1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1166 of 1998 CHAOOSH SHAIHKH MUZZAMMIL S/O. CHAOOSH SHAIKH SALUM, AGED 41 YEARS, OCC. GOVERNMENT SERVANT C/O. DISTRICT AND SESSIONS COURT, NANDED DISTRICT NANDED. Petitioner Versus 1] THE STATE OF MAHARASHTRA 2] HIGH COURT OF JUDICATURE, APPELLATE SIDE, MUMBAI THROUGH HON'BLE REGISTRAR, FORT,MUMBAI. 3] DISTRICT AND SESSIONS JUDGE, NANDED 4] PRAKASH S/O. VINAYAK GOTTIMUKUL AGED 44 YEARS, OCC. GOVERNMENT SERVANT C/O. DISTRICT AND SESSIONS JUDGE, NANDED. Respondents Mr. G.R. Syed, Advocate for the petitioner Mr. N.B. Khandare, Govt. Pleader for respondent No.1 Mr. S.P. Shah, Advocate holding for Mr. P.M. Shah, Senior counsel for the respondent No.4. CORAM : B.R. GAVAI & S.V. GANGAPURWALA,JJ. DATE : 29TH July, 2010. ORAL JUDGMENT [ PER B.R. GAVAI, J] : 1] The petitioner was initially appointed as a Stenographer Lower Grade by the respondent No.3 on 25th September, 981. The 2 respondent No.4 was already in the appointment of the respondent No.3 having been appointed as a Stenographer (Lower Grade) vide order dated 18th December, 1979. The respondent NO.4 was given conditional promotion to the post of Stenographer (Higher Grade) on 16th February, 1989 by the respondent No.3 on the condition that the respondent No.4 shall produce the certificate of passing the examination of 120 W.P.M. Within six months or else, he would be reverted. 2] The petitioner, thereafter represented to the respondent No.3 stating therein that the respondent No.4 did not comply with the order dated 16th February, 1989. The respondent No.3, thereafter decided to hold the test for promotion to the post of Stenographer Higher Grade. Subsequently, the post of Personal Assistant to the District Judge became vacant and the petitioner claimed promotion to the said post. Again, vide order dated 25th June, 1996, temporary promotion was given to the respondent No.4 on the post of Personal Assistant to District Judge. The petitioner again made representation to the respondent No.3 to verify the qualification of the respondent No.4. The respondent No.3 informed the petitioner on 16th October, 1996 that the representation of the petitioner stands rejected. Again, on 27th March, 1997, the petitioner applied to the respondent No.3 claiming promotion to the post of Personal Assistant to District Judge. After the representation of the petitioner, the respondent No.3 issued notice to the respondent No.4 calling upon him to show cause as to whether he had complied with the order of the respondent No.3 dated 16th February, 1989 and if not, why should he not be reverted to the post of Stenographer 3 (Lower Grade). By order dated 22nd April, 1997, the respondent No.4 reverted the respondent No.4 to the post of Stenographer (Lower Grade) and promoted the petitioner as Personal Assistant to District Judge and granting him deemed date of promotion w.e.f. 16th February, 1989. Aggrieved thereby the respondent No.4 preferred an appeal thereagainst to the respondent No.2. The appeal was allowed vide order dated 10th December, 1997. In pursuance to the order passed by the appellate authority, the respondent No.3 withdrew the benefit which was granted to the petitioner . Aggrieved thereby, the petitioner has filed the present petition. 3] Shri Katneshwarkar, learned counsel for the petitioner submits that, the learned District Judge had, after considering that the petitioner was duly qualified, rightly passed an order on 22nd April, 1997 promoting the petitioner as Personal Assistant to District Judge. He submits that the respondent No.2 in an appeal filed by the respondent No.4, wherein the petitioner was not made a party, has passed an order which is adverse to the interest of the petitioner. It is, therefore, submitted that the order passed by the appellate authority needs to be set aside and the order passed by the learned District Judge, promoting the petitioner as Personal Assistant to District Judge, needs to be restored. 4] Shri Khandare, learned Govt. Pleader appearing on behalf of the respondent No.1 on the contrary submits that the petitioner has taken voluntary retirement in the year 2001 i.e. on 21/12/2001. It is submitted that since the petitioner has taken voluntary retirement, he is deemed to have given up all the benefits 4 and , therefore, the claim of the petitioner does not survive. 5] Shri Subodh Shah, learned counsel appearing for the respondent No.4 submits that the respondent No.4 has also now retired from the service and no fault could be could be found with the order passed by the appellate authority. 6] Undisputedly, in the appeal, which was filed by the respondent No.4 the order came to be passed by the respondent No. 2 without giving an opportunity of hearing to the petitioner. Undisputedly, as a sequel of the order passed by the appellate authority, the benefit which was given to the petitioner vide order dated 22nd April, 1997 has been withdrawn by the order dated 10th December, 1997. We are, therefore, of the considered view that in consonance with the principles of natural justice, the appeal which was filed by the respondent No.4 without impleading the present petitioner as party respondent, itself was bad in law for non-joinder of necessary parties. In any case, the appellate order, which has resulted in adverse civil consequences to the petitioner, could not have been passed without affording an opportunity of hearing to the petitioner. The Division Bench of this court considering the rules which govern the present case, in the matter of “ Anil Vs. District and Sessions Judge” reported in 2002(3) Mh.L.J. 750 has held that the appellate authority is required to pass an order after giving an opportunity of hearing to the parties concerned and that the order should be a speaking one giving the reasons therefor. 7] In that view of the matter, we find that the appellate 5 order is not sustainable in law. However, by passage of time, the petitioner has already taken voluntary retirement and the respondent No.4 has also retired. The only question, therefore, remains is regarding, as to whether the petitioner was entitled to the deemed date of promotion as Personal Assistant to District Judge w.e.f. 16th February, 1989 or not, as was granted by the learned District Judge, vide order dated 22nd April, 1997. 8] We, therefore, allow the writ petition, quash and set aside the order passed by the appellate authority, remand the appeal filed by the respondent No.4 to the respondent No.2 for hearing afresh, in accordance with law. Needless to state that the claim in the appeal would be only restricted to, as to whether the petitioner is entitled to the deemed date of promotion w.e.f. 16th February, 1989 or not. . We further clarify that since the respondent No.4 has already retired in 2010 from service and has actually worked on the post on which he was promoted in pursuance to the appellate order no recovery would be directed of any monetary benefits accrued to him, even in case the present petitioner succeeds in the appeal. The appellate Authority is requested to decide the appeal within a period of six months from today. Rule made absolute in aforesaid terms, with no orders as to costs. [S.V. GANGAPURWALA,J.] [B.R. GAVAI,J.] grt/wp