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Bombay High CourtWP/3177/2017disposed off

Krishan S/O Punjaramji Shrikhande v. High Court Of Judicature At Bombay Through Its Registrar General And 2 Others

2017-11-30Hon'Ble Shri Justice Sandeep Kashinath Shinde,Hon'Ble Shri Justice B.R. Gavai12 pages

* 1/12 *

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.1166 OF 2017 Krishna s/o Punjaramji Shrikhande Aged about 52 years, Occupation: Service, working as Civil Judge (Senior Division) and Addl. Chief Judicial Magistrate at Pusad, District: Yavatmal, Maharashtra and R/o Government Quarters, Pusad, Near Tahsil Office, Taluka: Pusad, District: Yavatmal, State of Maharashtra Pin Code- 445 204.

......Petitioner

Versus

1 High Court of Judicature at Bombay, Through its Registrar General, having office of Registrar General, High Court, Mumbai 400 032.

2 The Registrar General, High Court of Judicature at Bombay, having office of the Registrar General, High Court, Mumbai 400 032.

3 State of Maharashtra, Through the Principal Secretary, Law & Judiciary Department, Mantralaya, Mumbai- 400 032 .......Respondents Mr. Abhijeet A. Desai with Ms. Vrushali Maindad, Advocates for Petitioner.

Mr. Prasad S. Dani, Senior Counsel with Ms. Leena Patil, Advocates for Respondent Nos.1 and 2.

Ms. Geeta Shastri , AGP for Respondent No.3-State.

* 2/12 * CORAM :

CORAM : B.R.GAVAI & B.R.GAVAI & SANDEEP K. SHINDE, JJ.

SANDEEP K. SHINDE, JJ.

DATE :

DATE : November 30, 2017.

November 30, 2017.

JUDGMENT : [Per: Shri Sandeep K. Shinde, J.] JUDGMENT : [Per: Shri Sandeep K. Shinde, J.] The Petitioner who is the judicial officer has been The Petitioner who is the judicial officer has been informed by the Disciplinary Authority to be "cautious and informed by the Disciplinary Authority to be "cautious and careful in future" vide communication dated 15.4.2014. This careful in future" vide communication dated 15.4.2014. This communication is under challenge. The Petitioner has sought communication is under challenge. The Petitioner has sought various reliefs including grant of deemed date of promotion as various reliefs including grant of deemed date of promotion as Civil Judge (Senior Division) with effect from 27.4.2011. Civil Judge (Senior Division) with effect from 27.4.2011.

The Petitioner was appointed as Civil Judge Junior The Petitioner was appointed as Civil Judge Junior Division and Judicial Magistrate First Class in November, Division and Judicial Magistrate First Class in November, 1995. A show-cause notice was issued to him on 13.9.2007. It 1995. A show-cause notice was issued to him on 13.9.2007. It was replied by him on 15.11.2007. That after six years i.e., in was replied by him on 15.11.2007. That after six years i.e., in July, 2012 charge-sheet was filed. The Petitioner was July, 2012 charge-sheet was filed. The Petitioner was otherwise due for promotion as Civil Judge Senior Division in otherwise due for promotion as Civil Judge Senior Division in 2008; but was not promoted since enquiry was pending. In 2008; but was not promoted since enquiry was pending.

In August, 2012 and 2013, he made representations to the High August, 2012 and 2013, he made representations to the High Court making a grievance regarding enquiry being pending for Court making a grievance regarding enquiry being pending for long time and for withholding his promotion on that count and long time and for withholding his promotion on that count and requesting to grant the same. Since the Petitioner heard requesting to grant the same.

* 3/12 * nothing, he had filed Writ Petition No.2319 of 2014 basically nothing, he had filed Writ Petition No.2319 of 2014 basically challenging the charge-sheet dated 5.7.2012 and complaining challenging the charge-sheet dated 5.7.2012 and complaining for withholding his promotion. It appears during the pendency for withholding his promotion. It appears during the pendency of the Writ Petition, charge-sheet itself was dropped on of the Writ Petition, charge-sheet itself was dropped on 15.4.2014. Resultantly, the Petitioner was permitted to 15.4.2014. Resultantly, the Petitioner was permitted to withdraw the Petition with a liberty to voice his grievance withdraw the Petition with a liberty to voice his grievance about promotion, by making representation.

about promotion, by making representation.

That on 17.6.2014, the Petitioner was promoted as That on 17.6.2014, the Petitioner was promoted as Civil Judge Senior Division.

Civil Judge Senior Division.

The Petitioner made a representation to the The Petitioner made a representation to the Respondents on 22.8.2016 requesting :

Respondents on 22.8.2016 requesting :

(I) (I) Grant ACP-II since 2005 in the cadre of Grant ACP-II since 2005 in the cadre of Civil Judge Junior Division, Civil Judge Junior Division, (II) (II) His promotion as Civil Judge Senior His promotion as Civil Judge Senior Division be given effect from year 2006 by Division be given effect from year 2006 by restoring his seniority.

restoring his seniority.

(III) (III) That since departmental enquiry and That since departmental enquiry and charge-sheet has been dropped, he may be charge-sheet has been dropped, he may be considered for a promotion in the cadre of considered for a promotion in the cadre of District Judge.

District Judge.

Vide communication dated 4.1.2017, the Vide communication dated 4.1.2017, the Petitioner was informed by the Respondents that his Petitioner was informed by the Respondents that his

* 4/12 * representation was placed before the Hon'ble Administrative representation was placed before the Hon'ble Administrative Judges Committee and the same were rejected except to the Judges Committee and the same were rejected except to the extent of grant of second assured pay-scale. He was informed extent of grant of second assured pay-scale. He was informed that ACP shall be subject to the consideration of the that ACP shall be subject to the consideration of the Committee independently in the light of guide-lines. Committee independently in the light of guide-lines. Aggrieved by the rejection of representation and Aggrieved by the rejection of representation and letter of caution issued dated 15.4.2014, this Petition is filed. letter of caution issued dated 15.4.2014, this Petition is filed. The Respondent has filed the counter and The Respondent has filed the counter and contended;

contended;

(i) That on complaint of one Shri Darda, (i) That on complaint of one Shri Darda, preliminary enquiry was conducted by the preliminary enquiry was conducted by the learned District Judge-II, District: Yavatmal. learned District Judge-II, District: Yavatmal. Report was placed in the meeting of Report was placed in the meeting of Disciplinary Committee held on 3.9.2007 Disciplinary Committee held on 3.9.2007 wherein it was decided to issue show-cause wherein it was decided to issue show-cause notice.

notice.

(ii) That the learned Principal Judge, Yavatmal (ii) That the learned Principal Judge, Yavatmal submitted his report in April, 2009 and after submitted his report in April, 2009 and after considering the material, the Disciplinary considering the material, the Disciplinary Committee decided in March 2012to initiate Committee decided in March 2012to initiate regular departmental enquiry against the regular departmental enquiry against the Petitioner.

Petitioner.

* 5/12 * (iii) Charge-sheet and statement of imputation (iii) Charge-sheet and statement of imputation dated 5.7.2012 were served upon the dated 5.7.2012 were served upon the Petitioner. Thereupon the Petitioner filed his Petitioner. Thereupon the Petitioner filed his defence on 7.8.2012. This material was again defence on 7.8.2012. This material was again placed in the meeting of the Disciplinary placed in the meeting of the Disciplinary Committee held on 8.4.2014 wherein decision Committee held on 8.4.2014 wherein decision was taken to close the file but to issue caution to was taken to close the file but to issue caution to the Petitioner to be careful in future. the Petitioner to be careful in future. Accordingly, it was communicated to the Accordingly, it was communicated to the Petitioner on 15.4.2014.

Petitioner on 15.4.2014.

In so far as the Petitioner's claim for seniority in In so far as the Petitioner's claim for seniority in the cadre of Civil Judge Senior Division from 2006 is the cadre of Civil Judge Senior Division from 2006 is concerned, the Respondents contended that in June, 2006 concerned, the Respondents contended that in June, 2006 names of 86 judicial officers were approved for promotion to names of 86 judicial officers were approved for promotion to the post of Civil Judge Senior Division on ad-hoc basis. In the the post of Civil Judge Senior Division on ad-hoc basis.

In the said select list, the Petitioner was at Serial Number 72; said select list, the Petitioner was at Serial Number 72; However, only 50 judicial officers were promoted and However, only 50 judicial officers were promoted and remaining 36 judicial officers were awaiting their orders of remaining 36 judicial officers were awaiting their orders of promotion. It is contended that the said list was scrapped as promotion. It is contended that the said list was scrapped as per the decision of Administrative Judges Committee dated per the decision of Administrative Judges Committee dated 18.12.2007 and fresh selection process for promotion to the 18.12.2007 and fresh selection process for promotion to the post of Civil Judge Senior Division was initiated. That the post of Civil Judge Senior Division was initiated.

* 6/12 * Petitioner was considered in 2008 for promotion in the fresh Petitioner was considered in 2008 for promotion in the fresh selection process. The list of 134 judicial officers was approved selection process. The list of 134 judicial officers was approved in the meeting held on 2.5.2008 for promotion to the post of in the meeting held on 2.5.2008 for promotion to the post of Civil Judge, Senior Division. In the said selection list, the Civil Judge, Senior Division. In the said selection list, the Petitioner was at Sr.No.137 and hence, was not selected in Petitioner was at Sr.No.137 and hence, was not selected in that process.

that process.

The Respondents further contended that new The Respondents further contended that new selection process for the post of Civil Judge, Senior Division selection process for the post of Civil Judge, Senior Division was held in the year 2010-2011 wherein, the Petitioner was was held in the year 2010-2011 wherein, the Petitioner was selected on 7.01.2011 subject to vigilance clearance and selected on 7.01.2011 subject to vigilance clearance and sealed cover procedure.

sealed cover procedure.

Respondents further contended that the Petitioner Respondents further contended that the Petitioner was selected for the post of Civil Judge, Senior Division and was selected for the post of Civil Judge, Senior Division and was given appointment order on 17.6.2014 on closure of was given appointment order on 17.6.2014 on closure of enquiry.

enquiry.

Heard the learned counsel for the Petitioner and Heard the learned counsel for the Petitioner and the learned counsel for the Respondent-High Court. Perused the learned counsel for the Respondent-High Court. Perused the pleadings.

the pleadings.

Admittedly, in the year 2008 the Petitioner was Admittedly, in the year 2008 the Petitioner was eligible and due for promotion as Civil Judge Senior Division. eligible and due for promotion as Civil Judge Senior Division. Indisputably, he was issued show-cause notice in September, Indisputably, he was issued show-cause notice in September, 2007 and decision to close the enquiry was taken on 2007 and decision to close the enquiry was taken on

* 7/12 * 15.4.2014. Admittedly, though the charge-sheet was filed in 15.4.2014. Admittedly, though the charge-sheet was filed in July, 2012 and regular enquiry was never held but in 2014, a July, 2012 and regular enquiry was never held but in 2014, a caution was issued to the Petitioner "to be careful in the caution was issued to the Petitioner "to be careful in the future". That as such, there was long and unexplained delay future". That as such, there was long and unexplained delay on the part of the Respondents for not completing the enquiry on the part of the Respondents for not completing the enquiry against the Petitioner. Indisputably, the Petitioner was against the Petitioner.

Indisputably, the Petitioner was selected in the selection process for promotion to the cadre of selected in the selection process for promotion to the cadre of Civil Judge Senior Division in January, 2011 but was not Civil Judge Senior Division in January, 2011 but was not promoted in view of pending enquiry. There is nothing on promoted in view of pending enquiry. There is nothing on record to indicate delay in completing the enquiry was anyway record to indicate delay in completing the enquiry was anyway attributable to the Petitioner herein. The Respondents could attributable to the Petitioner herein.

The Respondents could not explain satisfactorily or otherwise for not concluding the not explain satisfactorily or otherwise for not concluding the enquiry soon after the report was submitted by the Principal enquiry soon after the report was submitted by the Principal District Judge, Yavatmal in April, 2009. The Respondent did District Judge, Yavatmal in April, 2009. The Respondent did not offer any explanation as to why the Disciplinary not offer any explanation as to why the Disciplinary Committee did not conclude the enquiry soon after the Committee did not conclude the enquiry soon after the Petitioner was selected for promotion to the cadre of Civil Petitioner was selected for promotion to the cadre of Civil Judge Senior Division in January, 2011. That since, actual Judge Senior Division in January, 2011.

That since, actual posting as Civil Judge Senior Division was subject to vigilance posting as Civil Judge Senior Division was subject to vigilance clearance and sealed cover procedure, it was expected that the clearance and sealed cover procedure, it was expected that the Respondents were to complete the enquiry soon thereafter. Respondents were to complete the enquiry soon thereafter. However, from January, 2012 till 8.4.2014, the Respondents However, from January, 2012 till 8.4.

* 8/12 * did nothing. In other words, nearly for two years and three did nothing. In other words, nearly for two years and three months, Petitioner was was not promoted for want of months, Petitioner was was not promoted for want of enquiry report.

enquiry report.

Chronology of the events as stated hereinabove Chronology of the events as stated hereinabove undoubtedly reveals three facts namely:

undoubtedly reveals three facts namely:

(I) (I) That the Petitioner was selected and That the Petitioner was selected and promoted to the cadre of Civil Judge Senior promoted to the cadre of Civil Judge Senior Division on 7.1.2011;

Division on 7.1.2011;

(II) (II) That the Petitioner was not appointed in That the Petitioner was not appointed in the said cadre since enquiry was pending;

the said cadre since enquiry was pending;

(III) (III) That the Disciplinary Committee on That the Disciplinary Committee on 8.4.2014(i.e. Two years and three months after 8.4.2014(i.e. Two years and three months after selection of the Petitioner) closed the enquiry selection of the Petitioner) closed the enquiry and decided to issue 'caution' to the Petitioner and decided to issue 'caution' to the Petitioner 'to be careful in future';

'to be careful in future';

14 In our view, inordinate delay on the part of 14 In our view, inordinate delay on the part of Respondents in concluding the enquiry within reasonable Respondents in concluding the enquiry within reasonable period has caused prejudice to the interest of the Petitioner. period has caused prejudice to the interest of the Petitioner. The Respondents were aware that though the Petitioner was The Respondents were aware that though the Petitioner was selected as Civil Judge Senior Division but was not promoted selected as Civil Judge Senior Division but was not promoted on account of pending enquiry. The Respondents in the on account of pending enquiry. The Respondents in the circumstances at-least ought to have taken the steps to circumstances at-least ought to have taken the steps to

* 9/12 * complete the enquiry soon after January, 2011. Record, complete the enquiry soon after January, 2011. Record, however, shows that the Respondents did nothing for long however, shows that the Respondents did nothing for long period of two years and three months. Respondents could not period of two years and three months. Respondents could not justify delay. At the same time, the Petitioner cannot be justify delay. At the same time, the Petitioner cannot be deprived of his legitimate right to seek the posting to the deprived of his legitimate right to seek the posting to the promotional post, though selected in January, 2011. That in promotional post, though selected in January, 2011.

That in other words, right accrued to secure posting on account of his other words, right accrued to secure posting on account of his selection to the post of Civil Judge Senior Division has not selection to the post of Civil Judge Senior Division has not been fructified for no fault on his part but solely because there been fructified for no fault on his part but solely because there was unreasonable delay on the part of Respondents. was unreasonable delay on the part of Respondents. In the case of In the case of Prem Nath Bali v. Registrar Prem Nath Bali v.

Registrar High Court of Delhi and Another High Court of Delhi and Another reported in reported in (2015) 16 (2015) 16 Supreme Court Cases 415 Supreme Court Cases 415 , it was held that it is duty of , it was held that it is duty of employer to ensure that departmental enquiry initiated employer to ensure that departmental enquiry initiated against delinquent employee is concluded within shortest against delinquent employee is concluded within shortest possible time by taking priority measures, as far as possible possible time by taking priority measures, as far as possible within six month which may further be extended to 1 year in within six month which may further be extended to 1 year in certain circumstances. In this case, employee of the High certain circumstances.

In this case, employee of the High Court of Delhi was placed under suspension for a long period of Court of Delhi was placed under suspension for a long period of nine years and after holding the enquiry was inflicted with nine years and after holding the enquiry was inflicted with major penalty of compulsory retirement. Pension of the major penalty of compulsory retirement.

* 10/12 * suspension, i.e, nine years 26 days while calculating qualifying suspension, i.e, nine years 26 days while calculating qualifying service. The Apex Court while dealing with the grievance of service. The Apex Court while dealing with the grievance of the Petitioner therein has held in paragraphs 24,25 and 28 as the Petitioner therein has held in paragraphs 24,25 and 28 as under:

under:

"24 One cannot dispute in this case that the One cannot dispute in this case that the suspension period was unduly long. We also find suspension period was unduly long. We also find that the delay in completion of the departmental that the delay in completion of the departmental proceedings was not wholly attributable to the proceedings was not wholly attributable to the appellant but it was equally attributable to the appellant but it was equally attributable to the respondents as well. Due to such unreasonable respondents as well. Due to such unreasonable delay, the appellant naturally suffered a lot delay, the appellant naturally suffered a lot because he and his family had to survive only on because he and his family had to survive only on suspension allowance for a long period of 9 years.

suspension allowance for a long period of 9 years. We are constrained to observe as to why the We are constrained to observe as to why the departmental proceeding, which involved only one departmental proceeding, which involved only one charge and that too uncomplicated, have taken charge and that too uncomplicated, have taken more than 9 years to conclude the departmental more than 9 years to conclude the departmental enquiry. No justification was forthcoming from the enquiry. No justification was forthcoming from the respondents' side to explain the undue delay in respondents' side to explain the undue delay in completion of the departmental enquiry except to completion of the departmental enquiry except to throw blame on the appellant's conduct which we throw blame on the appellant's conduct which we feel, was not fully justified.

feel, was not fully justified.

Keeping these factors in mind, we are of the Keeping these factors in mind, we are of the considered opinion that every employer (Whether considered opinion that every employer (Whether State or private) must make sincere endeavour to State or private) must make sincere endeavour to conclude the departmental enquiry proceedings conclude the departmental enquiry proceedings once initiated against the delinquent employee once initiated against the delinquent employee within a reasonable time by giving priority to such within a reasonable time by giving priority to such

* 11/12 * proceedings and as far as possible it should be proceedings and as far as possible it should be concluded within six months as an outer limit. concluded within six months as an outer limit. Where it is not possible for the employer to Where it is not possible for the employer to conclude due to certain unavoidable causes arising conclude due to certain unavoidable causes arising in the proceedings within the time-frame then in the proceedings within the time-frame then efforts should be made to conclude within the efforts should be made to conclude within the reasonably extended period depending upon the reasonably extended period depending upon the cause and the nature of inquiry but not more than cause and the nature of inquiry but not more than a year."

a year."

In view of the facts aforesaid, we are of the In view of the facts aforesaid, we are of the considered opinion that the Petitioner was entitled to be considered opinion that the Petitioner was entitled to be posted to the promotional post of Civil Judge Senior Division posted to the promotional post of Civil Judge Senior Division from the date of his selection, i.e., 7.1.2011 and not from from the date of his selection, i.e., 7.1.2011 and not from 17.6.2014. Merely because enquiry was closed in June, 2014 17.6.2014. Merely because enquiry was closed in June, 2014 by the Respondents by issuing letter of caution that itself by the Respondents by issuing letter of caution that itself would not deprive the Petitioner to claim seniority in the would not deprive the Petitioner to claim seniority in the cadre of Civil Judge Senior Division from the date of his cadre of Civil Judge Senior Division from the date of his selection.

selection.

The Petition is, therefore, partly allowed. We, The Petition is, therefore, partly allowed. We, therefore, hold:

therefore, hold:

(I) (I) It is held and declared that the It is held and declared that the Petitioner is deemed to have been promoted as Petitioner is deemed to have been promoted as Civil Judge Senior Division in the selection Civil Judge Senior Division in the selection process which was conducted for the year 2010process which was conducted for the year 2010-

* 12/12 * 2011;

2011;

(II) (II) The Petitioner shall be placed in the The Petitioner shall be placed in the category of Civil Judge Senior Division as per his category of Civil Judge Senior Division as per his seniority-cum-merit treating to have been seniority-cum-merit treating to have been selected in the selection process conducted in the selected in the selection process conducted in the year 2010-2011.

year 2010-2011.

(III) (III) Needless to state that all Needless to state that all necessary consequences shall follow.

necessary consequences shall follow.

(SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (B.R.GAVAI, J) (B.R.GAVAI, J)