Bombay High Court
Sunil Ganeshprasad Awasti vs State Of Maharashtra, Through ... on 21 November, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
2025:BHC-NAG:13101-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
WRIT PETITION NO. 5467 OF 2019
(Sunil Ganeshprasad Awasthi Vs. State of Maharashtra and others)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. R.M. Fating, Advocate for petitioner.
Mr. N.R. Patil, AGP for respondent Nos. 1 to 3/State.
CORAM : ANIL S. KILOR & RAJNISH R. VYAS,JJ.
DATED : 21-11-2025.
By way of present petition, a challenge is raised to the
judgment and order dated 22.1.2019, passed by Maharashtra
Administrative Tribunal, Nagpur, in Original Application No.
144/2016, thereby dismissing the Original Application preferred by
the petitioner, raising challenge to the seniority lists dated 1.1.2014 and
1.1.2015, published on 30.9.2015, by Deputy Director of Health
Services, as according to the petitioner, proper placement to the
applicant in the Seniority List was not given.
2. It is the case of the petitioner that he is Project Affected Person
and he was appointed in 2001 on temporary basis, on the post of
Statistical Assistant and he was continued in the service. However,
since he was not taken into services on permanent basis, he filed
Original Application No. 583/2005 which came to be allowed in
favour of the petitioner. While allowing the said Original Application,
learned Tribunal observed as under:
"5................This Tribunal vide order dt. 16.4.2007 allowed
the application and directed the respondents to keep one
post of statical Investigator from Open Category vacant till
the disposal of the O.A. As the applicant is not entitled to be
appointed directly to the post of Statistical Assistant, he has
expressed his willingness to be absorbed absorbed in the post
of Statistical Investigator. As already pointed out, he is from
the category of Project affected Person, He had lost his
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source of livelihood. Whenever the name of the Project
Affected Person for any post is recommended by the
Collector, the nature of the services is always permanent and
not temporary. As the name of the applicant is
recommended from Project Affected Persons, his name was
deleted from the list of Project Affected Persons as per Govt,
Resolution dated 13.9.2000, By this time, the applicant has
attained the age of more than 32 years and as such, there is
Ino likelihood of getting any job if he is not absorbed in the
Govt, Service. No doubt, the applicant has been appointed
on contract basis that too on temporary basis but he cannot
be blamed for it. The collector ought to have recommended
his name for permanent post. He has worked for a long time
since 2001 and still in services on the same post. Under such
circumstances, it would be just and proper to direct the
respondents to absorb the applicant on the post of Statistical
Investigator from Open Category. Accordingly, we direct the
respondents to appoint the applicant as Statistical
Investigator from Open Category on the post which was
directed be kept vacant for the candidate for open category".
3. In view of the above refereed direction, the petitioner was
accordingly absorbed on the post of Statistical Investigator. thereafter,
the petitioner made an application for regularizing his services w.e.f.
17.10.2001 to 14.12.2007 i.e. the period during which he worked as
temporary employee. Such request was accepted by Deputy Director
of Health Services and vide order dated 30.6.2008 treated the entry
date of the petitioner as 17.10.2001. The respondents have accordingly
extended all the benefits to the petitioner because of such
regularization w.e.f. 17.10.2001.
4. The petitioner was accordingly given placement in the
seniority list considering his date of appointment as 17.10.2001.
5. However, in the seniority list published on 30.9.2015, by
respondent No. 3, the employees who were juniors to the petitioner, in
the earlier seniority list, were shown seniors to the petitioner. In the
said list, name of the petitioner appear at serial 69. The reason for
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such placement of the petitioner in the seniority list is given in the
column of remarks. Such remark was recorded by the Deputy Director
of Health Services who had regularized the services of the petitioner
from 17.10.2001.
6. In the remark column it was noted that since the petitioner
absorbed on the post of Statistical Investigator on 15.12.2007, the
seniority on the post of Statistical Investigator shall be considered from
the date of joining of the petitioner on 15.12.2007 on the said post.
Therefore, the petitioner approached to the learned Tribunal by filing
Original Application No. 144/2016 which came to be dismissed vide
impugned judgment and order dated 22.1.2019. The Tribunal while
dismissing the Original Application has recorded the following
findings:
"10. The respondents have filed their reply at page no.
114 and resisted the application on the ground that
though the applicant was appointed in service in the year
2001 but it was not a vacant post, the applicant was
appointed till completion of the project. It is submitted
that this position was examined in the previous O.A.
No.583/205 and this Bench refused to absorb the
applicant on the post of Statistical Assistant. The second
contention of the respondents is that the post of
Statistical Assistant was promotional post and it could
not be filled by nomination. According to the
respondents as 22 Statistical Investigators were promoted
on the post of Statistical Assistants, therefore, 22 posts of
Statistical Investigator were vacant. At that time, the
applicant himself made request to appoint him on the
post of Statistical Investigator and accordingly direction
was given by the Bench in O. A. No.583/2005 It is
submission of the State that as the applicant accepted the
post of Statistical Investigator he cannot claim seniority
over Statistical Investigators who had joined the services
before him. It is submitted that the fixation of the
seniority by the department is correct and legal. It is
further submitted that as the applicant has not
completed 12 years service after joining the service as
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Statistical Investigator, therefore, he cannot claim time
bound promotion".
"17. Once it is accepted that there was no question of
absorption of the applicant on the post of Statistical
Assistant therefore, actually he had not case but
considering his request in O A No. 583/2005 direction
was issued to the Collector, Yavatmal to appoint the
applicant on the post of Statistical Investigator. It is
pertinent to note that in para-5 of the Judgment in
O.A.No. 583/2005 it is observed that the Collector,
Yavatmal has maintained the list of Project Affected
Persons and the applicant's name was recommended for
the said post. We have gone through the said list. The
name of the applicant is at sr.no.2". After reading the
observations in para-5 it is crystal clear that when the
matter was decided in 2007 the rank of the applicant was
at sr no.2 in the waiting list of the Project Affected
Persons. As per law it was duty to the Collector to
appoint the Project Affected Persons as per their serial
numbers in the waiting list. However in the year 2001
the applicant was appointed as Statistical Assistant till
completion of the project. It must be remembered that
the applicant was aware that his appointment as
Statistical Assistant was only for limited period.
Similarly the applicant himself made representation in
O.A.No 583/2005 and requested to absorb him in
service as Statistical Investigator and this Bench directed
to appoint the applicant as Statistical Investigator. The
relevant portion of the order is as under:-
"Accordingly we direct the respondents to appoint the
applicant as Statistical Investigator from open category
on the post which was directed to be vacant for the
candidate for open category."
"18. Thus it seems that it was a case of appointment on
the post of Statistical Investigator, therefore, the seniority
of the applicant was to be fixed since the date of joining
and his past service which was in fact only till
completion of the project could not be taken into
account. It seems that without considering the legal
rights of the Statistical Investigators who were senior to
the applicant, the seniority lists were prepared and
published in the years 2006, 2009 and 2010 but does
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not give any right to the applicant to claim seniority over
them. In view this discussion we do not see any merit in
the case of the applicant that error is committed by the
respondents while fixation of seniority of the applicant
in the year 2012 and onwards. We hold that the
respondents have rightly foxed the seniority of the
applicant. So far as the claim for time bound promotion
is concerned, as the applicant joined the service on
15/12/2007 he has not completed period of 12 years and
therefore the applicant is not entitled for the benefit of
time bound promotion".
"19. The learned counsel for the applicant placed
reliance on the Judgment of State of Maharashtra Vs.
Uttam Vishno Pawar (2008) 1 SCC (L&S),522. It is
submitted that an employee on transfer to a new
department though may not get seniority but his
experience in the past service counts for other benefits
like promotion and higher pay scale".
"20. In a matter before the Hon'ble Apex Court the
respondent was working as Telephone Operator in the
Irrigation Department of State of Maharashtra, he made
request for his transfer from Mumbal Zone to Kolhapur
Zone. The request of the respondent was accepted and
he was transferred on his own request from Mumbal
Zone to Kolhapur Zone, therefore, he lost his seniority
in the Mumbai Zone and he was shown the junior most
in Kolhapur Zone, and considering this fact, his past
service in the Mumbai Zone was taken in account for
giving benefit of time bound promotion. In our opinion
the law laid down in case of the State of Maharashtra Vs.
Uttam V Pawar is not applicable to the present set of
circumstances as the earlier service of the applicant was
only till completion of the project, the applicant was not
appointed on the vacant post following rules of
recruitment and therefore in our opinion the applicant
cannot claim the time bound promotion. In result we
hold that the application is devoid of merits and liable to
be dismissed".
7. Having gone through the record and considering the
submissions made by the parties, we are of the opinion that the remark
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recorded by the Deputy Director of Health Services in the impugned
seniority list was without giving any opportunity of hearing to the
petitioner and without considering whether such remark amounts to
review of the earlier order of regularization passed by Deputy Director
of Health Services on 30.6.2008.
8. By the remark put in the seniority list, the respondents tried to
take away the rights crystallized in favour of the petitioner vide order
dated 30.6.2008. Therefore, respondents ought to have granted
hearing to the petitioner before taking any contrary view, and ought to
have granted opportunity to the petitioner to make his submission.
Further, a question whether such review is permissible ought to have
considered first by the Deputy Director.
In absence of such opportunity, we find that the placement of
the petitioner in seniority list at serial 69 is illegal. The said crucial
aspect was ignored by the learned Tribunal. In the circumstances, we
pass following order:
ORDER
i) Writ petition is partly allowed.
ii) The order impugned dated 22.1.2019, passed by learned
Maharashtra Administrative Tribunal, Nagpur, in Original Application No. 144/2016 is hereby quashed and set aside. Similarly, the remarks made by Deputy Director of Health Services in seniority list published as on 1.1.2015 wherein name of the petitioner appears at Serial 69 is hereby quashed.
iii) The respondent No. 2 is at liberty to grant hearing to the petitioner, if he is of the view that the continuity of service granted Belkhede, PS 7 905wp5467.2025..doc to the petitioner w.e.f. 17.10.2001 was not for the purpose of seniority in the post of Statistical Investigator but it was for other purposes, by issuing show cause notice to the petitioner, within six weeks from today. If such show cause notice is issued, the decision on the said issue shall be taken in ten weeks. If no show cause notice is issued, the seniority of the petitioner shall be corrected after giving effect to clause (ii) of this order.
(RAJNISH R. VYAS, J) (ANIL S. KILOR, J) Belkhede, PS