Bombay High Court
Narendra Barde vs Municipal Corporation Of on 20 June, 2013
Author: V.M. Kanade
Bench: V.M. Kanade, R.P. Sondurbaldota
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WP377.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 377 OF 2013
Narendra Barde )
Residing at 4/403, )
Wimbledon Par, )
Pokhran Road No.1, )
Opp. Singhania School,
ig )
Thane (West) 400 606 ) ..... Petitioner.
V/s
1. Municipal Corporation of )
Brihan Mumbai, having its )
Office at Mahapalika Marg, )
Mumbai - 400 001 )
)
2. Sunil Dhamane )
Residing at B/1, Room No.16 )
Narayan Pujari Nagar )
Abdul Gafar Khan Road, )
Worli, Mumbai - 400 018 )
)
3. Ramesh W. Pawar )
Residing at Flat No.903 )
th
Savoy Building, 9 Floor )
Raheja Complex, L.B.S.Road )
Teen Haath Naka, )
Thane (West) ) ..... Respondents.
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WP377.13
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Mr. J.P. Cama, Senior Counsel with Mr. Susheel Mahadeshwar
i/b Ranjana Todankar for the Petitioner.
Mr. A.Y. Sakhare, Senior Counsel with Mr Xavier for
Respondent No.1.
Ms. Sonali Humane i/b Ms. Kalyani Shinde for Respondent
Nos. 2 and 3.
----
CORAM: V. M. KANADE &
ig SMT R.P. SONDURBALDOTA, JJ.
DATE : 20TH JUNE, 2013
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. Heard.
2. Rule. Rule is made returnable forthwith. Respondents waive service. By consent of parties, matter is taken up for final hearing.
3. By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking the following reliefs:-
(a) This Hon'ble court may be pleased to quash and set aside Resolution No.920 dated 25.10.2012 (Exhibit 'E' to the Petition) and Order ::: Downloaded on - 27/08/2013 20:59:26 ::: 3/21 WP377.13 No. MPS/3800(83) dated 02.11.2012 (Exhibit 'G') and Order No. MPS/3800 (84) dated 02.11.2012 (Exhibit 'H') whereby the Respondent Nos. 2 and 3 were promoted to the post of Deputy Municipal Commissioner;
(b) This Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 to promote the Petitioner to the post of Deputy Municipal Commissioner with effect from 02.11.2012;
(c) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to stay the operation and effect of Resolution No.920 dated 25.10.2012 (Exhibit 'E' to the Petition) and stay the operation and effect of Order No. MPS/3800(83) dated 02.11.2012 (Exhibit 'G') and Order No. MPS/3800(84) dated 02.11.2012 (Exhibit 'H') whereby the Respondent Nos. 2 and 3 were promoted to the post of Deputy Municipal Commissioner;
(d) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to direct the Respondent No.1 to promote the Petitioner to the post of Deputy Municipal Commissioner;
(e) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to restrain the Respondent No. 1 from making any promotions to the post of Deputy Municipal Commissioner till the Petitioner is promoted to the post of Deputy Municipal Commissioner;
(f) For ad-interim and interim reliefs in terms of ::: Downloaded on - 27/08/2013 20:59:26 ::: 4/21 WP377.13 prayer clause (c ) to (e) above;
(g) For costs of this Petition;
(h) For such further and other reliefs as the nature and circumstances of the case may be required."
4. Mr. J.P. Cama, the learned Senior Counsel appearing on behalf of the Petitioners, at the outset, submitted that if the prayer clause (b) is granted, the Petitioner wold not press for prayer clause (a).
5. Brief facts which are relevant for the purpose of deciding this Petition are as under:-
6. Petitioner was appointed to the post of Assistant Commissioner in Respondent No.1 - Municipal Corporation with effect from 1/4/2000. A proposal was given for promotion of Assistant Commissioners by Chief Officer of the Corporation dated 22/8/2012. In the said proposal, it was specifically mentioned that three posts of Deputy Municipal Commissioners were to be filled in from the open category of Assistant Commissioners on the basis of seniority-cum-merit. The name of the Petitioner was listed at Serial No.1 in the said list. A meeting of the Departmental Promotion Committee presided over by the Municipal Commissioner was held on 24/9/2012 for considering promotion of Assistant ::: Downloaded on - 27/08/2013 20:59:26 ::: 5/21 WP377.13 Commissioners to the post of Deputy Municipal Commissioner. The Departmental Promotion Committee held that though the Petitioner had satisfied the criteria of experience and gradation in the confidential report, a criminal case had been filed against the Petitioner. It further noted that this Court had stayed the investigation of the criminal case by its order dated 18/12/2006. The Departmental Promotion Committee, however, noted that it was necessary to conduct preliminary inquiry against the against the Petitioner and therefore had proposed a preliminary inquiry Petitioner. It further recommended that provisional promotion should be granted to the Petitioner. However, the said promotion would be subject to the result of the preliminary inquiry. The Departmental Promotion committee, however, found Respondent Nos. 2 and 3 suitable for promotion and recommended that they be promoted as and when vacancies arise in the post of Deputy Municipal Commissioner.
7. The Municipal Commissioner, therefore, moved a proposal dated 8/10/2012 for provisional promotion of the Petitioner which proposal was approved by the Law Committee by its Resolution No.56 dated 12/10/2012. The said proposal was placed before the Corporation on 25/10/2012. However, in the meeting of the Corporation which was held on 25/10/2012, it was noted that in view of ::: Downloaded on - 27/08/2013 20:59:26 ::: 6/21 WP377.13 sentiments of the Councilors, issue of promotion of the Petitioner should be placed for reconsideration before the Departmental Promotion Committee.
8. It is an admitted position that Special Judge, Sessions Court, Greater Mumbai had passed an order dated 5/5/2005 in Misc. Application No. 75 of 2005 and had sent a complaint made by Mr. Arun Ramavatar Pathak to the Anti-Corruption Bureau for investigation under section 156(3) of the Criminal Procedure Code.
Against this order, Petitioner had filed Criminal Writ Petition No.2433 of 2006 and this Court by Order dated 18/12/2006 stayed the implementation and effect of the said order dated 5/5/2005 passed by the Special Judge in Misc. Application No. 75 of 2005.
9. Mr. Cama, the learned Senior Counsel appearing on behalf of the Petitioner, submitted that Departmental Promotion Committee has no authority or jurisdiction in law to recommend preliminary inquiry. He submitted that it is an admitted position that neither preliminary inquiry was pending at the time when meeting of the Promotion Committee was held nor any departmental inquiry was ordered against the Petitioner at the relevant time and, lastly, it is submitted that no charge-sheet had been filed against the Petitioner and the investigation of the criminal complaint has been stayed by this Court. He, therefore, ::: Downloaded on - 27/08/2013 20:59:26 ::: 7/21 WP377.13 submitted that since the promotion was to be given on seniority-cum-merit and the petitioner being the senior-most Assistant Commissioner, he was entitled to be promoted as a matter of right. He submitted that, in this case, even 'sealed cover procedure' could not be followed since neither a charge-sheet had been filed against the Petitioner nor departmental proceedings had been initiated. He relied on the following judgments:-
(i) Badrinath vs. Government of Tamil Nadu and Others 1 (paras 87 & 88)
(ii) Union of India and Others vs. Dr Sudha Salhan (Smt) 2
(iii) The Disstt. Registrar, Palghat and others vs. M.B.Koyyakutty and others3
(iv) Union of India and Others vs. K.V. Jankiraman and Others4
10. On the other hand, Mr. A.Y. Sakhare, the learned Senior Counsel appearing on behalf of the Corporation firstly submitted that preliminary inquiry had been initiated. However, the said preliminary inquiry was stayed by the Deputy Municipal Commissioner. He submitted that Deputy Municipal Commissioner did not have any authority to stay the preliminary inquiry which was initiated by the Municipal 1 (2000) 8 SCC 395 2 (1998) 3 SCC 394 3 1979 LAB.I.C. 803 4 (1991) 4 SCC 109 ::: Downloaded on - 27/08/2013 20:59:26 ::: 8/21 WP377.13 Commissioner. He submitted that this Court may not issue a writ of mandamus, directing Departmental Promotion Committee to promote the Petitioner to the post of Deputy Municipal Commissioner since such a writ could be issued only under exceptional circumstances. He submitted that this Court may direct the Departmental Promotion Committee to reconsider the case of the Petitioner on the basis of the law laid down by the Supreme Court in time bound schedule so that appropriate orders could be passed by the Departmental Promotion Committee.
11. The short question which falls for consideration before this Court is : whether the Departmental Promotion Committee could have directed that preliminary inquiry should be initiated and, secondly, whether in the absence of any departmental proceedings being initiated against the Petitioner or in the absence of any charge-sheet being filed against him in criminal court, promotion could have been denied to him when he was a senior-most Officer working in the said Cadre?
12. In the present case, it is an admitted position that the Petitioner was a senior-most Officer in the said Cadre and the criteria of promotion was seniority-cum-merit. A criminal complaint was filed against the Petitioner in 2005 by one Mr. Pathak in respect of conduct of the Petitioner in the Slum ::: Downloaded on - 27/08/2013 20:59:26 ::: 9/21 WP377.13 Rehabilitation Scheme and particularly in the context of preparation of Annexure-II List. The investigation in respect of the said FIR has been stayed by this Court by order dated 18/12/2006. Departmental proceedings have not been initiated against the Petitioners. As on the date when Departmental Promotion Committee held its meeting, no preliminary inquiry was pending against him and though it is alleged that preliminary inquiry was initiated, it was stayed by the order passed by the Deputy Municipal Commissioner.
13. Taking into consideration this background, it will have to be seen whether Departmental Promotion Committee could have deferred making recommendation firstly by proposing that preliminary inquiry should be held and, secondly, by recommending that provisional promotion should be given to the Petitioner.
14. It is a settled position in law that only when a charge/memo in disciplinary proceedings or charge-sheet in criminal prosecution is issued to the employee, it can be said that departmental proceedings/criminal prosecution is initiated against the employee. It is also quite well settled that pendency of preliminary investigation prior to that stage will not be sufficient even to enable the authorities to conduct 'sealed cover procedure'.
::: Downloaded on - 27/08/2013 20:59:26 ::: 10/21WP377.13 The Apex Court in Union of India and Others vs. K.V. Jankiraman and Others1 has observed in paras 16 and 17 as under:-
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge- memo in a disciplinary proceedings or a charge- sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned Counsel for the appellant-
authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/charge-sheet. If the allegations are 1 (1991) 4 SCC 109 ::: Downloaded on - 27/08/2013 20:59:26 ::: 11/21 WP377.13 serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:.
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2) ...
(3) ...
(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
(emphasis supplied) "17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the ::: Downloaded on - 27/08/2013 20:59:26 ::: 12/21 WP377.13 stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions."
Similarly, the Apex court in Union of India and Others vs. Dr Sudha Salhan (Smt)1 has observed in paras 5 and 6 as under:-
"5. The Tribunal has found it as a fact that on the date on which the Departmental Promotion Committee met to assess the case of the petitioner, she was neither under suspension nor was any charge sheet issued to her. The Tribunal, consequently, replying upon its own Full Bench decision as also a decision of this Court in New Bank of India v. N.P. Sehgal [(1991) 2 SCC 220 :
1991 SCC (L&S) 525 : (1991) 16 ATC 487 : JT (1991) 1 SC 498] allowed the Original Application and issued the directions noted above."
"6. The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. v. K.V. Jankiraman [(1991) 4 SCC 109:1993 SCC (L&S) 387 : (1993) 23 ATC 322] in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and 1 (1998) 3 SCC 394 ::: Downloaded on - 27/08/2013 20:59:26 ::: 13/21 WP377.13 the "sealed cover" procedure cannot be adopted.
The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened and the recommendation would be given effect to."
15. In the present case, neither any preliminary inquiry was pending nor any charge-sheet was issued in departmental proceedings nor any charge-sheet was filed in criminal case and, therefore, Departmental Promotion Committee could not have postponed its decision of directing promotion of the Petitioner. There was also no question of adopting 'sealed cover procedure'. In view of these facts, as laid down by the Apex Court in the said two decisions, the Corporation also could not have rejected proposal of the Departmental Promotion Committee in giving provisional promotion to the Petitioner.
16. It has to be remembered that public servant holding high office may have to take unpleasant decisions which may result in disgruntled elements filing false cases and charges ::: Downloaded on - 27/08/2013 20:59:26 ::: 14/21 WP377.13 against such public servants. If the allegations are serious and authorities are keen in investigating, they ordinarily should not take much time to collect relevant evidence and finalize the charges. Even otherwise, if at the time of granting promotion, if criminal charge-sheet is not filed or departmental proceedings are not initiated and later on if some new material is brought to the notice of the authorities, they can always suspend the employee or take other steps for removing him. Merely because, preliminary inquiry is pending that should not be a ground to refuse promotion to the employee as this would result in injustice to the employees in many cases.
17. In the meeting which was held by the Corporation, it has been observed that because a few sitting Corporators had expressed concern about promotion being given to the Petitioner, the Corporation had taken decision not to give provisional promotion as recommended by the Departmental Promotion Committee. The Corporation, therefore, also has not taken into consideration the said legal position as laid down by the Apex Court mentioned in the aforesaid cases.
Mr. Cama, the learned Senior Counsel appearing on behalf of the Petitioner has urged that this Court has power to issue writ of mandamus, directing Departmental Promotion Committee and the Corporation to give promotion to the Petitioner. In support of the said submission he relied upon ::: Downloaded on - 27/08/2013 20:59:26 ::: 15/21 WP377.13 the judgment of the Apex Court in Badrinath vs. Government of Tamil Nadu and Others1 as also another judgment of the Apex Court in The Disstt. Registrar, Palghat and others vs. M.B.Koyyakutty and others2. There cannot be any dispute about this proposition and the position is quite well settled.
In Badrinath (supra), the Apex Court has observed in paras 87 and 88 as under:-
"87. Learned Senior counsel appearing for the respondents, however, contended that it is not the province of this Court to issue a mandamus to promote the appellant to the super-time scale nor to assess his grading (See: Union of India and Ors. v. Lt. Genl. Rajendra Singh Kadyan [(2000) 6 SCC 698:2000 SCC (L&S) 797:(2000) 5 Scale 327]. This Court, it is true, does not normally make any such assessment on its own nor does it ordinarily issue a mandamus to promote an officer to the super-time scale. This is the general principle."
"88. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan [(1986) 2 SCC 1 (2000) 8 SCC 395 2 1979 LAB.I.C. 803 ::: Downloaded on - 27/08/2013 20:59:26 ::: 16/21 WP377.13 679:1986 SCC (L & S) 345] such a power on the part of this Court was accepted by a three Judge Bench, Madan, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarkanath v.
ITO [AIR 1966 SC 81:(1965) 3 SCR 536] wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to 'reach justice wherever found necessary' and 'to mould the reliefs to meet peculiar and complicated requirements of this country'. Justice Madan also referred to Rochester Corpn. v. R [1858 EB & E 1024 : 27 LJ QB 434], R. v. Revising Barrister for the Borough of Hanley [(1912) 3 KB 518 : 81 LJKB 1152, Padfield v. Minister of Agriculture, Fisheries and Food [1968 AC 997:(1968) 1 ALL ER 694 : (1968) 2 WLR 924 (HL) and to a passage from Halsbury's Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madan, J. observed:
(SCC pp.692-93, para 20) "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article ::: Downloaded on - 27/08/2013 20:59:26 ::: 17/21 WP377.13 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. (emphasis supplied) We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three Judge Bench in B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] even regarding disciplinary cases. Verma, J.
(as he then was) observed (at SCC p. 762, para
18) as follows:
...The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent ::: Downloaded on - 27/08/2013 20:59:26 ::: 18/21 WP377.13 reasons in support thereof. (emphasis supplied) The underlined words reiterate the powers of this Court in rare and exceptional cases."
In The Disstt. Registrar, Palghat (supra), Apex Court in para 30 has observed as under:-
"30. The last point for consideration is whether it was proper for the High Court to issue a positive direction requiring the Appellant to promote the Respondent to the Upper Division and thereafter to determine his rank in the cadre of Upper Division Clerks. Ordinarily, the court does not issue a direction in such positive terms; but the peculiar feature of this case is that it has not been disputed that Koyakutty Respondent satisfies the twofold criterion for promotion laid down in the statutory Rule 28 (b) (ii). Indeed, the District Registrar, Palghat, who was impleaded as Respondent 3 in the writ petition, expressly admitted in paragraph 8 of his counter-affidavit filed before the High Court, "that the seniority of service is the basis of promotion from the ranks of Lower Division Clerks to the ranks of Upper Division Clerks provided they are fully qualified by passing the departmental tests for the purpose." It was never the case of the Registrar that Koyakutty was not otherwise fit for promotion. Indeed, even in the grounds of appeal to this Court, incorporated in the Special Leave Petition, it is not alleged that Koyakutty did not satisfy the criterion of seniority-cum-fitness prescribed by Rule 28 (b) (ii). The position taken by the Appellant, throughout, was that this rule should be deemed to have been "supplemented"::: Downloaded on - 27/08/2013 20:59:27 ::: 19/21
WP377.13 by the impugned Government Notification. It is not correct that the impugned Notification merely "supplements" or fills up a gap in the statutory rules. It tends to superadd or superimpose by an Executive fiat on the statutory rules something inconsistent with the same. Since the existence of both- the criteria viz. seniority and fitness for promotion to the Upper Division prescribed by the statutory Rule 28 (b) (ii), in the case of Koyakutty was not disputed, the High Court was justified in issuing the direction it did."
18. We are not inclined to issue a writ of mandamus, directing the Corporation to promote the Petitioner to the post of Deputy Municipal Commissioner firstly because the Writ Petition in which stay is granted to the investigation is pending and not finally decided and the FIR has not been quashed by this Court. Secondly, preliminary inquiry which was initiated by the Corporation has been stayed by the Deputy Municipal Commissioner which, according to the learned Senior Counsel appearing on behalf of the Corporation, could not have been done since the Deputy Municipal Commissioner could not have stayed the inquiry ordered by the Municipal Commissioner. Thirdly, in our view, it would be appropriate if direction is given to the Departmental Promotion Committee to consider the case of the Petitioner in the light of the settled position in law within a time bound period. We are, therefore, in the peculiar facts and circumstances of this case, not inclined to issue a writ of mandamus directing Departmental Promotion Committee ::: Downloaded on - 27/08/2013 20:59:27 ::: 20/21 WP377.13 and the Corporation to promote the Petitioner to the post of Deputy Municipal Commissioner.
19. In the result, Petition is partly allowed. The impugned order passed by the Corporation and Departmental Promotion Committee is quashed and set aside. We direct the Departmental Promotion Committee to consider the case of promotion of the Petitioner as expeditiously as possible and, in any case, within a period of six weeks from today firstly by taking into consideration the fact that he is the senior-most Officer, Respondent Nos. 2 and 3 being junior to him. Secondly, the criteria for promotion being seniority- cum-merit, in the absence of any preliminary inquiry, departmental inquiry or criminal proceedings being pending against the Petitioner, he is liable to be considered for the post of Deputy Municipal Commissioner. Thirdly, Departmental Promotion Committee is directed to take into consideration the legal position laid down in the judgments of the Apex Court and decision of this Court as discussed hereinabove and shall not take into consideration the fact of FIR being filed against the Petitioner. The Departmental Promotion Committee also shall keep in mind that no departmental proceedings have been initiated against him and shall also not adopt a 'sealed cover procedure'. In view of the above, Departmental Promotion Committee also does not have authority to recommend that preliminary inquiry ::: Downloaded on - 27/08/2013 20:59:27 ::: 21/21 WP377.13 should be held or completed. We accordingly direct the Departmental Promotion Committee to take decision as directed hereinabove within six weeks from today and within four weeks thereafter the Corporation shall accordingly give effect to the recommendation made by the Departmental Promotion Committee. Rule is made absolute accordingly.
(Smt. R.P. SONDURBALDOTA, J.) (V.M. KANADE, J.) B.D. Pandit ::: Downloaded on - 27/08/2013 20:59:27 :::