Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8908-8910 OF 2019
(Arising out of SLP(C) No.12636-12638 of 2015)
AURANGABAD MUNICIPAL CORPORATION
THR. ITS COMMISSIONER ETC. ..APPELLANT(S)
VERSUS
JAYANT S/O SARVOTTAMRAO
KHARWADKAR ETC. & ORS. .. RESPONDENT(S)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J.
1 Delay condoned.
2 Leave granted.
3 These appeals arise from three decisions of the High Court of
Judicature at Bombay:
(i) An order dated 20 October 2012 allowing a review petition
arising from its judgment dated 29 September 2003 by which
the writ petition filed by the first respondent was dismissed;
(ii) A judgment dated 12 June 2014 by which the writ petition
filed by the first respondent was allowed; and
Signature Not Verified
(iii) An order dated 13 February 2015 dismissing the review
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.12.07
10:29:47 IST
Reason:
petition filed by the appellant.
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4. The first respondent was appointed as a Junior Engineer in the
Engineering Department of Aurangabad Municipal Corporation on 27 July
1985. On 11 May 1988, he was transferred to the Planning Department on
a temporary basis in the post of Planning Assistant. In the seniority list
which was published on 12 July 1982 and 16 March 1992, the seniority of
the first respondent was shown as a Planning Assistant in the Town
Planning Department with a remark that he had opted for the cadre of
Planning Assistant from 11 May 1988.
5. Recruitment rules for various posts in the Municipal Corporation
were published, on being approved by the State government under Section
455(i) of the Bombay Provincial Municipal Corporations Act, 1949 under a
Government Resolution dated 16 May 1994.
6. The Schedule to the recruitment rules, includes the post of Junior
Engineer/Assistant Engineer/Sectional Engineer at serial No.15 and the
post of Town Planning Assistant at serial No.36.
7. The first respondent was transferred from the Town Planning
Department as a Junior Engineer in the Water Supply Department on
13 June 1995. Between July 1996 and September 1997 he was deputed to
work with the Minister of Transport. He was repatriated to the Town
Planning Department in September 1997. On 25 September 1997, the first
respondent was deputed as Assistant Town Planner in the Town Planning
Department. After the Municipal Corporation converted the post of
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Administrative Officer to that of Town Planner, the first respondent was
promoted on 29 June 1998 on probation to the post. On 24 May 1999 he
was confirmed as a Town Planner.
8. A writ petition was filed before the Bombay High Court by Sakharam
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Dhondiba Panzade challenging the promotion which was granted to the
post of Deputy Engineer in the Engineering Department. The respondent
was not a party to the proceedings. The High Court, by a judgment and
order dated 3 August 2001, set aside the promotion orders of the second
and third respondents and issued the following direction:
“...We direct the Municipal Corporation to reconstitute the selection
committee to consider the case of the petitioner along with all eligible
Sectional/Junior Engineers as in August 1989, for the post of Dy.Engineer, on
the basis of the principles of seniority cum merit afresh and all the vacant
posts, at that time, shall be filled in accordingly. If any of the respondents are
not found to be eligible for promotion by the selection committee constituted
pursuant to this order, no recovery shall be made from their salaries as they
have already worked in the higher post. In case the petitioner is found to be
eligible for promotion, he shall be given a deemed date of promotion with
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effect from 3 of August, 1989 and his seniority in the post of Dy. Engineer
shall be counted from that date. The newly constituted selection committee
to complete the selection process for the post of Dy.Engineer as
expeditiously as possible and in any case within two months from today.”
9. A final seniority list of diploma holding engineers was published in
which the first respondent was shown at serial No.13 as Sectional Engineer
as on 1 January 1995 (w.e.f. 27 December 1990). Thereafter, on
13 August 2002 a provisional seniority list of Deputy Engineers was
1WP No.2156/1988
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published in which the first respondent was shown as a Deputy Engineer
w.e.f. 7 December 1998. An objection was raised to the seniority list. The
Municipal Commissioner by an order dated 27 August 2002 issued a final
seniority list by deleting the name of the first respondent on the ground that
the Town Planning Department to which the first respondent belonged is a
separate department. However, on the very next day (27 August 2002), an
order was passed by the Municipal Commissioner reverting the first
respondent to the post of Sectional Engineer. This purportedly was in
compliance with the order passed by the High Court in Writ Petition
No.2156/1988.
10. The order of reversion was challenged by the first respondent before
the High Court. On 29 September 2003; the High Court rejected the writ
petition with the following order:
“Heard Shri V.J. Dixit the learned counsel for the petitioner, who has assailed the
order dated 28.8.2002, passed by the Commissioner, Municipal Corporation,
Aurangabad, by which the promotion granted in favour of the petitioner as per the
General Body resolution No.223/2, dated 20.04.2000 was cancelled and from the
post of Town Planner he was brought back to the post of Sectional Engineer.
Admittedly the resolution dated 20.4.2000 was in utter disregard to the principal
of seniority-cum-merit for granting promotion to a post in Class II from a post in
Class III. This was made known to the Corporation vide our judgment dated
3.8.2001 in Writ Petition No.2156/1988. The Corporation has accordingly
reconsidered all the promotions granted to Class II posts and as per our
directions, fresh promotion orders have been issued, which were also challenged
in Writ Petition No.1535/2002. The said petition was decided by us on 1.8.2003.
The prayer made in this petition is substantially challenging the impugned order
dated 28.8.2002.
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We are satisfied that the promotion granted to the petitioner to the post of Town
Planner was itself illegal inasmuch as it was in violation of the principle of
seniority-cum-merit and, therefore, no fault could be found with the impugned
order.
We also clarify that so far as the seniority of the petitioner is concerned, the same
has to be considered from the initial date of joining under the Corporation and in
the respective categories along with other candidates holding the same
qualifications and equivalent posts. If the petitioner feels that he should be
retained in the Town Planning Department in the post he held prior to the
resolution dated 20.04.2000, he may make such a representation to the
Commissioner and the same shall be considered on its own merits. Petition is
rejected summarily save and except the directions set out earlier.”
11. A Special Leave Petition filed by the respondent was dismissed on
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17 October 2003 by this Court . A review petition was filed by the first
respondent. The review petition was allowed by the High Court on
20 October 2012. Thereafter on 12 June 2014, the writ petition was allowed
on merits. A petition by way of review which was moved by the appellant was
dismissed on 13 February 2015. This has given rise to the proceedings
before this Court in these appeals.
12. While issuing notice on the Special Leave Petitions, this Court had by
an order dated 17 April 2015 stayed the operation of the order of the High
Court.
13. Assailing the order of the High Court, the Municipal Corporation
urged before this Court that upon the dismissal of the Special Leave Petition
against the order of the High Court on 29 September 2003 a review was not
2 SLP (C) No.18986 of 2003
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maintainable. On merits, the judgment of the High Court has been assailed
on several grounds. In the view which we propose to take, it may not be
necessary to consider these grounds at this stage.
14. The submissions urged in support of the appeals by Mr.Sudhanshu
S. Choudhari, learned counsel have been countered by Mr.C.U.Singh,
learned Senior Counsel. Mr.Singh urged that the appointment of the first
respondent in the Town Planning Department since 1988 has not been called
in question as is evident from the fact that the seniority lists since July 1989
reflect the name of the first respondent in the Town Planning Department.
Moreover, it was submitted that the first respondent was promoted as an
Assistant Town Planner on the completion of five years in terms of a GO
dated 7 July 1997 and as Town Planner on 29 June 1998. Subsequently, the
first respondent was confirmed as Town Planner. Mr.C.U.Singh submits that
the proceedings before the High Court in Writ Petition No 2156/1988 had no
relevance to the appointment of the first respondent to the Town Planning
Department nor was his promotion as Town Planner in issue. The first
respondent was not a party to the writ proceedings which dealt with a dispute
over promotion as between three persons in the Engineering Department.
Hence it was urged that the decision of the High Court dated 3 August 2001
had no bearing on the service of the first respondent in the Town Plannnig
Department. On 27 August 2002, the Municipal Commissioner passed an
order clarifying that the name of the first respondent would be deleted
from the seniority list of the Engineering Department since his name was
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borne on the cadre of the Town Planning Department. Despite this position, it
has been urged that on the very next day, the Municipal Commissioner
proceeded to revert the first respondent, without affording to him an
opportunity of being heard. On the maintainability of the review petition,
Mr.Singh urged that since the order passed by this Court in the Special Leave
Petition was a non speaking order, a review petition was maintainable having
regard to the settled principles of law that hold the field. Moreover, the
Municipal Corporation accepted the order in the review dated 20 October
2012 and urged submissions on the merits of the petition and it was only
thereafter, upon the declaration of the judgment on 12 June 2014 and the
rejection of the review petition that this Court was moved under Article 136 of
the Constitution.
15. For the purpose of the present appeals, we have proceeded on the
basis that the order passed by this Court in the Special Leave Petition on
17 October 2003 did not foreclose the avenue of a review petition which was
open to the first respondent. By the order passed by this Court, the Special
Leave Petition was not entertained. Neither was leave granted nor was there
any expression of reasons which would suggest that the view which weighed
with the High Court was affirmed by this Court in the course of disposal of the
Special Leave Petition. In that view of the matter, a petition by way of review
was maintainable.
16. The order passed by the Municipal Commissioner on 28 August 2002
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suffers from a fundamental error. The Municipal Commissioner’s decision to
revert the first respondent from the post of Town Planner which he had held
since his appointment on probation on 29 June 1998 and after his
confirmation in service on the completion of probation on 29 May 1999 was
without hearing the respondent. Reversion of an employee is a matter of
substantive prejudice. Hence there can be no gainsaying the fact that an
opportunity of being heard is required to be afforded before an order or
reversion is passed. The Municipal Commissioner on 27 August 2002 issued
an order deleting the name of the first respondent from the seniority list of
Deputy Engineers, noting that the Town Planning Department to which the
first respondent belongs was a distinct department of the Municipal
Corporation. The reversion of the first respondent from the post of Town
Planner was without furnishing either a notice to show-cause or an
opportunity of being heard to the first respondent. This is manifestly contrary
to law. The order dated 28 August 2002 ought to have been set aside on that
ground alone. In this view of the matter, it was unnecessary for the High
Court to delve into several facets that have entered into the decision which
has been ultimately rendered by the High Court.
17. Hence, we are inclined to quash and set aside the order passed by
the Municipal Commissioner on 28 August 2002 on the ground that the order
was passed in manifest violation of principles of natural justice. We order
accordingly. Hence, it is unnecessary for this Court to enter upon the
reasons which have weighed with the High Court. Since the order of
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reversion has been set aside on the above ground, we clarify that it will be
open to the Municipal Corporation to take recourse to its remedies in
accordance with law and, in that event, none of the reasons which are
contained in the impugned decision of the High Court shall be regarded as
binding or an adjudication of the rights and contentions of the parties.
18. Learned counsel, however, submitted that in the event that the
Municipal Corporation seeks to initiate action, some time schedule may be
laid down for the early completion of the proceedings so as to obviate the
future prospect of the first respondent being left in a state of uncertainty.
19. We clarify that it would be open to the first respondent to initiate
steps within a period of two months from the receipt of a certified copy of this
order and to complete the process within a period of four months from today.
20. The appeals are accordingly allowed to the aforesaid extent. The
order of the Municipal Commissioner dated 28 August 2002 is quashed and
set aside. There shall be no order as to costs.
.......................................................J.
[Dr Dhananjaya Y Chandrachud]
.......................................................J.
[Ajay Rastogi]
New Delhi;
November 21, 2019
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ITEM NO.2 COURT NO.8 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).8908-8910/2019
(Arising out of SLP (C) No.12636-12638/2015)
AURANGABAD MUNICIPAL CORPORATION
THR. ITS COMMISSIONER ETC. APPELLANT(S)
VERSUS
JAYANT S/O SARVOTTAMRAO KHARWADKAR ETC. & ORS. RESPONDENT(S)
Date : 21-11-2019 These appeals were called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE AJAY RASTOGI
For Appellant(s)
Mr.Sudhanshu S. Choudhari, AOR
Mr.Yogesh Kolte, Adv.
Mr.Mahesh P. Shinde, Adv.
For Respondent(s)
Mr.C.U.Singh, Sr.Adv.
Mr.Suresh Pandey, Adv.
Mr.Mayank Pandey, Adv.
Ms.Bharti Chawla, Adv.
Mr.Nishant R.Katneshwarkar, AOR
Mr.Anoop Kandari, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Leave granted.
The appeals are allowed in terms of the signed
reportable Judgment.
Pending applications, if any, stand disposed of.
(Ashok Raj Singh) (Saroj Kumari Gaur)
Court Master Court Master
(Signed reportable judgment is placed in the file)