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2023 DIGILAW 130 (BOM)

Ashok Rama Dhonge v. State Of Maharashtra

2023-01-10

S.V.GANGAPURWALA, SANDEEP V.MARNE

body2023
JUDGMENT SANDEEP V.MARNE, J. - Rule. Rule is made returnable forthwith. With the consent of the parties, matter is taken up for fnal hearing at the admission stage. 2. By this Petition, the petitioner challenges order dtd. 8/3/2022 passed by the respondent / the Zilla Parishad, Kolhapur, by which he came to be relieved from post of the Executive Engineer (Rural Water Supply Department), Zilla Parishad, Kolhapur. 3. The petitioner came to be appointed as a employee of Maharashtra Jeevan Authority. He has been appointed as Assistant Executive Engineer by order dtd. 28/2/2017. Subsequently, by order dtd. 1/7/2021, the petitioner came to be promoted to the post of Executive Engineer and was posted in Rural Water Supply Division of Zilla Parishad, Kolhapur. Such a posting was done in accordance with the provision of Sec. 22A of the Maharashtra Jeevan Authority Act, 1976. 4. It appears that the complaint was made by respondent No.4 who is the Member of Zilla Parishad, Kolhapur seeking the petitioner's relieving from Zilla Parishad on account of failure to perform his duties. It appears that in pursuance of complaint of respondent no.4, the General body of Zilla Parishad adopted Resolution dtd. 22/2/2022 for relieving the petitioner. In pursuance of that Resolution, the Chief Executive Offce of Zilla Parishad, Kolhapur proceeded to pass order dtd. 8/3/2022 relieving the petitioner from Zilla Parishad with a further direction to report to the Original establishment. The order dtd. 8/3/2022 is the subject matter of challenge in the present Petition. 5. Appearing for the petitioner, learned advocate Mr. N.V.Bandiwadekar would submit that the posting of the petitioner was done by the Zilla Parishad, Kolhapur in accordance with the provision of Sec. 22A of the Maharashtra Jeevan Authority Act, 1976 and that therefore the Zilla Parishad does not have authority to unilaterally relieve the petitioner. Inviting our attention to letter dtd. 23/6/2022 of the State Government, Mr. Bandiwadekar would contend that the State Government informed the Zilla Parishad, Kolhapur that it does not have power to unilaterally relieve the petitioner. It appears that Mr. Badiwadekar would further submit that the petitioner erroneously assumes that he was appointed in Zilla Parishad on deputation but the same is not deputation, hence he fled Interim Application No.18571 of 2022 seeking to amend the Petition for deletion of word 'deputation' from the petition. 6. It appears that Mr. Badiwadekar would further submit that the petitioner erroneously assumes that he was appointed in Zilla Parishad on deputation but the same is not deputation, hence he fled Interim Application No.18571 of 2022 seeking to amend the Petition for deletion of word 'deputation' from the petition. 6. The Petition is resisted both by the Zilla Parishad, Kolhapur as well as by the Maharashtra Jeevan Authority. Mr. Ramesh Rane, learned advocate appearing for the Zilla Parishad, Kolhapur would submit that what is effected by order dtd. 1/7/2021 was deputation of the petitioner. He would rely upon Government Resolution dtd. 16/2/2018 which permits termination of period of deputation. In the eventuality of issue of dereliction of duties, he would submit that since the petitioner failed to implement the Jaljeevan Mission Programme in Kolhapur thereby resulting in District being rank lowest in the State. The Zilla Parishad has rightly adopted the Resolution for his repatriation. Mr. Rane would rely upon the provision of Sec. 242BB of the Zilla Parishads and Panchayat Samitis Act, 1961 in support of his contention that the Zilla Parishad is fully empowered to repatriate the petitioner. 7. Though, Mr. Pitale, learned advocate for the Maharashtra Jeevan Authority has also opposed the Petition. He does not agree with the contention of Mr. Rane that order dtd. 1/7/2022, is one of deputation. Mr. Pitale would contend what is effect of 1/7/2021 is merely posting and not a deputation. He further supports the order passed by the Zilla Parishad. He would submit that the petitioner failed to report to the Maharashtra Jeevan Authority in pursuance of order dtd. 8/3/2022. 8. Mr. Sadavarte, learned advocate appearing for respondent no.4 has also opposed the Petition and supported order dtd. 8/3/2022. 9. We are also heard learned AGP appearing for the respondent - State. 10. Rival contentions of the parties now fall for our consideration. 11. The entire issue revolves around the nature of arrangement by which the petitioner came to be posted by Zilla Parishad, Kolhapur. Perusal of order dtd. 1/7/2021 indicates that the same essentially effecting the promotion of 17 offcers from the post of Assistant Executive Engineer to that of Executive Engineer. By that order, the petitioner came to be promoted to the post of Executive Engineer. After effecting the promotion, the offcers have been posted to different stations. Perusal of order dtd. 1/7/2021 indicates that the same essentially effecting the promotion of 17 offcers from the post of Assistant Executive Engineer to that of Executive Engineer. By that order, the petitioner came to be promoted to the post of Executive Engineer. After effecting the promotion, the offcers have been posted to different stations. While most of the offcers came to be posted, the petitioner came to be posted in Zila Parishad, Kolhapur. This appears to have been done in pursuance of provision of Sec. 22A of the Maharashtra Jeevan Authority Act, 1976 which reads thus; 22A. (1) On the directions issued by the State Government, the Authority shall post, from time to time, to work under the Zilla Parishads constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, such number of Deputy Engineers, (Grade-II) and Executive Engineers (Grade-I), from its cadre of Engineers, having due regard to exigencies of services in the Zilla Parishads for such period and on such terms and conditions as may be decided by the Authority and the concerned Zilla Parishads. 12. Deputation is another service requires consent of employee. There is nothing to indicate that the petitioner's consent was sought while posting him at Zilla Parishad, Kolhapur. Therefore, it is apparent that what is effected by order dtd. 1/7/2021 is not deputation of the petitioner. 13. Perusal of Sec. 22A of the Act of 1976 further makes it clear that the Authority has been empowered to post its offcer to work in Zilla Parishad having recorded exigencies of service. Thus, the Authority itself has confrmed by its affdavit-in-reply that the posting order dtd. 1/7/2022 was in accordance with the provision of Sec. 22A of the Act to 1976. 14. I have therefore no hesitation in holding that what is effect of order dtd. 1/7/2021 was a mere 'posting' and not 'deputation'. 15. Since the petitioner was not deputed to Zilla Parishad, the provision of Government Resolution dtd. 16/2/2018 become wholly non applicable to list of posting. The reliance of Mr. Rane on Government Resolution dtd. 16/12/2018 accordingly is of no avail. The petitioner is undoubtedly an employee of Maharashtra Jeevan Authority and not an employee of Zilla Parishad. He was merely directed to work at Zilla Parishad by issue of order of posting under the provision of Sec. 22A of the Act of 1976. The reliance of Mr. Rane on Government Resolution dtd. 16/12/2018 accordingly is of no avail. The petitioner is undoubtedly an employee of Maharashtra Jeevan Authority and not an employee of Zilla Parishad. He was merely directed to work at Zilla Parishad by issue of order of posting under the provision of Sec. 22A of the Act of 1976. On account of such posting, the relationship between the petitioner and Maharashtra Jeevan Authority continue to subsist. Even after such posting, the Zilla Parishad, Kolhapur did not become his employee under Sec. 22A of the Act of 1976. It is the Maharashtra Jeevan Authority who is empowered to effect the posting of the petitioner wherein such posting is effected, the Zilla Parishad have no power from Authority to unilaterally relieve the petitioner from the Zilla Parishad, Kolhapur and to direct him to report on his original employer viz. The Maharashtra Jeevan Authority. 16. Thus, order dtd. 8/3/2022 passed by the Zilla Parishad, Kolhapur cannot sustained the prior course of action, that the petitioner's deputation by the Zilla Parishad was to report the matter to the Mahaashtra Jeevan Authority and seek transfer of the petitioner out of Zilla Parishad. Upon receipt of request from the Zilla Parishad, Kolhapur, the Authority could have issued necessary order as are required to be passed in the facts and circumstances of the present case. However, by no stretch of imagination it can be contended that the Zilla Parishad could have unilaterally taken a decision to relieve the petitioner from the Zilla Parishad. Consequently, order dtd. 8/3/2022 deserved to set aside. 17. We pass the following order; ORDER (i) The impugned communication dtd. 8/3/2022 at Exhibit G is quashed and set aside. (ii) It is made clear that the present order would not be an impediment to enable respondent to take recvse in accordance with the provisions of law. 18. Writ Petition stands disposed with no order as to costs. In view of disposal of Writ Petition, Interim Application stands disposed of. Rule is made absolute in the above terms.