1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6589 OF 2003 Mr.Shirish Ramchandra Virkar. ...Petitioner. vs. 1.The State of Maharashtra & anr. ...Respondents. --- Mr.C.U.Singh with M.S.Topkar i/b. Anilkumar R.Joshi, for Petitioner. Mr.A.H.Palekar, AGP for Respondent no.1. Mr.N.V.Bandivadekar, for Respondent no.2. --- CORAM: D.K.DESHMUKH & J.H.BHATIA, JJ. DATED: 29th April,2008. P.C.:- 1. By this petition, the petitioner challenges the order dated 10.9.2003 passed by the Maharashtra Administrative Tribunal in Original application 2 no.1128 of 2001. By that order, the Maharashtra Administrative Tribunal had set aside the order dated 22.6.2001 passed by the Government of Maharashtra granting deemed date of promotion to the petitioner in Senior Class I. The deemed date was fixed as 23.1.1986. That order was challenged by the present respondent no.2 Mr.Vitthal Ambaji Gaikwad. 2. The facts that are material and relevant are that the respondent no.2 Mr.Gaikwad joined the Dairy Development department as Quality Control officer on 22.6.1979 after he was selected by the Maharashtra Public Service Commission. He was promoted from Junior Class-I to Senior Class-I officer in January,1986. The petitioner on the other hand on his selection by Maharashtra Public Service Commission was appointed as Class-I Junior officer on 15.3.1979. Thus in the cadre of Junior Class-I officer, the petitioner was senior to respondent no.2. However, the respondent no.2 came to be promoted to senior class-I officer cadre in January,1986, whereas the petitioner was promoted as senior class-I officer in the year 1994. The petitioner, it appears, therefore moved the Government for grant of deemed date of promotion to 3 him. The Government by order dated 22.6.2001 gave deemed date of promotion i.e. 23.1.1986 to the petitioner in Senior Class I Grade. The consequence of granting of deemed date of promotion to the petitioner was that in the cadre of Senior Class I officer, the petitioner became senior to respondent no.2. The respondent no.2 filed original application no.1128 of 2001 challenging the order of the Government giving deemed date of promotion to the petitioner. Perusal of the order dated 22.6.2001 shows that a meeting of the departmental promotion committee was held on 31.7.1985. In that meeting the name of the petitioner was not considered for promotion to Senior Class-I post because his name was not included in the seniority list of officers in Junior Class I at that time. In the seniority list prepared on 6.6.1988 which was showing position of the officers in Junior Class I as on 1.4.1987, the name of the petitioner was not included, therefore, he was not considered. As the name of respondent no.2 was included in the list, he was considered and was promoted in January,1986. As the Government found that the petitioner was entitled to be considered for promotion in the year 1985 itself and he was erroneously excluded from consideration, a meeting of 4 the departmental committee was held on 6.12.1996 to consider the case of the petitioner for promotion in the year 1985. The D.P.C. however, found that the petitioner was not fit for promotion in the year 1985 because there were adverse remarks recorded in his confidential report for the year 1979-80. The petitioner, it appears, made representation against those adverse remarks and those adverse remarks were expunged by letter dated 17.8.1999. After the adverse remarks were expunged, again D.P.C. was convened to consider the petitioner for promotion to Class I in the year 1985. This time D.P.C. Found that as a result of expunging of the adverse remarks, the record of service of the petitioner is clean and he is fit for promotion to Senior Class-I, and therefore, he was given deemed date of promotion to Senior Class-I which date was a day before his junior in Junior Class-I was promoted to Senior Class-I. In Junior Class-I, the respondent no.2 was junior to the petitioner, but as a result of his promotion to Senior Class-I, he was senior to the petitioner in Senior Class I Cadre, but now because of granting of deemed date of promotion to the petitioner in Senior Class-I, the petitioner became senior to respondent no.2 in Senior class-I. Therefore, the respondent 5 no.2 challenged the order by which the deemed date of promotion was given to the petitioner in Senior Class-I. As is evident from the order of the Maharashtra Administrative Tribunal which is impugned in the petition, the principal ground on which the order giving deemed date of promotion to the petitioner was challenged by the respondent no.2 was that the petitioner does not belong to Dairy Technology and management group. According to the respondent no.2, only those officers who belong to this group are eligible to be considered for promotion to the post of Regional Dairy Development officer, and therefore, according to the respondent no.2 as in the year 1986 the petitioner was not eligible for promotion to the Senior class I scale, the order giving him deemed date of promotion in the year 1986 is illegal. The Maharashtra Administrative Tribunal, however, by its order impugned in the petition found that there was nothing to show that only Quality control officer should have been considered as per the recruitment rules for promotion to the post of R.D.D.O., and thus, the Maharashtra Administrative Tribunal rejected the main contention urged on behalf of the respondent no.2. The Maharashtra Administrative Tribunal found that the 6 petitioner was eligible to be considered for promotion to the Senior Class I from the year 1986. Still the Maharashtra Administrative Tribunal set aside the order granting deemed date of promotion to the petitioner. 3. We have heard the learned Counsel appearing for both the sides. The respondent no.2 had challenged the order granting deemed date of promotion to the petitioner on the ground that the petitioner was not eligible for being considered for promotion. That contention has been rejected by the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal has observed that “The Government thought it fit to rectify the injustice and include their names only in the 1987 select list. There was a policy decision about the inclusion of all direct recruit District Dairy Development officers for being considered in the 1985 select list.” It is to be seen that even the Maharashtra Administrative Tribunal has found that the seniority list was prepared in the year 1988 as on 1.4.1987 and in that list the name of the petitioner was not included though he was entitled to have his name included in that list. The petitioner, therefore, was 7 entitled to be considered alongwith his junior i.e. Respondent no.2 in the Junior Class-I and the Government therefore, directed the consideration of the petitioner in the year 1985 on the basis of his record of service. The Departmental Promotion committee was duly constituted for that purpose and on the basis of his service record D.P.C. Found him fit for promotion in 1985 and therefore, he was given deemed date of promotion so that he does not remain junior to the persons who were recruited as Class I Junior officer after him. In our opinion, therefore, the learned Counsel appearing for petitioner was right in submitting that the Tribunal was not justified in going into the proceedings of departmental promotion committee to find out whether the petitioner was fit for promotion as on 1985. Whether an officer is fit for promotion or not is a matter solely within the jurisdiction and domain of the Departmental Promotion Committee and the Maharashtra Administrative Tribunal should not have substituted itself in the place of the Departmental Promotion Committee to assess the record of the petitioner. In the absence of any allegations of any malice against the member of the Departmental promotion Committee, the Maharashtra Administrative 8 Tribunal was not justified in substituting its opinion for the opinion of the Departmental Promotion Committee. As the Maharashtra Administrative Tribunal itself has observed in its order that the main submission of the respondent no.2 was that the petitioner was not eligible for consideration for promotion and once the Maharashtra Administrative Tribunal found that the contention of the respondent no.2 was not acceptable, in the absence of any allegations of malice, the Maharashtra Administrative Tribunal should not have gone into the proceedings of Departmental Promotion committee to find out whether the decision of the Departmental Promotion Committee that the petitioner was fit for promotion in the year 1985 on the basis of his record of service. In the result, therefore, the present petition succeeds and is allowed. The order of the Maharashtra Administrative Tribunal impugned in the petition is set aside. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (J.H.BHATIA, J.) 9 ---