(1) WP 3312.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3312 OF 2011 Shaikh Yasin S/o Shaikh Mehboob PETITIONER VERSUS Damodar Laxman Pattekar and ors. RESPONDENTS ..... Mr. Rajendra S. Deshmukh, Advocate for the Petitioner. Mr. C.R. Bharaswadkar, Advocate for the respondent no.1 Mr. V.H. Dighe, A.G.P. for the Respondent-State. Mr. S.G. Bobade, Advocate h/f. Mr. M.G. Kolse Patil, Advocate for the respondent no.6 ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 4TH OCTOBER, 2011 ORAL ORDER: 1. Rule. Rule made returnable forthwith. The Writ Petition is heard finally by consent of the learned counsel for the parties. 2. The petitioner takes exception to the judgment and order dated 28.02.2011 passed by a Division Bench of the learned Maharashtra Administrative Tribunal in Original Application no. 1096 of 2009, thereby setting aside the promotion given in favour of the present petitioner. (2) WP 3312.2011 3. Undisputed facts giving rise to the present Petition are as under:- 4. The petitioner was selected for the promotion to the post of Tax Recovery Officer on 30.03.2009. However, on account of some procedural aspects, the actual order of promotion was issued on 21.10.2009. Being aggrieved thereby, the original application came to be filed on behalf of the respondent no.1-herein. The learned Maharashtra Administrative Tribunal, relying on the condition as stipulated in Circular dated 13.01.2009 to the effect that a person cannot be promoted if he does not have the remaining service of five (5) years, allowed the original application. Being aggrieved by the said order, the present Petition. 5. No doubt that though the learned Members of the Tribunal have given quite a few reasons in support of the condition that a person for being considered to be promoted, should have remaining service of five (5) years, we do not find it necessary to go into that. The Petition deserves to (3) WP 3312.2011 be allowed on the short ground that on the date on which the petitioner was selected, i.e. 30.03.2009, he, in fact had five (5) years remaining service. It is only on account of some procedural requirement in the Office of the respondent, that the actual order of promotion could not be issued in his favour. However, the reasons which are given by the learned Maharashtra Administrative Tribunal, holding that such a condition which requires that a person could not be promoted, if he does not more than five (5) years of service, do not appeal to us. Even in the highest post/s in the country, like the Cabinet Secretary or the Chief Secretary or the Director General of Police, the person/s are promoted to such post/s, in some cases, wherein even a year's tenure is not left. 6. In that view of the matter, we quash and set aside the impugned order dated 28.02.2011 passed by the learned Maharashtra Administrative Tribunal. We direct the respondent-authorities to restore the petitioner to his position before the impugned order was passed i.e. the Tax Recovery Officer with (4) WP 3312.2011 retrospective effect. The period during which the petitioner was reverted on account of the order passed by the learned Maharashtra Administrative Tribunal, till his actual restoration of the position, shall be treated as continuity in service in that cadre. 7. Rule is accordingly made absolute in the aforesaid terms. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/