SMITA GANGARAM ZAGADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Since both these Writ Petitions raise a challenge to the judgment dtd. 28/8/2023 passed by the Maharashtra Administrative Tribunal in Original Application No.990 of 2022, they have been heard together and are being decided by this common judgment.

(2.) The petitioner in Writ Petition No.12560 of 2023 - Smt. Smita Gangaram Zagade, (for short, referred to as "Smt. Zagade"), came to be appointed as Additional Commissioner at the Pimpri-Chinchwad Municipal Corporation under provisions of Sec. 39A of the Maharashtra Municipal Corporations Act, 1949 (for short "Act of 1949") vide order dtd. 13/9/2022. Shortly thereafter on 22 nd September 2022, the order dtd. 13/9/2022 issued in her favour came to be cancelled and on the same day the petitioner in Writ Petition (Stamp) No.26314 of 2023 - Shri. Pradip Bapurao Jambhale-Patil, (for short, referred to as "Shri. Jambhale"), came to be appointed on the post of Additional Commissioner, Pimpri-Chinchwad Municipal Corporation. Smt. Zagade being aggrieved by the order dated 22 nd September 2022 cancelling her appointment preferred Original Application No.990 of 2022. Initially, the Tribunal decided the Original Application on 17 th February 2023 and allowed the same. Shri. Jambhale being aggrieved by the said order preferred Writ Petition No.2323 of 2023. By the judgment dtd. 3/5/2023, the writ petition was allowed by setting aside the order passed by the Maharashtra Administrative Tribunal principally on the ground that the Original Application ought to have been decided by the Division Bench. After remand, the Division Bench held that though the impugned order dtd. 22/9/2022 cancelling the appointment of Smt. Zagade as Additional Commissioner was without assigning any reasons, since her initial appointment as made on 13 th September 2022 was the outcome of an arbitrary exercise of executive powers by the Competent Authority, it was not inclined to set aside the order dated 22 nd September 2022. It observed that doing so would result in sustaining the arbitrariness in the aforesaid executive action. Further the Tribunal also observed that it was necessary for the Urban Development Department to undertake appointments under Sec. 39A of the Act of 1949 by following the modalities enumerated under the Government Resolution dtd. 6/1/2015. Since the same was not done, the Urban Development Department was directed to review the period of deputation of Shri. Jambhale and subject to meeting the standards of eligibility he was permitted to continue on the post of Additional Commissioner. . Smt. Zagade being aggrieved by the dismissal of the Original Application on 28/8/2023 has challenged the said judgment of the Tribunal. Similarly, Shri. Jambhale being aggrieved by the observations made in paragraph 38 of the said order has also challenged the said order to that extent.

(3.) Shri. Virendra Tulzapurkar, learned Senior Advocate for Smt. Zagade submitted that in the Original Application, the challenge was raised to the order of cancellation of the petitioner's appointment dtd. 22/9/2022. Despite recording a finding in paragraph 37 of the impugned order that the order of cancellation was without assigning any reasons, the Tribunal failed to set aside the said unreasoned order. It ought to have seen that the initial order of appointment of Smt. Zagade dtd. 13/9/2022 was not under challenge before the Tribunal. Despite aforesaid, the Tribunal failed to direct the Urban Development Department to implement the order dtd. 13/9/2022 after setting aside the order of cancellation of appointment on 22 nd September 2022. It was further submitted that the petitioner was not put to notice by the Tribunal that it intended to examine the validity of the initial order dtd. 13/9/2022. As a result, there was no opportunity for the petitioner to support that order which resulted in prejudice being caused to her. If the Tribunal intended to examine the validity of the order dtd. 13/9/2022, which was not under challenge, it ought to have give due notice to the parties of the same. In that regard, reliance was placed by the learned Senior Advocate on the following decisions of the Supreme Court :