Bombay High Court
V.R. Vishwanath Ramji Mandue vs Maharashtra State Road Transport & ... on 25 January, 2000
Equivalent citations: 2000(3)BOMCR161, 2000(2)MHLJ852
ORDER V.G. Daga, J.
1. The petitioner has invoked writ jurisdiction of this Court to challenge the order of reversion dated 12th July 1988 bearing No. 345/ SB/88 passed by the Deputy General Manager (P & R), being Exhibit M-1 to the petition, based on the adverse remarks and also prayed for expunging the said adverse remarks from the confidential and special reports of the petitioner maintained by the respondents.
2. The facts leading to this writ it petition in nutshell are that the petitioner was initially appointed as typist and thereafter he was selected and appointed in direct sector to the post of Senior Clerk in the respondent No. 1 (hereinafter referred to as "Corporation" for short.) He was thereafter promoted to the post of Divisional Accountant. He was continued in that post by an order dated 1-3-1985. The petitioner after passing Departmental Examination was promoted on probation under General Establishment Order No. 230(SB) of 1995 to the post of Assistant Accounts Officer. The petitioner completed his initial probation period on or about 30th June 1986. However, the said probation period was continued from time to time upto 30th June 1988. In other words, the petitioner was on probation right from 4th July 1985 to 30th June 1988.
3. The petitioner has brought on record that each and every time when probation period of the petitioner was to be completed, it was extended on the ground of adverse confidential remarks communicated to the petitioner, which according to the petitioner were mala fide and not actually correct. The same were baseless and without any substance. The petitioner also challenged the competency and authority of the officer preparing and entering confidential reports in his service record, maintained by the respondents.
4. The petitioner has further brought on record that ultimately the adverse treatment meted out to the petitioner in all these years resulted in his reversion to the post of Divisional Accountant in Class III (State Grade) on the ground that during the period of probation the work of the petitioner was not found satisfactory. The petitioner on his reversion was posted as Divisional Accountant in the Civil Engineering Department, Central Office, Bombay in the lower rank than that of the Assistant Accounts Officer. The said order dated 12-7-1998 bearing No. 345(SB) of 1988, was passed by the Deputy General Manager (P & LR).
5. The challenges to the aforesaid order of reversion based on the adverse confidential reports were continued to the following two grounds : (i) the reversion order has been passed by the authority who was subordinate to the appointing authority of the petitioner. Thus, according to the petitioner the reversion order ought to have been passed by the appointing authority and not by any other authority lower than that of the appointing authority.
(ii) the reversion order is based on the adverse remarks which as per relevant Rules ought to have been prepared and entered by the Departmental Head, in view of the circular bearing No. SB/ST/ESI/11-26-1539 dated 14th May 1982.
6. The first challenge set out hereinabove is the basic challenge to the impugned order of reversion. The contention of the learned Counsel for the petitioner is that appointing authority of the petitioner is the Vice Chairman and Managing Director of the Corporation and not the Deputy General Manager (P & LR), who is subordinate to the Vice Chairman and Managing Director of the Corporation. Thus, according to the petitioner, the order of his reversion is bad being the order having been passed by the Deputy General Manager (P & LR) and not by the Vice Chairman and Managing Director of the Corporation. In other words, according to the petitioner authority subordinate to the appointing authority has exercised the power while reverting the petitioner from higher post to the lower post. Thus, in the submission of the petitioner the impugned order of reversion is liable to be quashed holding it to be not legal and valid.
7. We may at this stage mention with deep regret that inspite of service of notice and due appearance on behalf of the Corporation, no return or counter affidavit has been filed to controvert the factual allegations made by the petitioner about competency of the person issuing reversion order. Inspite of lapse of more than 11 years no material has been placed on record to dislodge the contention of the petitioner that his appointing authority was the Vice Chairman and Managing Director of the Corporation and not the Deputy General Manager (P & LR). In these circumstances, since no dispute has been raised on behalf of the Corporation to the factual position, we are left with no other option but to proceed on the basis that the averments made in the petition in this behalf have been admitted. We therefore accept the contention raised on behalf of the petitioner which has remained uncontroverted. Consequently, we have no option but to hold that the order of reversion issued by the Deputy General Manager (P & LR) dated 12th July 1988 being Ex.M-1 to the petition is bad and illegal having been passed by the authority subordinate to the appointing authority as such the same cannot be sustained in law.
8. The petitioner has also challenged the order of his reversion on the ground that the said order was a consequence of the adverse remarks recorded in the confidential record of the petitioner, which, according to the petitioner were mala fide factually incorrect and based on no record apart from the fact that the same having been recorded by the authority not empowered under the relevant Rules are liable to be set aside. However, since we are quashing the order of reversion on the first ground of challenge itself, we do not think it necessary to dwell upon the second challenge raised by the petitioner, as such we confine our judgment to first challenge only. No other contentions are raised on behalf of the petitioner.
9. In the result, we allow the petition, quash and set aside the impugned order of reversion dated 12th July 1988 passed by the Deputy General Manager (P & LR) of the Corporation at Ex.-1 to the petition. The petitioner shall be entitled to all the consequential benefits.
Rule is made absolute in terms of prayer (b). No order as to costs.
10. Petition allowed.