BAPU S/O NAMDEVRAO GAIKWAD Vs. VICE CHAIRMAN AND THE MANAGING DIRECTOR, MAHARASHTRA ROAD TRANSPORT CORPORATION

JUDGEMENT

(1.) The petitioner - employee has challenged by this Writ Petition the order of promotion dated 30.1.1993 whereby, the respondent Nos.1 and 2 promoted the original respondents No.4 to 6 as Divisional Controllers. Subsequently because of impossibility of effecting service upon respondent Nos.4 to 6, they have been deleted as per orders dated 11.10.2007 and 30.01.2009, passed by this Court at the risk of the petitioner. The petitioner himself was some time in the year 2006 promoted on that post, but on 09.09.2008 he came to be dismissed from service after holding departmental enquiry. Copy of that order dated 09.09.2008 has been produced before us by Shri Wankhede, the learned counsel appearing for respondent Nos.1 and 2.The said copy also shows that the petitioner has reached the age of superannuation on 20.02.2009.

(2.) Shri M.B. Agasti, learned counsel appearing for petitioner, has contended that the respondent Nos.4 to 6 were juniors to the petitioner and still they came to be promoted. He contends that claim of petitioner for said promotion was never considered in accordance with the provisions of General Standing Order No.503, which regulates the promotions, seniority, recruitment etc. in the employment of respondent Nos.1 and 2. He states that, service record of petitioner was absolutely clean and unblemished and never any adverse remark was communicated to him. He points out that though the respondent Nos.1 and 2 have in their reply contended that, case of petitioner was placed before the Divisional Promotional Committee (DPC) on various occasions, as the said Committee appears to have looked into un-communicated remarks, the said consideration is vitiated and promotion given to respondent Nos.4 to 6 on that count cannot be sustained. He argues that under the relevant Rules, the requirement is to hold examination and the candidates who passed that examination can thereafter, be considered by the DPC for giving actual promotional post. He argues that, such examination was never held by the respondent Nos.1 and 2. He therefore, prays that the petitioner should be given promotion as a Divisional Controller on the date on which the respondent Nos.4 to 6 were promoted i.e., w.e.f. 30.01.1993 with deemed seniority and all consequential benefits. He argues that, in view of the stand of the respondent Nos.1 and 2 in the matter, it was not necessary for the petitioner to continue the respondent Nos.4 to 6 as respondents and their deletion does not affect the consideration of challenge as raised.

(3.) Shri Wankhede, learned counsel for the respondent Nos.1 and 2, on the other hand contends that the examination is required to be conducted in accordance with Rule 57 of the General Standing Orders, and the promotion is not on the basis of seniority, but on the basis of efficiency and suitability. He contends that the performance of the petitioner from time was evaluated and the DPC also has considered that performance and has found him unfit on several occasion. He invites attention to the reply affidavit placed on record to show that at least on 7 occasions the DPC found petitioner unfit. He contends that the respondent Nos.4 to 6 have been rightly given promotional post and issue of their promotion cannot be gone into in the present Writ Petition, as they are not parties. He has invited attention to the fact that even initially the probation period of petitioner was required to be extended in 1980. He further points out that in reply, the respondent Nos.1 and 2 have pleaded that his service record was not satisfactory and there were several defaults committed by him. He also invites attention to the subsequent dismissal of the petitioner from service of petitioner to urge that, in such circumstances no interference is warranted and the Writ Petition needs to be dismissed. He wants to rely upon certain judgments to show that promotion is on the basis of efficiency and suitability and hence arguments based only seniority cannot be countenanced.