K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2266 OF 1999 WRIT PETITION NO.2266 OF 1999 WRIT PETITION NO.2266 OF 1999 Satish Chandra Mairh )..Petitioner Vs. The Union of India & Anr. )..Respondents ---- Mr.S.S.Pakale for the petitioner. Mr.S.M.Shah with Mrs.S.V.Bharucha i/by Dr.T.C.Kaushik for respondent no.1. Mrs.Lata Desai for respondent no.2. ---- Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 22.4.2009. Judgment :- ( Per : R.S.Mohite,J) 1. By this petition the petitioner impugns an order dated 9.7.1999 declining to grant him promotion. The said order is based upon a decision of a Departmental Promotion Committee held on 8.7.1999, by which decision the Departmental Promotion Committee concluded that the present petitioner was not fit to be promoted. 2. The brief facts of the case are as under :- (a) The petitioner was appointed by the 2nd respondent as a Technical Officer on 2.8.1976. In due course, he was promoted to the post of Assistant : 2 : Director. While he was so serving, in view of an departmental enquiry to be held against him, he was placed under suspension with effect from 8.7.1985. The said suspension was revoked by an order dated 21.7.1987 but he was again placed under suspension vide order dated 5.10.1987. On the conclusion of the enquiry, the petitioner was removed from service by an order dated 11.8.1989. (b) The petitioner challenged the order removing him from service by filing a Writ Petition being Writ Petition No.1784 of 1990 in this Court. By a judgment and order dated 21.9.1994, the said Writ petition was decided in his favour. The order passed by the Disciplinery authority was quashed. The respondents were directed to forthwith re-instate the petitioner in service with full back wages and continuity of service. The judgment further directed that the period of suspension was to be treated as a period on duty. (c) Subsequently, the petitioenr filed a 2nd Writ petition being Writ Petition No.487 of 1999 contending that during the period when he was under suspension, two promotion opportunities had arisen in the years 1989 and 1991 and the promotional posts had been filled in. His contention was that in view of the judgment and order passed in his previous Writ petition, he should be given an opportunity of : 3 : being considered for these promotional posts. His grievance was that on these occasions, persons junior to him had been promoted. This Writ petition also came to be allowed in favour of the petitioner by a judgment and order dated 23.4.1999 and the respondents were directed to consider the case of the petitioner for promotion in accordance with the procedure that was followed for finalising the promotions in the years 1989 and 1991. It was further directed that in case the Promotional Authority came to the conclusion that no post was available, a supernumerary post should be created. (d) The record indicates that subsequent to this decision, a meeting of the Departmental Promotion Committee was held on 8.7.1999 and ultimately by the impugned order dated 9.7.1999 the petitioner was informed that in the meeting of the departmental promotion committee held on 8.7.1999, his claim for promotion had been considered and rejected. In such circumstances, the petitioner filed this Writ Petition challenging the order dated 9.7.1999. 3. On perusing the reply of one Mr.K.B.Saxena, Joint Director, it is seen that it is the case of the respondents that when the departmental promotion committee considered the case of the petitioner, his claim was rejected on the basis of material specified in paragraph-5 of the affidavit in reply. : 4 : It is seen that the material which was considered included the Confidential Reports of the petitioner for the years 1995, 1996, 1997, 1998 & 1999. 4. In our view, since the Departmental Promotion Committee was to consider the claim of the petitioner for promotion due in the year 1989 and 1991 and since it is a common ground that they were required to consider his record for the period of 5 years, they ought to have considered the petitioner’s service record for a period of five years prior to 1989. They could not and ought not to have considered the Confidential Reports of the petitioner for a period subsequent to the years in which the promotion was due. Consideration of such material in our view, would vitiate to finding of the Departmental Promotion Committee and would also consequently vitiate the impugned order dated 9.7.1999 communicated to the petitioner. 5. In this view of the matter, the petition deserves to be allowed in terms of prayer clause-(A). However, while quashing and setting aside the order dated 9.7.1999, we find that this is a fit case where the Respondents should be directed to re-consider the claim of the petitioner for promotion in the years 1989 & 1991 in accordance with the judgment of this Court passed in Writ Petition No.487 of 1999 and after considering : 5 : available material for a period prior to the year in which the petitioner’s claim is being considered, in accordance with law. It is further directed that the procedure for holding the departmental promotion committee, taking the decision and communicating the same to the petitioner should be completed within a period of 12 weeks from today. 6. Rule made absolute in the aforesaid terms with no order as to costs. (D.K.Deshmukh,J) (D.K.Deshmukh,J) (D.K.Deshmukh,J) (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)