Sanghmitra R. Sandansing v. Municipal Corporation of Greater Mumbai

Law Officer on provisional basis till issuance of appropriate order by the Municipal Corporation based on recommendations of regular DPC.

(vi) In the event of petitioner being found fit for being promoted to the post of Law Officer, such promotion shall be granted to her with effect from 31st December2021 with all consequential benefits, except back wages. In the event respondent No.4 is found fit for the promotion to the post of Law Officer, he shall be deemed to have been promoted on the post of Law Officer with effect from 31st December 2021 with all consequential benefits.

(vii) With the above directions. the writ petition is partly allowed. Rule is accordingly made absolute in above terms. Pursuant to the order dated 17 March 2023, the Review Departmental Promotion Committee (Review DPC) was convened on 5 June 2023 to fill up the post of Law Officer. The said Review DPC considered the minutes of the DPC-I and DPC-II and comparative table whereby the eligibility of the Petitioner and Respondent No.4 as Mr.Anant B. Kajrolkar by then had reached the age of superannuation. The Review DPC observed that considering many enquiry cases against the Petitioner throughout her service career and punishments imposed, the Petitioner was not suitable for promotion to the post of Law Officer and did not recommend the name of the Petitioner for the post of Law Office. A resolution was passed on 14 July 2023 by the Administrator of the Municipal Corporation. The appointment of Respondent No.4 as Law Officer was continued.

11. The Petitioner, aggrieved by the action of the Respondents in denying promotion to the Petitioner to the post of Law Officer, has approached this Court by way of the present petition, praying for a direction to quash and set aside Resolution No.413 dated 14 July 2023 and Office Order Nos. MGC/F/243 and MPS/8129(265), through which Respondent No.4 was appointed as the Law Officer with effect from 31 December 2021. The Petitioner has also prayed for a direction to the Respondent-Corporation to appoint the Petitioner as the Law Officer after constituting a fresh Departmental Promotion Committee in accordance with the law and in a time-bound manner. Additionally, the Petitioner seeks a direction to grant back wages to the Petitioner with a pay grade for the post of Law Officer with effect from 31 December 2021. A reply affidavit has been filed by the Chief Personnel Officer of the Municipal Corporation to oppose the petition.

12. We have heard Mr. Mihir Desai, learned Senior Advocate for the Petitioner, Mr. A.V. Bukhari, learned Senior Advocate for the Respondent-Municipal Corporation and Mr. Milind Sathe, learned Senior Advocate for Respondent No.4.

13. Mr. Desai, in support of the Petition, contended briefly as follows: The promotion to the post of Law Officer is structured by the Rules, which have been framed and sanctioned by the State Government and published in the official gazette, and which have the statutory force of law. These Rules only provide for promotion on a seniority basis. These Rules will have to be read with the Handbook issued by the General Administration Department of the Municipal Corporation, which provides for the methodology for the Departmental Promotion Committee. As per this Handbook, only two factors are to be considered: seniority and the confidential reports. The Petitioner is admittedly the most senior in the cadre of Joint Law Officer, and her confidential reports for the last five years are satisfactory with no adverse remarks. Clearly, therefore, the Petitioner is more meritorious and senior than Respondent No. 4. The Respondent-Corporation is bringing up past punishments imposed on the Petitioner from 10 to 24 years ago, which shows bias and mala fides on the part of the Respondent Corporation. On the other hand, the punishment imposed on Respondent No. 4, which is a recent one from the year 2019, is ignored. Once the Petitioner has been promoted to the post of Deputy Law Officer and Joint Law Officer, the earlier punishments imposed on the Petitioner would be washed out and could not have been considered against the Petitioner. Such conduct of the Respondent Corporation, taking into consideration the earlier punishments imposed on the Petitioner to attribute the issue of integrity, is nothing but an arbitrary action to remove her from consideration for the post of Law Officer. The orders passed by two Division Benches of this Court clearly show the mala fide action of the Respondent Corporation, and therefore, the denial of promotion to the Petitioner, which is the Petitioner's right, is based on irrelevant material. The enquiries have been dealt with in the orders of the Division Benches of this Court, and the same issue could not have been raised again. The Hon'ble Supreme Court, in the case of Rama Negi v. Union of India[1], has laid down the proposition of law as to how the seniority cum merit has to be assessed. Once the promotion is granted, the washed-out theory would apply as laid down by the Hon'ble Supreme Court in the case of Badrinath v. Government of Tamil Nadu.

14. In response, Mr. Bukhari, learned Senior Advocate for the Respondent-Corporation, submitted that the post of Law Officer in the Municipal Corporation is a responsible post, and therefore, even though the Petitioner was given a promotion earlier, that does not mean that the overall service career of the Petitioner should be excluded from consideration. Three DPCs with different compositions of Senior Officers did not find the Petitioner suitable for the post of Law Officer, and mala fides cannot be attributed to them. The punishments imposed were after due enquiries, and the misconduct committed by the Petitioner has direct relevance for the post of the head of the department. There are no pleadings in the petition whatsoever of mala fides as is required by law. Even the Division Bench in the earlier orders had permitted the Municipal Corporation to look into the entire service record. The judicial pronouncements would show that the ‘washed out’ concept has a limited application, and it does not mean that the Municipal Corporation is precluded from looking into the service record of the Petitioner to find out who is the best-suited person for the promotion to an important post. There is no arbitrariness or error in not promoting the Petitioner and promoting Respondent No. 4.

15. Mr. Sathe, learned Senior Advocate for Respondent NO. 4, submitted that the earlier orders passed by the Division Benches will have to be seen in the context of what was argued, and it cannot be said that the orders passed by the Division Benches earlier had given positive findings on the merits of the petitions. On the other hand, all issues were kept open to be considered. The punishments imposed on the Petitioner reflect her ability to hold a responsible post. On the other hand, the punishment imposed on Respondent No. 4 does not reflect that he is not suitable for the post of Law Officer. The Review DPC has carefully considered all the factors; therefore, there is no merit in the charge that the denial of promotion to the Petitioner is arbitrary.

16. Firstly, we consider the parameters of the promotion to the post of Law Officer in the Municipal Corporation. The hierarchy in the Legal Department of the Municipal Corporation earlier was as follows: i. Junior Law Officer (four posts) (now no longer survives) ii. Assistant Law Officer (eighty-nine posts) iii. Deputy Law Officer (thirteen posts) iv. Joint Law Officer (three posts) v. Law Officer (single and isolated highest post) Earlier the entry post in the Legal Department was Junior Law Officer. Now this post is abolished after the retirement of the working employees. The Assistant Law Officer and the Assistant Law Officer Grade-II are now the entry posts in the Legal Department. The post of Assistant Law Officer is filled up by direct recruitment. There is promotion to the posts of Deputy Law Officer and Joint Law Officer. The appointment to the post of Law Officer, which is the highest post in the Legal Department is by way of promotion and selection.

17. As per the resolution of the Respondent-Municipal Corporation dated 28 September 1984 and the Government Resolution dated 8 May 1985, the procedure for appointment of Law Officer is laid down. The same is as under: "APPOINTMENT TO THE POST OF LAW OFFICER SHALL BE MADE (A) BY PROMOTION AMONG THE DEPUTY LAW OFFICER IN THE LEGAL DEPARTMENT OF THE CORPORATION

(i) Who have held that post not less than 5 years and

(ii) Possess adequate knowledge of Marathi to enable them to read, write and speak that language with facility. OR (B) BY SELECTION FROM AMONG CANDIDATES, WHO

(i) Unless already in the service of Municipal

Corporation of Greater Mumbai are not more than 45 years of age to (50 years in case of candidates belonging to backward Classes)

(ii) Possess a degree in law of statutory university

(iii) Possess experience of administrative cum legal work in responsible position in a Government, Semi Government establishment or an Industrial Organisation for a period of not less than 10 years and

(iv) Have adequate knowledge of Marathi to be able to read, write and speak that language with facility." These Rules are sanctioned by the State Government and published in the official gazette as per section 80B(4)(a) and (5) of the Mumbai Municipal Corporation Act, 1888. To be eligible for promotion to the post of Law Officer, one must have five years of service as a Deputy Law Officer.

18. There is no specific reference to seniority in the Rule. The promotion is not solely based on seniority to be claimed as a matter of right. The factors to be considered are merit, eligibility, qualification, performance, and suitability. It is not the case of the Petitioner before us that seniority is the only criterion, but the Petitioner contends that the entire service record prior to the Petitioner being promoted as Joint Law Officer should not be looked into, and the recent record is better than that of Respondent No. 4 and that the Petitioner is the senior most. The case is argued before us on this basis.

19. In the case of Badrinath, the Hon'ble Supreme Court, after reviewing the decisions on the subject, culled out certain principles regarding the right of promotion. The Hon'ble Supreme Court held that no right is vested in the employee for promotion, but the right is to be considered for promotion. The consideration must be fair and according to well-established principles governing service jurisdiction. The service record can be taken into consideration based on sound principles of fairness. The Supreme Court also observed that adverse remarks relating to the period prior to the promotion cannot be treated to have lost their sting, however, not if they are related to dishonesty or lack of integrity. The Supreme Court, however, cautioned the Courts not to interfere with the assessment made by the departmental promotion committee unless nonpromotion is bad according to the Wednesbury Reasonableness Principle; contrary to mandatory statutory provisions; or was mala fide. With these parameters guiding the exercise of writ jurisdiction, we will now examine the material on record.

20. As regards the Petitioner’s challenge based on the ground of mala fides, in the petition, the phrase "mala fide" at one or two places has been used by stating that the Respondents, with mala fide intention, have stopped the promotion of the Petitioner to the post of Law Officer. Even to consider personal bias or malice or bias in general no case is made out by the Petitioner.

21. First to consider the case of bias as personal bias or malice, in the case of Ratnagiri Gas and Power Private Ltd. v. RDS Projects Ltd., the Supreme Court has observed that while accusations of malicious intent are easily made, they are more difficult to substantiate. The law imposes a substantial burden on those making such allegations to provide evidence based on either admitted facts, facts that are satisfactorily established, or logical deductions from these facts. General or vague allegations without sufficient particulars do not offer a basis for the court to investigate their truthfulness. It has to be determined whether there is personal bias or a hidden motive, and secondly, whether the administrative action contradicts the objectives, requirements, and conditions of a legitimate exercise of administrative power. The individuals accused of malafides must be arrayed as parties to the proceedings to allow them to respond to the allegations. Without the presence of the individuals concerned as the parties in their personal capacity, it would not be fair or appropriate to conclude that the action was tainted by actual malice.In the case of M.V. Thimmaiah v. UPSC[2], the Hon’ble Supreme Court made the following observations: “19. So far as the allegation of mala fide against Shri B.S. Patil is concerned, he was not impleaded as a party. Therefore, the allegation of mala fide could not be entertained by the Tribunal. As such, the allegation of mala fide against Shri B.S. Patil could not be taken into consideration and rightly so, by the High Court as well as by the Tribunal. The allegation of mala fide is very easy to be levelled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision-making process. People are prone to make such allegations but the courts owe a duty to scrutinise the allegation meticulously because the person who is making the allegation of animus does sometimes bona fidely or sometimes mala fidely due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the court cannot draw its conclusion. Therefore, we reject the allegation of mala fide.” (emphasis supplied) A finding of mala fides is a indictment that can result in adverse civil consequences for the individual involved. Therefore, courts must exercise caution in reaching conclusions regarding allegations of mala fides.

22. Not only is there no pleading in the petition against the persons against whom mala fides are sought to be alleged, but they are also not joined as party respondents. The Petitioner has sought to rely upon the observations made by the Division Bench of this Court in Sanghmitra Sandansing-I, wherein the Division Bench, in its discussion, has used the phrase "mala fide" to describe the action of the Respondent-Corporation. As we would elaborate later, this decision will have to be seen in the context of what was argued and urged. Furthermore, the word "mala fide" used in the judgment is, in fact, used to describe the conduct which the Court found improper. It was an expression used by the Court and not a specific finding as such after putting the factum of mala fides into an issue. As per the decision of the Supreme Court in Ratnagiri Gas and Power Private Ltd., mala fides would have to be pleaded, and the issue has to be taken with specific grounds for challenging the administrative action, and thereupon the Court will render a finding considering the rival contentions. From this expression used by the Court, it cannot be said that there is a specific finding rendered on the ground of mala fides.

23. Even to consider the phrase mala fide to be attributed as an official bias, it is not clear why the entire institution over last several years should act in bad faith against the Petitioner. The Review DPC consisted of five members, including the Municipal Commissioner himself as the Chairman of the Committee. There were four Additional Commissioners as members, and the Joint Municipal Commissioner served as the Secretary. All Chairman and additional members of the DPC are senior officers of the IAS cadre of Maharashtra who have been appointed by the State of Maharashtra. The punishments taken into consideration by the Review DPC were after a full-fledged inquiry and were part of the record. Three Departmental Promotion Committees were set up in the Petitioner's case, i.e., on 13 October 2021, 12 May 2022, and 5 June 2023. The Respondent-Corporation has pointed out that the composition of the DPC members had changed and was not the same. Therefore, the impugned action cannot be quashed and set aside on the ground of mala fides.

24. Now, we turn to the second aspect regarding any fundamental error in the procedure and infraction of Rules. As stated earlier, the Rules for promotion to the post of Law Officer do not state that it is solely based on seniority. Rules make the person who has completed five years as a Deputy Law Officer with adequate knowledge of the Marathi language eligible for the promotion to the post of Law Officer. This does not mean, and it is also not argued by the Petitioner, that the moment the officer completes five years and has adequate knowledge of Marathi, the officer must be promoted as Law Officer. There is no such right to claim promotion to the post of Law Officer. This promotion will have to be based on merit, eligibility, performance, suitability, and other relative factors.

25. The Petitioner has sought to rely on the Handbook issued by the General Administration Department of the Municipal Corporation. Based on this Handbook, the Petitioner has contended that the promotion is based on seniority-cum-merit, and to assess the merit only, the five years' confidential reports have to be seen, and how to assess five years' confidential reports is stated therein in the Handbook. Therefore, the Petitioner contends that since senioritycum-merit is the criteria for promotion to the post of Law Officer and the merit has to be assessed only from the last five years' annual confidential reports, and the adverse conduct prior to the promotion of the Petitioner as Joint Law Officer gets washed out. As it is rightly argued by the Respondent Corporation, the Handbook is only a guideline prescribing modalities for conducting departmental committees and is based on the circulars issued. Once the appointment to the post of Law Officer, which is to be done by way of promotion or selection, is governed by the statutory Rules published in the official Government gazette, they would have the force of law. There is nothing in these Rules that precludes the Corporation, the employer, from considering factors other than annual confidential reports of five years. The annual confidential reports and other service records, along with other factors, are required to be considered for promotion to determine suitability, competence, and eligibility for promotion to the post of Law Officer. Even the Handbook suggests that all relevant material and information are to be placed before the DPC for consideration.

26. The Petitioner has placed heavy reliance on the decision of the Hon’ble Supreme Court in the case of Badrinath wherein the Hon’ble Supreme Court has observed that adverse remarks relating to a period prior to the earlier promotion must be treated as lost their sting subject to the rider that if they relate to dishonesty or lack of integrity. According to the Petitioner, the earlier record does not indicate any dishonesty or lack of integrity and once the Petitioner is promoted as Joint Law Officer, the past adverse conduct of the Petitioner should not have been considered, had it so, the Petitioner would not have been promoted as Joint Law Officer. The Respondents on the other hand have relied upon the decisions of the Hon’ble Supreme Court in the cases of Rama Negi; Jagathigowada v. Chairman, Cauvery Gramina Bank[3]; Union of India v. K.V.Jankiraman[4]; and Arun Kumar Gupta v. State of Jharkhand[5].

27. In the case of Arun Kumar Gupta, the Hon'ble Supreme Court dealt with the concept of the conduct getting ‘washed out’, which states that if any employee is promoted, earlier adverse remarks should not be considered for further promotion. The Supreme Court also dealt with its earlier decisions in D. Ramaswami v. State of T.N.[6] and Pyare Mohan Lal v. State of Jharkhand[7] and observed that it is not an absolute principle and the courts (while exercising writ jurisdiction) should be circumspect in interfering with the decisions of administrative authorities. The Petitioner sought to contend that this decision would not apply to the facts of the case of the Petitioner because that decision was rendered in the case of a judicial officer who had challenged his compulsory retirement. It was argued that the Supreme Court was mindful of the standards to be maintained by the judicial officer and that the decision is normally taken by the high-ranking committee of the High Court.

28. The decision in the case of Rama Negi has considered the judgments rendered in the cases of Jagathigowada and K.V. Jankiraman. The Hon'ble Supreme Court observed that even in the case of seniority cum merit, the overall service record has to be considered. The Hon'ble Supreme Court noted earlier decisions on the subject and held as under:

“21. Arijit Pasayat, J., speaking for a Division Bench in K. Samantaray v. National Insurance Co. Ltd. [K. Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286: 2004 SCC (L&S) 864], noted the following distinction: (SCC p. 289, para 7)

24. Adverting to the role of promotion committees, P.B. Sawant, J., speaking for a three-Judge Bench in Union of India v. K.V. Jankiraman [Union of India v. K.V. Jankiraman, (1991) 4 SCC 109: 1993 SCC (L&S) 387] has emphasized the necessity to consider the entire service record of the candidates in line for promotion: (SCC p. 123, para 29)

25. On the same aspect, Kuldip Singh, J., also held for a Division Bench in Jagathigowda, C.N. v. Cauvery Gramina Bank [Jagathigowda, C.N. v. Cauvery Gramina Bank, (1996) 9 SCC 677: 1996 SCC (L&S) 1310], that the totality of the circumstances factor as a pivotal consideration with respect to seniority-cum-merit: (SCC p. 680, para 8)

26. For a Division Bench in Haryana State Electronics Development Corpn. Ltd. v. Seema Sharma [Haryana State Electronics Development Corpn. Ltd. v. Seema Sharma, (2009) 7 SCC 311: (2009) 3 SCC (Civ) 105: (2009) 2 SCC (L&S) 333], A.K. Ganguly, J. also reiterated the distinguishable features for the criterion of seniority-cum-merit, and the requirement to consider the entirety of the candidate's service record: (SCC p. 313, paras 8-9)

29. Apart from the legal position emanating from the aforementioned decisions, the decisions inter partes also does not support the Petitioner’s argument that only five years of confidential reports should be taken into account and all the records prior to the Petitioner's promotion as Joint Law Officer deemed to have been washed out. In Sanghmitra Sandansingh-I, the Petitioner had challenged seven show cause notices and the memorandum of charge. What was before the Court was a challenge to the show cause notices and memorandum of charge. The Division Bench, mindful of the fact that the interference of the Court at that stage was limited, examined the matter in the context of the show cause notices. At that stage, the question of Review DPC had not arisen. The Division Bench in Sanghmitra Sandansingh-I set aside the show cause notices and directed that the Petitioner's promotion to the post of Law Officer should be without getting influenced by the show cause notices. There was no indication therein as to how the DPC should proceed. It would so transpire that the DPC-I had taken the decision pending decision. Importantly, in Sanghmitra Sandansing-I, while disposing of the petition, the Division Bench observed thus:: “37. ….. There cannot be any quarrel regarding his submission that entire service record of the Petitioner will have to be taken into consideration by D.P.C. It is undisputed that the Petitioner's service record is required to be taken into consideration by the D.P.C. We are only accepting submission of the Petitioner that the Petitioner's case be fairly considered for the purpose of promotion to the post of Law Officer. From that angle only, we have pointed out in earlier part of this judgment, the remarks in her confidential report for last about five years and other relevant factors, but it is for the D.P.C. to take into consideration all the factors in fair manner and to take appropriate decision and/or to make an appropriate recommendation…..” This would show that even in Sanghmitra Sandansing-I, the Court did not restrict the Municipal Corporation from considering the petitioner's service record.

30. Sanghmitra Sandansingh-II arose because DPC-I considered the case of the Petitioner separately and not with the cases of the other candidates, and also because the additional charge of the post of Law Officer was handed over to Respondent No.4. The Division Bench observed that the case of the Petitioner for the post of Law Officer could not have been considered on a stand alone basis without undertaking a comparative assessment between the Petitioner and Respondent No.4. Even the conduct of the officer should have been considered. Therefore, the Division Bench, in Sanghmitra Sandansingh-II, directed the Respondent Corporation to convene a meeting for a review of the decision of the DPCs and to consider the cases of the Petitioner and Respondent No.4 and make appropriate recommendations. Before the Division Bench, the Petitioner specifically relied upon the decision in the case of Badrinath to contend that past penalties should not be considered. The Division Bench, in Sanghmitra Sandansingh-II, dealt with this contention and observed as follows: “38.Mr. Desai has relied upon judgment of the Apex Court in Badrinath(supra) in support of his contention that past penalties imposed on the petitioner have lost efficacy on account of her subsequent promotion to the post of Joint Law Officer. At our request, Mr. Bukhari has placed on record minutes of DPC held on 25th November 2020 for promotion on the post of Joint Law Officer. After going through it’s minutes, we find that imposition of past penalties on petitioner were not considered by the DPC which recommended her case for promotion to the post of Joint Law Officer on25th November 2020. However, at the same time we cannot equate the post of Joint Law Officer with that of Law Officer, the incumbent on which heads the legal department of substantially large size with as many as 356 staff working under her/him. The respondent Municipal Corporation and the DPC are empowered to determine its own criteria for adjudging fitness of officers for promotion to the post of Law Officer. We therefore do not wish to make any observations about the exact norms to be applied by the DPC while reconsidering the cases of petitioner and respondent No.4 for promotion to the post of Law Officer.” Therefore, though at that time the DPC had not considered the past records, the Court had specifically stated that there is no bar and, in fact, made distinction between the posts of Joint Law Officer and Law Officer.

31. The post of Law Officer in the Respondent- Corporation is of importance. The Respondent-Corporation has placed on record the nature of the post of the Law Officer. The post of Law Officer is the highest post in the Legal Department of the Municipal Corporation. The Law Officer is administratively overall in charge of the Legal Department and has to control and supervise the entire staff of 356 in the Legal Department of the Municipal Corporation. There is a difference between the post of Joint Law Officer and the Law Officer, and they are not of equal grade. The Law Officer has to supervise the work of 3 Joint Law Officers, 13 Deputy Law Officers, and 113 Assistant Law Officers. The Law Officer is required to attend administrative work and supervise the day-to-day work of the Legal Department and to attend important matters before this Court and the Supreme Court. The Law Officer has to coordinate conferences with the advocates and other departments and guide the juniors.

32. The Respondent-Municipal Corporation is one of the largest Municipal Corporations in the country with budget more than many States in the country. It has substantial litigations often with very high stake matters, and the post of Law Officer, which is the highest post in the Legal Department, is of extreme importance for the functioning of the Municipal Corporation. The Municipal Corporation, therefore, has to be careful in selecting the right candidate with integrity and competence and must make all reasonable efforts to ensure that a fit and proper person is appointed as a Law Officer. It is not only the power of the Municipal Corporation but also its duty to appoint a meritorious, competent, and one with integrity as the head of the Legal Department of the Municipal Corporation. Therefore, we do not find any merit in the contention of the Petitioner that the Respondent Corporation must be restricted only to consider seniority and confidential reports of the last five years while giving promotion to the post of Law Officer.

33. Now, we turn to the process adopted by the Review DPC in coming to the conclusion that the Petitioner is not suitable to be appointed as Law Officer and that Respondent No.4 is to be appointed, in order to determine whether the decision was perverse by Wednesbury principle standard.

34. It is asserted by the Respondent-Corporation, which is not denied, that all senior officers who are members of the Review DPC are experts in the knowledge of management and administration of various departments of the State Government, and are well-equipped with suitability and competence in assessing the person to be appointed to the higher post. Therefore, once these DPCs and Review DPC have taken a decision ascertaining the merits of the rival candidates before them, then three questions would arise before us in writ jurisdiction. First, whether any mandatory procedure while assessing the candidates has been breached. Second, whether the decision taken is mala fide. Third, whether the decision is vitiated under the Wednesbury principle, such as a decision that is such that no reasonable person could have ever taken such a decision. First two aspects having been dealt with, we will now examine the decision of the Review DPC on the third question.

35. Before the Review DPC, two persons were considered: the Petitioner and Respondent No.3. Mr. Kajrolkar retired on superannuation on 3 August 2023, and therefore, his case was not considered. Consequently, an assessment of the rival merits of the Petitioner and Respondent No.4 was conducted. The minutes of the Review DPC are on record. As stated earlier, the Review DPC was headed by the Municipal Commissioner, with four other members being Additional Municipal Commissioners, and the Secretary being the Joint Municipal Commissioner, senior IAS officers. The Review DPC noted that one member had retired concerning the DPC-I convened on 13 October 2021. As for DPC-II convened on 12 May 2012, one person was transferred, and thus, the composition was changed. The Review DPC then narrated the background and the various orders passed. It further noted that for the promotion to the post of Law Officer, the first seniority was of the Petitioner, the second was Mr. Anand B. Kajrolkar, and the third was Respondent No.4. Regarding the annual confidential reports of the last five years (2016-17 to 2021-22), the Petitioner's grading was 'A'. For Respondent No.4, it was 'A' for 2016-17 and 2017-18, 'B' for 2018- 19, 'A' for 2020-21, and 'A+' for 2021-22. Both these officers fulfilled the minimum requirement for promotion to the post of Law Officer.

36. The Review DPC prepared a chart regarding the enquiries during the service period as officers, the Review DPC noted the subjects of enquiries and punishments imposed. As regards the Petitioner they were as under: No. Subject of Enquiry and No. Details of Punishment 1 Summary enquiry Against Smt. Sanghamitra a for not leading evidence behalf of the Corporation in the Labour Court on various dates 17.07.95, 19.07.95. 20.07.95, 07.08.95, 22.09.95, 30.9.95 and on 09.10.05 In the matter where one Mr.B.R.Yeole dismissed by the Corporation for Stealing Municipal Medicine from Hospital. Not leading the evidence in the Matter, resulted into directions of the Labour court to reinstated the said employee with full back wages with continuity Further, the annual pay increment is permanently withheld for one year. The Appeal against punishment was dismissed vide No. DMC/E/472/Con f dt.05.07.2001. of service and cost of Rs.1000/- (CHOE/DE/RRD/413/ dtd. 22.2.99)

2 Regarding the internal inquiry of Smt. Sandansingh, Assistant Law Officer for deceiving the administration by misuse of punching card and showing false attendance by punching her own punching card even when she was absent from that work (CHOE/DE/SMV 1568 dated 13.7.2007) According to the order dated 6.7. 2007 No. 5981 of the Deputy Commissioner (G.A.) Fault' was decided.

3 Inquiry regarding the total 22 days of leave due to non-submission of applications for casual leave or non-approval of leave in the months of January, February, April, May and June in the year 2006 by Mrs. Sanghmitra Sandansingh Assistant Law Officer. (CHOE/Z-I/RPR/C- 2023A dated 9.32007) Absence without leave (without break in service) for the days mentioned in Annexure ‘A’ of Mrs. Sandansingh.

4 Smt. Sanghamitra got her punching card punched by other employees and actually attended the workplace late due to her frequent absences which adversely affected the court and office work. Hence the applicable inquiry under The next two increments due are being permanently withheld. Appeal against the said order Order No. CHOE/ DE/RVD/1690 Further pay the departmental vide no. CHOE/DE/IVD dated 30- 4.2008. increment is being withheld on a adhoc basis for one year by reducing the penalty with effect from 17.1.2009.

5 Adequate judicial action was not taken in the court suit filed regarding unauthorized construction Dr. Moses Road Worli under the jurisdiction of G/South Division. Brief Inquiry this regard CHO DESH Q/1824 date 15.10.2007 A penalty of Rs.1000/- has been recovered from August 2009 salary.

6 Despite the requirement, the Assistant Law Officer did not file an appeal regarding order passed by the Hon'ble Court regarding unauthorized construction on premises of Municipal Solid Waste Management Department at Chapel Lane Santa Cruz West. Also, in accordance with the said cases, despite being present in that court in the morning on 3.2.2010, when the notice of claim came for hearing, he remained unauthorized absent without the permission of his superiors afternoon. The Deputy (CRA) ordered that the unauthorized absence on 3.2.2010 should be treated as absence without leave for one day as she was not present in the Court in the afternoon session on 3.2.2010 (without break in service) CHOE/Z-III/HMS/ 1768 dated 8.11.2011

7 In the suit filed by Mr. Syed Momin Hussain in the court regarding the on the municipal land at Navin Nagar No.2, Chapel Lane, H West ward on the basis of fake documents, the evidence filed by Mr.Hussain in the court is fake, even though the documents of the said evidence are not confirmed after discussion with the Municipal authorities. The court accepted that the evidence admissible. Therefore. by directly helping to strengthen the party's opposition to the Municipal Corporation. CHO/DE/ RNB/ 2640 dt.06.05.2013 Inquiry under Department As per order of the Deputy (CRA.) No. DMC/ CRA 5770 dated 28.3.2013 one pay increment is permanently withheld as punishment. The appeal filed on 7.4.2014 against the said conviction has been dismissed vide MC/Con/1266 dated 18.6.2014 in a joint hearing by the Deputy (devlp) and Deputy (Vigilance).

8 In spite of the fact that the court suit filed regarding the of additional five storey building on the ground floor of Matruchhaya School and Junior College at Anand Nagar CS Road No.2 Dahisar (East) Mumbai 68 is required to be disposed of immediately as he has not followed up Smt. Sandan Singh has been acquitted as the charges are not proved. to file an Affidavit in reply. A comprehensive inquiry under the Department was conducted. (CHOE/DE/VDB/3720/J AN/ MMA/ 54 dated 26.4.2016)

9 The misconduct related to inclusion of wrong information in the Affidavit as against the mutation entry, approval of Hon. M.C. and against the information shared by the B.P. Department about proposal regarding additional/alteration with regulation for existing bunglow on plot bearing CTS no. 1922 of Village Dahisar at Shree Krishna Nagar, CHS Ltd. Borivali dt. 28.3.2018 The penalty of censure on Smt. Sanghmitra for which Hon. Municipal Commissioner has given sanction vide no. MCP/5716 dt. 22.3.2018 10 22 cases in H West Division for failure to effectively represent the Municipal Corporation in the suit filed for violation of mat indicators. A comprehensive inquiry is being conducted within the department vide no. CHOE/DE 4335 Jan/2903 RKR dated 22.10.2018) As per the order passed vide No. CH/OE DE/SGG/4335 dated 8.01.2020, the charge sheet against Smt. Sandansingh has been withdrawn and excluded from Enquiry. Therefore, in ten enquiries, punishments were imposed against the Petitioner. As against this, Respondent No.4 faced one enquiry in the year 2018 and the allegation and the punishment imposed are as under: No. Subject of Enquiry and No. Details of Punishment 1 Non-implementation of second appeal hearing order under Right to Information Act, 2005 (No. CH OI/4138 dated 16.11.2018) Annual pay increment is being withheld for one year Appeal filed against punishment vide Deputy Commissioner/Elec tion dated 19.8.2019 Punishment be quashed and fined Rs.1000/- instead. Based on this position, the Review DPC observed and concluded thus: Translation from Marathi to English as supplied by the Petitioner. In view of the above inquiry cases against Smt. Sanghmitra Rajesh Sandansingh, Joint Law Officer, it appears that, The above cases 1, 5, 6, 7 and 8 respectively are related to her work in the Municipal Corporation and accordingly the punishment imposed on her is also serious. Her irresponsibility can be seen from the above cases 2,3,[4] respectively. The frequency of inquiry cases against Smt. Sanghamitra clearly highlights her negligence towards work. These cases show her moral degradation….. ….. taking into consideration the punishments imposed on her, (she) will not have credibility among the junior staff under her, which may tarnish the image of the post of Head of Department. By discussing this, Unanimously, the punishment imposed on Smt. Sanghamitra Rajesh Sandansingh during her entire service period was taken into consideration. Shri Sunil Kacheshwar Sonawane, Law Officer has an unblemished record except for only one inquiry in his entire tenure. The said inquiry is about the nonimplementation of the second appeal hearing order under the Right to Information Act, 2005 and is not directly related to the work of his legal department. Also, there is no financial loss to the Municipal Corporation due to this. Pursuant to the said enquiry, his annual increment was withheld for one year, however on appeal against the said punishment the said punishment was set aside and a fine of Rs. 1000/- was imposed instead. From this it can be seen that the investigation case proposed against Mr.Sonawane is not of a serious nature and the punishment given to him in the said case is also of a mild nature. Therefore, in the promotion committee meeting held on 13.10.2021, Shri. Punishment imposed on Sunil Kacheshwar Sonawane 2 years prior to the date of Promotion Committee was not taken into consideration. Both the posts of Law Officer' and 'Joint Law Officer' are not equivalent. In a very important and sensitive department like Legal Department, about 356 employees/officers are working under 'Law Officer'. The Legal Department is called the backbone of the Municipal Corporation. As a representative of the Municipal Corporation in various courts, the 'Law Officer' as the head of the department has the responsibility of not causing any loss to the Municipal Corporation while dealing with all legal matters through the officers class of 'Junior Law Officer', 'Assistant Law Officer' etc. in the Legal Department. Such Head of Department increase the morale and efficiency of the junior staff under them by their behavior. In fact, promotion to an head of department position requires careful decision-making. Review Promotion Committee …. ….( decision) has taken which is as follows:- 1) The First Service Senior Smt. Sanghamitra Rajesh Sandansingh, Joint Law Officer, in their whole service period several inquiry matters are there against them and in that connection the punishment which is given to them after considering the same period and moral character and they are having important accounts like law officers comparatively not enough for the promotion of the main post so Smt. Sanghamitra Rajesh Sandansingh, is not suitable for the for an important account for main post of the `Law Officer’. Therefore, it is not proper to give promotion on the post of Law Officer to completing the prescribed qualification first Service Senior Smt. Sanghamitra Rajesh Sandansingh. Joint `Law Officer’.

2) The Second Service Senior Shri Anant Babu Kajorlkar, Dy Law Officer has got retired from dated 01.06.2023 as per their age so they have not been considered for the post of Law Officer post for their promotion.

3) The Third Service Senior Shri Sunil Kacheswar Sonavane, the then Dy Law Officer in their whole service period only one inquiry matter is there against them and in that connection after taking into consideration of minor punishment which is given to them and after considering their merit and moral character Law Officer this important post comparatively for the main post third Shri Sunil Kacheswar Sonavane, is more eligible and appropriate for this post. Therefore for deciding eligible for post of important post of main post for promotion of Law Officer from the effective date of dated 31.12.2021 the recommendation is made for deciding eligible.” * * * Thereafter, by an order dated 14 July 2023, the Municipal Corporation Administration approved the Review DPC's decision to appoint Respondent No.4 as a Law Officer. Subsequently, a resolution was passed by the General Administration of the Municipal Corporation on 14 July 2023, confirming the appointment of Respondent No.4 with effect from 31 December

2021.

37. The Municipal Corporation has pointed out that the conduct for which the punishments were imposed would have a direct bearing when the Review DPC was considering the best suitable candidate to the important post of the Law Officer. The Petitioner was punished for not leading any evidence on six dates in the case stated in the first charge. This case was of importance for the Municipal Corporation. The Municipal Corporation dismissed one staff member for stealing medicines from the hospital. The enquiry was held to be not proper, and the Labour Court gave an opportunity to the Corporation for leading evidence, which the petitioner did not do on six dates. Consequently, the Labour Court reinstated the said employee in service. Then the Petitioner was punished for false attendance for getting her card punched even when absent. This punishment is not mere negligence but showed the mindset, and this factor cannot be termed as irrelevant when the Municipal Corporation was considering the appointment of a Law Officer, a post that demands complete integrity. The Petitioner was punished for remaining absent and for not submitting any application for leave for almost 22 days, which, according to the Municipal Corporation, showed a lack of discipline. Then, despite being censured in 2007, the Petitioner remained absent or attended the workplace late but got her card punched by another employee, and was accordingly punished. According to the Corporation, the Petitioner was punished for not taking action in a civil suit regarding an unauthorized construction, and a penalty of Rs.1,000/- was recovered from the Petitioner's salary. The sixth penalty was in respect of not filing an appeal and unauthorized absence. One of the penalties was in the case of unauthorized construction where bogus documents were admitted in evidence by the Petitioner. All these factors were considered by the Review DPC, which opined that some of them were serious and showed negligence on the part of the Petitioner.

38. According to the Review DPC, admitting bogus documents, and not leading evidence resulting in reinstatement of the employee who had committed theft are directly relatable to the competence as Law Officer on the legal side. Getting the card punched by somebody else, that too, twice and going on unauthorized leave without applications, shows the mindset relatable to the administrative side of the post. Whether the Review DPC should have ignored these punishments and the reasons for them cannot be the scope of enquiry under the writ jurisdiction. The moot question is whether the view taken by the Review DPC is a possible view. It cannot be said that it is an impossible view to be taken.

39. Regarding the Petitioner's contention that the punishment was also imposed on Respondent No. 4, which is the recent punishment, it is without any merit. The Review DPC has examined the allegation against Respondent No. 4 and the reason why the punishment of Rs.1,000/- was imposed. It was for nonimplementation of the order passed in the second appeal under the Right to Information Act, 2005. This, according to the Review DPC, did not have a serious bearing on the qualities required for the post. In contrast, penalties imposed on the Petitioner are for not leading evidence, admitting bogus documents, unauthorized absence, and getting attendance card punched by somebody else.

40. This takes us to the scope of writ jurisdiction to interfere with the the findings of the Review DPC on merits akin to an appeal. In UPSC v. Jawahar Santhkumar[8], the Hon’ble Supreme Court considered the scope of interference in writ jurisdiction as under: “26. After referring to R.S. Dass [R.S. Dass v. Union of India, 1986 Supp SCC 617], in K. Rajaiah [UPSC v. K. Rajaiah, (2005) 10 SCC 15: 2005 SCC (L&S) 738], the Supreme Court held as under: (K. Rajaiah case [UPSC v.

SCC pp. 20-21, para 9) “9. We cannot also endorse the view [K. Rajaiah v. Union of India, 2003 SCC OnLine AP 745: (2003) 5

ALT 486] taken by the High Court that consistent with the principle of fair play, the Selection Committee ought to have recorded reasons while giving a lesser grading to the first respondent. The High Court relied on the decision of this Court in National Institute of Mental Health & Neuro Sciences v. K. Kalyana Raman [National Institute of Mental Health & Neuro Sciences v. K. Kalyana Raman, 1992 Supp (2) SCC 481: 1992 SCC (L&S) 959]. Far from supporting the view taken by the High Court, the said decision laid down the proposition that the function of the Selection Committee being administrative in nature, it is under no obligation to record the reasons for its decision when there is no rule or regulation obligating the Selection Committee to record the reasons. This Court then observed: (SCC p. 485, para 7) ‘7. … even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India [R.S. Dass v. Union of India, 1986 Supp SCC 617] (SCC at p. 633)….’ * * * That being the legal position, the Court should not have faulted the so-called downgradation of the first respondent for one of the years. Legally speaking, the term “downgradation” is an inappropriate expression. The power to classify as “outstanding”, “very good”, “good” and “unfit” is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision.” In this decision, the Hon’ble Supreme Court observed that the Selection Committee even need not give reasons unless there are Rules and Regulations obligating it to do so. In the present case, there is a detailed order with reasons by the Review DPC. On the scope of judicial review, the Hon’ble Supreme Court referring to its earlier decision in the case of UPSC v. Sathiya Priya[9] observed thus: “27. The ratio of the above decision squarely applies to the case in hand. When the Selection Committee has given its own classification, the court cannot sit in appeal over the assessment made by the committee of experts. In UPSC v. M. Sathiya Priya [UPSC v. M. Sathiya Priya, (2018) 15 SCC 796: (2019) 1 SCC (L&S) 146], the Supreme Court held as under: (SCC p. 812, para 17)

41. Thus, we find that the Review DPC, after considering the nature of the post, the duties involved, and the past service record of the Petitioner, took a considered unanimous decision. The Review DPC has opined that not it is not only a question of promotion for the Petitioner, but also the credibility of the post among junior staff in the Legal Department. According to the Review DPC, the punishments imposed on the Petitioner were such that they reflected upon the basic qualities required for the post. The Review DPC considered, as was also observed by the Division Bench in Sanghamitra Sandansingh-II, that there is a difference between the promotion to the post of Joint Law Officer and the Law Officer, who is the head of the department. Considering the above position, it cannot be said that the conclusion of the Review DPC is perverse, or arbitrary, or that no reasonable person could have come to such a conclusion.

42. The post of Law Officer in the Respondent Municipal Corporation, one of the largest corporations in the country, is an important position, and it needs to be filled by a person with integrity, competence, and seniority. If, upon consideration of the entire service record, the Municipal Corporation, through a Review DPC, has concluded that instead of Petitioner, Respondent No. 4 would be better suited to be appointed as Law Officer, it cannot be said that this conclusion is perverse. No case for attributing mala fides either to the Review DPC or of attributing bias to the entire administration of the Corporation is made out. The decision is taken based on the admitted material which is on record. The inferences drawn by the Review DPC are regarding the suitability of the Petitioner to occupy the highest post in the Legal Department and have to be taken in the said context.

43. As the result, the Writ Petition is dismissed. No order as to costs. (M.M. SATHAYE, J.) (NITIN JAMDAR, J.)