AURANGABAD MUNICIPAL CORPORATION THR. ITS COMMISSIONER ETC. versus JAYANT S/O SARVOTTAMRAO KHARWADKAR ETC. & ORS. on 21 November 2019

Conclusion

1. Delay condoned.

2. Leave granted.

3. These appeals arise from three decisions of the High CourtDof Judicature at Bombay:

(i) An order dated 20 October 2012 allowing a reviewpetition arising from its judgment dated 29 September2003 by which the writ petition filed by the firstrespondent was dismissed; E(ii) A judgment dated 12 June 2014 by which the writpetition filed by the first respondent was allowed;and

(iii) An order dated 13 February 2015 dismissing the reviewpetition filed by the appellant.

4. The first respondent was appointed as a Junior Engineer inFthe Engineering Department of Aurangabad Municipal Corporation on27 July 1985. On 11 May 1988, he was transferred to the PlanningDepartment on a temporary basis in the post of Planning Assistant. Inthe seniority list which was published on 12 July 1982 and 16 March1992, the seniority of the first respondent was shown as a PlanningGAssistant in the Town Planning Department with a remark that he hadopted for the cadre of Planning Assistant from 11 May1988.

5. Recruitment rules for various posts in the MunicipalCorporation were published, on being approved by the State governmentunder Section 455(i) of the Bombay Provincial Municipal CorporationsHAct, 1949 under a Government Resolution dated 16 May1994.

6. The Schedule to the recruitment rules, includes the post ofJunior Engineer/Assistant Engineer/Sectional Engineer at serial No.15and the post of Town Planning Assistant at serial No.36.

7. The first respondent was transferred from the Town PlanningDepartment as a Junior Engineer in the Water Supply Departmenton 13 June 1995. Between July 1996 and September 1997 he wasdeputed to work with the Minister of Transport. He was repatriated tothe Town Planning Department in September 1997. On 25 September1997, the first respondent was deputed as Assistant Town Planner inthe Town Planning Department. After the Municipal Corporationconverted the post of Administrative Officer to that of Town Planner,the first respondent was promoted on 29 June 1998 on probation to thepost. On 24 May 1999 he was confirmed as a Town Planner.

8. A writ petition was filed before the Bombay High Court bySakharam Dhondiba Panzade[1]challenging the promotion which wasgranted 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 promotionorders of the second and third respondents and issued the followingdirection:

“...We direct the Municipal Corporation to reconstitute theselection committee to consider the case of the petitioner alongwith all eligible Sectional/Junior Engineers as in August 1989, forthe post of Dy.Engineer,on the basis of the principles of senioritycum merit afresh and all the vacant posts, at that time, shall befilled in accordingly. If any of the respondents are not found tobe eligible for promotion by the selection committee constitutedpursuant to this order, no recovery shall be made from theirsalaries as they have already worked in the higher post. In casethe petitioner is found to be eligible for promotion, he shall begiven a deemed date of promotion with effect from 3[rd]of August,1989 and his seniority in the post of Dy. Engineer shall be countedfrom that date. The newly constituted selection committee tocomplete the selection process for the post of Dy.Engineer as A

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Aexpeditiously as possible and in any case within two months fromtoday.”

9. A final seniority list of diploma holding engineers was publishedin which the first respondent was shown at serial No.13 as SectionalEngineer as on 1 January 1995 (w.e.f. 27 December 1990). Thereafter,Bon 13 August 2002 a provisional seniority list of Deputy Engineers waspublished in which the first respondent was shown as a Deputy Engineerw.e.f. 7 December 1998. An objection was raised to the seniority list.The Municipal Commissioner by an order dated 27 August 2002 issueda final seniority list by deleting the name of the first respondent on theCground that the Town Planning Department to which the first respondentbelonged is a separate department. However, on the very next day (27August 2002), an order was passed by the Municipal Commissionerreverting the first respondent to the post of Sectional Engineer. Thispurportedly was in compliance with the order passed by the High CourtDin Writ Petition No.2156/1988.

10. The order of reversion was challenged by the first respondentbefore the High Court. On 29 September 2003; the High Court rejectedthe writ petition with the following order:

E“Heard Shri V.J. Dixit the learned counsel for the petitioner, whohas assailed the order dated 28.8.2002, passed by theCommissioner, Municipal Corporation, Aurangabad, by which thepromotion granted in favour of the petitioner as per the GeneralBody resolution No.223/2, dated 20.04.2000 was cancelled andFfrom the post of Town Planner he was brought back to the postof Sectional Engineer.

Admittedly the resolution dated 20.4.2000 was in utter disregardto the principal of seniority-cum-merit for granting promotion toa post in Class II from a post in Class III. This was made knownGto the Corporation vide our judgment dated 3.8.2001 in WritPetition No.2156/1988. The Corporation has accordinglyreconsidered all the promotions granted to Class II posts and asper our directions, fresh promotion orders have been issued,which were also challenged in Writ Petition No.1535/2002. TheHsaid petition was decided by us on 1.8.2003. The prayer made in this petition is substantially challenging the impugned orderdated 28.8.2002.

We are satisfied that the promotion granted to the petitioner tothe post of Town Planner was itself illegal inasmuch as it was inviolation 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 isconcerned, the same has to be considered from the initial dateof joining under the Corporation and in the respective categoriesalong with other candidates holding the same qualifications andequivalent posts. If the petitioner feels that he should be retainedin the Town Planning Department in the post he held prior to theresolution dated 20.04.2000, he may make such a representationto the Commissioner and the same shall be considered on its ownmerits. Petition is rejected summarily save and except thedirections set out earlier.”

11. A Special Leave Petition filed by the respondent wasdismissed on 17 October 2003 by this Court[2]. A review petition wasfiled by the first respondent. The review petition was allowed bythe High Court on 20 October 2012. Thereafter on 12 June 2014, thewrit petition was allowed on merits. A petition by way of review whichwas moved by the appellant was dismissed on 13 February 2015. Thishas given rise to the proceedings before this Court in these appeals.

12. While issuing notice on the Special Leave Petitions, this Courthadby an order dated 17 April 2015 stayed the operation of the orderof the High Court.

13. Assailing the order of the High Court, the MunicipalCorporation urged before this Court that upon the dismissal of theSpecial Leave Petition against the order of the High Court on 29September 2003 are view was not maintainable. On merits, the judgmentof the High Court has been assailed on several grounds. In the viewwhich we propose to take, it may not be necessary to consider thesegrounds at this stage.

2 SLP (C) No.18986 of 2003

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A14. The submissions urged in support of the appeals byMr. Sudhanshu S. Choudhari, learned counsel have been countered byMr.C.U.Singh, learned Senior Counsel. Mr.Singh urged that theappointment of the first respondent in the Town Planning Departmentsince 1988 has not been called in question as is evident from the factBthat the seniority lists since July 1989 reflect the name of the firstrespondent in the Town Planning Department. Moreover, it wassubmitted that the first respondent was promoted as an Assistant TownPlanner on the completion of five years in terms of a GO dated 7 July1997 and as Town Planner on 29 June 1998. Subsequently, the firstCrespondent was confirmed as Town Planner. Mr.C.U.Singh submits thatthe proceedings before the High Court in Writ Petition No 2156/1988had no relevance to the appointment of the first respondent to the TownPlanning Department nor was his promotion as Town Planner in issue.The first respondent was not a party to the writ proceedings which dealtwith a dispute over promotion as between three persons in theDEngineering Department. Hence it was urged that the decision of theHigh Court dated 3 August 2001 had no bearing on the service of thefirst respondent in the Town Plannnig Department. On 27 August 2002,the Municipal Commissioner passed an order clarifying that the nameof the first respondent would be deleted from the seniority list ofEthe Engineering Department since his name was borne on the cadreof the Town Planning Department. Despite this position, it has beenurged that on the very next day, the Municipal Commissioner proceededto revert the first respondent, without affording to him an opportunityof being heard. On the maintainability of the review petition, Mr.SinghFurged that since the order passed by this Court in the Special LeavePetition was a non speaking order, a review petition was maintainablehaving regard to the settled principles of law that hold the field.Moreover, the Municipal Corporation accepted the order in the reviewdated 20 October 2012 and urged submissions on the merits of theGpetition and it was only thereafter, upon the declaration of the judgmenton 12 June 2014 and the rejection of the review petition that this Courtwas moved under Article 136 of the Constitution.

15. For the purpose of the present appeals, we have proceededon the basis that the order passed by this Court in the Special LeaveHPetition on 17 October 2003 did not foreclose the avenue of a review petition which was open to the first respondent. By the order passedby this Court, the Special Leave Petition was not entertained. Neitherwas leave granted nor was there any expression of reasons which wouldsuggest that the view which weighed with the High Court was affirmedby this Court in the course of disposal of the Special Leave Petition.In that view of the matter, a petition by way of review wasmaintainable.

16. The order passed by the Municipal Commissioner on 28August 2002 suffers from a fundamental error.The MunicipalCommissioner’s decision to revert the first respondent from the postof Town Planner which he had held since his appointment on probationon 29 June 1998 and after his confirmation in service on the completionof probation on 29 May 1999 was without hearing the respondent.Reversion of an employee is a matter of substantive prejudice. Hencethere can be no gainsaying the fact that an opportunity of being heardis required to be afforded before an order of reversion is passed. TheMunicipal Commissioner on 27 August 2002 issued an order deletingthe name of the first respondent from the seniority list of DeputyEngineers, noting that the Town Planning Department to which the firstrespondent belongs was a distinct department of the MunicipalCorporation. The reversion of the first respondent from the post of TownPlanner was without furnishing either a notice to show-cause or anopportunity of being heard to the first respondent. This is manifestlycontrary to law. The order dated 28 August 2002 ought to have beenset aside on that ground alone. In this view of the matter, it wasunnecessary for the High Court to delve into several facets that haveentered into the decision which has been ultimately rendered by theHigh Court.

17. Hence, we are inclined to quash and set aside the orderpassed by the Municipal Commissioner on 28 August 2002 on the groundthat the order was passed in manifest violation of principles of naturaljustice. We order accordingly. Hence, it is unnecessary for this Courtto enter upon the reasons which have weighed with the High Court.Since the order of reversion has been set aside on the above ground,we clarify that it will be open to the Municipal Corporation to takerecourse to its remedies in accordance with law and, in that event, noneof the reasons which are contained in the impugned decision of the High ABC

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ACourt shall be regarded as binding or an adjudication of the rights andcontentions of the parties.

18. Learned counsel, however, submitted that in the event thatthe Municipal Corporation seeks to initiate action, some time schedulemay be laid down for the early completion of the proceedings so as toBobviate the future prospect of the first respondent being left in a stateof uncertainty.

19. We clarify that it would be open to the first respondent toinitiate steps within a period of two months from the receipt of a certifiedcopy of this order and to complete the process within a period of fourCmonths from today.

20. The appeals are accordingly allowed to the aforesaid extent.The order of the Municipal Commissioner dated 28 August 2002 isquashed and set aside. There shall be no order as to costs.

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Devika Gujral

Appeals allowed.

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