At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI & THE HONOURABLE MRS. JUSTICE BHARATI H. DANGRE
For the Petitioner: Meelan Topkar, Advocate. For the Respondents: R1 to R3, Anjali Raghunath Shiledar Baxi, Advocate.
Smt. Bharati, H. Dangre, J.
1. The petitioner, working as Junior Engineer with Respondent No.1-the Maharashtra State Electricity Distribution Limited (“the MSEDCL”) has approached this Court, being aggrieved by non consideration of his candidature for the post of Deputy Executive Engineer (now termed as Additional Executive Engineer). It is the case of the petitioner that he was appointed as Junior Engineer in the Respondent-Company which is a Government Undertaking with effect from 6th June, 2006. Further according to the petitioner, he was falsely implicated in a criminal case which was registered by the Anti Corruption Bureau (ACB) on the basis of complaint made by one consumer on 2nd July, 2011, alleging that the petitioner had demanded some amount for providing an electric meter and based on which criminal case No.2/2011 was registered against him. The petitioner was suspended with effect from 2nd July, 2011 and charge-sheet was served upon him by Regional Executive Director, Pune and Competent Authority on 23rd December, 2013 in view of the provisions of Service Regulations of 2005 applicable to the MSEDCL Employees. A Departmental Inquiry was ordered against the petitioner and the Inquiry officer was appointed vide letter dated 18th July, 2014 and the said Departmental Inquiry was completed on 11th September, 2014 and the report was submitted to the Competent Authority. It is the contention of the petitioner that though the enquiry was concluded in September, 2014, the final order of punishment was passed on 15th November, 2016 and penalty of stoppage of annual increment for a perio
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of three years with cumulative effect was imposed on the petitioner and it was also ordered that the period of suspension be treated as punishment. It is also the contention of the petitioner that though he was suspended on 2nd July, 2011 the suspension was revoked by order dated 9th November, 2015.2. As per the contention of the petitioner an advertisement was issued by the respondent vide No. 10/2012 inviting applications for various posts and the petitioner applied in pursuance of the said advertisement for the post of Deputy Executive Engineer (now termed as Additional Executive Engineer), by way of direct recruitment. The petitioner appeared for the written test held on 13th January, 2013 and was interviewed for the post on 3rd April, 2013 and his name was placed in the wait list at serial No. 11 on completion of the selection process. According to the petitioner, fifteen candidates were selected in pursuance of the said selection process, out of which 14 candidates were issued the orders of appointment on 4th August, 2014. However, the petitioner was informed that his selection was kept on hold by following the procedure of sealed cover since he was facing Departmental Inquiry. According to the petitioner, though the inquiry was completed on 11th September, 2014 it did not culminate into final orders by the Disciplinary Authority and therefore in spite of his repeated representations he was not issued with an order of appointment to the post of Deputy Executive Engineer in spite of his selection.3. The petitioner states that Criminal case registered against him by the Anti Corruption Bureau, Kolhapur resulted in judgment and order dated 10th July, 2014 by the learned Additional Sessions Court, Jaisingpur and the petitioner was acquitted from the charges levelled against him and the Law and Judiciary Department, Government of Maharashtra, decided not to file any appeal against the said judgment of the Sessions Court. According to the petitioner, in spite of the fact that the inquiry against him was completed in one sitting on 11th September, 2014 and show cause notice was issued to him on 25th July, 2016, the proceedings of the Departmental Inquiry was prolonged for no reason and it was only on 15th November, 2016 the final order of penalty was imposed on him. According to the petitioner, as per the Maharashtra State Electricity Distribution Company Ltd, Classification and Recruitment Regulations, 2005, on conclusion of disciplinary proceedings, the sealed covers ought to have been opened. However, the said procedure was also not followed by the respondents and no order of appointment was issued in his favour. The petitioner also alleges discrimination by respondent No.1 and contends that one Shri Kunal Pensalwar who was also suspended pending the inquiry into the allegations of corruption was issued with an appointment order to the post of Deputy Executive Engineer on 15th July, 2017. In the aforesaid facts, the petitioner prayed for directions to the respondents to implement the decision of Competent Selection Committee with regard to his selection in pursuance to advertisement No. 10/12 and issue an order of appointment in his favour with retrospective effect when the candidates from the selection list prepared by the Selection Committee were issued with orders of appointment together with all consequential benefits of seniority, arrears of pay scale etc.4. Heard the learned Advocate Mr. Meelan Topkar, for the petitioner and Advocate Ms. Anjali Baxi for the Respondent. In response to the petition the respondents have filed an affidavit of one Shri. Ankush Kondiba Nale, Chief General Manager, MSEDCL on 22nd September, 2017. In the said affidavit, it is stated that the petitioner was caught red handed in ACB trap and Criminal Case was filed against him and therefore he was subjected to departmental action in terms of MSEDCL Regulations, 2005. It is also stated in the affidavit that the petitioner applied for the post of Deputy Executive Engineer under Direct Recruitment Quota in pursuance of Advertisement No. 10/2012, however, as per the Regulation of 2005 the case of the petitioner was kept under Sealed Cover in view of pendency of Departmental proceedings. It is also stated in the affidavit that the validity of selection list expired on 31st December, 2014 and the Departmental proceedings were concluded against the petitioner on 15th November, 2016 when the final penalty was imposed on him. It is contended that the petitioner did not challenge the final penalty. It is not disputed that the petitioner was acquitted in criminal case. As far as the case of Shri Kunal Pensalwar is concerned, in respect of whom the petitioner has alleged that favourable treatment was given to him, the affidavit sets out the case of Shri Pensalwar and it is stated that he was selected as Deputy Executive Engineer by Advertisement No.4 of 2014 and his name was included in select list which expired on 2nd May, 2016. It is stated that Shri Pensalwar was charge-sheeted by ACB, Kolhapur in Case No.29/2013 and he was acquitted of the charges by the Criminal Court on 24th April, 2015. According to the affidavit, the Departmental proceedings resulted into imposition of penalty of withholding increments of Shri Kunal Pensalwar for five years and the order imposing penalty was passed on 3rd May, 2016. It is stated that selection list was valid at the time of imposition of penalty. The case of Shri Pensalwar was considered by adopting the “Sealed Cover Procedure” and he was issued with an order of appointment to the post of Deputy Executive Engineer.5. On consideration of the contentions of the petitioner and the stand of the respondent in the affidavit, it is necessary to refer to the service regulation known as Maharashtra State Electricity Distribution Co. Ltd. Employees Service Regulations 2005 (for short, Service Regulations 2005) which governs the service conditions of the employees of MSEDCL.6. Rule 29 (a) of the said Regulations provides that when a selection committee recommend the name of a suitable candidate selected after due advertisement for direct recruitment and the candidates are kept on waiting list against the post for direct recruitment, such list may be deemed valid for period of 12 months and the Executive Director and the concerned Executive Directors are authorized to extend the validity of the waiting lists of candidates for further period of one year, whenever it is considered necessary. The said rules also provide for “Sealed Cover Procedure” to be adopted in respect of candidates who are in zone of consideration for promotion and against whom disciplinary action/vigilance report/criminal proceedings are pending or whose conduct is under investigation. The said rule prescribes that the competent selection committee shall assess the suitability of the employees without taking into consideration the pendency of disciplinary action case/vigilance investigation/criminal prosecution and the grading awarded will be kept in a sealed cover which is not to be opened till termination of the disciplinary case/criminal prosecution etc.7. The dates and events involved in the present case are not in dispute. The petitioner was implicated in a criminal case by the ACB, Kolhapur on the basis of a complaint alleging demand of illegal gratification from one of the consumer and criminal prosecution was launched against the petitioner. Simultaneously he was charge-sheeted by the Department for misconduct on demand of illegal gratification from one Shri Choughule who had approached the petitioner for providing electrical connection. Pending the disciplinary proceedings and the criminal prosecution under section 7, 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988, the petitioner was placed under suspension. The Departmental Inquiry initiated against the petitioner was completed and the Inquiry Officer recorded that charge No. 1, 2 and 4 were proved whereas charge no.3 was not proved and the Inquiry Report was forwarded to the Competent Disciplinary Authority and the Disciplinary Authority issued a show cause notice to the petitioner as to why the penalty of withholding of annual increment for a period of five years with cumulative effect be not imposed upon him vide show cause notice dated 25th July, 2016. The petitioner submitted his response in pursuance of the said show cause notice and a final order imposing penalty was passed on 15th November, 2016, wherein the petitioner was inflicted with penalty of withholding of increments for a period of three years. Pending these proceedings, the petitioner participated in the selection process initiated for the post of Deputy Executive Engineer by way of direct recruitment and was selected in the said process to find place in the wait list candidates and the respondents permitted participation of the petitioner in the selection process by following “Sealed Cover Procedure” as per the Service Regulations, 2005. As per the said procedure the sealed cover is to be opened only on culmination of the disciplinary proceedings and in the case of the petitioner the disciplinary proceedings resulted into final order only on 15th November, 2016. As per the Service Regulations, 2005 the selection list is to remain valid only for a period of one year and on the date on which the disciplinary proceedings against the petitioner culminated into finality and were finally concluded on 15th November, 2016, the waiting list which included the name of the petitioner which was prepared in pursuance of Advertisement No.10/2012 had already expired and therefore the case of the petitioner did not deserve consideration for appointment to the post of Deputy Executive Engineer.8. The Counsel for the petitioner would argue that the charge-sheet was issued to the petitioner on 23rd December, 2013, it took almost three years for the respondents to take final decision and it was only on 15th November, 2016 the penalty was imposed on the petitioner and this has resulted into denial of the right of appointment to the higher post to the petitioner though he was successful in the selection process. The learned Counsel for the petitioner has referred to the Circular issued by the respondent through its Executive Director on 17th March, 2016 based on the directives issued by the Hon'ble Apex Court on 16th December, 2015 in a civil appeal, by which directions to complete the departmental enquiry within a period of six months and in certain identifiable causes within the reasonable extended period, in any case not more than one year. It is not the case of the petitioner that delay in the departmental inquiry was intentional or that it was with some oblique motive. On issuance of charge-sheet, the Inquiry Officer was appointed on 18th July, 2014 and on 11th September, 2014 inquiry was concluded. Show cause notice was issued to the petitioner on 25th July, 2016 as to why the proposed penalty of withholding of increments for five years be not imposed on the petitioner and within approximate period of three months, on consideration of representation of the petitioner to the show cause notice, the final order of punishment was passed on 15th November, 2016. However, the petitioner has not attributed any mala-fides to the respondent in not completing the inquiry within a shortest time and we assume that there was an inordinate delay in completing the inquiry specifically when the inquiry report was already submitted on 11th September, 2014. However, as the respondents have stated in their affidavit, the select list in terms of advertisement dated 10th December, 2012 was prepared on 15th June, 2013 and as per the rules it was valid till 15th June, 2014. However, its validity was extended by another six months and it expired on 31st December, 2014. However, on the day when the select list which included the name of the petitioner expired, the inquiry as the petitioner was just concluded and in any case when the inquiry report was submitted on 11th September, 2014 it would have necessarily required further procedure to be followed including supply of copy of inquiry report to the delinquent, affording opportunity to hearing to the delinquent on the proposed penalty and thereafter passing a final order. In such circumstances, when as per the respondent's validity of the select list expired on 31st December, 2014 and the conduct of the petitioners was still under investigation as the disciplinary proceedings had not concluded. It cannot be said that it was the deliberate attempt on the part of the respondent to deprive the petitioner of the said benefit since the life of this select list is already determined by the MSEDCL Employees Service Regulations 2005 and the vigilance investigation against the petitioner had not been concluded. As far as the comparison of the petitioner with Kunal Pensalwar is concerned, we have perused the affidavit of the respondent and we have noted that on the date on which the sealed cover of Shri Pensalwar was opened, the select list in which his name featured was yet to expire and therefore his case was considered for promotion since name was finding place in a select list which was valid and hence he was issued with an order of appointment to the post of Deputy Executive Engineer. The same is not the case with the petitioner and the case of Shri Pensalwar is clearly distinguishable from that of the petitioner.9. The Counsel for the petitioner has placed reliance on judgment in the case of Purshottam Vs. Chairman, M.S.E.B. & Anr reported in (1999) 6 Supreme Court Cases 49 wherein the Hon'ble Apex Court was dealing with the issue where a duly selected person for being appointed was illegally kept out of employment on the ground that the panel for selection has expired in the meantime. However, in the peculiar facts, the Apex Court had observed that a duly selected candidate would not be denied appointment on the ground that the panel term has expired. However, in the present case, the life of select list is determined by the Service Regulations of 2005 and the respondents have been consistently following the said period mentioned in the Regulation and it is not that only to deprive the petitioner the fruits of selection, the stand is taken by the respondent that the select list has expired. In our view, the judgment of the Apex Court do not assist the petitioner's case.10. For the aforesaid reasons, there is no merit in the writ petition and same deserves to be dismissed. Same is hereby dismissed with no order as to costs.