Allowed

Janaradhan Chandrabhanji Kamble v. the State of Maharashtra and Others

Bombay HC21 Mar 2018WP/11861/2016

Case brief

AI extract

What is this about?

The High Court at Aurangabad in a writ petition directed the Chief Executive Officer, Zilla Parishad, Aurangabad, to reconsider a retired employee's claim for a time-bound promotional pay scale under a 1995 Government Resolution after setting aside earlier orders that rejected the claim based on uncommunicated confidential reports.

What did the court decide?

The impugned orders of the Chief Executive Officer and Additional Commissioner denying time-bound promotional pay scale were set aside. The petitioner was given a hearing and ordered to be granted the

Janaradhan Chandrabhanji Kamble Vs the State… — Pension and Retirement Benefits | Bombay HC (2018)

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wp11861.16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.11861 OF 2016

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Janardhan S/o. Chandrabhanji Kamble..PETITIONER
Age-70 years, Occu-Pensioner,
R/o. C/o.Plot No.10-B, Sangeeta Colony,
Nandanwan Road, Aurangabad,
Tq. & Dist. Aurangabad

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Versus

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1. The State of Maharashtra .. RESPONDENTS Through its Principal Secretary, Rral Development Department, Mantralaya, Mumbai-32

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2. The Divisional Commissioner, Aurangabad Division, Aurangabad

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3. The Chief Executive Officer, Zilla Parishad, Aurangabad

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4. The Chief Accounts & Finance Officer, Zilla Parishad, Aurangabad

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Mr.V.G.Salgare, Advocate for the petitioner
Mr.C.S.Kulkarni, AGP for respondent Nos. 1 and 2
Mr.E.P.Sawant, Advocate for respondent Nos.3 and 4

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CORAM:S.S. SHINDE &

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S.M. GAVHANE, JJ.

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RESERVED ON:24.01.2018
PRONOUNCED ON:21.03.2018

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J U D G M E N T [PER: S.M. GAVHANE, J. ]

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.Rule. Rule made returnable forthwith. With the
consent of the parties the matter is taken up for final
hearing.

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2.By this petition the petitioner has prayed
following substantive reliefs :

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B) By writ, order or directions, the respondent No.3 may kindly be directed to grant time bound promotional pay scale of Senior Assistant to the retired petitioner as provided under the Govt. Resolution dated 08.06.1995 in the interest of justice.

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C) By writ, order or directions, the respondent No.1, may kindly be directed to consider the representations of the petitioner dated 05.09.2015, in the interest of justice.

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3.According to the petitioner he was appointed on
15.06.1967 as a Junior Assistant in Zilla Parishad,
Aurangabad under respondent Nos. 3 and 4 i.e. the Chief
Executive Officer, Zilla Parishad, Aurangabad and the

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Chief Accounts and Finance Officer, Zilla Parishad,
Aurangabad. He has taken voluntary retirement from
01.04.1999. During the period of his service even after
completion of twelve years he was not granted time bound
promotional pay scale as per Government Resolution dated
08.06.1995.Therefore,heconsistentlymade
representations to the respondent authorities but he was
not granted time bound promotional pay scale of Senior
Assistant with all consequential benefits.

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4.Further, it is the case of the petitioner that
unfortunately he was implicated in a criminal case for
the offence punishable under Section 420 read with
Section 34 of the Indian Penal Code. He was arrested on
16.02.1994 and he was in custody for more than forty
eight hours. Therefore, he was placed under suspension
from 17.02.1994 to 22.05.1995 for more than one year and
three months. Subsequently, he was acquitted of the
aforesaid offence. He was reinstated in service on
23.05.1995 and his entire period of suspension was
treated as on duty.

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5.Respondent No.1 Government of Maharashtra issued
Government Resolution on 08.06.1995 providing time bound
promotional scale to Class-III and Class-IV employees

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which is equally applicable to all the semi Government
employees. As per the scheme of said Government
Resolution the employees who have completed more than
twelve years service but avenue of promotion are not
available or who could not get promotions for a long time
or whose scales are stagnated such of the employees are
granted time bound pay scales in the promotional channel
or the scales provided under the said Government
Resolution.

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6.Petitioner contended that after his acquittal of
the aforesaid offence and reinstatement on the post of
Junior Assistant he made representations on 11.12.1995,
06.12.1997 and 10.07.1998 to the respondent No.3 the
Chief Executive Officer for grant of time bound pay scale
of Senior Assistant as he had completed more than twelve
years service and he was exempted from post recruitment
examination as he has attended more than forty five years
of his age. However, he was not granted time bound pay
scale therefore, he preferred the appeal before the
learned Additional Commissioner on 11.03.1999. But,
respondent NO.3 came with the case that the petitioner
did not request for grant of exemption from post
recruitment examination and the confidential report's of
the petitioner for the years 1991-1992, 1995-1996 and

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1996-1997 are adverse. Petitioner states that the
confidential report for the year 1991-1992 were never
communicated to him and the confidential report's for the
years 1995-1996, 1996-1997 were communicated on
24.12.1997 belatedly. According to him without
considering the arguments made on his behalf, his appeal
was dismissed on 29.08.2000.

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7.Further it is the case of the petitioner that he
made representations to respondent No.3 Chief Executive
Officeron15.07.2014,12.08.2014,17.10.2014,
08.01.2015, 11.02.2015, 02.07.2015 and to the respondent
No.2 Divisional Commissioner on 17.03.2015, 27.04.2015 &
01.07.2015 & to respondent No.1 on 05.09.2015. But all
the respondents without considering his view point
replied in negative and respondent No.1 did not respond
at all.

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8.The date of birth of the petitioner is
07.08.1946 and as per his date of birth he completed 45
years of his age on 07.08.1991. Therefore, as per Rule 6
of the Maharashtra Zilla Parishad District services Post
Recruitment Examination Rules, 1985 the petitioner is
clearly exempted from the said examination. Therefore,
stand taken by respondent authorities particularly

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respondent Nos. 2 and 3 that the petitioner was not
exempted from post recruitment examination is not
sustainable. So also, when the confidential reports were
not communicated to the petitioner he cannot be deprived
of from the promotion on the ground of adverse
confidential reports in view of the law laid down by the
Apex Court in the case of Dev Datta Vs Union of India and
others reported in 2008(4) ALL MR 438 (Supreme Court). As
such, the petitioner has claimed time bound promotional
scale from 01.10.1994 as per Government Resolution dated
08.06.1995 by filing this petition.

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9. The respondents have not filed reply.

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10.We have heard learned Advocate appearing for the
petitioner, learned AGP for respondent Nos. 1 and 2 and
learned Advocate for respondent Nos. 3 and 4. We have
perused pleadings in the petition, Government Resolution
dated 08.06.1995, all others documents produced by the
petitioner, the letter dated 09.02.2015 of the Chief
ExecutiveOfficer,ZillaParishad,Aurangabad
communicating the petitioner the reasons of holding him
ineligible for time bound promotional scale and decision
in appeal bearing No.99/DB/Appeal-Cell/27 dated
29.08.2000 of the Additional Commissioner, Aurangabad

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challenging the order/communication dated 24.11.1998 of
the respondent intimating the petitioner that time bound
promotion cannot be given to him.

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11.When the respondents have not filed reply and
denied the contentions of the petitioner in the petition,
we have to accept the contention of the petitioner that
he was appointed on 15.06.1967 on the post of Junior
Assistant under respondent Nos.3 and 4 and he has taken
voluntary retirement on 01.04.1999. He was prosecuted for
the offence punishable under Section 420 read with 34 of
the Indian Penal Code. He was arrested on 16.02.1994. He
was in custody for more than 48 hours. Therefore, he was
placed under suspension from 17.02.1994 to 22.05.1995 for
more than one year and three months. Subsequently, he was
acquitted of the above said offence alleged against him.
He was reinstated in service on 23.05.1995 and his entire
period of suspension was treated as on duty. Therefore,
it can be said that the petitioner was in continuous
service right from his appointment on 15.06.1967 till his
voluntary retirement on 01.04.1999. From the above facts
it is also clear that on the day of Government Resolution
dated 08.06.1995 the petitioner had completed more than
12 years continuous service.

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12.Now it is to be seen whether the petitioner is
entitled to time bound pay scale in the promotional
channel of Senior Assistant in view of the Government
Resolution dated 08.06.1995 since he completed more than
12 years on the date of said Government Resolution. To
consider this aspect it is necessary to see as to what
are requirements to get time bound scale of promotional
post as per Government Resolution dated 08.06.1995.
Clause-2 of Government Resolution dated 08.06.1995
(Exh.C) which is relevant is produced as under:-

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2- ;k inksUurhph ri'khyokj ;kstuk [kkyhyizek.ks vkgs-

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xV “ d “ o “ M “ ¼iwohZos oxZ 3 o 4½ e/khy in/kkjdkauk 12 o"kkZP;k fu;fer lsosuarj R;kaP;k inksUurh lk[kGhrhy inkoj inkUurhlkBh in vfLrRokr ukgh v'kk deZpkj;kauk ojP;k inkojhy osruJs.kh ns.;kr ;sbZy- T;k deZpkj;kauk inksUurh lk[kGhryh fu.kZ;klkscrP;k ifjf'k"Vke/;s n'kZfo.;kr vkY;kuqlkj ofj"B osruJs.kh ns.;kr ;sbZy- ;k ;kstusph brj izeq[k oSf'k"B;s o vaeyctko.khph dk;Zi/nrh [kkyhyizek.ks vkgs-

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v½ gh ;kstuk 1 vkDVkscj 1994 iklwu vaeykr ;sbZy-

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c½ ;k ;kstusvarxZr ofj"B osruJs.kh feG.;klkBh inksUurhlkBh fofgr dk;Zi/nrh] ts"Brk] ik=rk] vgZrk ijh{kk] foHkkxh; ijh{k ;k ckchaph iwrZrk dj.ks vko';d vkgs-

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d½ ljG lsosus izfo"V >kysY;k vFkok inksUurhus fu;qDr

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kysY;k deZpkj;kaP;k ckcrhr ,dosG ;k ;kstusvarxZr 12 o"kkZuarjP;k fu;fer lsosuarj ofj"B osruJs.kh vuqKs; vlsy-

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M½ T;k deZpk - ;kauk ;kiwohZ nksuis{kk tkLr inksUurh feGkY;k vkgsr v'kk deZpk - ;kauk ;k ;kstusvarxZr ofj"B osruJs.kh feG.kkj ukgh-

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bZ½ xV “ M “ e/khy deZpk - ;akuk ;k ;kstusvarxZr xV “ d “ e/khy osruJs.kh Eg.kts #-950&1400 fnyh rjh R;kaps lsokfuoRrhps o; 60 gsp vsly] ek= xV “d“ e/khy vU; ofj"B inkaoj R;kauk inksUurh feGkY;kl R;kaps lsokfuoRrhps o; 58 o"ksZ jkghy- xV “ d “ e/khy in/kkjdkauk xV “ c “ e/khy jktif=r inkoj inksUurh ns.;klkBh ;k ;kstusvarxZr fopkj dsyk tk.kkj ukgh-

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x½ ;k inksUurheqGs tokcnkjh vkf.k drZO;s ;kr ok< gksr ulyh rjh fu;fer inksUurhizek.ks osrufuf'prhr YkkHk ns.;kr ;sbZy- ek= osrufuf'prhr feGkysyk gk ykHk R;kp osruJs.khr dk;kZRed QaD'kuy inksUurh feGkY;koj iqUgk ns; gks.kkj ukgh-

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u½ Tkj deZpk - ;akl fo'ks"k osru feGr vlsy rj ;k ;kstus[kkyhy inksUurhuarj deZpk - ;kal ewG osruJs.khrhy fo'ks"k osru vuqKs; jkg.kkj ukgh-

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;½ ;k ;kstusvarxZr inksUurh feGkyh rjh deZpk - ;kaps ukao dfu"B ewG laoxkZP;k T;s"Brklwphr jkghy vkf.k lsokizos'k fu;ekrhy rjrqnhuqlkj miyC/k fjDrrsr ;ksX;kosGh fu;fer inksUurhlkBh QaD'kuy izeks'ku R;kpk fopkj dj.;kr ;sbZy- fu;fer inksUUkrhl vik= BjysY;k deZpk - ;kal ;k ;kstuspk ykHk feG.kkj ukgh- R;kpizek.ks fu;fer inksUurh ukdjysY;k deZpk - ;klns[khy ;k inksUurhpk ykHk feGw 'kd.kkj ukgh- ;k vk/khp R;kauk inksUurh fnyh vlY;kl ewGP;k inkoj inkour dj.;kr

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;sbZy- r'kk vk'k;kps ca/ki= deZpk - ;kauk fygwu n;kos ykxsyek= ns.;kr vkysY;k vkfFkZd ykHkkaph olwyh dsyh tk.kkj ukgh-

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gs vkns'k ftYgkifj"kn deZpk - ;akP;k ckcrhrns[khy tlsP;k rls ykxw dj.;kr ;kosr-

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13.On reading above referred clause-2 of Government
Resolution dated 08.06.1995 it is clear that Group-C and
Group-D (earlier class-III and class-IV) employees who
have completed twelve years continuous service, but no
promotional vacancy is available, they are eligible to
get pay scale of the higher post. Broadly the
requirements to apply the said scheme relevant to this
case are that the said scheme is applicable to the Zilla
Parishad employees. It is applicable from 01.10.1994. The
candidates who fulfilled criteria of prescribed
procedure, seniority, eligibility test and divisional
examination are eligible to get higher pay scale under
the scheme. In case employees who are directly recruited
or appointed by promotion, would get higher pay scale
only once after twelve years continuous service. The
employees who have got two promotions prior to the scheme
would not get higher pay scale under this scheme. Though
there would be no increase in the responsibility and
duties due to this promotional pay scale still benefit of
pay fixation would be given as per regular promotion, but

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said benefit would not be again given in case of
functional promotion in the said pay scale and even if
the employee would get promotion under this scheme his
name would remain in the seniority list of Junior
(original post) and as per availability at proper time he
would be considered for regular promotion (functional
promotion). The employees who are declared ineligible for
regular promotion would not get benefit of this scheme.
So also, those employees who are denied regular promotion
would not get benefit of this scheme and in case they are
given promotion prior to this scheme they would be
reverted to the original post.

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14. As stated earlier while referring the contentions in the petition it is mentioned that the petitioner made several applications/representations to respondent No.3 the Chief Executive Officer, Zilla Parishad, Aurangabad to grant him benefit of time bound promotional pay scale as per Government Resolution dated 08.06.1995 as he completed 12 years continuous service as a Junior Assistant. It appears that on his application dated 17.10.2014 and 08.01.2015 respondent No.3 informed him vide letter No. ftivkS / 2 iz'kklu / dkfo / 528 / 2015 dated 09.02.2015 that as per minutes of Promotion Selection Committee meeting dated 25.11.1997 he has not passed Post

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Recruitment Examination or he has not taken exemption
from passing the Post Recruitment Examination and so also
as per meeting dated 09.10.1998 his Annual Confidential
Reports were adverse, he was declared unfit to get time
bound pay scale of promotional post. So also, it appears
that by letter dated 24.12.1997 (Exh.E) respondent No.3
informed the petitioner in response to his application
dated 06.12.1997 about the reasons of not giving time
bound pay scale, that his Annual Confidential Reports of
the years 1991-1992, 1996-1997 were not satisfactory and
he was informed his adverse Annual Confidential Reports
of the years 1995-1996 and 1996-1997 have been
communicated to him. So also, he was informed that he was
exempted from Post Recruitment Examination as per order
dated 13.10.1997. He was further informed that as and
when his five years Annual Confidential Reports would be
satisfactory he would be considered for giving time bound
promotional pay scale and that if he is not agree with
the decision of the Chief Executive Officer he can prefer
appeal to the Additional Commissioner. It was also
informed that his hunger strike is illegal and therefore,
in case he goes on hunger strike he would be responsible
for the same.

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15.It appears that aggrieved by the order/

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communication dated 24.11.1998 of respondent No.3, the
petitioner filed appeal bearing No.99/DB/Appeal-Cell/27,
denying him time bound promotional pay scale as remarks
in his confidential reports for the period from 1991-1992
to 1996-1997 were adverse. The said appeal was dismissed
on 29.08.2000. The contention of the petitioner that he
has completed 45 years of his age on 07.08.1991 and
therefore, he was exempted from passing Post Recruitment
Examination was not accepted by the Additional
Commissioner for the reasons mentioned in the decision in
the appeal.

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16. It appears from the letter dated 23.04.1999 of respondent No.3 the Chief Executive Officer, Zilla Parishad, Aurangabad to the Divisional Commissioner, Aurangabad giving parawise comment on the above said appeal filed by the petitioner before the Additional Commissioner as per comment on issue No.2 it is stated that even if the petitioner completed 45 years of age on 07.08.1991 he did not move application for exemption from passing Post Recruitment Examination and in 1997 he has given an application for such exemption and by order No. ftivkS / 2 - iz'kklu / 97 / 641 dated 23.10.1997 he has been granted exemption from passing Post Recruitment Examination. So also, it is stated in the said letter that the petitioner

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hasbeeninformed/communicatedadverseAnnual
Confidential Reports of the years 1995-1996 and 1996-1997
by confidential letter No.96 dated 13.10.1997 and further
he has been informed/communicated about adverse Annual
Confidential Reports of the year 1997-1998. Thus, it is
clear from this letter of respondent No.3 that adverse
Annual Confidential Reports were communicated to the
petitioner on 13.10.1997 and 17.11.1998 and they were
communicated prior to meeting of Departmental Promotion
Committee held on 25.11.1997 and 09.10.1998, but there is
nothing on record to show the nature of such adverse
Annual Confidential Reports. As observed above
respondents have not filed reply. Therefore, it is
difficult to know the nature of said adverse Annual
Confidential Reports of the petitioner so as to say that
due to said adverse Annual Confidential Reports the
petitioner was ineligible to get benefit of time bound
promotional pay scale as per Government Resolution dated
08.06.1995.

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17.As observed above the petitioner was exempted
from passing the Post Recruitment Examination as per
order dated 23.10.1997 passed by respondent No.3.
According to the petitioner even if said order has been
belatedly passed he has got exemption from passing Post

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Recruitment Examination from 07.08.1991 when he has
actually completed 45 years of age. Therefore, he is
entitled to time bound promotional pay scale from
01.10.1994. Rule-6 of the Maharashtra Zilla Parishad
District Services Post Recruitment Examination Rules,
1985 reads thus:

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6. Exemption from passing Examination:-

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(1) A Parishad employee shall be exempted from passing the Examination if he attained the age of fortyfive years on or after the appointed date.

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(2) Notwithstanding anything contained in these rules the State Government may, by order exempt any person or class of persons from passing the Examination if he has-

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(a) passed any other examination or completed any other test successfully and other course of training which is recognised by it to be equivalent to the Examination; or

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(b) attained an age which in its opinion warrants grant of such exemption.

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18. In the above circumstances when there is no
record to show the nature of adverse Annual Confidential
Reports of the petitioner of the years 1991-1992 to 1996-
1997 and he was exempted from passing Post Recruitment
Examination on his attaining 45 years of age on
07.08.1991 as per Rule-6 of the Maharashtra Zilla

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Parishad District Services Post Recruitment Examination
Rules, 1985 or as per order dated 23.10.1997 of
respondent NO.3 denial of time bound promotional pay
scale to him in the light of Government Resolution dated
08.06.1995 by respondent authorities particularly
respondent NO.3 the Chief Executive Officer, Zilla
Parishad, Aurangabad as per order dated 24.11.1998 and
confirmation of the said order by the Additional
Commissioner in the appeal appears not proper. Therefore,
order/ communication dated 24.11.1998 (which is not
produced on record) of respondent No.3 and order dated
29.08.2000 passed by the Additional Commissioner,
Aurangabad in the appeal of the petitioner dated
11.03.1999 refusing time bound promotional pay scale are
set aside. Respondent No.3 the Chief Executive Officer,
Zilla Parishad, Aurangabad is directed to re-consider the
case of the petitioner for time bound promotional pay
scale of Senior Assistant as per Government Resolution
dated 08.06.1995 afresh after giving an opportunity of
hearing to the petitioner. Respondent No.3 shall not
reject the claim of the petitioner on the ground that he
has not been exempted from passing Post Recruitment
Examination. Respondent No.3 to make final order on the
claim of the petitioner within three months from today.
Since, we have given directions as above to respondent

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No.3 there is no necessity to issue directions to
respondent No.1 to consider representation of the
petitioner dated 05.09.2015 as per prayer clause-C in
para No.17 of the petition.

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19.Rule is made absolute in above terms. The writ
petition stands disposed of. No costs.

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[S.M.GAVHANE,J.] [S.S. SHINDE,J.]

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VishalK/ wp11861.16

Janaradhan Chandrabhanji Kamble v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Janaradhan Chandrabhanji Kamble v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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