Ansari Gulam Athar v. The State Of Mah And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 8223 OF 2009 Ansari Gulam Athar, s/o. Gulam Mustafa Ansari, Age : 56 years, Occ. Service, r/o. H.No. 4-2-21, Angoori Bagh, Aurangabad ..Petitioner Vs.

1. The State of Maharashtra, Through its Secretary, Agricultural, Animal Husbandry, Fisheries and Dairy Development, Mantralaya, Mumbai - 400 032

2. The Dairy Development Commissioner, Maharashtra State, Khan Abdul Gaffar Khan Marg, Worli Sea-Face, Mumbai

3. The Deputy Dairy Development Commissioner (Administration), Dairy Development Department, Worli-Sea Face, Mumbai

4. The Regional Dairy Development Officer, Aurangabad Region, Aurangabad, Kranti Chowk, Aurangabad - 431 001 ..Respondents ---- Mrs. A.N.Ansari, Advocate for Petitioner Mr. P.K.Lakhotiya, A.G.P. for respondents ----

CORAM : SUNIL P. DESHMUKH SANGITRAO S. PATIL, JJ.

DATE : NOVEMBER 22, 2017 ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.) :- Heard learned Counsel for petitioner and learned Assistant Government Pleader for respondents. 2.

Petitioner's case is that he is a Diploma holder in Engineering and is having experience as apprentice for one year. He has retired as Chargeman from office of respondent no.4. In September, 1978, petitioner had been interviewed and appointed on the post of Assistant Chargeman (Mechanical Section). Petitioner contends that since he was badly in need of employment, he accepted the post of Assistant Chargeman. Subsequently, he had learnt that there was a vacant post of Chargeman and he had applied for that post. However, he had learnt that one Shri. Choudhary, who was junior and was not having previous experience, has been appointed as Chargeman at Aurangabad under order dated 24-04-1979. He further had

referred that his age old parents were residing at Aurangabad and, as such, his claim ought to have been sympathetically considered and he could have been transferred as Chargeman to Aurangabad.

3.

It appears that since 1983 quite a few persons, who were junior to the petitioner, were promoted as Chargemen and, therefore, the petitioner was before this Court in Writ Petition No. 509 of 1983. Said Writ Petition was disposed of by Division Bench of this Court granting deemed date of promotion as 26-07-1983, on which date respondents no. 3 to 6 therein, who were junior to the petitioner, were promoted as Chargemen with further direction that seniority of the petitioner would not be affected and he would be entitled for the benefits, by giving deemed date of promotion.

4.

During the course of hearing, learned Counsel for the petitioner contended that the benefits, according to the decision in Writ Petition No.509 of 1983, had been given to the petitioner only in 1990. Thereafter, the petitioner had once again sent representations to the concerned officials and the authorities for

giving him deemed date of promotion/appointment of Chargeman from 24-04-1979 when Mr. Chaudhary was appointed. Since those representations were not being considered, Original Application No. 575 of 1995 had been filed, praying for grant of deemed date of promotion as Chargeman from 24-04-1979 and the post of Assistant Dairy Engineer from 19-09-1983 along with consequential benefits.

5.

Perusal of paragraph 5 of the Original Application reveals that the petitioner's claim is overwhelmingly for promotion to the post of Chargeman since the post, according to the petitioner, had been considered to be a promotional post, referring to the practice from 1970 of filling in the post by the promotion of Assistant Chargeman. The Original Application also refers to that in case of other branches i.e. refrigeration, electricity, boiler, ice factory, the post of Chargeman was being filled in by giving promotion to the Assistant Chargeman within six months from their appointments. The claim made in the Original Application has been resisted on behalf of the respondents therein referring that post of Chargeman is to be

filled in from two streams and 75% posts are to be filled in by nomination and 25% posts are to be filled in by promotion. The respondents referred that the deemed date of promotion of Chargeman has already been granted to petitioner by the Division Bench of this Court in Writ Petition No. 509 of 1983 with effect from 26-07-1983, wherein promotion to said post with deemed date as 24-04-1979, had not been claimed.

6.

The Tribunal had referred to the decision of High Court in Writ Petition No. 509 of 1983 so also the ratio of 75% : 25%, which was to be maintained in appointment of Chargemen by nomination and promotion and that single post of Chargeman was to be filled in by nomination. The Tribunal, thus, did not consider it appropriate to grant the Original Application and accordingly, the same was dismissed.

7.

Learned Counsel Mrs. Ansari appearing for petitioner submits that in view of emerging position that 75% posts are to be filled in by direct recruitment, had recruitment process been initiated, the petitioner would have got an opportunity to compete in that recruitment process by nomination and that opportunity

has been lost by the petitioner. She further submits that the petitioner had been duly qualified. As a matter of fact, he is more meritorious candidate than the nominated candidate Shri. Choudhary. She submits that single post of Chargeman should have been filled in by promotion. Therefore, petitioner had already made a request for transfer/promotion to said post, and the same was disregarded. She further submits that after the order had been passed by Division Bench of this Court in 1989 in Writ Petition No. 509 of 1983, benefits were not given to petitioner and the authority had not responded till 1990. She, therefore, submits that the petitioner is entitled to deemed date of promotion as Chargeman from 24-04-1979. She submits that while approaching the Tribunal in 1995, all these intervening circumstances have been referred to. She submits that this Court may indulge into the prayer made by petitioner in this petition for grant of deemed date of promotion to the petitioner as Chargeman with effect from 24-04-1979 and grant to him incidental benefits arising therefrom.

8.

Learned AGP submits that the petitioner, does not

have any case at all on merits or otherwise. He submits that the ratio of 75% : 25% is to be maintained to the higher post of Chargeman. Accordingly, the recruitment process had been undertaken way back in 1979 and one Shri. Chaudhary had been appointed. After appointment of Shri. Chaudhary, no grievance had been made by the petitioner, not at least till 1995 when the O.A. had been filed. He submits that in the interregnum, the petitioner had been got aggrieved by promotion of persons who were junior to him. Hence, he had approached this Court by way of Writ Petition No.509 of 1983 and sought deemed date of promotion as Chargeman as that of his junior which was granted. In the circumstances, the principle of estoppel considered by the Tribunal is appropriate. Additionally, he submits that the claim of the petitioner is hit by laches.

He submits that the intervening period between 1979 and 1995 sought to be explained by pending litigation since 1983 to 1990 by the petitioner, was not impediment at all. He, therefore, urges not to indulge into the prayer made in the petition and submits that the decision of the Tribunal cannot be faulted with on merits.

9.

Having heard the aforesaid submissions, it appears that the petitioner claims, while he had been appointed as Asst. Chargeman in 1978 to be qualified and eligible to appointment to post of Chargeman. He purports to lay claim to the post of Chargeman at Aurangabad on the basis of his qualification. It is not the case of the petitioner that vacancy of the post of Chargeman since 1979 was unknown to him. From the record it appears that the litigation in W.P. No.509 of 1983 initiated for deemed date of promotion had not been without prejudice to the claim of deemed date claimed in this round of litigation. In the order of this Court in Writ Petition No.509 of 1983, there is no reference to that petitioner having claimed deemed date of promotion from 24-04-1979.

It appears that it is only after 1990, the petitioner is trying to claim deemed date of promotion from 24-04-1979. Some communication appears to have been made to authorities after 1990 and thereafter, the Tribunal had been approached. The Tribunal has considered that since it does not appear that the claim for deemed date of promotion from 24-041979 was made in Writ Petition No.509 of 1983, the principle of estoppel would apply.

even otherwise, the ratio of 75% : 25% was to be maintained for appointment to the post of Chargeman. It is not the case that the appointment made in 1979 had been de hors said ratio. Since appointment of the nominated incumbent, it does not appear that at any point of time before 1990, the petitioner had made any grievance, albeit Mrs. Ansari, learned Counsel for the petitioner tried to contend that had opportunity came to the petitioner, he would have tried for appointment as a direct recruit, in the absence of any material to show petitioner had vied for said post till 1995 it is difficult to consider that the submission carries substance. In the circumstances, the claim made by the petitioner to the post of Chargeman is hit by doctrine of laches and delay apart from estoppel. We do not see any reason to interfere with the order passed by the Tribunal.

10.

The Writ Petition is accordingly dismissed. Rule is discharged.

[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.] kbp