us as to how petitioner's case was considered in the process of selection in 1980 and ::: Downloaded on - 07/08/2013 19:23:20 ::: 19

thereafter and as to the circumstances in which he was declined promotion.

rt

32] Therefore, we consider that it is ou

necessary to dispose of the case on merits, as indicated hereinbefore in the background that more C

than three decades are over in totality, and one decade after superannuation of the petitioner that h

his case has to be reviewed. 33]

ig

In the light of what we have observed in H

the foregoing paras, we have examined the case of the petitioner. It is not shown or demonstrated y

before us that Annual Confidential Reports of the ba

petitioner were considered in the light of discussion about petitioner contained in the om

judgment in Special C.A. No. 429 of 1977, in the background of petitioner's acclaimed record, isolated adverse remarks against which the B

petitioner had no opportunity to make representations.

34] It is evident that the petitioner was met with an unfair treatment. This court has ::: Downloaded on - 07/08/2013 19:23:20 ::: 20

eloquently discussed all these aspects while deciding Special C.A. No. 429 of 1977. rt

ou

35] In the result, we hold that the petitioner was wrongly superseded on 10/11/1975 C

when juniors and unqualified persons who had not crossed Efficiency bar as well as had not passed qualifying examination, were awarded ad-hoc h

promotions to the post of Tahsildar. Therefore, ig

the petitioner deserves to be given the deemed H

date 10/11/1975 of the promotion to the post of Tahsildar i.e. a date corresponding to and not y

below the date of promotion to his juniors, ba

namely, Shri J.V. Gavade, Shri S.T. Anvikar, Shri W.N. Gangakhedkar, Shri M.R. Deshpande and Shri om

M.R. Dnyate, to the post of Tahsildar. 36] In view that, by virtue of this judgment, B

now the petitioner's Transfer Application No. 1080 of 1991 (Writ Petition No. 736 of 1985) is succeeding, the deemed date of promotion to the post of Deputy Collector, provisionally fixed ::: Downloaded on - 07/08/2013 19:23:20 ::: 21

subject to decision of Writ Petition No.736 of 1985 declared through Annexure "M" i.e. Government rt

Gazette dated 27th May, 1993, shall be liable to ou

be allotted to the petitioner finally. 37] In the result, we pass the following C

order :-

h

[A] Rule is made absolute and impugned judgment and order passed by the Maharashtra ig

Administrative Tribunal, in Transfer Application No. 1080 of 1991, dated 3rd H

January, 2002, is quashed and set aside. Transfer Application No. 1080 of 1991 is allowed in following terms :- y

ba

[I] It is declared that the petitioner is entitled to placement in the cadre of Tahsildar on 10th November, 1975 i.e. the date om

on which ad-hoc promotions to the post of Tahsildar was given to his juniors and pay him all arrears.

B

[II] Petitioner be given deemed date of the post of Deputy Collector, i.e. 24th July, 1983, as notified in Government Gazette dated 27th May, 1993. (Annexure M, at page 133 of the paper book).

::: Downloaded on - 07/08/2013 19:23:20 ::: 22

[III] Computation of arrears be completed rt

within 3 months from the date of receipt of copy of this judgment.

ou

[IV] Petitioner be paid interest on the arrears @ 12% per annum considering that he C

was all throughout required to meet the injustice and was required to take two rounds of litigations, before the present petition. h

[V] Petitioner be paid quantified costs ig

of Rs.25,000/-

H

[B] Rule made absolute in terms of order clause (A).

y

ba

[SUNIL P. DESHMUKH,J] [A.H. JOSHI,J] grt/-.

om

B

::: Downloaded on - 07/08/2013 19:23:20 :::