Anil Tulshiram Bundele vs Divisional Commissioner, Amravati & Ors.

. Heard. Rule. Rule made returnable forthwith. With consent of both the parties, matters are taken up for final disposal at admission stage.

By both the Petitions, the Petitioners/Employees have raised identical grievance before this Court that their claim for promotion has been superseded by the Respondent/Municipal Council, Akot by promoting the junior persons. Therefore, considering the nature of grievance of both the Petitioners being identical, both the Petitions are heard together and decided by common Judgment.

The facts of both the Petitions are summarized as under :

The Petitioner namely, Sunil Nathe having qualification of 10^th Standard passed was appointed vide appointment order dated 24/2/1998 by the Respondent No.2 against the post of Peon in Class – IV category by following due procedure of law.

The Petitioner namely, Anil Bundele having qualification of 10^th Standard passed was appointed vide appointment order dated 4/11/1999 against the post of Peon in Class – IV category by following due procedure of law.

Both the Petitioners, after completion of continuous twelve years service are held entitled for time-bound promotional Pay Scale and receiving Pay Scale of promotional post.

According to the Petitioners their service record is clean and unblemished. Both have not received any adverse communication nor punished for any misconduct during their service tenure.

The Petitioners state that the Respondent Nos.4 to 8/Employees in Writ Petition No. 4985/2021 and the Respondent Nos.4 to 10/Employees in Writ Petition No. 4986/2021 are admittedly junior candidates appointed in the Class-IV category by the Municipal Council, Akot. To demonstrate this fact, the Petitioners have relied upon the seniority list, whereby the Respondents/Employees are shown as junior as compared to the Petitioners. The Petitioners have then pointed out that in the academic year 2018-19 the committee headed by the District Administrative Officer, Chief Officer and Accounts Officer as the Members has prepared a list of seven candidates, who according to them are eligible for promotion against the post of Junior Clerk and forwarded the same for approval to the Municipal Council, Akot.

It would be necessary to note that the name of Petitioner – Sunil Nathe was shown at Sr. No. 1, whereas the name of Petitioner – Anil Bundele was shown at Sr. No. 4 in the list prepared by the Committee Members. The Committee Members, while forwarding the proposal, has recorded every details of each candidate and also their entitlements for the said Post. In view of this proposal, which was forwarded by the Committee Members, the Municipal Council, Akot, in its resolution dated 28/12/2018, was expected to consider the entire list of candidates, but surprisingly except Petitioners, name of all other candidates were approved. In pursuance of the same, all the candidates whose names were approved by the Municipal Council, the appointment order were issued to them.

It is specifically pointed out that the Petitioners were neither informed nor any communication was issued stating thereby reason for not considering their names, which were recommended by the Committee Members. So also no promotional order was issued in favour of the Petitioners.

The Petitioners immediately made representation to the Respondent No.2 for not considering their names for the promotional post of Junior Clerk, but no response has been received from the Municipal Council to that representation. In this background, both the Petitioners have approached before this Court by filing Writ Petition Nos. 2015/2019 and 2016/2019 respectively. This Court, by order dated 7/1/2020 has observed that the Petitioners are having alternate remedy to redress their grievance, i.e. appeal before the Divisional Commissioner, Amravati and directed the Petitioners to approach before the Respondent No.1/Divisional Commissioner. Accordingly, both the Petitions were disposed of.

The Petitioners, therefore, preferred statutory appeal before the Respondent No.1/Divisional Commissioner, Amravati by raising all the grounds by showing that as to how their claim was superseded for the post of Clerk by the Municipal Council.

The Respondent No.1/Divisional Commissioner was supposed to deal with all the issues and grounds raised by the Petitioners before him, however, by the impugned order dated 29/12/2020, by passing single line order that ‘the Petitioners are not qualified for the post’, dismissed the appeal filed by both the Petitioners.

In this background, the Petitioners have approached before this Court by filing independent Petitions. The Petitioners have pointed out from the documents, which they have placed on record, more particularly, the revised staffing pattern sanctioned to the Municipal Council, Akot dated 17/2/2006 whereby the qualification for the post of Clerk is prescribed as Higher Secondary School Certificate for direct recruitment but said qualification would not be applicable while filling up the post by promotion. The Petitioners have pointed out the specific column, stating therein that such criteria would not be made applicable for the persons who are to be promoted against the post of Junior Clerk.

The Petitioners further pointed out the Recruitment Rules for Class-III and Class-IV Services under the Government-Revision dated 16/9/1964. They have specifically relied upon the Clause – (B) of the said Recruitment Rules, which is applicable for the Clerks, Clerk-Typists and Typists. According to the said Rules, for the post of Clerk, which is to be filled up by nomination, the required qualification is to pass the Secondary School Certificate Examination or the examination recognized by the Government as equivalent to that examination. So also, the Petitioners have pointed out the Government Resolution dated 15/4/1991, whereby it is stated that the candidate, who is possessing the qualification of Secondary School Certificate and rendered continuous service of three years, would be entitled for the post of a Clerk-Typist by way of promotion in the department.

As far as the qualification of MS CIT and Typing is concerned, the Petitioners have stated that same is not mandatory and relied upon the policy of the Government, wherein it is mentioned that same can be obtained within a period of two years after the appointment. For that purpose, Petitioners have relied upon the Government Resolution dated 14/1/2016.

On the basis of this submission, it is stated that by the Petitioners that they were qualified for the post, but their claim was not considered by the Respondent No.1 while granting promotion against the post of Junior Clerk. Therefore, the Petitioners prayed that as they are entitled for the promotion in the Academic Session 2018-19 and they are deprived from their legitimate claim, seeks direction to grant them deemed date promotion from the date on which Respondents/Employees, who are junior to them, are promoted by superseding their claim.

The Respondent/Municipal Council appeared in the matter and stated that the Petitioners did not possess minimum qualification as per the staffing pattern dated 17/2/2006. According to them, minimum qualification for the post is 12^th standard pass i.e. Higher Secondary School Certificate, however, the Petitioners did not possess that certificate nor they are having qualification of MS CIT and Typing, and therefore, they are not entitled for the promotion.

It is stated that the Respondents/Employees, who are promoted on the post of Clerk were possessing the required qualification as per the staffing pattern, and hence, by following the eligibility criteria as prescribed for the post, the Municipal Council approved the list. They also came with a submission that Petitioners did not possess qualification of Higher Secondary School Certificate, hence, they are not entitled for any promotion, as stated by the Petitioners in the Petition. It is stated that the Respondents/Employees have been promoted in the Academic Session 2018-19 and are working on the post, and therefore, their promotion cannot be disturbed at this stage of the matter.

In the present matter, it would be necessary to note that the Municipal Council, Akot, through its Committee, which is consisting of Chief Officer, District Administration Officer and the Account Officer, has decided the eligibility of the candidates from amongst the Class – IV category in the Academic Session 2018-19. According to them, the Petitioners were qualified for the promotion. The said Committee Members were then forwarded the proposal to the Municipal Council, Akot. The Municipal Council, Akot, in its special meeting held on 28/12/2018, without recording any reason has discarded the claim of the Petitioners against the promotional post of Clerk. As a result, the appointment orders were not issued by the Petitioners by the Chief Officer, Municipal Council, Akot along with the present Respondents.

Considering the facts as stated above, it is clear that as per the staffing pattern, which was approved in the year 2006, it was made clear that the criteria of HSSC was not made applicable while filling up the post by promotion. The specific column has been incorporated to avoid any ambiguity in the matter. Admittedly, in Academic Session 2018-19, the posts of Junior Clerks were filled in by way of promotion. Respondent Nos.4 to 10 in the present matter are junior to the Petitioners. Hence, prima facie there was no reason to deprive the claim of Petitioners in the matter.

It would be relevant to note that, the expert committee of three members was constituted for selecting the eligible candidates for promotional post. The committee members, after verifying all the details of each candidate and their suitability, prepared the list. However, the Respondent No.2 in its special meeting, without assigning any reason, discarded the claim of Petitioners. The Respondent No.2 – Chief Officer, who was one of the member of the Committee was expected to atleast agitate by stating that the selection list prepared by the Committee of whose, he was one of the member, has properly selected the candidates, but it seems that without giving weightage to his own recommendation issued promotional orders of Respondent Nos.4 to 10.

It is seen that first time before this Court, the stand is taken by the Respondent/Municipal Council that, the Petitioners were not possessing requisite qualification for the post, therefore, they were not granted promotion against the post of Clerk. Except this, there is no other submission made by the Respondents.

The Respondents/Employees came with a submission that because of the promotion order issued by the Municipal Council, they have joined the post and they have no grievance against the Petitioners. But any relief granted to the Petitioners would adversely affect their employment. The learned Counsel for Petitioners has pointed out that the date of birth of Petitioner – Sunil Nathe is 17/4/1967, and accordingly, for Class-IV category, the age of superannuation being 60 years, he is continued in service, however, if he is promoted in Class-III category of Clerk then his age of superannuation would be 58 years. It is clear from the date of birth, his age of superannuation i.e. 58 years would be completed on 17/4/2025, and therefore, considering this fact that if the deemed date promotion is granted to the Petitioner – Sunil Nathe, no prejudice would be caused to the Respondents in the matter. According to the learned Counsel for Petitioners, only in case the deemed date promotion is granted to the Petitioner – Anil Bundele, would require to continue at higher post.

In my opinion, if a person is deprived from his legal claim by promoting junior persons, the ground of prejudice would not take away right of employee to seek relief nor his claim can be denied. In the present case, the Petitioners have established beyond reasonable doubt that they were entitled for promotion against the post of Junior Clerk with effect from 16/1/2019, as like of Respondents/Employees. Per contra, Respondents failed to demonstrate that Petitioners were not eligible for the post of Junior Clerk at the relevant time. Hence, only conclusion can be drawn that the Respondent No.2 by superseding the claim of Petitioners, promoted Respondent Nos.4 to 10 in the matter.

In view of this factual as well as legal position, I find merit in the submission of the Petitioners, therefore, in my opinion, the Petitioners are entitled for relief as claimed in both the Petitions. Accordingly, following order is passed.

Both the Petitions are allowed.

The orders dated 29/12/2020 passed by the Respondent No.1 – Divisional Commissioner, Amravati in Appeal Nos.1/2020 and 2/2020 are hereby quashed and set aside.

The Respondent Nos.2 and 3 are hereby directed to promote the Petitioners namely, Sunil Haribhau Nathe and Anil Tulshiram Bundele against the post of Junior Clerk with deemed date effect i.e. from 16/1/2019 with all consequential benefits of service including monetary benefits within a period of three months.

It is made clear that if the vacancy as per the entitlement of Petitioners by considering their deemed date promotion, is available with the Respondent/Municipal Council, Akot, then the claim of the Petitioners shall be considered on that available posts without disturbing the promotion of Respondents/Employees in both the Petitions.

Rule is made absolute in above terms. No order as to costs.