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Judgment
S.P. Tavade, J
This petition under Article 226 of the Constitution of India is filed by the petitioner for quashing the order passed by the respondent No.3-Executive
Health Officer dated 20th November 2019 posting the respondent No.4-Dr.Mangala Dnyanoba Gomare as incharge of Joint Executive Health
Officer.
The facts giving rise to the petition can be summarised as under:
The petitioner was appointed as Medical Officer in the establishment of respondent No.1-Municipal Corporation of Greater Mumbai on 2nd May 1991
whereas respondent No.4-Dr.Mangala Dnyanoba Gomare was appointed on 3rd November 1992. On 18th January 2006 a circular was issued for
filling up the vacant posts of Assistant Health Officer by selection process. Accordingly, the petitioner as well as respondent No.4 applied for the
same. The Selection Committee was formed who took interviews of all the candidates and selected the petitioner and respondent No.2 as Assistant
Health Officer. Selection-cum-merit list was published on 12th May 2006. Respondent No.4 took charge of her post on 19th June 2006 whereas the
petitioner took charge on 31st October 2006. The petitioner was asked to submit caste validity certificate. He applied for caste validity certificate and
produced the same. Thereafter, he was posted as Assistant Health Officer.
In the year 2011, two posts of Deputy Executive Officer were vacant and said post was reserved for S.C and S.T. The petitioner belongs to S.C
category. On 5th October 2017, Promotion Committee recommended the name of the petitioner for the post of Joint Executive Health Officer. By
order passed by the respondent No.3 dated 20th November 2019 respondent No.4 was promoted to the post of Joint Executive Health Officer and
demoted the petitioner from the said post.
It is contended that the petitioner is senior to the respondent No.4 since the date of appointment and in promotional post of Assistant Health Officer
as well as Deputy Executive Health Officer. The post of Joint Executive Health Officer became vacant on 1st December 2017. It is contended that
instead of appointing the petitioner as Joint Executive Health Officer, he was appointed as Incharge Joint Executive Health Officer. It is contended
that on 14th February 2018 a fresh proposal for promotion of the petitioner to the post of Joint Executive Health Officer was submitted by the
respondent No.3. While presenting the proposal, the Executive Health Officer had made a blunder that the petitioner was promoted to the post of
Assistant Health Officer on the basis of reservation and recommended temporary promotion of the petitioner to the post of Deputy Executive Health
Officer. Moreover, reference was made to that appointment of the petitioner was on the basis of reserved category. The said proposal was
sanctioned on 22nd March 2018. It is contended that the petitioner was kept in dark during the entire process. It is also contended that when the
petitioner came to know about the same, he immediately called all papers and proceedings and made a written objection to the to the Executive Health
Officer on 20th April 2018 but the objection was not replied by the Executive Health Officer. Thereafter, charge of the petitioner as Joint Executive
Health Officer was taken away and given to one Dr. Daksha Shah. Petitioner made a representation contending that he was senior most Doctor and
Dr.Daksha Shah is junior to him. Thereafter, by order dated 4th January 2019, the petitioner was again given charge of the post of Joint Executive
Health Officer and the same was continued till 20th November 2019. Till filing of this petitioner, respondent No.4 herein was given charge of the post
of Joint Executive Health Officer in place of the petitioner without assigning any reason and the said order is under challenge in this petition.
Respondent No.4 filed affidavit of Mr.Sunil M. Dhamne, Joint Municipal Commissioner (Public Health) wherein it is contended that the challenge
raised in this petition is not sustainable. There is no cause of action available to the petitioner to approach this Court. It is contended that vide order
dated 20th November 2019, respondent No.4 was asked to look after the work of Joint Executive Health Officer in addition to the charge of Deputy
Executive Health Officer. The petitioner was relieved from post of Joint Executive Health Officer (incharge). The said order was not Ad hoc nor
regular promotion order in the substantive post. Neither respondent No.4 was promoted to the post of Joint Executive Health Officer nor the petitioner
was demoted. Respondent No.4 was not placed on higher pay scale and the same will not affect the pay scale of the petitioner. Therefore, no legal
factual prejudice has been caused to the petitioner.
It is contended in the affidavit of Mr.Dhamne that order dated 20th November 2019 was passed for making administrative arrangement at the local
level in the interest of day to day administration. It is also contended that such local arrangements are routine process. The petitioner was only put
incharge as Joint Executive Health Officer from 2nd December 2017 till 30th September 2018. One Dr.Daksha Shah was put in charge from 1st
October 2018 to 3rd June 2019. Thereafter, petitioner was again put in charge from 4th June 2019 to 19th November 2019 and the respondent No.4
was given additional charge w.e.f 20th November 2019. Respondent No.4 is presently holding the said charge. It is therefore wrong to say and submit
that the petitioner was continuously holding the charge of the post of Joint Executive Health Officer. From 2nd December 2017.
By this petition, the petitioner is challenging Government Resolution dated 29th December 2017 issued by State of Maharashtra and the Circular
dated 8th January 2018 issued by respondent No.1, Order dated 6th November 2019 passed by the Promotion Committee of respondent No.1 and
office order dated 20th November 2019 passed by the Executive Health Officer of respondent No.1. The order dated 20th November 2019 came to
be served on the petitioner on the same day by e-mail. The petitioner attended a department meeting held on 22nd November 2019 where he has
signed as Deputy Executive Health Officer and not as Joint Executive Health Officer. Therefore, it is incorrect to say that till 25th November 2019,
petitioner was not aware of the said order.
It is admitted fact that respondent No.4 was appointed as Assistant Medical Officer by order dated 3rd November 1992. In the year 2006,
respondent No.1 issued a circular to fill up the post of Assistant Health Officer amongst eligible candidates inviting applications. On 27th April 2006
interviews of nearly 40 candidates were taken including the petitioner and respondent No.4 On the basis of their interview, a merit list was prepared
and names of selected candidates were published. It is contended that respondent No.4 found meritorious than the petitioner. It is well settled principle
of law that in selection seniority is as per their inter say merit. The petitioner was appointed on 31st October 2006 while respondent No.4 was
appointed on 19th June 2006 as Assistant Medical Health Officer. Respondent No.4 became senior to the petitioner in the post of Assistant Medical
Health Officer. Petitioner did not object the said decision till the end of 2018. Similarly, he has signed the merit list.
In the year 2009, two posts of Deputy Executive Health Officer became vacant. One for scheduled caste and other for scheduled tribe. The
petitioner being scheduled caste was promoted to the post of Deputy Executive Health Officer. The said promotion was given on the basis of G.R
dated 25th May 2004. Therefore, in the promotion order it was made clear that the said promotion was subject to the outcome of the Writ Petition
No.8452 of 2004. The petitioner was promoted to the post of Deputy Executive Health Officer on the basis of reservation as per G.R dated 25th May
2004 by overruling the seniority in the category of Assistant Heath Officer. He got benefit under caste reservation in the promotion to the post of
Deputy Executive Health Officer. Therefore, ranking and seniority in the post of Assistant Health Officer remained the same. Respondent No.4 is
from open category and was promoted subsequent to the petitioner. The post of Deputy Executive Health Officer does not loose her seniority in the
category of Assistant Health Officer as per the principles of catch up rules. She became senior to the petitioner even as Deputy Executive Health
Officer.
It is contended that in the year 2017, when an issue came up before the Promotion Committee for promotion to the category of Joint Executive
Health Officer, G.R dated 25th May 2004 was in force. Similarly, Writ Petition No.8452 of 2004 was not decided. Therefore, on that basis
petitioner’s case was taken into consideration. A draft proposal was put up before the Public Health Committee of respondent No.1 for its
approval. Pending the said process, State of Maharashtra issued direction on 2nd November 2017 stating that promotion process be stayed in all the
categories till the issue is decided by the Apex Court. In view thereof, process of the said promotion was stayed. In view of the said development,
proposal for promotion to the petitioner came to be withdrawn by Public Health Committee Meeting held on 21st November 2017, though the
petitioner knew the said fact did not raise any objection. It is contended that State Government issued direction on 29th December 2017 in the matter
of promotion. The State Government has clarified that promotion be made only in open category. Similarly, on the basis of said direction, respondent
No.1 issued a circular dated 8th January 2018. In view of the said circular, fresh proposal came to be processed. Name of the petitioner as well as
respondent No.4 was proposed for promotion to the post of Joint Executive Health Officer. Petitioner was promoted to the post of Deputy Executive
Health Officer on the basis of reservation as per G.R dated 25th May 2004 by overruling the seniority in the cadre of Assistant Health Officer. His
name was not considered by Departmental Promotion Committee held on 6th November 2019. Inspite of his promotion, he remained junior to
respondent No.4. Therefore, respondent No.4 came to be promoted to the said post on temporary basis subject to outcome of Writ Petition No.28306
of 2017. The said proposal was forwarded to the Public Health Committee for its approval. Pending the said approval, additional charge of Joint
Executive Health Officer was given to respondent No.4 in addition to her regular charge vide order dated 20th November 2019.
Respondent No.4 by filing an affidavit in reply contended the facts similar to that of respondent No.1.
Heard the learned senior counsel for the petitioner and learned counsel for respondent Nos.1 to 3 and 4. Admittedly, the petitioner was appointed
as a Medical Officer in the year 1991. Respondent No.4 was also appointed as a Medical Officer in the year 1992. The petitioner and respondent
No.4 were held eligible for the post of Assistant Health Officer in the year 2006. It has come in the affidavit filed on behalf of respondent No.4 of
Mr.Dhamne that respondent No.4 was found more meritorious than the petitioner having scored 41 marks as against 40 by the petitioner. It is well
settled principle of law that in selection, seniority is always prepared as per their inter-se merit. Appointment order itself shows that the petitioner was
appointed on 31st October 2006 whereas respondent No.4 was appointed on 19th June 2006. Hence, respondent No.4 became senior to the petitioner
in the cadre of Assistant Health Officer. The seniority list showing the petitioner junior to respondent No.4 was published and was signed by the
petitioner and the same was objected at the end of 2018.
It is also admitted fact that in the year 2009, two posts became vacant for the post of Deputy Executive Health Officer out of which one was for
SC and one for ST. So it can be said that there was no vacancy for open category. Petitioner being SC category was promoted to post of Deputy
Executive Health Officer on 10th May 2010 on the basis of G.R dated 25th May 2004. A note to that effect was also mentioned in the promotion
order. So it can be said that the petitioner was promoted as Deputy Executive Health Officer by overruling the seniority. He got the benefit of caste
reservation in promotion to the post of Deputy Executive Health Officer. But the fact remains that his seniority in the post of
Assistant Health Officer remains the same.
In the meanwhile, on 4th August 2017 Writ Petition No.2757 of 2015 was finally decided wherein this Court has struck down G.R dated 25th May
2004 to the extent of making provision of reservation in the matter of promotion in favour of SC/ST/N. Tribes and Special Backward classes by
holding that it is ultra vires under Article 14, 16(4) of the Constitution of India. This Court has clarified that since the G.R dated 25th May 2004 was
struck down, consequential directions issued to the State Government to take necessary corrective steps/measures in respect of promotions already
granted. The decision in the said Writ Petition was challenged by State of Maharashtra by filing Special Leave Petition No.28306 of 2017 but the
Apex Court neither stayed nor set aside the order passed by this Court.
In pursuance of the decision of this Court in Writ Petition No.2797 of 2015, State Government has issued directives on 29th December 2017 in
respect of the promotions. It is made clear that only open category vacancies to be filled in by promotion. It is also made clear in the G.R that
respective authorities while making such promotion should ascertain such candidates to be considered for promotions have not been benefitted by
seniority in the feeder cadre on the basis of G.R dated 25th May 2004.
In pursuance of G.R dated 29th December 2017, respondent No.1 issued similar direction by circular dated 8th January 2018. In view of G.R
dated 29th December 2017 and circular dated 8th January 2018, petitioner cannot be considered for further promotion to the post of Joint Executive
Health Officer. Hence, proposal prepared by Executive Health Officer for promotion of the petitioner for the post of Joint Executive Health Officer
was withdrawn by respondent No.1 on 27th November 2017.
It is also an admitted fact that in view of the GR and circular dated 8th January 2018 issued by respondent No.1, Executive Health Officer moved
a fresh proposal for promotion in accordance with the directions of the State Government dated 19th December 2017. Respondent No.1 constituted
Promotion Committee in its meeting dated 6th November 2019. The said Committee considered the proposal for promotion of the petitioner and
respondent No.4 to the post of Joint Executive Health Officer and recommended the name of respondent No.4 for the said post. The post of Joint
Executive Health Officer was isolated/ post. Therefore, there is no question of reservation for the said post. A proposal for promotion is pending for
approval of respondent No.1. Hence, additional charge of the post of Joint Executive Health Officer was given to respondent No.4 on 20th November
2019. Prior to that, petitioner was holding the charge of the said post. It is crystal clear that as name of the respondent No.4 was proposed by DPC
for the post of Joint Executive Health Officer, hence, charge of the said post has been taken away from the petitioner and is given to respondent No.4
So there is no illegality committed by respondent No.1.
It is vehemently submitted on behalf of the petitioner that respondent No.1 had replaced the respondent No.4 without any cause. It was ad hoc
promotion. The said submission has not substance because the petitioner was made incharge of Joint Executive Health Officer. He was not posted as
Ad hoc Joint Executive Health Officer. Giving charge of the post and appointing a person on Ad hoc basis are two different things.
Even to that effect position as well as meaning of the expression `in charge’ has been clarified in the case of Nagpur Shikshan Mandal and
Another vs. Haribhau Nathuji Mohod and others 2008 (2) Mh.L.J. 457 and in the case of M. Maridev Vs. State of Mysore 1968 SSC Online
Karnataka 244. So it can be said that the admission of the petitioner to the post of Joint Executive Health Officer was not Ad hoc. The petitioner was
made incharge and it was temporary arrangement to look after the department. Therefore, we are not accepting the submission of the petitioner that
his posting was Ad-hoc and he was replaced by respondent No.4 as Ad-hoc.
Proposal of the promotion of the petitioner to the post of Joint Executive Health Officer was made by respondent No.1 in view of prevailing legal
position but due to change in legal position by order passed in Writ Petition No.2757 of 2015 and subsequent GR and Circular issued by respondent
No.1, proposal of respondent No.4 was considered for the said promotion. The said proposal was forwarded to respondent No.1 by DPC. The name
of respondent No.4 was proposed for the post of Joint Executive Health Officer considering her seniority in feeder post viz. Assistant Health Officer.
Admittedly, respondent No.4 was senior to the petitioner in the feeder cadre of Assistant Health Officer. Promotion of the petitioner to the post of
Deputy Executive Health Officer was on the basis of GR dated 25th May 2004 which was struck down by this Court. As the post of Joint Executive
Health Officer is isolated/single post. Thus, reservation policy will not be applicable to it. Therefore, DPC has rightly considered seniority of the
petitioner and respondent No.4 for the post of Joint Executive Health Officer. Hence, respondent No.4 was given charge of the said post.
In view of this position, we are of the opinion that the order giving charge of the post of Joint Executive Health Officer to respondent No.4 is legal
and valid. Therefore, there is no merit in the petition. Writ petition is hereby dismissed.