Judgment:
A.V. Potdar, J.
1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, petition is heard finally at the stage of admission.
2. By the present petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuance of writ or directions that the order dated 12.11.2008 issued by the Divisional Commissioner, Aurangabad bearing O. No. 2008/Visha/ZP /Estt-1/Kavi/Divisional Commissioner Office, Aurangabad Divisional Commissioner Office, Aurangabad, be quashed and set aside.
3. The facts, disclosed by the petitioner, can be summarised as follows:
a. The petitioner and the respondent No. 4 are working in the Accounts Department of Zilla Parishad, Osmanabad. Initially, both of them were appointed as Junior Assistants and both of them were promoted to the post of Junior Accounts Officers (for short JAO) on 29.09.2003. It appears from the rules that to qualify for the promotion for the post of Assistant Accounts Officers, the candidate has to hold the post of Junior Accounts Officer in the district service (Class-III) of the Accounts and to work on the said post at least for 3 years. It is another criteria that the concerned candidate should pass the departmental accounts examination conducted by the competent authority. The JAOs are exempted from passing of such examination after crossing the age of 45 years, however are held eligible only after attaining the age of 45 years and their seniority is fixed as per the date on which they complete 45 years of age. The Government of Maharashtra, Rural Development Department, has issued Government Resolutions on 25.06.1986 and 22.10.1996 to that effect. As per the Government Resolution dated 22.10.1996, the Chief Executive Officer (for short CEO), has to specifically grant exemption from passing such examination to the employees after attaining the age of 45 years.
b. The respondent No. 3, by his order dated 29/30 March 2007 (Exh.C), has granted such exemption to 10 JAOs, including the present petitioner and respondent No. 4, respectively w.e.f. 29.9.2003 and 15.06.2004, the dates when they attained the age of 45 years. Accordingly, their seniority was also fixed as per the instructions communicated by the Rural Development Department to Zilla Parishad, vide letters dated 25.03.1988 and 19.04.1983 9 Exh. D colly.). As the petitioner has attained the age of 45 years on 03.04.1999, he is shown as senior in the seniority list than the respondent No. 4. Three posts of Assistant Accounts Officers became vacant in Osmanabad Zilla Parishad due to retirement of three persons. In the meeting, held on 25.06.2008, of the Divisional Promotion Committee, for granting promotions against these three posts, after considering all the relevant record of the concerned employees in the light of the concerned GR, the said Committee held the petitioner as eligible for promotion on the post of Assistant Accounts Officer. Accordingly, the petitioner joined the promotional post on 18.08.2008. The Executive Engineer (Minor Irrigation) of Zilla Parishad, Osmanabad submitted report to the respondent No. 3 to that effect.
c. It appears that the respondent No. 4 ,was dissatisfied and aggrieved by the promotion of the petitioner. She made a representation to the respondent No. 2 on 28.08.2008 thereby requesting to grant her promotion as Assistant Accounts Officer. It also appears that on receipt of the said representation, the respondent No. 2 has called explanation from the respondent No. 3, which was submitted by Respondent No. 3 on 06.09.2008. No notice or hearing was given to the petitioner in respect of the said representation. By order dated 11.12.2008, respondent No. 2 directed respondent No. 3 to correct the order of promotion [grating promotion to the petitioner], by holding that the respondent No. 4 is senior to the petitioner. Hence, the present writ petition.
4. In response to the notice, the respondents No. 1 and 2 appeared and the Divisional Commissioner, Aurangabad has filed affidavit in reply of one P.A. Bothra, who is working as a Deputy Commissioner (Establishment) in the office of Divisional Commissioner, inter alia contending that respondent No. 4 has filed an application before the Divisional Commissioner contending that even though the petitioner is junior than her, yet he is promoted as Deputy Accountant. In response to the letter dated 28.08.2008, respondent No. 3 submitted his detailed report vide communication dated 15.09.2008 (Exhibit-R-2). He has also given reference to Rule 5, Appendix X from the Maharashtra Zilla Parishad District Service (Recruitment) Rules of 1967 as well as GR dated 22.10.1994. He had also given reference of the letter dated 12.02.1993 of the Rural Development and Water Conservation Department, providing guide-lines for fixation of seniority of Assistant Accounts Officers (Deputy Accountants). It further appears from the contents of the affidavit that respondent No. 4 was appointed as Deputy Accountant on 29.09.2003 and she would get four years for passing of examination in two parts. Hence, she would get period up to 29.09.2007 for passing such examination when she has crossed the age of 45 years on 24.06.2004. As against this, the petitioner has already crossed the age of 45 years, prior to his appointment on the post of Deputy Accountant. Hence, according to this deponent, the criteria as mentioned in para D (I) of the letter dated 12.02.1993, would be applicable while fixing the seniority of respondent No. 4, whereas criteria as mentioned in para D (II) of the said letter would be applicable while fixing the seniority of the petitioner. As per the seniority as on 29.09.2003, respondent No. 4 was at serial No. 23 while the petitioner was at 24 (Exh.R-1). It appears from the contentions of the affidavit that respondent No. 3 took the decision regarding the seniority, on the basis of the letter dated 30.04.1990 and by wrongly interpreting the clarification given in the letter dated 12.02.1993. Hence, the decision taken by the respondent No. 3, thereby promoting the petitioner to the post of Deputy Accountant is cancelled. In substance, according to this respondent, there are no merits in the petition and hence prayed for dismissal of the same.
5. Respondent No. 3 has filed affidavit in reply of one Anand Sadashiv Bothe, who is working as Junior Accounts Officer, Zilla Parishad, Osmanabad. This deponent has stated that the petitioner as well as the respondent No. 4, who are working in the Finance & Accounts Department of Zilla Parishad, Osmanabad, came to be promoted on the posts of Junior Accounts Officers on 29.09.2003. This deponent has also given the hierarchy of the posts available in the Finance and Accounts Department of Zilla Parishad, which shows the posts of the Junior Assistant is the basic post and the post of Assistant Accounts Officer / Head Accountant is the highest post in that department. This deponent has specifically averred that for the promotion to the post of Assistant Accountant from the post of Junior Accounts Officer (JAO) passing of Maharashtra Finance and Accounts Service Class-III examination conducted by the MPSC is mandatory as per GR dated 25.06.1986. As per clause 6 of the said GR the Zilla Parishad employees, who have completed age of 45 years, are exempted from passing the said examination. This exemption is continued even in latter GR dated 22.10.1996. Guide lines are also provided as per Government letter dated 30.04.1990 for preparation of the interse seniority list of the employees working in the Finance and Accounts Department of the Zilla Parishad, which are mentioned in para 3 of the affidavit. It is also stated that neither the petitioner nor respondent No. 4 has passed the said examination, when they were promoted to the posts of Junior Accounts officers on 29.09.2003. Hence, in the cadre of Junior Accounts Officer, their seniority is required to be considered or computed from the date of completion of 45 years of their respective age. It is not disputed that the date of birth of the petitioner is 03.04.1954 and he has completed 45 years of age on 03.04.1999 while the date of birth of respondent No. 4 is 15.06.1959 and she has completed 45 years of age on 15.06.2004. As the petitioner has completed 45 years of age on 03.04.1999, when he was holding the post of Senior Assistant, his seniority for the promotion to the post of Assistant Accounts Officer was computed from the date of his appointment on 29.09.2003, whereas the seniority of respondent No. 4 has to be computed from 15.06.2004. It is further averred that considering the GR dated 22.10.1996 and the government letter dated 12.02.1993, the seniority of the petitioner and respondent No. 4 is properly determined. It is specifically averred in paragraph No. 10 of the affidavit that though as per the general provisional and final seniority lists respectively dated 01.01.2008 and 01.04.2008, respondent No. 4 is senior to the petitioner, however as per the interse seniority list prepared after following the GR dated 12.10.1996 and the government letters dated 30.04.1989 and 12.02.1993 in the cadre of Junior Accounts Officer the petitioner is senior to respondent No. 4 and hence, was rightly promoted to the post of Assistant Accounts Officer. Thus, this respondent supported the claim of the petitioner in toto. It is stated that the petitioner is reverted to the post of Junior Accounts Officer vide the impugned order dated 22.01.2009.
6. In response to the notice affidavit was filed by respondent No. 4 on 14.01.2009 interalia stating that by filing the present writ petition the order challenged by the petitioner is an order passed by respondent No. 2 in administrative capacity, which cannot be challenged by filing writ petition and hence the writ petition is liable to be dismissed. It is further contended that the provisional seniority list prepared by respondent No. 3 dated 01.01.2008 wherein respondent No. 4 is shown at serial No. 23 and the petitioner is shown at serial No. 24 which is not challenged by the petitioner by raising any objection when the provisional seniority list was published. It is also contended that this seniority list came to be finalised after considering the objections raised by the concerned employees on 01.04.2008. The petitioner has not challenged this seniority list where the petitioner is shown junior to respondent No. 4. It is further alleged that on 30.05.2008 respondent No. 4 made a representation to the Chief Accounts and Finance Officer of the Zilla Parishad claiming to be senior and holding the requisite qualification for promotion and requested for grant of promotion. Thereafter also respondent No. 4 has also filed several representations from time to time raising grievance in respect of granting promotion to the petitioner instead of respondent No. 4. This respondent has contended that the petitioner cannot approach this Court with a grievance that the petitioner was not independently heard while passing the impugned order. Respondent No. 4 has also requested respondent No. 3 to give effect to the order dated 12.11.2008 passed by respondent No. 2 and also made a grievance before respondent No. 2 in that respect. Lastly, it is stated that respondent No. 4 is senior than the petitioner and supports the order under challenge and requested for dismissal of the writ petition with costs.
7. During the course of arguments it was submitted on behalf of respondent No. 4 that during the pendency of the writ petition the petitioner is also promoted to the post of Assistant Accounts Officer and the said fact is not brought to the notice of this Court by the petitioner and hence, according to respondent No. 4, this petition has become infructuous. It is the reply of the petitioner that though the petitioner is promoted to the post of Assistant Accounts Officer during the pendency of this petition yet, unless the impugned order is nullified it will permanently affect his claim of seniority. Hence, he is continuing with the present petition. According to respondent No. 4, without amending the petition the petitioner cannot claim such relief. According to the petitioner, these reliefs are auxiliary and offshoot of the decisions of respondent No. 2 and hence those orders / decisions will not affect on the merit of the petition. Hence, leave was sought on behalf of respondent No. 4 to file additional affidavit and accordingly on 17.04.2009 additional affidavit was filed on behalf of the respondent No. 4.
8. It is contended by respondent No. 4 in the additional affidavit that now the petition does not survive because the petitioner has also been promoted to the post of Assistant Accounts Officer by order dated 18.02.2009 i.e. during the pendency of the writ petition. It is further contended that conduct of the petitioner in not disclosing the fact amounts to playing fraud on this Court and hence the petitioner is not liable to seek equitable relief from this Court for which he has also placed reliance on judgment reported in the matter of 'S.J.S. Business Enterprise v. State of Bihar'. It is contended that the petitioner has not amended the pleadings about challenge to the interse seniority between the petitioner and respondent No. 4. In absence of pleadings of facts, the Court cannot consider the submission to that effect. It is also contended that in absence of any such relief being sought, no such relief can be granted by the Court. It is contended that the petitioner has sought relief of deciding the interse seniority and deemed date of promotion during the course of arguments. However, in absence of pleadings, such relief cannot be granted and such practice needs to be deprecated. It is also contended that during the course of arguments the petitioner has attempted to change the case, which the petitioner is not permitted in law in view of judgments of the Hon'ble Apex Court. It is further contended that the petitioner has not challenged the order of his reversion for which remedy is provided under Rule 14(3) of the Maharashtra Zilla Parishad District Service (Discipline & Appeal) Rules, 1964. In the premise, it is contended that the present petition is not maintainable and he has prayed for dismissal of the petition with costs.
9. Heard submissions of learned advocate Mr. Jadhavar, followed by arguments of learned AGP Mr. S.P. Dound for respondents No. 1 and 2, learned advocate Mr. Tanwade for respondent No. 3 and learned advocate Mr. S.S. Deshmukh for respondent No. 4.
10. Before considering these submissions, at the first instance, we feel it necessary to deal with the objections raised by the 4th respondent during the course of arguments as well as demonstrated in the affidavit in reply, which are discussed in para 8 of this judgment. It is urged that the petition suffers from suppression of material facts, as the petitioner was promoted on the said post during the pendency of this writ petition and the same is not disclosed by him. Though, the petitioner is promoted during the pendency of the writ petition, yet the fact remains that the promotion was not with the retrospective effect, which will take away the effect of the impugned order. Hence, according to us, it will not amount to suppression of facts. Therefore, the ratio laid down in the judgment of 'S.J.S. Business Enterprises v. State of Bihar', will not be applicable in the present case. It is also urged that in absence of amendment of pleadings, the Court cannot decide the interse seniority between the petitioner and the 4th respondent. Reliance is also placed by the counsel appearing for the 4th respondent on the judgment reported in : [2000]1SCR275 in the matter of 'Commissioner, Bangalore Development Authority v. S. Vasudeva'. It is submitted that this Court cannot grant the relief, which is not sought for by enlarging the scope of the writ petition on its own, as observed in para 6 of the reported judgment. We disagree with the proposition put before us for the simple reason that in the writ petition we are only examining the legality and validity of the impugned order. As subsequent developments and these submissions are offshoots of the impugned order, it is not necessary to test the validity or otherwise of subsequent orders. In case, the rules require setting aside order dated 12.11.2008 of Divisional Commissioner, by which promotion order of Petitioner dated 18.8.2008 was cancelled and impliedly Respondent No. 4 was ordered to be promoted, the clock will have to be set back with status quo ante, by restoring the position prevailing prior to order dated 12.11.2008 passed by Divisional Commissioner, which is the foundation of all subsequent developments. Otherwise also, technical and procedural provisions cannot be used to defeat and deny substantive justice. Reliance is also placed on the judgement reported in AIR 1981 SC 583 in the matter of 'S.S. Sharma v. Union of India' : [1981]3SCR34 in the matter of 'Arti Sapre v. State of Jammu & Kashmir'. For the reasons stated supra the ratio laid down in these authorities will not be applicable to the facts of the present writ petition. We are not dealing with the other citations relied on by the 4th respondent as they are also on the same point.
We are also not in agreement with learned Counsel for Respondent No. 4 that by subsequent promotion of Petitioner, his writ petition has become infructuous. In fact, subsequent promotion of Petitioner would perpetuate the position of Petitioner as Junior to Respondent No. 4 in the cadre of Junior Accounts Officer, which the Petitioner feels to be incorrect as a result of his getting exemption from passing Departmental Examination prior to Respondent No. 4 and in the light of guidelines dated 25.3.1988 (Exh.D).
11. It is not under dispute that no opportunity was given to the petitioner by the second respondent while passing the impugned order on the representation of the fourth respondent. Thus, there is clear violation of principles of natural justice at the hands of the second respondent while passing the impugned order.
12. We have discussed the stand taken by the 2nd respondent in the affidavit in reply, in para 4 of this judgment. At the same time, we have also discussed the stand of the 3rd respondent in para 5 of this judgment. From the contents of these affidavit in replies as well, it is not disputed either by the petitioner or by the 4th respondent that both of them were appointed on the post of Junior Accounts Officers (JAO) on 29.09.2003. Post of Assistant Accounts Officer / Head Accountant is the promotional post / avenue for the Junior Accounts Officer.
13. It is guided by Government Resolution dated 25.06.1986 as to what is the eligibility criteria to qualify for the post of Assistant Accounts Officer i.e. Head Accountant. As per this Government Resolution, the incumbents / candidates who have passed the departmental examination of the Deputy Accountant in the District Service (Class-III) (Accounts) Grade II conducted by the Rural Development Department or Maharashtra Accounts Clerk Examination conducted by the Director of Accounts and Treasury, Bombay, shall be eligible to appear in this examination. At the same time, the employees, who have completed 45 years of age, can be exempted from passing this examination. There is partial modification to this GR by the GR dated 22.10.1996. Rule 4 of this GR speaks about period and number of chances for passing the said examination.
14. In response to the communication dated 26.08.1987, by the Chief Executive Officer, Zilla Parishad, Ratnagiri, vide letter dated 25.03.1988, the Desk Officer, Rural Development Department, has clarified the effect of this exemption clause in para 5 of the communication. The Desk Officer has guided the criteria to appoint while considering the promotional post as how to grant exemption to the employees concerned, who have attained age of 45 years, in Rule 9 of the GR dated 22.10.1996. As under Rule 9, it is provided that the exemption shall be granted from passing the qualifying examination by the concerned CEO.
15. It is not under dispute that the petitioner has attained age of 45 years on 03.04.1999 and exemption was granted to him on and from 29.09.2003 and exemption was granted to the 4th respondent on 15.06.2004. It is also not under dispute that this exemption was granted to them as they have not passed the requisite qualifying examination.
16. It is not disputed that the petitioner was promoted to the post of Assistant Accounts Officer / Head Accountant vide order dated 16.08.2008 and he took charge of the said post on 18.08.2008. Till this time, it was nobody's case that the 4th respondent has attempted to qualify the examination or she had appeared for the same. Under Clause -III of para 5 of the communication dated 25.03.1988, it is made clear that since the exemption is granted to the employee working on the post of Junior Accounts Officer, his seniority is to be counted from the date on which he attains age of 45 years. As stated herein above, even though this exemption was granted to the petitioner on 29.09.2003, yet he has attained the age of 45 years on 03.04.1999. As the 4th respondent has attained age of 45 years on 15.06.2004, exemption was granted to her from appearing or passing of the qualifying examination on that date. Thus, from this record, the fact is clear that the date on which the promotional post was granted to the petitioner w.e.f. 16.08.2008, till that time the 4th respondent had not passed the qualifying examination. Again, we have to go back to clause I of para 5 of the communication dated 25.03.1988, which speaks for the candidates / employees who have passed the examination of the Deputy Accountant during the stipulated period, then their seniority will remain intact, as per the original seniority in the Department. Thus, on clear reading of Clause I and III of para 5 of this communication, the fact is clear that the original seniority will remain intact in case the concerned employee has cleared the examination. This position is further clarified in Clause II of para 5 of the said communication that the employees, who pass this examination after the stipulated period, then their seniority will be reckoned from the date they pass the said qualifying examination. Thus, from this communication one fact is clear that after the employee attained the age of 45 years and exempted from passing the qualifying examination there will be change in the original seniority. If this is the effect of this communication, then there is no force in the submissions of the learned Counsel appearing for the 4th respondent that when the provisional seniority list was prepared and published, no objection was raised to the same by the petitioner. Again, there is no force in the submissions that when the seniority list was finalised and published even then no objection was taken by the petitioner to that final seniority list, as the effect of the said finalization of the seniority is taken away by the communication dated 25.03.1988. The seniority list dated 1.1.2008 relied upon by Respondent No. 4 is required to be ignored as erroneous, so far as Petitioner and Respondent No. 4 are concerned, since it did not give effect to the orders dated 29/30.3.2007 (Exh.C) and Respondent No. 4 passing department examination any time after 15.6.2004 is not going to prepone or restore her seniority, in the cadre of Junior Accounts Officer, to be reckoned prior to 29.9.2003 when Petitioner was exempt from passing Departmental Examination.
Learned Counsel for Respondent No. 4 has tried to rely upon an entry in the service book (paperbook page 141, part of Exh. RR-II). This entry is pertaining to Respondent No. 4 having passed examination of Deputy Accountant. However, so far as dispute between petitioner and Respondent No. 4 is concerned, we are not concerned about either of them having passed the examination of Deputy Accountant, but with fact that they are required to pass Maharashtra Finance and Accounts Service (Class III) examination, which is the eligibility qualification for promotion as Head Accountant or Divisional Accountant or Assistant Accounts Officer, from the post of Deputy Accounts Officer or Junior Accounts Officer. Both have not passed that examination and they are exempted from passing the same with effect from the dates indicated in the order dated 29/30.3.2007 (Exh.C).
17. On clear perusal of the impugned order, we do not find anywhere that this aspect was considered by the Divisional Commissioner, Aurangabad while passing the order dated 12.11.2008 and cancelling the order dated 16.08.2008. The said order is passed without giving any opportunity by way of natural justice to the petitioner. In the premise, the effect of the government resolutions on record, clearly show that the impugned order is erroneous and passed without application of mind and hence, is required to be quashed and set aside. In the result, the order dated 12.11.2008 is hereby quashed and set aside. Needless to say that once the said order is quashed, all orders subsequently passed pursuant to the said order, will have to be nullified in their effect and parties (Petitioner and Respondent No. 4) will have to be restored to statusquo ante.
Rule is made absolute in the terms indicated above. Writ petition stands disposed of with no order as to costs.