1 mumIN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.220 OF 1994 Kailashnath P. Rajput Indian Inhabitant, residing at Staff Quarters, 2nd floor, T Ward Office Building, Devidayal Road, Mulund(West) Mumbai 400 080 ... Petitioner V/s .1 Municipal Corporation of Gr.Bombay, a statutory Corporation established under the Bombay Municipal Corporation Act, 1888 and having their office at Mahapalika Marg, Mumbai 400001 .2 Shri Sharad G.Kale, Municipal Commissioner, M.C.G.B. And having his office at Mahapalika Marg, Bombay 400 001 .3 Shri I.C.Sisodia, Officer of Special Duty attached to the Municipal Commissioner, and having his office at Municipal 2 Head quarters, Mahapalika Marg, Bombay 400 001 .. Respondents Mr.C.U.Singh,Senior Advocate i/b S.R.Pandey for Petitioner Mr.P.M.Palshikar with Ms A.K.Savla for Respondent CORAM: J.N.PATEL AND K.K.TATED, JJ. DATED: 18th July 2008 ORAL JUDGMENT : (Per K.K.Tated,J.) .1 The Petitioner filed this writ petition challenging the order of repatriation and also challenging the order of his reversion to the lower post and reversion to grant him increments which were already granted to him. .2 In the present writ petition the Petitioner under Article 14 and 226 of Constitution of India challenges the adverse remarks recorded in the Confidential History Sheets by the Respondents for the year 1991-92 and 1992-93 and also challenged the order dated 3-12-1993 rejecting the Petitioner's appeal against adverse remarks for the year 1992-93. .3 The brief facts giving rise to this petition are as under:- . The Petitioner joined the services of the 1st Respondent on 1-7-1977 as a Security Assistant in the Security Department. Thereafter the Petitioner was promoted from time to time and ultimately became Deputy Vigilance Officer (Special Duty). It is the case of the Petitioner that he 3 worked as a Security Assistant in the 1st Respondent's Security Department and showed an exceptional performance as the person in charge of various units in Bombay City, Suburbs and even outside City limits during the years 1977 to 1986. During that period the Petitioner earned several merit certificates, commendations and cash awards in recognition of his superb performance. As a result of his excellent track record of detection and investigations, as well as his unimpeachable reputation for integrity, the petitioner was specially chosen and appointed as a member of the Commissioner's Special Vigilance Squad at its inception i.e. w.e.f. 1-4-1986. The Petitioner was appointed to this Squad as Security Assistant (Vigilance) with pay and allowances of his original post, as well as a special pay of Rs.75/- per month for carrying out the vigilance duties. At the same time along with the petitioner, two other Security Assistants Shri V.R.Raorane and Shri D.A.Salunkhe were also appointed in the said vigilance squad as Assistant Vigilance Officers with one step promotion and an additional benefit of Rs.100/- per month as a special pay. .4 In or about the beginning of January 1986 the then Additional Municipal Commissioner Shri S. Ramamurthy, formed established the Commissioner's Special Vigilance Squad because of the failure of the regular Vigilance Department to detect cases of octroi evasion as also to investigate other cases of official's complicity in unlawful activities, in collusion with parties in matters of grant of permits or licenses, and cases of general nature which were against the interest of the Corporation. This crack Squad was established in view of the widespread complaints of octroi evasion, corruption, collusion by Corporation officials, and the complete inability or unwillingness of the existing Vigilance Department to detect and take action against the wrongdoers. It is the case of the Petitioner that 4 however since the Commissioner's Special Vigilance Squad was formed expressly because of the failure of the regular Vigilance Departments to curb this menace, the staff of the Special Squad naturally faced great antipathy and risk of victimisation at the hands of other vested interests, and it therefore became necessary to grant them certain special status and protections. 5. During the petitioner's tenure in working in Special Vigilance Squad, the Petitioner's outstanding performance ultimately earned him successive promotions, bringing him on par with Shri Raorane and Shri Salunkhe. In the year 1989 the Petitioner became due for promotion as Assistant Security Officer in the hierarchy of his parent department. The then Municipal Commissioner decided to continue the petitioner in the Special Vigilance Squad, where he was outperforming all others of his rank, and accordingly he was given an equivalent promotion to the grade of Assistant Vigilance Officer with special pay of Rs.100/-. 6. On or before 4-4-1990, as per the then Municipal Commissioner's order dated 4-4-1990 the Petitioner along with all other officers of the Special Unit, was given a one step promotion on the lines of the aforesaid CVC guidelines and the Anti Corruption Bureau's policy with regard to vigilance officers. This upgradation in posts was given in recognition of their outstanding performance, and as a personal privilege in lieu of the special pay which was earlier granted. Exh.A to the petition is a statement showing consistent outstanding performance of Petitioner and other persons viz. Shri S.S.Singh, Octroi Inspector and their efforts to increase in municipal revenue. 5 7. It is the case of the Petitioner that on or about 4-4-1990 an order was issued by the then Municipal Commissioner, inter alia recording therein that the Vigilance Squad, which included the petitioner, had done outstanding work in the investigation entrusted to them, by detecting octroi evasion to an extent unparalleled by other Vigilance Units. 8. It was further stated in the said order that in order that the officers working in the Special Squad have security of their tenure, they should be informed that those who were selected to join the Squad shall be on deputation for a period of five years, which was renewable subject to review of their record, and further subject to the right of the Commissioner to repatriate anyone if his performance is found to be unsatisfactory. It is specifically stated in the Commissioner's order dated 4-4-1990 that : “In order that officers working in this squad have security of their tenure, they should be informed that those who are specially selected to join this squad should be on deputation, as it were, for a period of five years, which is renewable, subject to review of their record, and further subject to the right of the Commissioner or repatriate any one back if his performance is found to be unsatisfactory. In order to attract to this job in vigilance which demands resource fullness, contacts, courage to take risk and antagonist many, officers, drawn from any department will attract the pay scale immediately higher than one in which he is placed in his own parent department, any further draw a special allowance or pay as shown below : 9. On 2-2-1991 the Municipal Commissioner recorded that one step promotions were granted as a personal privilege given to outstanding performance. It is specifically recorded in the Standing committee report/comments which is at Exh.C in the petition that “In order to give 6 some incentive to the incumbents considering their working since 1986, their knowledge and expertise in the Vigilance Cell and their outstanding performance, I have decided to give them one step promotion on the lines of incentive given to the staff i.e. ACB/CBI in Police Department. With this view, I have created the following posts in the grade and allowances stated against each of the posts for a period of six months with effect from 1st October 1990, keeping in abeyance the post shown in Col.no.5. 10. At that time all other officers of the Special Unit except Petitioner and Mr.S.S.Singh received the benefit of one step promotion. At that time Shri I.C.Sisodia, V.R. Raorane and B.H.Rayakar got benefit of one step promotion as a permanent benefit. Only the Petitioner and Shri S.S.Sing were singled out for denial of this benefit and were repatriated with withdrawal of one step promotion as well as withdrawals of increments given at that time. The Deputy Municipal Commissioner passed order dated 18-7-1992 which is as Exh.O in the petition repatriating the Petitioner to his parent Department i.e. In S.O's Department. It is stated in the said order that on Petitioner's repatriation he should be posted as Assistant Security Officer in the order of his seniority in S.O.'s Department in the grade and allowance admissible to him in the post of Assistant Security Officer. In view of the said order dated 18-7-1992 the Petitioner and one Shri S.S.Singh filed Writ Petition No.1645 of 1992 challenging the repatriation order. The 3rd Respondent and Corporation admitted the excellent work done by the Petitioner in the affidavit but stated that the repatriation was due to policy decision and further to give an opportunity to other officers to work in the Special squad. On 17-8-1992 the said writ petition was dismissed by this Hon'ble Court in view of the statement on oath that the repatriation of Mr.Singh, and the Petitioner was based on a 7 policy decision to repatriate all officers in a phased manner. The Petitioner challenged the order passed by this Hon'ble Court in Writ Petition No.1645 of 1992 by preferring an appeal. Thereafter on 18-8-1992 the Commissioner issued an office order stating therein that the repatriation of the petitioner and S.S. Singh was not to victimize them nor due to incompetence on their part but due to the policy decision to repatriate all the officers, who had worked in the Vigilance Department for fairly a long time. Thereafter on 27-8-1992 the Petitioner withdrew the Appeal No.558 of 1992 preferred by him against the order in Writ Petition No.1645 of 1992. It is the case of the Petitioner that since after withdrawal of the appeal the Corporation launched a punitive campaign of victimization against the petitioner and Shri Singh. The Corporati8on reduced the Petitioner's salary scale was reduced and the additional increment granted to him in recognition of his consistently outstanding work granted vide order dated 21-09-1990 was arbitrarily withdrawn. It is case of the Petitioner that under pretext of repatriation, the personal privilege of one step promotion and additional increment were withdrawn. Thereafter on 3-11-1992 the Petitioner received a memo, in which were mentioned certain purported adverse remarks, entered by 3rd Respondent in Confidential History Sheet for the year 1991-92. The said communication is as Exh.Z in the petition in which it is specifically stated as under :- “His performance for the period from 1-1-1991 to 31-3-1992 is far from satisfactory. He has shown interest in those cases (mostly Octroi) when his works to be appreciated. He is individualistic, and obstinate. His attendance is also far from satisfactory. His refusal or deliberate failure to carry out written orders of superior amounts to insubordination”. 8 11. Being aggrieved by the said adverse remarks in his Confidential History Sheet for the year 1991-92 the Petitioner preferred appeal dated 4-12-1992 before the Municipal Commissioner, Municipal Corporation of Gr. Bombay During the pendency of the said appeal, Petitioner received another memo dated 12-7-1992 in which it is stated that “A good officer but during the period worked in the deptt. He could not give best as for his capability”. 12. Being aggrieved by the adverse remarks the Petitioner preferred appeal dated 11-8-1993 before the Municipal Commissioner, Municipal Corporation of Gr. Bombay. It is case of the Petitioner that without giving any hearing the reviewing officer confirmed the adverse remarks by his letter dated 3-12-1993. It is the case of the Petitioner that on 2-11-1993 one Shri S.S.Singh , another officer filed Writ Petition No.2063 of 1993 against the Corporation challenging the order of repatriation and also challenging the order of his positing to lower post and refusing to grant him increments which were given to him. The said writ petition was allowed by the Hon'ble High Court by oral Judgment dated 8-3-1996. 13. Being aggrieved by the said order dated 8-3-1996 in Writ Petition NO.2063 of 1993 the Corporation preferred appeal No.943 of 1996. The said appeal was dismissed by the Division Bench consisting of Their Lordships Shri Justices R.M.Lodha and A.V.Mohta by judgment and order dated 17-11-2003. It is the case of the Petitioner that facts involved in Writ Petition NO.2063 of 1997 filed by Mr.S.S.Singh against the Respondents are similar to the present petition. 9 14. The Respondents through their Joint Chief Personnel Officer (Estt) filed affidavit in reply and opposed the reliefs claimed by the Petitioner in the above mentioned writ petition. It is the case of the Respondent that the Petitioner's appointment was on tenure basis i.e. On temporary basis. It is case of the Respondent that it is an intention to give promotion as well as inspiration and also to give an opportunity to the new employee of the corporation to work in the said vigilance cell has issued a circular to appoint the new person from the various departments in the said cell under the supervision, therefore the petitioner is rightly repatriated to his parent department. It is case of the Respondent that the Petitioner was repatriated to his parent department is tenure of deputation in the vigilance cell and hence the petitioner is not entitled for any relief as claimed and the petition filed by him is liable to be dismissed with costs. 15. At the time of hearing the Senior Counsel Mr.Singh appearing for the petitioner stated that the petitioner is not pressing prayer clause in respect of cancelling the order dated 18-7-1992 about repatriation. 16. By fair reading of the order giving one step promotion to the Petitioner shows for a period of 5 years which was renewable subject to review of their record and further subject to the right of the Commissioner to repatriate any one back if his performance is found to be unsatisfactory. The fair reading of the said order is that this order of giving one step promotion is for 5 years and is to be renewed unless the work of the petitioner found unsatisfactory. It is admitted position that the service record of this petitioner is of an excellent, Exh.A. Not only that the record of the Municipal Corporation and the affidavit filed by the Municipal Corporation itself shows that record of the Petitioner is excellent. In view 10 of this undisputed admitted position by this order is one step promotion should continue unless he is repatriated because of unsatisfactory performance only. That means if the petitioner is repatriated when his performance was satisfactory the one step promotion granted by this order cannot be snatched away from him and, therefore, any attempt to snatch away such one step promotion will be per-se illegal. 17. The Petitioner also relied on Exh.F to support the aforesaid contention. Exh.F is the order dated 10-6-1987. The subject of the circular is grant of additional increment to the Municipal employees for outstanding work. It is specifically stated in the said Circular that :- “The question of introducing such scheme for grant of additional increments by way of incentive to Municipal employees in recognition of their outstanding and meritorious work on the lines of State Government was under consideration of the Administration for some time past. The L.R.G.P. Committee the Standing Committee and the Corporation by their above Resolution have accorded their sanction to the scheme of additional increments to Municipal employees for their outstanding and exemplary services to the Corporation”. 18. Though the Petitioner filed appeal against the adverse remarks the same were not decided by the Respondent by giving fair opportunity of hearing to the Petitioner. On this ground also the Petitioner is entitled to the prayer for setting aside the adverse remarks recorded in Confidential History Sheet of the Petitioner for the year 1991-92 and 1992-93. 11 19. At the time of hearing, the learned Senior Advocate Mr. C.U. Singh relied on oral judgment dated 8-3-1996 (Coram: M.L.Dudhat,J) in Writ Petition NO.2063 of 1993. The said Writ Petition No.2063 of 1993 filed by S.S. Singh who worked with Respondent in the said cadre. The said Singh was also repatriated by the Respondent without giving any reason. Writ Petition was allowed by this Hon'ble Court. Therein the learned Single Judge states thus :- “12. In this Petition though the Petitioner in prayer (a) has challenged the impugned order dated 18-7-1992 which is at Exhibit N-1 whereby the Petitioner was repatriated to his parent department, the learned counsel Mr. Singh, confined his argument only on 4 grounds. Firstly, he contended that one step promotion which was given to the Petitioner by Exhibit 'C' which is at page 84, was given to him as a prize or reward due to the exemplary services which he has put-in in the Vigilance Department and, therefore, while repatriating him by order dated 18-7-1992 the said one step promotion cannot be snatched away from the Petitioner. Secondly, he contended that the Petitioner must be given all the consequential benefits and incentives which were attached to the post of Inspector, Vigilance on Special Duty with continuity with effect from 18-7-1992. Thirdly, the adverse remarks communicated to him vide memo dated 2-11-1992 and the impugned order in respect of the said adverse remarks dated 23-6-1993 must be quashed and set aside as the same are passed malafide against the Petitioner and fourthly, the Petitioner is entitled to get writ or injunction restraining the Respondents from proceeding or initiating any investigation / enquiries in respect of the investigations / enquiries / actions taken by the Petitioner in his capacity as an officer of the Special Vigilance Squad. Therefore, in my judgment I will dispose of this Writ Petition with reference to these 4 contentions as advanced by the learned counsel Mr. Singh for the Petitioner”. “14. By a fair reading of the aforesaid order at Exhibit 'C' it 12 is clear that this order has given one step promotion to the Petitioner with effective from 1-4-1990 for a period of 5 years which was renewable subject to review of their record and further subject to the right of the Commissioner to repatriate any-one back if his performance is found to be unsatisfactory. The fair reading of the said order is that this order of giving one step promotion is for 5 years and is to be renewed unless the work of the Petitioner found unsatisfactory. It is admitted position that the service record of this Petitioner is of an exemplary, which I will refer to in the subsequent portion of my judgment. Not only that, the record of the Municipal Corporation and the affidavit filed by the Municipal Corporation itself shows that the Petitioner's record is exemplary. In view of this undisputed admitted position by this order this one step promotion should continue unless he is repatriated because of unsatisfactory performance only. That means if the Petitioner is repatriated when his performance was satisfactory that one step promotion granted by this order cannot be snatched away from him and, therefore, any attempt to snatch away such one step promotion will be per- se illegal.” 20. In the said writ petition the prayer clauses (b), (e), (f) and (j) were allowed. They read thus :- “b. That this Hon'ble Court be pleased to issue a Writ of mandamus or a Writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondents to forthwith post the Petitioner to any post equivalent to the post of Inspector (Vigilance) Special Duty with continuity from 18-7-1992 and to grant him all the consequential benefits and incentives attached to the said post; e. That this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, to quash and set aside the impugned adverse remarks communicated vide memo dated 2-11-1992 13 and the impugned appellate order in respect thereof dated 23-6-1993, copies of which are annexed at Exhibits 'W' and 'Z' hereto; f. That this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 227 of the Constitution of India, directing the Respondents to forthwith restore to the Petitioner the special or additional increment granted to him vide circular dated 18-7-1991 and to pay the Petitioner all arrears on account of wrongful withholding of the said increment with effect from 19-7-1992. j. That this Hon'ble Court be pleased to restrain the Respondents by a permanent order of injunction and stay from proceedings with or initiating any investigations or enquiries in respect of the investigations / enquiries / actions taken by the Petitioner in his capacity as an officer of the Special Vigilance Squad.” 21. After going through the said Judgment dated 8-3-1996, we feel that above mentioned Writ Petition is squarely covered by the said judgment. The said judgment dated 8-3-1996 in Writ Petition No.2063 of 1993 was challenged by the Municipal Corporation by preferring Appeal No.943 of 1996. The said Appeal No.943 of 1996 was dismissed by Division Bench consisting of Their Lordships Justice R.M. Lodha and Justice A.V. Mohta on 17-11-2003. At the time of dismissing of the said appeal, the Appellate Court in para 6 held that :- “We asked the learned counsel for the Appellants about the present post on which the Petitioner is working. But the learned counsel for the Appellants submitted that she had no instructions in that regard. Be that as it may, we find that even if it is held that repatriation of the Petitioner to his parent Department vide order dated 18th July, 1992 was 14 proper, there was no justification for withdrawal of the one step promotion in the grade Rs.1490 – Rs.2290 plus usual allowances given to the Petitioner by order dated 4th April, 1990. The benefits given to the Petitioner vide order dated 4th April, 1990 were for his outstanding performance of duties and the work entrusted to him. The order dated 4th April, 1990 itself suggests that the duties discharged by the Petitioner were exemplary and he deserved the pay scale immediately higher than the one which he held in the parent department. It was in this background that the Petitioner was appointed as Supervising Inspector, Vigilance. The order itself noted that the said order was to be effective from 1st April, 1990 as the post did not carry scale of Executive Engineer. The learned single Judge cannot be said to have erred in holding that the order dated 4th April, 1990 by which one step promotion was given to the Petitioner could not have been withdrawn unless the work of the Petitioner was found unsatisfactory. The one step promotion given to the Petitioner was to continue despite repatriation unless he was repatriated because of unsatisfactory work. From the material which was available with the learned single Judge, it was rightly opined by him that one step promotion was earned by the Petitioner by long outstanding performance of his duties and such increment could not be taken away from the Petitioner except by way of penalty imposed in the departmental enquiry. There is no merit in the contention of the learned Counsel for the Appellants – original Respondents that one step promotion and increment given to the Petitioner was temporary and was capable of withdrawal on repatriation. We concur with the finding of the learned single Judge that Petitioner was entitled to continue with the one step promotion and increment on the basis of meritorious service. As regards expugntion of adverse remarks in confidential record, the learned single Judge has rightly held that the aforesaid remarks pertained to the period from 1-1-1991 to 31-3-1992 and at that time Petitioner's services were highly appreciated. As a mater of fact in the affidavit filled on 31st July, 1992 before this Court by the Appellants herein, while contesting Writ Petition No. 3422 of 1990 it was stated that the Petitioner was taken in Vigilance Unit on 15 account of his outstanding performance, integrity and