WRIT PETITION NO. 4621 OF 2018

14th June 2019

Petitioner Counsel: Shri N. C. Phadnis
Respondent Counsel: Shri K. S. Malokar Shri P. S. Kshirsagar
Act Name: Maharashtra Zilla Parishad (Discipline and Appeal) Rules, 1964

Section :

Cases Cited :

JUDGEMENT

Rule. Heard finally with consent of learned counsel for the parties.

The petitioner is aggrieved by the order dated 22/06/2018 passed by the respondent No.2 in an appeal filed under Rule 14 of the Maharashtra Zilla Parishad (Discipline and Appeal) Rules, 1964 thereby allowing the appeal filed by the respondent No.3 and setting aside the order of promotion issued to the petitioner on 13/09/2017.

2. According to the petitioner he belongs to Andh Scheduled Tribe. He was serving on the post of Village Development Officer. He along with respondent No.3 and another Village Development Officer were considered for promotion on the post of Extension Officer. The Departmental Promotion Committee in its report dated 04/09/2017 observed that as departmental proceedings were pending against the respondent No.3 he was not eligible to be considered for promotion in terms of Government Resolution dated 08/03/2017. As the petitioner was found eligible he was so promoted by issuing an order dated 13/09/2017. The respondent No.3 filed an appeal challenging that order of promotion which appeal has been allowed by the appellate Authority.

3. Shri N. C. Phadnis, learned counsel for the petitioner submitted that in the light of Clause 14(b) of the Government Resolution dated 08/03/2017 the respondent no.3 was not eligible for being considered for promotion. The punishment of withholding two annual increments had been imposed upon the respondent No.3. When the eligibility of the candidates for promotion was being considered, the effect of that punishment was continuing. The Divisional Commissioner without considering the said Government Resolution in its proper perspetive has proceeded to set aside the order of promotion of the petitioner only on the ground that respondent No.3 was senior in service to the petitioner. He also referred to the affidavit filed on behalf of the Chief Executive Officer in which it has been stated that the punishment of stoppage of two annual increments would continue till 30/06/2019 after which the respondent No.3 could be considered for further promotion. It was thus submitted that the impugned order was liable to be set aside.

4. Shri K. S. Malokar, learned counsel for respondent No.1 has referred to the affidavit filed by the Deputy Chief Executive Officer in which it is stated that the effect of the punishment imposed on respondent No.3 of stopping two annual increments would continue up to 30/06/2019. Thereafter the case of respondent No.3 would be considered for promotion on its own merits.

5. Shri P. S. Kshirsagar, learned counsel for respondent No.3 supported the impugned order. According to him the respondent No.3 being senior in service he ought to have been promoted to the post of Extension Officer. He submitted that the Government Resolution dated 08/03/2017 would not affect his promotion.

6. Heard the learned counsel and perused the report of Departmental Promotion Committee. Same indicates that the case of respondent No.3 was considered for promotion along with the petitioner and another candidate. The said Committee by referring to the Government Resolution dated 08/03/2017 and especially Clause 14(b) found the respondent No.3 ineligible. As the period of punishment of withholding two annual increments imposed on the respondent No.3 was yet to expire, the respondent No.3 was not eligible for being considered for promotion. This conclusion of the Departmental Promotion Committee is based on correct reading of Government Resolution dated 08/03/2017. The observations in the impugned order to the contrary are therefore liable to be set aside. Even though the appeal preferred by the respondent No.3 challenging the imposition of punishment was partly allowed, the punishment imposed has merely been modified and its effect continued till 30/06/2019. The Departmental Promotion Committee considered the eligibility as on 04/09/2017. On that count the impugned order passed by the Divisional Commissioner is liable to be set aside.

7. In that view of the matter the following order is passed :

(i) The order dated 22/06/2018 passed by the respondent No.2 is set aside.
(ii) The order of promotion dated 13/09/2017 promoting the petitioner is restored.
(iii) The statement made on behalf of the Chief Executive Officer that the case of respondent No.3 would be considered for promotion on its own merits after 30/06/2019 is accepted.
(iv) Writ Petition is allowed in aforesaid terms with no order as to costs.