Aurangabad Municipal Corporation through its Commissioner Etc. vs Jayant S/o Sarvottamrao Kharwadkar Etc. & Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8908-8910 OF 2019 (Arising out of SLP(C) No.12636-12638 of 2015)

AURANGABAD MUNICIPAL CORPORATION THR. ITS COMMISSIONER ETC. ..APPELLANT(S)

VERSUS

JAYANT S/O SARVOTTAMRAO KHARWADKAR ETC. & ORS. .. RESPONDENT(S)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J.

1 Delay condoned.

2 Leave granted.

3 These appeals arise from three decisions of the High Court of

Judicature at Bombay:

(i) An order dated 20 October 2012 allowing a review petition arising from its judgment dated 29 September 2003 by which the writ petition filed by the first respondent was dismissed;

(ii) A judgment dated 12 June 2014 by which the writ petition filed by the first respondent was allowed; and Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2019.12.07

(iii) An order dated 13 February 2015 dismissing the review 10:29:47 IST

petition filed by the appellant.

Reason:

2

4. The first respondent was appointed as a Junior Engineer in the

Engineering Department of Aurangabad Municipal Corporation on 27 July

1985. On 11 May 1988, he was transferred to the Planning Department on

a temporary basis in the post of Planning Assistant. In the seniority list

which was published on 12 July 1982 and 16 March 1992, the seniority of

the first respondent was shown as a Planning Assistant in the Town

Planning Department with a remark that he had opted for the cadre of

Planning Assistant from 11 May 1988.

5. Recruitment rules for various posts in the Municipal Corporation

were published, on being approved by the State government under Section

455(i) of the Bombay Provincial Municipal Corporations Act, 1949 under a

Government Resolution dated 16 May 1994.

6. The Schedule to the recruitment rules, includes the post of Junior

Engineer/Assistant Engineer/Sectional Engineer at serial No.15 and the

post of Town Planning Assistant at serial No.36.

7. The first respondent was transferred from the Town Planning

Department as a Junior Engineer in the Water Supply Department on

13 June 1995. Between July 1996 and September 1997 he was deputed to

work with the Minister of Transport. He was repatriated to the Town

Planning Department in September 1997. On 25 September 1997, the first

respondent was deputed as Assistant Town Planner in the Town Planning

Department. After the Municipal Corporation converted the post of 3

Administrative Officer to that of Town Planner, the first respondent was

promoted on 29 June 1998 on probation to the post. On 24 May 1999 he

was confirmed as a Town Planner.

8. A writ petition was filed before the Bombay High Court by Sakharam

Dhondiba Panzade1 challenging the promotion which was granted to the

post of Deputy Engineer in the Engineering Department. The respondent

was not a party to the proceedings. The High Court, by a judgment and

order dated 3 August 2001, set aside the promotion orders of the second

and third respondents and issued the following direction:

“...We direct the Municipal Corporation to reconstitute the selection committee to consider the case of the petitioner along with all eligible Sectional/Junior Engineers as in August 1989, for the post of Dy.Engineer, on the basis of the principles of seniority cum merit afresh and all the vacant posts, at that time, shall be filled in accordingly. If any of the respondents are not found to be eligible for promotion by the selection committee constituted pursuant to this order, no recovery shall be made from their salaries as they have already worked in the higher post. In case the petitioner is found to be eligible for promotion, he shall be given a deemed date of promotion with effect from 3rd of August, 1989 and his seniority in the post of Dy. Engineer shall be counted from that date. The newly constituted selection committee to complete the selection process for the post of Dy.Engineer as expeditiously as possible and in any case within two months from today.”

9. A final seniority list of diploma holding engineers was published in

which the first respondent was shown at serial No.13 as Sectional Engineer

as on 1 January 1995 (w.e.f. 27 December 1990). Thereafter, on

13 August 2002 a provisional seniority list of Deputy Engineers was

1WP No.2156/1988 4

published in which the first respondent was shown as a Deputy Engineer

w.e.f. 7 December 1998. An objection was raised to the seniority list. The

Municipal Commissioner by an order dated 27 August 2002 issued a final

seniority list by deleting the name of the first respondent on the ground that

the Town Planning Department to which the first respondent belonged is a

separate department. However, on the very next day (27 August 2002), an

order was passed by the Municipal Commissioner reverting the first

respondent to the post of Sectional Engineer. This purportedly was in

compliance with the order passed by the High Court in Writ Petition

No.2156/1988.

10. The order of reversion was challenged by the first respondent before

the High Court. On 29 September 2003; the High Court rejected the writ

petition with the following order:

“Heard Shri V.J. Dixit the learned counsel for the petitioner, who has assailed the order dated 28.8.2002, passed by the Commissioner, Municipal Corporation, Aurangabad, by which the promotion granted in favour of the petitioner as per the General Body resolution No.223/2, dated 20.04.2000 was cancelled and from the post of Town Planner he was brought back to the post of Sectional Engineer.

Admittedly the resolution dated 20.4.2000 was in utter disregard to the principal of seniority-cum-merit for granting promotion to a post in Class II from a post in Class III. This was made known to the Corporation vide our judgment dated 3.8.2001 in Writ Petition No.2156/1988. The Corporation has accordingly reconsidered all the promotions granted to Class II posts and as per our directions, fresh promotion orders have been issued, which were also challenged in Writ Petition No.1535/2002. The said petition was decided by us on 1.8.2003.

The prayer made in this petition is substantially challenging the impugned order dated 28.8.2002.

5

We are satisfied that the promotion granted to the petitioner to the post of Town Planner was itself illegal inasmuch as it was in violation of the principle of seniority-cum-merit and, therefore, no fault could be found with the impugned order.

We also clarify that so far as the seniority of the petitioner is concerned, the same has to be considered from the initial date of joining under the Corporation and in the respective categories along with other candidates holding the same qualifications and equivalent posts. If the petitioner feels that he should be retained in the Town Planning Department in the post he held prior to the resolution dated 20.04.2000, he may make such a representation to the Commissioner and the same shall be considered on its own merits. Petition is rejected summarily save and except the directions set out earlier.”

11. A Special Leave Petition filed by the respondent was dismissed on

17 October 2003 by this Court 2. A review petition was filed by the first

respondent. The review petition was allowed by the High Court on

20 October 2012. Thereafter on 12 June 2014, the writ petition was allowed

on merits. A petition by way of review which was moved by the appellant was

dismissed on 13 February 2015. This has given rise to the proceedings

before this Court in these appeals.

12. While issuing notice on the Special Leave Petitions, this Court had by

an order dated 17 April 2015 stayed the operation of the order of the High

Court.

13. Assailing the order of the High Court, the Municipal Corporation

urged before this Court that upon the dismissal of the Special Leave Petition

against the order of the High Court on 29 September 2003 a review was not

2 SLP (C) No.18986 of 2003 6

maintainable. On merits, the judgment of the High Court has been assailed

on several grounds. In the view which we propose to take, it may not be

necessary to consider these grounds at this stage.

14. The submissions urged in support of the appeals by Mr.Sudhanshu

S. Choudhari, learned counsel have been countered by Mr.C.U.Singh,

learned Senior Counsel. Mr.Singh urged that the appointment of the first

respondent in the Town Planning Department since 1988 has not been called

in question as is evident from the fact that the seniority lists since July 1989

reflect the name of the first respondent in the Town Planning Department.

Moreover, it was submitted that the first respondent was promoted as an

Assistant Town Planner on the completion of five years in terms of a GO

dated 7 July 1997 and as Town Planner on 29 June 1998. Subsequently, the

first respondent was confirmed as Town Planner. Mr.C.U.Singh submits that

the proceedings before the High Court in Writ Petition No 2156/1988 had no

relevance to the appointment of the first respondent to the Town Planning

Department nor was his promotion as Town Planner in issue. The first

respondent was not a party to the writ proceedings which dealt with a dispute

over promotion as between three persons in the Engineering Department.

Hence it was urged that the decision of the High Court dated 3 August 2001

had no bearing on the service of the first respondent in the Town Plannnig

Department. On 27 August 2002, the Municipal Commissioner passed an

order clarifying that the name of the first respondent would be deleted

from the seniority list of the Engineering Department since his name was 7

borne on the cadre of the Town Planning Department. Despite this position, it

has been urged that on the very next day, the Municipal Commissioner

proceeded to revert the first respondent, without affording to him an

opportunity of being heard. On the maintainability of the review petition,

Mr.Singh urged that since the order passed by this Court in the Special Leave

Petition was a non speaking order, a review petition was maintainable having

regard to the settled principles of law that hold the field. Moreover, the

Municipal Corporation accepted the order in the review dated 20 October

2012 and urged submissions on the merits of the petition and it was only

thereafter, upon the declaration of the judgment on 12 June 2014 and the

rejection of the review petition that this Court was moved under Article 136 of

the Constitution.

15. For the purpose of the present appeals, we have proceeded on the

basis that the order passed by this Court in the Special Leave Petition on

17 October 2003 did not foreclose the avenue of a review petition which was

open to the first respondent. By the order passed by this Court, the Special

Leave Petition was not entertained. Neither was leave granted nor was there

any expression of reasons which would suggest that the view which weighed

with the High Court was affirmed by this Court in the course of disposal of the

Special Leave Petition. In that view of the matter, a petition by way of review

was maintainable.

16. The order passed by the Municipal Commissioner on 28 August 2002 8

suffers from a fundamental error. The Municipal Commissioner’s decision to

revert the first respondent from the post of Town Planner which he had held

since his appointment on probation on 29 June 1998 and after his

confirmation in service on the completion of probation on 29 May 1999 was

without hearing the respondent. Reversion of an employee is a matter of

substantive prejudice. Hence there can be no gainsaying the fact that an

opportunity of being heard is required to be afforded before an order or

reversion is passed. The Municipal Commissioner on 27 August 2002 issued

an order deleting the name of the first respondent from the seniority list of

Deputy Engineers, noting that the Town Planning Department to which the

first respondent belongs was a distinct department of the Municipal

Corporation. The reversion of the first respondent from the post of Town

Planner was without furnishing either a notice to show-cause or an

opportunity of being heard to the first respondent. This is manifestly contrary

to law. The order dated 28 August 2002 ought to have been set aside on that

ground alone. In this view of the matter, it was unnecessary for the High

Court to delve into several facets that have entered into the decision which

has been ultimately rendered by the High Court.

17. Hence, we are inclined to quash and set aside the order passed by

the Municipal Commissioner on 28 August 2002 on the ground that the order

was passed in manifest violation of principles of natural justice. We order

accordingly. Hence, it is unnecessary for this Court to enter upon the

reasons which have weighed with the High Court. Since the order of 9

reversion has been set aside on the above ground, we clarify that it will be

open to the Municipal Corporation to take recourse to its remedies in

accordance with law and, in that event, none of the reasons which are

contained in the impugned decision of the High Court shall be regarded as

binding or an adjudication of the rights and contentions of the parties.

18. Learned counsel, however, submitted that in the event that the

Municipal Corporation seeks to initiate action, some time schedule may be

laid down for the early completion of the proceedings so as to obviate the

future prospect of the first respondent being left in a state of uncertainty.

19. We clarify that it would be open to the first respondent to initiate

steps within a period of two months from the receipt of a certified copy of this

order and to complete the process within a period of four months from today.

20. The appeals are accordingly allowed to the aforesaid extent. The

order of the Municipal Commissioner dated 28 August 2002 is quashed and

set aside. There shall be no order as to costs.

.......................................................J. [Dr Dhananjaya Y Chandrachud]

.......................................................J. [Ajay Rastogi]

New Delhi;

November 21, 2019 10

ITEM NO.2 COURT NO.8 SECTION III S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s).8908-8910/2019 (Arising out of SLP (C) No.12636-12638/2015)

AURANGABAD MUNICIPAL CORPORATION THR. ITS COMMISSIONER ETC. APPELLANT(S)

VERSUS

JAYANT S/O SARVOTTAMRAO KHARWADKAR ETC. & ORS. RESPONDENT(S)

Date : 21-11-2019 These appeals were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE AJAY RASTOGI

For Appellant(s) Mr.Sudhanshu S. Choudhari, AOR Mr.Yogesh Kolte, Adv.

Mr.Mahesh P. Shinde, Adv.

For Respondent(s) Mr.C.U.Singh, Sr.Adv.

Mr.Suresh Pandey, Adv.

Mr.Mayank Pandey, Adv.

Ms.Bharti Chawla, Adv.

Mr.Nishant R.Katneshwarkar, AOR Mr.Anoop Kandari, Adv.

UPON hearing the counsel the Court made the following O R D E R

Delay condoned.

Leave granted.

The appeals are allowed in terms of the signed reportable Judgment.

Pending applications, if any, stand disposed of.

(Ashok Raj Singh) (Saroj Kumari Gaur) Court Master Court Master

(Signed reportable judgment is placed in the file)