Girish Kumar vs State Of Maharashtra

3. The facts leading to the present appeal in nutshell are as under:

That thereafter he was exonerated in departmental enquiry on 15.6.2006. That thereafter he was promoted as Senior Assistant on 1.7.2006. However, in view of the fact that he was exonerated in departmental enquiry, considering Rule 5 of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 (hereinafter referred to as the ‘Seniority Rules, 1982’), Respondent No.3 was 2 granted 6.11.1999 as deemed date of promotion as Senior Assistant, i.e., the date on which his junior Govind Jerale was promoted as Senior Assistant. It appears that thereafter on 22.10.2007, respondent no.3 was promoted as Office Superintendent. The Divisional Commissioner granted to respondent no.3 07.10.2005 as deemed date of promotion as Office Superintendent. As Respondent No.3 was placed in the higher position in the seniority list above the appellant herein, he was consequently promoted as Section Officer by respondent no.2, vide his order dated 1.2.2008.

3.1 Being aggrieved by the aforesaid order of promotion promoting respondent no.3 herein to the post of Section Officer, the appellant initially preferred writ petition before the High Court. However, the said writ petition came to be disposed of by the High Court with liberty to the appellant to approach the Additional Divisional Commissioner, Aurangabad for redressal of his grievance. It appears that thereafter the appellant preferred appeal bearing no. DB/Appeal/Cell/7/2009 before the Additional Divisional Commissioner, Aurangabad on 05.11.2008. It was the case on behalf of the appellant that the eligibility criteria as per the Maharashtra Zilla Parishads District Services (Recruitment) 3 Rules, 1967 (hereinafter referred to as the ‘Recruitment Rules, 1967’) for the post of Section Officer was ‘continuous service of not less than three years’ in the grade of Office Superintendent and respondent no.3 never completed his continuous service of not less than three years on the post of Office Superintendent, he was not eligible for promotion to the post of Section Officer. That vide order dated 20.05.2010, the Additional Divisional Commissioner, Aurangabad allowed the said appeal preferred by the appellant herein and quash and set aside the order of promotion of respondent no.3 to the post of Section Officer. 3.2 Being aggrieved by the order passed by the Additional Divisional Commissioner, Aurangabad dated 20.05.2010, respondent no.3 preferred Writ Petition No. 5437 of 2010 before the High Court. That by judgment and order dated 29.06.2010, a learned Single Judge of the High Court allowed the said writ petition and set aside the order passed by the Additional Divisional Commissioner, Aurangabad dated 20.05.2010 and consequently confirmed the order of promotion of respondent no.3 dated 1.2.2008.

10. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are hereby quashed and set aside and the order passed by the Additional Divisional Commissioner, Aurangabad dated 20.05.2010 is hereby restored and it is held that respondent no.3 is not entitled to be promoted to the post of Section Officer and instead action should be taken to promote the appellant to the post of Section Officer, as directed by the Additional Divisional Commissioner, Aurangabad. However, in the facts and circumstances of the case, there shall be no order as to costs.