1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7411 of 2009 Bajirao Dinkar Patil and Ors. ..... Petitioners V/s. The State of Maharashtra and Ors. ..... Respondents Mr.N.V.Bandiwadekar, for the petitioners. Mr.A.B.Vagyani, AGP, for respondent Nos.1 and 2. Mr.Amit Sale, for respondent Nos.3. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 09th July, 2010 P.C. 1. By way of this petition, the petitioners have challenged the decision taken by the Government of Maharashtra, dated 31­03­2009, by which the Zilla Parishad is directed to take action in connection with the petitioners in the matter of absorption of the petitioners in the post of Civil Engineering Assistant, which according to the Government is contrary to the rules. It is further directed that the petitioners should be reverted to the original posts/cadre. 2. Initially, the petitioner No.1 was appointed as a Junior Assistant with respondent No.3, the petitioner No.2 came to be appointed as an Attendant with respondent No.3, the petitioner No.3 was appointed as an Junior Assistant and the petitioner No.4 was appointed as an 2 Assistant with the respondent No.3. Subsequently, they were absorbed as Civil Engineering Assistant (CEA) and they were thereafter, promoted as Junior Engineers. 3. It is required to be noted that as per the decision of the Government dated 20­05­1999, the Government has abolished six posts namely Assistant Junior Engineer, Mistry Grade I, Mistry Grade II, Road Karkoon (Road Clerk), Muster Clerk and Samay Pal (Time Keeper) and thereby created new post namely “Civil Engineering Assistant”. The re­ designation was to be given to the employees holding either of the aforesaid six posts as per the said Government decision. 4. It is not in dispute that neither of the petitioners were holding any of the six posts, yet they were absorbed and re­designated as Civil Engineering Assistants. Subsequently, as pointed out earlier, the petitioners were also promoted as Junior Engineer. When this fact came to the knowledge of the Government, the impugned order came to be passed directing the Zilla Parishad, Sangli, to take appropriate action against the petitioners by reverting them to their original posts. It is the aforesaid order which is challenged by the petitioners in this petition. 5. The learned counsel for the petitioners submitted that when the Zilla Parishad on its own passed the aforesaid order of absorbing the petitioners as Civil Engineering Assistant, now it was not open for the 3 Government to pass the impugned order asking the Zilla Parishad to place the petitioners on their original posts. He submitted that the petitioners are working on the promotional posts since long and after their absorption, they were promoted as Junior Engineers. He submitted that the impugned order is harsh, arbitrary and illegal and the said order could not have been passed by the Government. 6. The learned AGP for the State as well as learned counsel for respondent No.3, in turn, pointed out that since the petitioners were wrongly given benefit of absorption and redesignation by the Zilla Parishad, now the petitioners are required to be placed at their appropriate place by passing the consequential order. 7. We have heard learned counsel for the parties. In our view, the petition is totally devoid of any merits. It is not in dispute that in view of the Government Resolution, six posts as indicated above, were abolished and the employees holding such posts, were required to be absorbed in the newly created posts of “Civil Engineering Assistants”. The posts that the petitioners held were never abolished and therefore, there is no question of giving them benefit of redesignation and placing them in the new cadre of Civil Engineering Assistant. At the relevant time, the Zilla Parishad without application of mind or perhaps with a view to help the petitioners, passed the absorption order, which is on the face of it, is 4 illegal and contrary to the Government Resolution. The order which is passed either under misconception or otherwise, cannot confer any right to the petitioner to continue on the said posts. Simply because the petitioners were promoted after the absorption also, cannot be taken into consideration as the petitioners were wrongly absorbed in the said cadre. In view of the said Government Resolution, in our view, the Government after realizing the said aspect, had rightly passed the impugned order, which order cannot be said to be illegal and arbitrary. The petitioners having got the advantage of the said order, continued to get benefit of promotional post of Junior Engineer. Since the benefit is wrongly given to the petitioners and contrary to the Government Resolution, we do not find any infirmity in the impugned order passed by the Government, by which the Zilla Parishad, Sangli, is directed to revert the petitioners to their original posts. The petition is therefore, without any substance and is accordingly rejected. Rule discharged. 8. It is however, clarified that since the petitioners were given the said benefit by the Zilla Parishad and since it cannot be said that the petitioners were instrumental in getting the said benefit by misrepresentation, we direct that the authorities shall not effect recovery on the basis of such absorption or subsequent promotion. Accordingly, no recovery may be effected from the salaries of the petitioners on that count. 5 9. The prayer of the learned counsel for the petitioners to continue the order of status quo cannot be granted, as it is not in dispute that the petitioners were wrongly given benefit of absorption. Order of status quo stands vacated. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )