Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3633/2004
PETITIONERS : 1. Dattatraya s/o Ramchandra Ghawade
Aged about 56 years, Occ. Agriculture Officer,
R/o Plot No.3, Somalwada, Nagpur.
2. Madhukar s/o Santoshrao Thawale
Aged about 57 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
3. Vasant s/o Mahadeorao Laxane
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
4. Prabhakar s/o Bhagwanji Mahajan,
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Mohpa, Tq. Kalmeshwar,
Distt. Nagpur.
5. Ashok s/o Wamanrao Shete,
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
6. Dhnyaneshwar s/o Tukaramji Suple,
Aged about 55 years, Occ. Agriculture Officer,
R/o At Post Mohpa, Tq. Kalmeshwar,
Dist. Nagpur.
7. Ashok s/o Marotrao Ghode,
Aged about 57 years, Occ. Agriculture Officer,
R/o At Post Deoli, Tq. Deli, Distt. Wardha.
8. Subhash s/o Deoraoji Mahajan,
Aged about 53 years, Occ. Extension Officer (Agri.)
R/o At Post Kalmeshwar, Tq. Kalmeshwar,
Distt. Nagpur.
...Versus...
RESPONDENTS: 1. The State of Maharashtra through
the Principal Secretary, Rural Development
Department, Mantralaya, Mumbai32.
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2. The Divisional Commissioner,
Nagpur Division, Nagpur.
3. The Chief Executive Officer,
Zilla Parishad, Chandrapur.
4. Shri M.B. Juware,
Block Development Officer,
Panchayat Samiti Katol,
District Nagpur.
5. Shri V.A. Walde,
Project Officer, Child Development, Arvi,
Distt. Wardha.
6. Shri P.D. Mandwe,
R/o Block Development Officer,
Panchayat Samiti, Warora, District : Chandrapur.
7. Shri A.B. Pawde,
Block Development Officer,
Panchayat Samiti, Hinganghat, Distt. Wardha.
8. Shri R.A. Misra,
Project Officer, Child Development, Amgaon,
Distt. Gondia.
9. Shri V.K. Meshram,
Project Officer, Child Development, Tumsar,
Distt. Gondia (Petition Dismissed).
10. Shri U.M. Waghaye
Block Development Officer,
Panchayat Samiti, Narkhed, Distt. Nagpur.
11. Shri K.G. Bakane,
'Balvikas', R/o Punjab Colony, Arvi Road,
Wardha, District – Wardha.
12. Shri P.S. Mankar,
Project Officer, Child Development, Nagpur.
Distt. Nagpur.
13. Shri M.N. Pande,
Block Development Officer,
Panchayat Samiti, Saoner, Distt. Nagpur.
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14. Shri W.B. Bhandarkar,
Block Development Officer,
Panchayat Samiti, Bramhapur,
Distt. Chandrapur.
15. Shri D.V. Aglawe,
Project Officer, Child Development, Mohadi,
Distt. Bhandara.
16. Shri R.J. Dhande,
Project Officer, Child Development, Lakhandur,
Distt. Bhandara.
Shri Prashant Gode, Advocate for petitioners
Shri A.D. Sonak, AGP for respondent nos.1 and 2
CORAM : A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of reserving the judgment : 28.08.2014
Date of pronouncing the judgment : 13.10.2014
JUDGMENT : (PER : C.V. BHADANG, J.)
1. The petitioners were appointed as Agriculture
Supervisors/Extension Officers (Agriculture) in Zilla Parishad, Chandrapur
some time in the year 197071 except petitioner no.8, who was appointed
in the year 1975. Petitioner nos.1 to 7 were promoted as Agriculture
Officers on the following dates.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3633/2004
PETITIONERS : 1. Dattatraya s/o Ramchandra Ghawade
Aged about 56 years, Occ. Agriculture Officer,
R/o Plot No.3, Somalwada, Nagpur.
2. Madhukar s/o Santoshrao Thawale
Aged about 57 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
3. Vasant s/o Mahadeorao Laxane
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
4. Prabhakar s/o Bhagwanji Mahajan,
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Mohpa, Tq. Kalmeshwar,
Distt. Nagpur.
5. Ashok s/o Wamanrao Shete,
Aged about 56 years, Occ. Agriculture Officer,
R/o At Post Kondhali, Tq. Katol, Distt. Nagpur.
6. Dhnyaneshwar s/o Tukaramji Suple,
Aged about 55 years, Occ. Agriculture Officer,
R/o At Post Mohpa, Tq. Kalmeshwar,
Dist. Nagpur.
7. Ashok s/o Marotrao Ghode,
Aged about 57 years, Occ. Agriculture Officer,
R/o At Post Deoli, Tq. Deli, Distt. Wardha.
8. Subhash s/o Deoraoji Mahajan,
Aged about 53 years, Occ. Extension Officer (Agri.)
R/o At Post Kalmeshwar, Tq. Kalmeshwar,
Distt. Nagpur.
...Versus...
RESPONDENTS: 1. The State of Maharashtra through
the Principal Secretary, Rural Development
Department, Mantralaya, Mumbai32.
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2. The Divisional Commissioner,
Nagpur Division, Nagpur.
3. The Chief Executive Officer,
Zilla Parishad, Chandrapur.
4. Shri M.B. Juware,
Block Development Officer,
Panchayat Samiti Katol,
District Nagpur.
5. Shri V.A. Walde,
Project Officer, Child Development, Arvi,
Distt. Wardha.
6. Shri P.D. Mandwe,
R/o Block Development Officer,
Panchayat Samiti, Warora, District : Chandrapur.
7. Shri A.B. Pawde,
Block Development Officer,
Panchayat Samiti, Hinganghat, Distt. Wardha.
8. Shri R.A. Misra,
Project Officer, Child Development, Amgaon,
Distt. Gondia.
9. Shri V.K. Meshram,
Project Officer, Child Development, Tumsar,
Distt. Gondia (Petition Dismissed).
10. Shri U.M. Waghaye
Block Development Officer,
Panchayat Samiti, Narkhed, Distt. Nagpur.
11. Shri K.G. Bakane,
'Balvikas', R/o Punjab Colony, Arvi Road,
Wardha, District – Wardha.
12. Shri P.S. Mankar,
Project Officer, Child Development, Nagpur.
Distt. Nagpur.
13. Shri M.N. Pande,
Block Development Officer,
Panchayat Samiti, Saoner, Distt. Nagpur.
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14. Shri W.B. Bhandarkar,
Block Development Officer,
Panchayat Samiti, Bramhapur,
Distt. Chandrapur.
15. Shri D.V. Aglawe,
Project Officer, Child Development, Mohadi,
Distt. Bhandara.
16. Shri R.J. Dhande,
Project Officer, Child Development, Lakhandur,
Distt. Bhandara.
Shri Prashant Gode, Advocate for petitioners
Shri A.D. Sonak, AGP for respondent nos.1 and 2
CORAM : A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of reserving the judgment : 28.08.2014
Date of pronouncing the judgment : 13.10.2014
JUDGMENT : (PER : C.V. BHADANG, J.)
1. The petitioners were appointed as Agriculture
Supervisors/Extension Officers (Agriculture) in Zilla Parishad, Chandrapur
some time in the year 197071 except petitioner no.8, who was appointed
in the year 1975. Petitioner nos.1 to 7 were promoted as Agriculture
Officers on the following dates.
| Sr.<br>No. | Petitioner | Date of Promotion |
|---|---|---|
| 1. | Petitioner No.1 | 09/12/1991 |
| 2. | Petitioner No.2 | 17/06/1983 |
| 3. | Petitioner No.3 | 02/11/1991 |
| 4. | Petitioner No.4 | 03/11/1993 |
| 5. | Petitioner No.5 | 03/11/1993 |
| 6. | Petitioner No.6 | 03/11/1993 |
| 7. | Petitioner No.7 | 30/05/1998 |
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2. Petitioner no.8 was not promoted purportedly on account of
some departmental proceedings against him. According to the petitioners,
the next promotional post is in the Maharashtra Development Services
ClassII (Gazetted) (M.D.S. Class – II for short). Upon being promoted in
the said service, the petitioners were entitled to be posted as Block
Development Officers, which is a gazetted post. The said promotion,
according to the petitioners, could be granted to the employees holding the
post in any of the eight services as set out in Paragraph no.3 of the petition,
which includes District Technical Service (ClassIII) (Agriculture), to which
the petitioners belonged. As per communication dated 20.6.1979
(AnnexureE) the Assistant Secretary in the Rural Development Department
had asked all Chief Executive Officers of the Zilla Parishads to prepare a
seniority list of the Zilla Parishad employees for appointment by selection
to the ClassII post in the M.D.S. The said communication sets out in all six
services from which such promotion can be given, which again includes the
District Technical Service (ClassIII) (Agriculture) (D.T.S. for short) to
which the petitioners belonged. The communication contemplated option
being communicated by the concerned employees through the Chief
Executive Officer of Zilla Parishad relinquishing his claim, if any, being
considered for appointment by selection to ClassII post in “another such
service”. This was in pursuance to Rule 9 (b) of the Maharashtra
Development Service (Constitution, Classification and Recruitment) Rules,
1973 (Rules of 1973 for short) as amended w.e.f. 1.4.1979. The said
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options were to be given by 14.8.1979. The Chief Executive Officers of the
Zilla Parishads were then supposed to furnish the information to the
Divisional Commissioners concerned not later than 18.7.179. It is
undisputed that the petitioners had given options on 11.8.1979.
3. Respondent nos.4 to 16 were appointed directly by
nomination to the District Technical Service (Class III), after 14.8.1979 and
as such these respondents could not have given any option prior to
14.8.1979 as required by the communication at AnnexureE. Their options
were called subsequently by concerned C.E.O. of the Zilla Parishad. The
contention of the petitioners is that the Divisional Commissioner, in his
own discretion, could not have allowed the change of the said date, as set
out by the State Government. However, the seniority list dated 1.1.1998
came to be sent by the Agriculture Development Officer of Zilla Parishad,
Chandrapur directly to the Divisional Commissioner, Nagpur without the
knowledge or concurrence of the Chief Executive Officer, Zilla Parishad,
Chandrapur. It is contended that the Divisional Commissioner without
application of mind accepted the same. In the said seniority list, respondent
nos.4 to 16 have been included and shown seniors, although they were not
eligible to be considered as having not furnished the required option prior
to 14.8.1979.
4. Respondent no.2 – Divisional Commissioner passed two
orders, namely, 13.2.2001 and 27.12.2002 promoting respondent nos.4 to
16 to the post of Block Development Officer by which the petitioners are
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aggrieved. The petitioners sent representations to respondent no.2 –
Commissioner, which have not been decided.
5. It appears that the petitioners approached the Maharashtra
Administrative Tribunal (MAT) under Section 19 of the Maharashtra
Administrative Tribunal Act, 1985. However, the same matter was
withdrawn on 30.1.2004 as according to the petitioners, the Tribunal was
of the opinion that the petitioners not being employees of the State, the
application was not maintainable. It is thereafter that this petition is filed
challenging the impugned order dated 13.2.2001 and 27.12.2002
(AnnexureA) promoting respondent nos.4 to 6 to the Maharashtra
Development Services ClassII, which according to the petitioners, is
violative of Article 14 of the Constitution of India.
6. Respondent no.2 has filed a return. It is contended that
appointment by Selection to the post of Block Development Officer/Child
Development Project Officer/Assistant Project Officer and M.D.S. ClassII is
made from suitable employees in District Technical ClassIII or District
Service ClassIII. It includes seven cadres for which reservation for
promotion in percentage of post is fixed and agriculture cadre is one of
these seven cadres. It is contended that Rule 6 (7) of the Rules of 1973, as
amended, provides that employee from D.T.S. GradeI shall get precedence
over an employee working in D.T.S. GradeII. It is next contended that
when the options were called from the eligible employees which were to be
furnished on or before 14.8.1979, except petitioner no.2 Shri Thawale,
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none of the petitioners were in GradeI of respective D.T.S. of the Zilla
Parishads and were far below in GradeII and as such were not in zone of
consideration of promotion to M.D.S. ClassII. It is, thus, contended that
14.8.1979 was not the cut off date for giving options for all employees. It
was the cut off date for eligible employees who were in service at that time.
It is contended that respondent no.2 – Commissioner had prepared a
tentative inter se seniority list of eligible employees as on 1.4.1989 on
considering the options given by the eligible employees up to 14.8.1979.
7. It is then contended that the Maharashtra Zilla Parishad
District Service (Recruitment) Rules, 1967 (Rules of 1967 for short)
provides for direct recruitment to the post of Agriculture Officer in GradeI
of D.T.S. (Agriculture). Such recruitment was done by many Zilla Parishads
after the year 1979. In short, it is contended that respondent nos.4 to 16
were directly recruited as Agriculture Officers and fell in GradeI of D.T.S.
(Agriculture). This was after 14.8.1979 and as such there was no question
of these respondents having furnished options prior to the said date. It is
contended that at the relevant time the petitioners were in GradeII of
D.T.S. (Agriculture). It is contended that the Rules of 1973 as amended on
7.6.1984 and 27.9.1990 prescribe percentage of reservation to various
District Services. As regards the petitioners' contention that although
Shri P.M. Shende was working as Extension Officer (P) he was promoted in
M.D.S. ClassII, whereas petitioner no.8 who was senior to Shri Shende was
not promoted, it is contended that Shri Shende was employee of D.T.S.
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(Executive and Village Extension) (ClassIII) (Agriculture) to which
petitioner no.8 belongs only, 20% posts in M.D.S. are reserved. Shri Shende
belonged to Scheduled Caste Category. He belonged to D.T.S. (Executive
and Village Extension) ClassIII for which 40% posts in M.D.S. ClassII were
reserved. Thus, having greater percentage of reservation, he was promoted
first in comparison to petitioner no.8. It is contended that thus there is no
violation of any Rule while preparing the seniority list. Respondent no.3
has filed a return. It is contended that the said respondent i.e. C.E.O., Zilla
Parishad is concerned only with respondent nos.7, 8 and 16 were
appointed as Agriculture Officers under D.T.S. GradeI (Agriculture) after
14.8.1979 and as such have rightly been shown to be senior to the
petitioners.
8. Respondent nos.4, 5, 7, 8, 10, 12, 13, 14 and 15 have also
filed their submissions, opposing the petition.
9. We have heard Shri Gode the learned Counsel for the
petitioners and Shri Sonak, learned Assistant Government Pleader, for
respondent nos.1 and 2 – State. None for the other respondents.
10. It is submitted by the learned Counsel for the petitioners that
respondent no.2 could not have unilaterally allowed the change of the cut
off date, namely, 14.8.1979 before which options were called for. He
submitted that respondent nos.4 to 16 having been appointed subsequent
to 14.8.1979, could not have been considered for the promotion to M.D.S.
ClassII as Block Development Officers, or equivalent posts. It is submitted
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that the seniority lists drawn by respondent no.2 on 13.2.2001 and
27.12.2002 thus need to be quashed and set aside.
11. Insofar as petitioner no.8 is concerned, reliance is placed on
the decision of the Hon'ble Supreme Court in the case of Jagan
Narain...Versus...Food Corporation of India and others , reported in
(2010) 4 Supreme Court Cases 558 in order to submit that pendency of
minor penalty proceedings cannot come in the way of the employee being
considered for promotion or being promoted. It is, thus, submitted that
petitioner no.8 could not have been denied the promotion on account of
pendency of some departmental proceedings.
12. The learned Assistant Government Pleader has supported the
impugned orders. It is submitted that respondent nos.4 to 16 having been
directly recruited to D.T.S. (Agriculture) GradeI as Agriculture Officers
were senior to the petitioners, who fell in D.T.S., GradeII (Agriculture).
The petitioners were promoted as Agriculture Officers subsequently. It is
submitted that communication dated 20.6.1979 contemplated calling of
options from eligible employees and this was in terms of Rule 9 (a) of 1973
Rules, as amended. It is submitted that a tentative seniority list was drawn
by respondent no.2 on 1.1.1998. It is pointed out that the submission of the
petitioner that respondent nos.4 to 16 cannot rank senior to them is
obviously incorrect.
13. Insofar as petitioner no.8 is concerned, the learned Assistant
Government Pleader has submitted that he has rightly not been promoted
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on account of pendency of the departmental proceedings.
14. We have considered the rival circumstances and submissions
made. It is not in dispute that the post of Agriculture Supervisor/Extension
Officer (Agriculture) falls in GradeII of D.T.S. (ClassIII) while the post of
Agriculture Officer falls in GradeI of D.T.S. (ClassIII). It is further
undisputed that Rules of 1967 also provide for direct recruitment to the
post of Agriculture Officer in GradeI of D.T.S. (Agriculture). When the
petitioners had given options, they were working as Extension Officers
(Agriculture)/Agriculture Supervisors (except petitioner no.2
Shri Thawale) and thus fell in GradeII D.T.S. (Agriculture). It would be
apparent that petitioner no.2 was promoted in 1983. While petitioner nos.1
and 3 were promoted in the year 1991, petitioner nos.4, 5 and 6 were
promoted in the year 1993 while petitioner no.7 was promoted in the year
1998 i.e. much after 14.8.1979. Respondent nos.4 to 16 were directly
recruited as Agriculture Officers and thus they fell in GradeI D.T.S.
(Agriculture). Rule 6 (7) of the Rules of 1973 stipulates a preference for
making appointment by selection to M.D.S. ClassII on the basis of higher
grade. The communication dated 20.6.1979 itself mentions that while
making appointment by selection to M.D.S. ClassII, employees working in
GradeI are to be considered first over those working in GradeII. It also
stipulates that in respect of D.T.S. ClassIII and District Service ClassIII
where Grades have been abolished w.e.f. 1.4.1979 preference for selection
is to be given on the basis of seniority in that service. Be that as it may,
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having regard to the fact that respondent nos.4 to 16 were directly
recruited as Agriculture Officers in GradeI D.T.S. (Agriculture) to which
the petitioners were promoted subsequently (except petitioner no.2
Shri Thawale), no exception can be taken to respondent nos.4 to 16 being
treated senior to these petitioners and respondent nos.4 to 16 getting
precedence while appointment by selection to M.D.S. ClassII. Insofar as
petitioner no.2 is concerned, there is greater percentage i.e. 40% posts
being reserved for the incumbents belonging to D.T.S. (Executive and
Village Extension) ClassIII as compared to 20% reservation for the service
to which petitioner no.2 belonged, namely D.T.S. (ClassIII) (Agriculture).
Furthermore, the preparation/updation of list for selection to M.D.S.
(ClassII) is an ongoing process, and cannot be invalidated on account of
the options being called after 14.8.1979, in the peculiar facts of the present
case. Thus, we find that the challenge raised by the petitioners to the
impugned seniority list (AnnexureA) is devoid of any merit.
15. Insofar as petitioner no.8 is concerned, the petitioner was
denied promotion on account of some departmental enquiry being pending
against him. In the case of Jagan Narain (Supra) the petitioner was denied
promotion on account of a minor penalty of token recovery of Rs.5,000/
being imposed on him. It appears that petitioner therein had relied upon
two circulars of the respondent – Food Corporation of India dated
13.12.2001 and 19.12.2001 clarifying that in respect of employees against
whom recoveries have been ordered under minor penalty, such recoveries
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can continue even in promoted capacity, and therefore, there was no point
to withhold such promotions. A perusal of para no.8 of the judgment of the
Hon'ble Supreme Court, would clearly show that in view of these two
circulars and the fact that there was minor penalty imposed of token
recovery of Rs.5,000/ it was held that the same would not come in the
way of employee being considered for promotion.
16. We, therefore, find that the facts in the present case in the
absence of any such policy decision/circulars being brought to our notice,
are clearly distinguishable, particularly when it is not shown that petitioner
no.8 was facing such departmental proceeding in respect of any such minor
misconduct or the punishment imposed being of minor nature. In that view
of the matter, the submissions, in this regard cannot be accepted.
17. For the reasons aforesaid, the writ petition is hereby
dismissed. Rule is discharged with no order as to costs.
JUDGE JUDGE
Wadkar
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