(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5163 OF 1998 Mr. Khwaja Ilyasuddin Bahauddin, Age : Major, Occupation : Assistant Engineer, Municipal Corporation, Aurangabad, R/o. : 14, Sanjay Society, Osmanpura, Dargaha Road, Aurangabad. .. Petitioner. versus 1. The State of Maharashtra. 2. The Municipal Commissioner, Aurangabad Municipal Corporation, Aurangabad. 3. Hemant A. Kolhe, Age : Major, Occupation : Deputy Engineer, R/o. : C/o. Aurangabad Municipal Corporation, Aurangabad. 4. J.S. Kharwadkar, Age : Major, Occupation : Town Planner / Administrative Officer, R/o. : C/o. Aurangabad Municipal Corporation, Aurangabad. (2) 5. S.P. Khanna, Age : Major, Occupation : Additional charge of Valuation Officer, Sectional Engineer, Town Planning, R/o. : C/o. Aurangabad Municipal Corporation, Aurangabad. .. Respondents. ....................... Mr. P.V. Barde, Advocate, holding for Mr. P.M. Shah, Senior Advocate, for the petitioner. Mr. K.G. Patil, Assistant Government Pleader, for respondent no.1. Mr. S.N. Pagare, Advocate, for respondent no.2. Mr. A.S. Golegaonkar, Advocate, for respondent nos.3 and 5. Mr. R.S. Deshmukh, Advocate, for respondent no.4. ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 11TH AUGUST 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of present petition, the petitioner challenges (3) the orders of promotion of respondent nos.3 and 4, dated 24-12-1997 and 29-6-1998, respectively, and also, the order dated 30-6-1998, handing over additional charge to respondent no.5. 2. According to the petitioner, as per the rules framed by the Municipal Corporation, for promotion to the post of Deputy Engineer, from Junior Engineer, the quota is prescribed in the ratio of 50 %, 45 % and 5 %, for graduates, diploma holders and I.T.I. certificate holders, respectively. According to the petitioner, the petitioner was due for promotion to the post of Deputy Engineer, in accordance with the quota, in the year 1993 itself, when the post of Deputy Engineer was available. It is the case of the petitioner, that till 1994, there were separate lists of graduates, diploma holders and I.T.I. certificate holders. It is the contention of the petitioner, that amalgamation of the lists was made to the detriment of the petitioner. It is further the case of the petitioner, that subsequently, the respondent nos.3 and 4 also came to be promoted in the year 1997 and 1998. The petitioner has, therefore, approached this Court, challenging the promotion of respondent nos.3 and 4, and also, the order vide which additional charge was given to the respondent no.5. 3. However, it appears that Writ Petition No. 2156/1988, which was challenging the promotions made for the (4) post of Deputy Engineer in the year 1988, came up for hearing before the Division Bench of this Court. The Division Bench, while disposing of the said petition, vide judgment and order dated 3rd August 2001, observed thus, in paragraph 10 of the judgment : " In the result, we allow the petition partly and quash and set aside the promotion orders issued in favour of Respondent Nos.2 and 3. We direct the Municipal Corporation to reconstitute the selection committee to consider the case of the petitioner along with all eligible Sectional Junior Engineers as in August 1989, for the post of Deputy Engineer, on the basis of the principles of seniority-cum-merit afresh and all the vacant posts, at that time, shall be filled in accordingly. If any of the Respondents are not found to be eligible for promotion by the selection committee constituted pursuant to this order, no recovery shall be made from their salaries as they have already worked in the higher post. In case, the petitioner is found to be eligible for promotion, he shall be given a deemed date of promotion with effect from 3rd of August 1989, and his seniority in the post of Deputy Engineer shall be counted from that date. The newly constituted selection committee to complete the selection process for the post of Deputy Engineer as expeditiously as possible and in any case, within two months from today. " (5) 4. According to the Municipal Corporation, in accordance with the aforesaid directions of the Division Bench of this Court, the Selection Committee duly constituted by the Corporation has re-considered the matter and has found the petitioner to be eligible for promotion to the post of Deputy Engineer with effect from 7th July 1993. It is submitted that an order to that effect has already been issued on 13th November 2001 and, as such, the grievance of the petitioner no more survives. However, it is to be noted that vide the said order, it has been prescribed that the petitioner would be entitled for the deemed date only for the purpose of seniority and not for the financial benefits. 5. Mr. P.V. Barde, learned Counsel appearing for the petitioner, submits that when the petitioner has been found to be entitled to the promotional post with effect from 7th July 1993, there is no reason as to why he should not be given consequential benefits. He, therefore, submits that it is necessary in the interest of justice, that the petitioner should also be given arrears of salary from the date on which he is found to be entitled to the promotional post, till the said pay scale was actually made applicable to the petitioner. 6. Mr. S.N. Pagare, learned Counsel appearing for respondent no.2 / Municipal Corporation, on the contrary, (6) submits that vide the judgment dated 3rd August 2001, in Writ Petition No. 2156/1988, this Court has only directed to give a deemed date to the petitioner in the said petition, if found eligible for promotion to the post of Deputy Engineer. He, therefore, submits that the Municipal Corporation has rightly denied the financial benefits to the present petitioner. He further submits that though respondent nos.3 and 4 were given deemed date of promotion, they were not given financial benefits with retrospective effect. 7. Perusal of the order passed in Writ Petition No. 2156/1988 would reveal that this Court has directed the matter to be re-considered, in accordance with the rules, by the duly constituted Selection Committee. This Court has only directed that if the petitioner in the said petition is found to be eligible for promotion, he shall be given a deemed date of promotion with effect from 3rd August 1989 and his seniority in the post of Deputy Engineer shall be counted from that date. The only rider, that has been put by this Court, is that if, in case, any of the respondents are not found to be eligible for promotion by the Selection Committee, no recovery shall be made from their salaries as they have already worked in the higher post. 8. The order passed in Writ Petition No. 2156/1988 nowhere stipulates that, in the event, a person is found eligible (7) for promotion to the post of Deputy Engineer, from an earlier deemed date, he shall not be given the financial benefits. When the Selection Committee finds a particular candidate to be eligible for promotion at an earlier date, result would be that the promotion, to which he was earlier entitled, was illegally denied to him. If on account of illegal act on the part of the respondent, a person is found to be eligible for promotion at an earlier date, and he was denied the same, as a natural corollary, he would be entitled to all consequential benefits. The respondent / Municipal Corporation cannot be permitted to have a premium for an illegal act committed by it. When the respondent / Municipal Corporation has itself found that the petitioner was entitled to the deemed date in the cadre of Deputy Engineer from 7th July 1993, as a natural corollary, all consequential benefits would have been given to the petitioner. The order, putting the petitioner in the pay scale of promotional post, has been issued on 13th November 2001. As such, the only question, that remains in the present petition, is with respect to arrears of pay in the scale admissible to Deputy Engineer, with effect from 7th July 1993 till 13th November 2001. 9. In the result, the petition is partly allowed. The respondent no.2 / Municipal Corporation is directed to pay arrears of salary to the petitioner, with effect from 7th July (8) 1993 to 13th November 2001, admissible to the post of Deputy Engineer. It is further directed that the said arrears shall be paid along with interest at the rate of 6 % per annum. The arrears with interest shall be paid to the petitioner within a period of six months from today. 10. Rule is made absolute in the aforesaid terms. However, parties shall bear their own costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp5163