bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 9115 OF 2007 PETITION NO. 9115 OF 2007 PETITION NO. 9115 OF 2007 Vilas K. Sable, Executive Engineer, MIDC, Chinchwad, Pune. ... Petitioner v/s The Maharashtra Industrial Development Corporation, Raigad & ors. ... Respondents Mr.C.U.Singh, Sr.Advocate i/by Mr.S.A.Sawant for the petitioner. Mr.P.P.Chawan with Mr.K.J.Gandhi i/by Little & Co. for the respondents. CORAM: CORAM: CORAM: J.N.PATEL AND J.N.PATEL AND J.N.PATEL AND SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: DATED: DATED: 10TH MARCH, 2008. 10TH MARCH, 2008. 10TH MARCH, 2008. P.C. P.C. P.C.: 1. Heard. 2. Rule. Rule made returnable forthwith by cosent of the parties. 3. We can dispose of this petition at the stage of admission itself as the only issue which is required to be clarified is whether the Chief Executive Officer has the jurisdiction to decide the issue of seniority amongst employees in Group-A and Group-B. 2 4. The petitioner is presently working as Executive Engineer with the respondent M.I.D.C. It is his case that he was appointed on 9.8.1989 and was promoted on 24.9.1996 as Deputy Engineer and thereafter on 27.2.2003 he was promoted with retrospective effect from 11.12.2001 in the post of Executive Engineer. It is the case of the petitioner that, while he was working in the post of Assistant Engineer, he was the senior-most in the seniority list of Scheduled Caste category, whereas respondent No.2 was appointed with the M.I.D.C. as an Overseer Junior Engineer on 30.10.1981. He was given promotion. The respondent No.2 passed the examination of AMIE Section-A and Section-B in the year 1994 and made an application seeking seniority for Graduate Assistant Engineer which was objected to by the petitioner when it came to his notice that the respondent No.2 has been placed at Sr.No.1 in the seniority list of Scheduled Caste category in the post of Assistant Engineer. It appears that the issue was then referred to the General Administrative Department of the Government of Maharashtra and there were some differences of opinions in the matter of seniority. But ultimately the petitioner learnt that respondent No.2 was given the seniority of 4 years 8 months and 9 days by virtue of which he was senior to the petitioner by only 11 days but this information was not communicated 3 to the petitioner and the petitioner received the information only after he applied under the Right to Information Act by communication dated 30.5.2006. Therefore, on 10.3.2006 the petitioner made an application to the M.I.D.C. in regard to the fixation of his seniority. On 10.4.2006 the matter was heard by the Chief Executive Officer and the petitioner was assured that his grievance would be examined for which he will be given due opportunity of hearing. Since then the petitioner has been making representation to the Chief Executive Officer claiming that his request for giving seniority to the post of Executive Engineer vis-a-vis respondent No.2 be considered. But as no decision in the matter was taken, on 28.6.2006 the petitioner preferred an appeal to the M.I.D.C. In the meantime, respondent No.2 was given promotion to the post of Superintendent Engineer. Aggrieved by the said decision, the petitioner moved this Court by filing Writ Petition No. 3738 of 2007 and this Court on 11.7.2007 passed an order thereby directing the M.I.D.C. to decide the appeal preferred by the petitioner dated 28.6.2006 within a stipulated period i.e. within eight weeks. 5. It is the case of the petitioner that inspite of order being passed by this Court and communicated to 4 respondent No.3, M.I.D.C. has not decided the appeal within the stipulated time which compelled the petitioner to file Contempt Petition No.283 of 2007. On being issued with show cause notice, the respondent Nos.1 and 3 sought extention of time to decide the appeal, which was granted. 6. According to the petitioner, the Chief Executive Officer, M.I.D.C., Mumbai, decided his appeal by judgment delivered on 3.9.2007 which is the subject matter of challenge in this petition. 7. Though the petitioner has raised various issues and contentions in the petition, the preliminary issue goes to the root of the matter and it relates to the jurisdiction of the Chief Executive Officer in entertaining the appeal. 8. The learned counsel appearing for the petitioner drew our attention to the affidavit in reply filed by the respondent No.3 in Writ Petition No.3738 of 2007 wherein it has been categorically stated that the appellate authority in the matter of promotions and seniority of Grade-A and Grade-B category officers vests with the Chairman and inspite of that in the case of the petitioner the appeal has been decided by the Chief 5 Executive Officer who is not the competent authority. 9. The learned counsel for the respondent M.I.D.C. submitted that by resolution of the Board dated 18.8.1962 the powers had been vested in the Chief Executive Officer by the Board and, therefore, the Chief Executive Officer is the competent authority to take the administrative decision and as the question of seniority pertains to an administrative decision, he was the competent authority to decide the appeal of the petitioner. 10. Our attention has been drawn to the Maharashtra Industrial Development Corporation Employees (Classification and Recruit) Regulations, 1994 (for short, "Regulations of 1994"), which clearly specifies recruitment to all posts in the Corporation and all matters relating thereto are to be dealt with the said Regulations of 1994. In the definition clause 3(c), it is stated that the competent authority in respect of Officers Group-A and Group-B means the Chairman of the M.I.D.C. and in respect of Group-C and Group-D, the Chief Executive Officer for M.I..D.C. and/or any other authority designated by the Corporation in that behalf. Therefore, it is quite clear that insofar as the competent authority, which is empowered to deal with 6 service conditions of employees of M.I.D.C. of Group-A and Group-B are concerned, is the Chairman of the M.I.D.C. and not the Chief Executive Officer who has jurisdiction over employees of Group-C and Group-D. 11. We, therefore, find that the impugned order passed by the Chief Executive Officer in respect of the appeal preferred by the petitioner, who is admittedly an officer of Group-A category, is without jurisdiction. Resolution No.7(4)(a) of the minutes of the 1st meeting of the Corporation dated 18.8.1962 reads as under: "Resolution No.7(1):..................... Resolution No.7(2)...................... Resolution No.7(3)...................... Resolution Resolution Resolution No.7(4)(a): No.7(4)(a): No.7(4)(a): the Chief Executive Officer to exercise powers corresponding to those of a Head of Administrative Department of the Secretariat under the various manuals and existing orders of Government", which according to the learned counsel appearing for the respondents, confers the jurisdiction of the Chief Executive Officer does not find favour with this Court as in the regulation nowhere it is mentioned that in 7 respect of service conditions of officers of Group-A, the competent authority would be the Chief Executive Officer. On the other hand, it only confers the Chief Executive Officer to exercise powers corresponding to those of a Head of Administrative Department of the Secretariat under the various manuals and existing orders of Government, and it has no reference to the Regulation of 1994 which are framed by the M.I.D.C. under the powers conferred by clause (b) of sub-section (3) of Section 12 and clause (b) of sub-section (1) of Section 64 of the Maharashtra Industrial Development Act, 1961 (III of 1962) with the previous approval of the Government of Maharashtra. Therefore, what we find that, respondent No.3 has erroneously exercised the powers vested in the Chairman of the Board while deciding the appeal of the petitioner. 12. In our view, the issue of jurisdiction go to the root of the matter and the decision taken by a forum which has no jurisdiction is non-est in the eyes of the law and, therefore, we quash and set aside the impugned decision and remit the matter to the Chairman, M.I.D.C. to hear the appeal preferred by the petitioner afresh and take a decision in the matter within eight weeks from the date of communication of this order. 8 13. The order to be communicated by the petitioner to the competent authority. 14. Rule made absolute accordingly with costs. (SMT (SMT (SMT.NISHITA NISHITA NISHITA MHATRE MHATRE MHATRE, J J J.) (J (J (J.N.PATEL PATEL PATEL, J J J.)