/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1290 OF 2001 Shri Kundalik Keshav Kamble & Anr. ...Petitioners V/s. Ichalkaranji Municipal Council & Ors. ...Respondents Ms.Anjali Helekar i/b. S.M. Dharap for Petitioners. Mr.T.S. Ingale for Respondent No.1 & 2. Mr.Umesh J. Desai for Respondent No.3 to 5. CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATED : 14th FEBRUARY, 2008 P.C.:- 1. By this petition, the petitioners who are in the employment of the respondent No.1-Municipal Council challenge the order dated 16/02/2001 reverting the petitioners from the post of Junior Assistant Auditor to the post of Typist. The petitioners were initially appointed as Typists by the Council. By the order dated 19/09/1997, the petitioners were promoted to the post of Junior Assistant Auditor in the pay scale of Rs.1400 to 2600. The promotion order states that they were promoted on the basis of their seniority, merit and also on the basis of their educational qualification. The order dated / 2/ 16/02/2001 which reverts them to the post of typist states that they are being reverted to the post of typist because of the order passed by this Court in Writ Petition No.1694/1989 and contempt petition filed in this Court for implementation of the judgment of the Division Bench in the Writ Petition. 2. The petitioners challenge the reversion order principally on three grounds, 1) that the judgment of the High Court which is referred to in the reversion order that the judgment in Writ Petition No.1694/1989 decided on 18th November, 1989 is in relation to the post of clerk. The petitioners were not working as clerks but as typists, therefore, what is stated in the judgment is not applicable to them, 2) that even if the judgment is applicable, judgment of the Court requires the Council before deciding to revert anybody, to prepare a common seniority list every year and thereafter, if it finds that the promotions were wrongly given, they may make reversion order and 3) that reversion order was made without granting the petitioners an opportunity of being heard. It is submitted that show cause notice should have been given to the petitioners before making reversion order. It was possible for the petitioners to point out to the Council that for implementing the order of the Division Bench, it is not necessary to revert them. 3. We have heard learned counsel for the petitioners and learned / 3/ counsel for the respondents. 4. Learned counsel for the respondent-Council submits that reversion order has been made to comply with the directions issued by this Court and therefore, according to him, no opportunity of hearing is necessary to be given to the petitioners before ordering their reversion. He submitted that the petitioners themselves have annexed copies of the objections which are raised to the seniority lists. Though in the affidavit in reply the Council nowhere states that it has prepared a common seniority list as directed by this Court, Court should assume that common seniority list has been prepared. In the year 2005, staffing pattern has been sanctioned by the director of Municipal Council and according to that staffing pattern, promotional posts which were held by the petitioners do not exist and therefore, reversion order may not be set aside. 5. In the light of these rival submissions if the record is perused, it becomes clear that the order promoting the petitioners to the post of Junior Assistant Auditor, itself clearly states that the petitioners are being promoted to the post of Junior Assistant Auditor from the post of typist. Perusal of that order also shows that one Mr. Nivrutti Shivaji Gavali was shown as a clerk / 4/ and he was promoted to the post of Computer Operator. The promotion order is of 1997, therefore, it is clear that at least in 1997 the post of typist was treated as distinct and separate post from the post of clerk. In the reply filed by the Council, the Council has stated that because of the Government Resolution issued in the year 1990-1991, from 1991 onwards, there was only one cadre of clerks, typist-cum-clerks and typists. If there was one cadre of typists and clerks from 1991, there was no reason for the Municipal Council to show in the promotion order of the year 1997 that the petitioners were working in the cadre of typists. This aspect of the matter has not been explained by the Council. Therefore, case put up by the petitioners that the petitioners were appointed as typists and continued to be in the post of typist till they were promoted, has to be accepted. 6. From the order issued by the Council reverting the petitioners which is challenged in this petition, it is clear that the sole reason given for reverting the petitioners is the judgment of the Division Bench of this Court referred to above. Paragraph 7 of the judgment is relevant which reads as under: “7. However, the position which emerges needs to be clearly spelt out Firstly under the Award of the Industrial Tribunal the Council is required to prepare a Seniority list of all the clerks / 5/ in the various Departments of the Council Including the above four Departments. The said list is required to be a common seniority list. The said list is required to be prepared as far as possible in December of every year. That the promotion are required to be made on the basis of the said common Seniority List to the next higher post after taking into accounts merit and past record. It needs to be clarified that the revised increased pay scale given to the clerks of the Four Departments will not be treated as a promotional post of eligibility criteria for promotion from the post of clerk to the next higher post. In the next higher post. In the light of the above the council is required to prepare a seniority list as directed above and to give promotions on the basis stated above. We make it further clear that the council would look into the matter retrospectively and if the council finds that any promotion given to the clerk is on the footing that he has been given the higher pay scale of Rs.335-680 then the council will reconsider the matter and promote the clerk to the next higher post strictly on the basis of the common seniority list put after taking into account merit and past record as mentioned in the Award of Tribunal.” / 6/ 7. Perusal of paragraph of the judgment quoted above makes it clear that the Municipal Council was directed to prepare a common seniority list of all the Clerks working in the various departments of the Council and that common seniority list was to be prepared every year and thereafter, promotions were to be made on the basis of that final seniority list prepared by the Council. The petitioners have categorically stated in the petition that before issuing the order reverting them, the Municipal Council had circulated only a draft seniority list to which the petitioners lodged objections. In the reply filed by the Council though the Council is relying on the judgment of this Court referred to above, the Council has nowhere stated that final seniority list as directed by this Court was prepared by them. The allegation made by the petitioners that before issuing the reversion order, only a draft seniority list was published and circulated, is also not disputed, therefore, it cannot be believed that the order of reversion was issued by the Council in accordance with the judgment of this Court. We have observed above that the post of typist was treated as distinct and separate from the post of clerk. The judgment of this Court referred to above is in relation to the preparation of a common seniority list of clerks. Therefore, it appears that in order to / 7/ implement that judgment, it may not be necessary to order the reversion of the petitioners. 8. It is further to be seen that the petitioners were promoted on regular basis. They were not parties to the writ petition referred to above. The judgment of this Court referred to above also does not direct the Municipal Council to revert the petitioners, therefore, the decision of the Council that in order to implement the judgment of this Court, it is necessary to revert the petitioners, was the decision of the Council based upon inference drawn by the Council from the judgment of this Court and therefore, in our opinion, it was necessary for the Council to give an opportunity of being heard to the petitioners before issuing the reversion order, because had such an opportunity of being heard been given to the petitioners, it was possible for the petitioners to point out to the Council that in order to implement the decision of the Division Bench, it is not necessary to revert them. The order of reversion visits the petitioners with adverse consequence, they lose higher post and they also lose higher pay scale. Therefore, before actually issuing the reversion order, in our opinion, it was necessary for the Council to issue show cause notice to the petitioners, asking them to show cause why they should not be reverted in order to implement the judgment of this Court. In / 8/ our opinion, therefore, order of the reversion has been made by the Council in violation of principal of natural justice. In our opinion, this infirmity is itself enough to set aside the order of reversion. 9. It was submitted on behalf of the Council that in the year 2005, there has been change in the staffing pattern and as result of this scheme, the post to which the petitioners were promoted has been abolished and therefore, according to the Council, we should not set aside the order of reversion. In our opinion, even assuming that staffing pattern is changed in the year 2005, order of the reversion which was issued in the year 2001 if found to be invalid, will have to be set aside so that the petitioners can get benefit of the promotional post at least till the pattern is changed and when the pattern is changed, the petitioners will be entitled to be considered as occupants of their post. In our opinion, merely because staffing pattern is changed in the year 2005, we can not decline the petitioners the benefits to which they are entitled. In our opinion, following order would meet the ends of justice:- 1. Order reverting the petitioners dated 16/02/2001 from the post of Junior Assistant Auditor to the post of Typist / 9/ is set aside. The Council is directed to give to the petitioners all benefits to which they are entitled as consequence of setting aside the order of reversion including monetary benefits. It is further made clear that if because of change of staffing pattern, the Council is required to make any changes, it will be free to do so in accordance with law . Rule is made absolute in the above terms. There shall be no order as to costs. ( D.K. DESHMUKH, J.) (V.M. KANADE, J.)