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IN THE HIGH COURT OF BOMBAY
S.V. Gangapurwala, V.L. Achliya, JJ.
Prabhakar - Appellant
Vs.
Hon'ble Minister of Industries & Chairman, Maharashtra Industrial Development Corporation, Mantralaya, Mumbai - Respondent
W.P. No. 8047 of 2013
Decided on : 08-05-2015
PROMOTION - SENIORITY-CUM-MERIT - PENDING DEPARTMENTAL ENQUIRY - MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION OFFICERS/EMPLOYEES (CLASSIFICATION, RECRUITMENT AND PROMOTION) REGULATIONS, 2012 - RULE 20 - RULE 22 - ANNEXURE I - CLAUSE 3(II)(B) - GOVERNMENT CIRCULAR DATED 2-4-1976 - Petitioner, a senior-most candidate belonging to the Scheduled Caste category, was denied promotion to the post of Chief Engineer due to a pending departmental enquiry against him. The Court held that the denial of promotion was not justified as the petitioner fulfilled all the requisite criteria for promotion and the pendency of the departmental enquiry did not disqualify him from being considered for promotion. The Court directed the respondent to promote the petitioner to the post of Chief Engineer with deemed date of promotion and to expedite the departmental enquiry.
Fact of the Case:
Petitioner, a senior-most candidate belonging to the Scheduled Caste category, was denied promotion to the post of Chief Engineer due to a pending departmental enquiry against him. The petitioner challenged the denial of promotion, arguing that he fulfilled all the requisite criteria for promotion and that the pendency of the departmental enquiry did not disqualify him from being considered for promotion.
Finding of the Court:
The Court held that the denial of promotion was not justified as the petitioner fulfilled all the requisite criteria for promotion and the pendency of the departmental enquiry did not disqualify him from being considered for promotion. The Court directed the respondent to promote the petitioner to the post of Chief Engineer with deemed date of promotion and to expedite the departmental enquiry.
Issues: Whether the denial of promotion to the petitioner was justified.
Ratio Decidendi: The Court held that the denial of promotion was not justified as the petitioner fulfilled all the requisite criteria for promotion and the pendency of the departmental enquiry did not disqualify him from being considered for promotion. The Court relied on the following provisions of the Maharashtra Industrial Development Corporation Officers/Employees (Classification, Recruitment and Promotion) Regulations, 2012: * Rule 20: All appointments by promotion shall be made on the basis of "Seniority-Cum-Merit" amongst the eligible employees who possess requisite qualification. * Rule 22: All appointments by promotion and nomination shall be regulated as per procedure prescribed in Appendix-I to said regulation. * Annexure I, Clause 3(II)(B): If the names of the candidate against whom departmental enquiry is pending or who are lying under suspension falls in the zone of consideration, then names of such candidate or candidates should not be excluded from consideration. It further provides that after consideration of their names, the Selection Committee shall record its opinion about their fitness or otherwise. The Court also relied on the Government Circular dated 2-4-1976, which provides instructions/criteria prescribed by the State Government as to the procedure to be followed in the cases of persons whose conduct is under investigation or against whom Departmental enquiries are pending.
Final Decision: The Court directed the respondent to promote the petitioner to the post of Chief Engineer with deemed date of promotion and to expedite the departmental enquiry.
V.L. Achliya, J.
Rule. Rule returnable forthwith. By consent of parties taken up for final disposal at the stage of admission.
2. Petitioner has approached with a case that in the year 1978, he joined service with respondent No. 2 as a Overseer. Subsequently he was promoted as Deputy Engineer, Executive Engineer, Superintending Engineer as well as Additional Chief Engineer. He joined the service from Civil Engineering cadre. Whereas the respondent Nos. 3 and 4 joined service with respondent No. 2 in the year 1998 from Environmental Engineering cadre.
3. According to petitioner, throughout his service tenure he was victimized by superiors and all the while he was required to knock the doors of the Court to be promoted on promotional post. In the year 1998, although he was eligible for the post of Superintending Engineer and senior most candidate in the zone of consideration from the reserved category and Selection Committee selected him, still the promotion order was not issued in his favour. He was therefore, required to approach the High Court. He filed Writ Petition No. 2415 of 1998 in which vide order dated 25-2-2000, passed by Hon'ble High Court of Bombay, Bench at Nagpur respondent No. 2 was directed to consider his case for promotion as per recommendation of the Selection Committee before 31-3-2000 and further grant him deem date of seniority. It is the say of the petitioner that after the order passed by Hon'ble High Court, he was given promotion as Superintending Engineer. Again in the year 2007, though he was eligible for promotion for the post of Additional Chief Engineer, he was denied promotion on the pretext of departmental enquiry pending against him. Therefore he was required to file Writ Petition No. 4188 of 2007 challenging the departmental enquiry initiated against him as well as order of promotion issued in favour of Shri. N. D. Gade, Respondent No. 3 in said petition. By the Judgment and Order dated 30-6-2009 passed in said petition, the Division Bench of this Court (Coram: Bilal Nazki and Smt. V. K. Tahilramani, JJ.), quashed and set aside the order of promotion dated 25-5-2007 given to respondent No. 3 by upholding the contention of petitioner that process of selection was vitiated as in spite of respondent No. 3 was in the zone of consideration, he appointed as one of the member of Selection Committee constituted for promotion to the post of Additional Chief Engineer, Pune. So also Hon'ble High Court quashed the departmental enquiry proceeding initiated against the petitioner. During the pendency of the said petition, the petitioner was promoted to the post of Additional Chief Engineer. It is the say of petitioner that in the year 2013, he was senior most and eligible person for the post of Chief Engineer and respondent Nos. 3 and 4 were junior to him. In accordance with the recruitment Rules governing the appointment, promotion of the employees and officers of respondent No. 2 Corporation, promotions are to be made for the post of Chief Engineer on the basis of "Seniority-Cum-Merit." It is the say of the petitioner that in the year 2013, he was fulfilling the requisite bench mark fixed for the selection for post of chief engineer and senior most candidate, entitled to be promoted as Chief Engineer. As per his confidential reports of previous five years, he was throughout rated as "Very good" and there was nothing adverse against him to deny promotion to the post of Chief Engineer. However, the Selection Committee in its meeting held on 1-4-2013 though found him eligible for promotion, based upon seniority-cum-merit, but not recommended his name, solely on the ground of pendency of departmental enquiry proceeding against him. Selection Committee recommended the names of respondent Nos. 3 and 4 who were juniors to him to be promoted as Chief Engineer, Mumbai and Pune respectively. Recommendation made by the Selection Committee were accepted by respondent No. 2. The respondent No. 2 issued order of
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