Sanghmitra R. Sandansing v. Municipal Corporation of Greater Mumbai & Ors.

2021. Order dated 31st December 2021 came to be issued promoting respondent No.4 as Law Officer. Though the promotion is termed as temporary, the parties are at ad idem that all promotions are being treated as temporary on account of pendency of litigation on the issue of permissibility of reservations in promotion.

9. It appears that this court was not made aware of holding of DPC and grant of promotion as Law Officer to respondent No.4. This court pronounced its judgment on 4th February 2022 and set aside the 7 show cause notices as well as memorandum of charge sheet dated 12th March, 2021 issued to petitioner. The respondent Municipal Corporation was directed to consider her case for promotion to the post of Law Officer without the influenced by 7 cause notices and memorandum of charge sheet. The order dated 7th October 2021 handing over additional charge of Law Officer to respondent No.4 was continued for a period of 2 months. The Municipal Corporation was directed to take appropriate decision afresh regarding appointment of incharge Law Officer. The order of this court was unsuccessfully challenged by the respondent Municipal Corporation in the Apex Court by filing SLP(C) No. 5484-5485 of 2022, which came to be dismissed on 18th April 2022. However, on request made at the behest of the Municipal Corporation, the time limit for continuation of additional charge of respondent No.4 as well as for taking fresh decision for appointment of incharge Law Officer was extended by period of 4 weeks.

10. Towards implementation of the order of this court, the respondent Municipal Corporation convened DPC on 12th May 2022, which considered the case of petitioner alone for promotion to the post of Law Officer. The DPC however did not recommend her name for such promotion. By letter dated 13th May 2022 the recommendations of DPC was conveyed to the petitioner. Her request for appointment as incharge Law Officer also came to be turned down by communication dated 17th May 2022. Petitioner has accordingly challenged the recommendation of the DPC held on 12th May 2022 as well as communications dated 13th May 2022 and 17th May 2022 in the present petition.

11. Appearing for petitioner, Mr. Desai the learned senior advocate would submit that non consideration of case of petitioner for promotion to the post of Law Officer by the DPC is in gross violation of judgment and order passed by this court. That the respondents have merely completed a formality of consideration of petitioner’s case. That the order of this court envisaged conduct of review DPC by which comparative assessment of petitioner and respondent No.4 ought to have been undertaken. However, the DPC considered the case of petitioner alone and arrived at an erroneous conclusion that she is not fit for promotion to the post of Law Officer.

12. Mr. Desai would further contend that the relevant service period to be considered for assessing fitness of officer for promotion is only 5 years, whereas the DPC deliberated dug into past records of Petitioner for adjudging her unfit for promotion. That this court had specifically made observations that imposition of old penalties on her would not have any effect on her entitlement for promotion and such specific directions of this court haven been violated. That while past penalties imposed on Petitioner is considered as a reason for denying her promotion, the penalty imposed on Respondent No. 4 has conveniently been ignored. Mr. Desai would further contend that petitioner has been promoted on the post of Deputy Law Officer on 1st June, 2012 and as a Joint Law Officer on 28th December, 2020 and that if past penalties did not come in the way of those promotions, the same could not have been a reason for denial of promotion to the post of Law Officer. In support of his contention, Mr. Desai would rely upon judgment Badrinath vs. Government of Tamil Nadu & Ors. (2000) 8 SCC

395.

13. The petition is resisted by Municipal Corporation. Mr. Bukhari, the learned senior advocate appearing for the respondent Municipal Corporation would submit that consideration of petitioner’s case for promotion to the post of Law Officer has been done strictly in accordance with the order passed by this court. That the entire service record of the Petitioner was directed to be taken into consideration by this court. That several punishments have been imposed on petitioner from time to time, which has been taken into consideration by the DPC.

14. Mr. Bukhari would further submit that Law Officer is a vital post in the organisation of the respondent Municipal Corporation as 356 staff in various hierarchal positions report to the Law Officer. Law Officer is also required to render his opinion from vital issues of the Municipal Corporation. That therefore the Municipal Corporation is entitled to take into consideration the entire service record of officer for considering his/her fitness for promotion to the post of Law Officer.

15. So far as consideration of case of petitioner alone by the DPC is concerned, Mr. Bukhari would submit that this was done in pursuance of specific direction of this court which envisaged consideration only petitioner’s case for promotion. Therefore, there is no question of reconsideration of case of respondent No.4. He would further submit that in the event of petitioner being found suitable for promotion, the Municipal Corporation would have reverted respondent No.4 while granting promotion to petitioner. He would further submit that the factum of grant of regular promotion to respondent No.4 was specifically brought to the notice of the Supreme Court in the SLP filed by respondent-Municipal Corporation. That though the promotion of respondent No.4 is termed as temporary, the same is done only on account of pendency of litigation pertaining to reservation in promotion and that the promotion is otherwise regular for all purposes. Mr. Bukhari would further submit that petitioner has failed to challenge the promotion of respondent No.4 or the minutes of DPC recommending his promotion.

16. In support of his contentions, Mr. Bukhari would rely upon the following judgments: i) Rama Negi vs. Union of India & Ors., (2022) 5 SCC 150, ii) Union Public Service Commission vs. Jawahar Santhkumar & Ors., iii) Dr. Prasannashu vs. Selection Committee for Vice Chancellor, National Law University, Delhi & Anr. High Court of Delhi (W.P. (C) 5497/2020 & CM 19796/2020) dated 25.09.2020; iv) Union of India and Anr. vs. K.K. Verma, 2018 SC OnLine Bom 374; v) Union of India & Ors. vs. S.P. Nayyar, (2014) 14 SCC 370; vi) M.V. Thimmaiah & Ors. vs. Union Public Service Commission & Ors.

vii) Union of India & Anr. vs. S.K. Goel & Ors. (2007) 14 SCC 641; viii) R.S. Dass vs. Union of India & Ors. 1986 (Supp) SCC 617;

17. Mr. Reis, the learned Senior Advocate appearing for respondent No.4 also opposes the petition. He would submit that petitioner had filed Contempt Petition (L) No.32324 of 2022 before the Supreme Court alleging contempt of the order dated 4th February 2022 describing the act of Municipal Corporation in promoting respondent No.4 as contemptuous. That the Apex Court disposed of the contempt petition by order dated 1st June, 2022 without granting any relief in her favour. That interpretation of order os this court by Municipal Corporation is plausible, not warranting any interference by this court. That petitioner has not questioned the promotion of respondent No.4 in the present petition. That the comparative assessment of petitioner and respondent No.4 would otherwise indicate that respondent No.4 is more suitable for being promoted to the post of Law Officer.

18. Rival contentions of the parties now fall for our consideration.

19. As per the rules / administrative instructions governing appointment to the post of Law Officer, the post is to be filled by way of promotion from amongst Deputy Law Officers who have held that post for not less than 5 years. It appears that the Municipal Corporation has proposed modification to the recruitment rules by making Joint Law Officer as feeder cadre for promotion to the post of Law Officer. However, it is common ground that the State Government has not yet approved the draft of recruitment rules. Therefore, as of today, the post of Law Officer has to be filled in accordance of rules / administrative instructions reproduced above.

20. There is no dispute to the position that petitioner is senior to the respondent No.4, both on the basis of her initial appointment as Assistant Law Officer as well as promotion to the post of Deputy Law Officer. The additional edge that petitioner possesses over respondent No.4 is of promotion to the post of Joint Law Officer. Respondent No.4 was never promoted to the post of Joint Law Officer. However, since the feeder cadre for promotion to the post of Law Officer is Deputy Law Officer, petitioner’s promotion to the post of Joint Law Officer is inconsequential.

21. There is no dispute that both petitioner as well as respondent No.4 possess the requisite criteria as 5 years’ service on the post of Deputy Law Officer for consideration of their cases for promotion to the post of Law Officer. The post of Law Officer fell vacant on 30th September, 2021 and the proposal for convening DPC was sent on 14th September, 2021. Before the DPC could be convened, the respondent Municipal Corporation handed over charge of the post of Law Officer to respondent No.4 on 7th October,

2021.

22. Petitioner was facing as many as 7 show cause notices in addition to one memorandum of charge sheet and apprehended denial for the regular promotion as Law Officer. She was already denied additional charge of post of Law Officer. She therefore instituted writ petition (L) Nos. 23789 of 2021 and 23165 of 2021 challenging show cause notices/memorandum of charge sheet as well as order dated 7th October 2021 handing over charge of the post of Law Officer to respondent No.4. During pendency of those Petitions, the respondent Municipal Corporation convened and conducted DPC for consideration of case of petitioner, respondent no. 4 and one more officer for regular promotion to the post of Law Officer on 13th October 2021. DPC kept Petitioner’s name in sealed cover while recommending name of Respondent No. 4 for promotion. It appears that the factum of conduct of DPC and its recommendations were not brought to the notice of this Court. We do not know whether Petitioner was made aware of conduct and recommendations of DPC before 26th October 2022. However why Respondent-Municipal Corporation chose to keep this court in dark about such an important development in the matter is a mystery. After conclusion of arguments, judgment in those writ petitions was reserved by this court on 26th

23. Before this court could pronounce it’s judgment and absence of any prohibitory orders, the respondent-Municipal Corporation acted on recommendations of the DPC and issued order dated 31st December, 2021 promoting respondent No.4 to the post of Law Officer. Except being subject to outcome of pendency of litigations pertaining to reservations in promotions, the promotion is regular for all practical purposes. Again, the factum of grant of promotion to respondent No.4 on 31st December, 2021 was not brought to the notice of this court by any of the parties. Oblivious of promotion of respondent No.4, this court pronounced its judgment on 4th February, 2022 setting aside 7 show cause notices and memorandum of charge sheet dated 12th March, 2021. Petitioner’s case was directed to be considered for promotion as Law Officer without being influenced by 7 show cause notices and the memorandum of charge sheet.

24. There is dispute amongst the rival parties about the manner in which the direction of this Court to consider Petitioner’s case for promotion was supposed to be implemented. We shall first examine the exact purport of the directions issued by this court in judgment and order dated 4th February

2022. We reproduce the directions issued by this court in its judgment and order dated 4th February, 2022: ORDER (a) Seven Show Cause Notices issued in the month of March, 2018, issued to the Petitioner (Exhibit “D” to Writ Petition (Lodging) No. 23165 of 2021) and Memorandum of Charges dated 12" March 2021 (Exhibit-“T” to Writ Petition (L) NO. 23165 of 2021) are quashed and set aside. (b) It is directed that the Petitioner be considered to the post of Law Officer of Respondent No.1-M.C.G.M. without getting influenced by the said seven Show Cause Notices or Memorandum of Charges as the same are quashed and set aside.

(c) Order dated 7" October, 2021, (Exhibit “A” to Writ Petition

(d) Respondent No.2 Municipal Commissioner is directed to take appropriate decision afresh regarding appointment of the Incharge Law Officer within a period of two-months from today.

25. As observed above, this court was not aware of conduct of DPC on 13th October 2021 or its recommendations or promotion order dated 31st December 2021. This court therefore assumed that the post of Law Officer was yet to be filled in by regular promotion. This is a reason why this court directed to consider the case of petitioner alone in clause (b) of paragraph

47. Again, since this court was under an impression that respondent No.4 was merely holding an additional charge of the post of Law Officer in pursuance of order dated 7th October 2021, it directed in clause (c) that the order dated 7th October 2021 shall be continued only for a period of 2 months. The direction in clause (d) relates to taking a fresh decision for appointment of incharge Law Officer, obviously as an interim measure during pendency of decision for regular promotion.

26. The judgment of this court was assailed by respondent Municipal Corporation before the Apex Court. Though it was averred in the memorandum of SLP that respondent No.4 was already promoted as Law Officer on 31st December, 2021, when the SLP was heard on 18th April, 2022 the respondent Municipal Corporation on it’s own volition sought extension of time for implementation of directions in clause (c) and (d). It appears that the Supreme Court was not made aware of the factum of grant of regular promotion to respondent No.4 when the order in SLP was passed on 18th April, 2022. On the contrary, the respondent Municipal Corporation apparently treated as if respondent No.4 continued to hold mere additional charge of the post of Law Officer on account of judgment of this court. The order passed by the Supreme Court on 18th April, 2022 reads thus: “Having heard Mr. C. A. Sundaram, learned Senior Advocate in support of the petitions, Mr. Shekhar Naphade, learned senior Advocate for the respondent No.1 on caveat and Mr. Sudhanshu C. Choudhari, learned Advocate for respondent No.2 on caveat, we see no reason to interfere in the matter. However, at the request of Mr. Sundaram, we extend the period pertaining to Direction No. © issued by the High Court in paragraph 47 of its decision by further period of four weeks, consequently, Direction No.

(D) will also stand modified accordingly. Except for these modifications, rest of the directions are left intact. The special leave Petitions are accordingly dismissed. Pending applications, if any, also stand disposed of.” (emphasis ours)

27. Be that as it may be. We do not wish to delve further into the reasons why the respondent Municipal Corporation did not bring the factum of promotion of respondent No.4 as Law Officer to the notice of the Supreme Court during the course of hearing on 18th April 2022. Since Respondent Municipal Corporation chose not to bring promotion of Respondent No. 4 to notices of both this Court as well as to the Supreme Court (except in pleading), we now proceed to examine the exact manner in which direction (b) of judgment of this court could be implemented in the given factsituation.

28. We have already observed that direction (b) was issued by this Court being oblivious of fact of promotion of Respondent No. 4 effected on 31st December 2021 and under an assumption that the post was yet to be filled up. In these circumstances when the respondent Municipal Corporation convened DPC for implementation of order of this court on 12th May 2022 it was incumbent upon the respondent Municipal Corporation to reconsider cases of both petitioner and respondent No.4 for promotion to the post of Law Officer. In short, what ought to have been done was to review recommendations of the DPC which was conducted on 13th This is because Petitioner’s name was kept in sealed cover by DPC held on 13th October 2021 due to pendency of disciplinary proceedings, which were set aside by this Court vide Judgment dated 4th February 2022. The respondent Municipal Corporation however proceeded to consider the case of petitioner alone in the DPC held on 12th May 2022. This, in our view, is gross error committed by the respondent Municipal Corporation. It ought to have appreciated the fact that direction in para 47 (b) was issued by this court in view of the fact that the factum of grant of regular promotion to respondent No.4 was never brought to its knowledge.

29. Even otherwise when this court envisaged consideration of case of petitioner for promotion to the post of Law Officer, the same could not have been considered on standalone basis without undertaking the process of comparative assessment between petitioner and respondent No.4. Even the case of the 3rd officer ought to have been considered. This is because the post of Law Officer is to be filled on the basis of seniority cum merit. Seniority cum merit consideration would be of bench mark. Net seniority is be considered. When the criteria is seniority cum merit, the consideration would be if benchmark is met, seniority to be considered. We do not know the exact benchmark fixed by either of the DPCs, but it appears that petitioner has also met the requisite benchmark as the DPC dated 12th May 2022 has held that petitioner meets the requisite criteria for promotion. Petitioner is senior over respondent No.4. The only way respondent No.4 could supersede petitioner is by adjudging him more meritorious than petitioner. However since in the DPC held on 13th October 2021 the name of petitioner was kept in sealed cover, no occasion arose for doing any comparative assessment between two officers. In that DPC, the case of Petitioner was not considered at all. As a result, there is no comparative assessment between two officers. In absence of such comparative assessment, respondent No.4 cannot supersede his senior counterpart (petitioner) by consideration of cases of two officers on standalone basis. In our view therefore the action of respondent Municipal Corporation in considering case of petitioner alone in the DPC convened on 12th May, 2022 clearly suffers from error.

30. Now we proceed to examine the manner in which the DPC held on 12th May 2022 considered the case of petitioner. Towards implementation of directions of this court, office note was put up on 28th April, 2022 and two proposals were made. In proposal ‘A’ it was recommended that the post of Law Officer be filled on pure temporary basis subject to the litigation relating to reservation in promotion pending before the Apex Court. In proposal ‘B’ it was recommended that upon grant of promotion to petitioner as Law Officer, respondent No.4 be reverted on the post of Deputy Law Officer. It was also proposed to convene DPC after approval of proposals ‘A’ and ‘B’. It appears that the proposal was approved by the various hierarchal officers upto Municipal Commissioner on 4th May 2022. The DPC was held on 9th May, 2022, which decided to obtain legal opinion on various issues especially on the issue as to whether the case of the petitioner could be considered for promotion when respondent No.4 was already functioning as Law Officer. It was also decided to seek opinion on the issue as to whether the entire service record of the petitioner could be taken into consideration.

31. It appears that after obtaining opinion, the DPC was reconvened on 12th May 2022 with following members: Municipal Commissioner, Additional Commissioner (ES), Additional Commissioner (P), Additional Municipal Commissioner (City/WS), Joint Commissioner (G. A.). It appears that Municipal Corporation received opinion stating that there was no occasion for the DPC to meet for the consideration of petitioner’s case for promotion as Law Officer in view of the fact that the post was not vacant. The DPC did not agree with the opinion and decided to consider petitioner’s case for promotion. The relevant portion of the minutes of the DPC held on 12th May 2022 (as translated by the petitioner) reads thus: “Hence, as per the above mentioned point & the order issued by Hon’ble High Court dt. 04.02.2022 case of Smt. Sanghmitra Rajesh Sandansing, Joint Law Officer for the promotion to the post of Law Officer has been put before the Promotion Committee for perusal. In the report submitted by Learned Senior Counsel, with regard to point No.B) the following has been mentioned- “In so far as, the post of Law Officer is concerned, there was neither existing vacancy on 04.02.2022 nor there was possibility that post becoming vacant shortly. Therefore there is no occasion for D.P.C. to meet to consider the candidate for appointment to the post of Law Officer and therefore, it is not legally possible for the Quriest Corporation to called meeting of D.P.C. to consider the Petitioner for promotion to the post of Law Officer.” In the above report, it is mentioned that, since the post of Law Officer is not vacant, there is no need to organize a Promotion Committee. However, Promotion Committee showed disagreement towards this & by giving respect to the order of Hon’ble Court it is decided to take decision after considering the case of Smt. Sanghmitra Rajesh Sandansing, Joint Law Officer to the post of “Law Officer”. In the report submitted by Learned Senior Counsel, with regard to point No.C) the following has been mentioned- “The Corporation will decide on the basis of record of service of the person whether the person is suitable for the post of Law Officer and it is only on the Corporation finding that the person is suitable for the post, that the appointment to the post of Law Officer can be made.” Similar opinion is also given in the Court proceedings reported in the case of UNION OF INDIA vs. K.V. JANKIRAMAN & ORS. “2 While considering an employee for promotion his whole record has to be taken into consideration.” Thus, in pursuance to the said opinion, Joint Municipal Commissioner (General Administration) has produced details of service record during the service period of Smt. Sanghmitra Rajesh Sandansing, Joint Law Officer and especially submitted detailed report in resoect of Enquiry matters before the Promotion Committee. Against Smt. Sanghmitra Rajes Sandansing, Joint Law Offcer as of today 12 Enquiry cases has been initiated. The details of the action taken in the said Enquiry matters are as below-

9 Pursuant to the directions of the Hon'ble High Court, set aside the Departmental Enquiry against her in respect of Raghuvanshi Mill Out of this, details of some of the cases are as under Shri.B.B Yevle. Pharmacist, M. T. A Municipal General Hospital, Mulund had made misappropriation in the calculation of Municipal Medicines and therefore he was dismissed from the services of Municipal Corporation. In that regard Shri.B.B Yevle, Pharmacist, filed an Appeal in the Hon'ble Labour Court. In the said Court case, Smt. Sanghmitra Rajesh Sandansing, Joint Law Officer has represented Municipal Corporation. In the said case, the Hon'ble Labour Court has directed to reinstate Shri.B.B Yevie, Pharmacist, and to pay back his wages from the date of his dismissal till his date of rejoining Municipal Services. Since Smt. Sanghmitra Rajesh Sandansing, Joint Law Officer has not represented and put the case of the Corporation in proper manner, a charge sheet of Departmental Enquiry No.CHOE/RRD/413 dated 30.09.1998 has been initiated against her. In the said Departmental Enquiry she was held guilty and withheld her annual increment of one year permanently. Though she is duty bound to use the punching card provided by Corporation by herself only in the absence of Smt. Sanghmitra Rajesh Sandansingh, Joint Law Officer it was punched by unauthorized person. As per her entry on muster roll, when actually she was absent in the office, false attendance was shown. Also she made a statement that the punch card was lost and obtained new card and cheated with the Administration. Because of false attendance, a fulfledged departmental enquiry was initiated. In the said fulfledged enquiry she was "blamed". (No.CHOE/DE/SVM/1568 dated 23.07.2007)

3. Smt Sanghmitra Rajesh Sandansingh, Joint Law Officer, had punched her punching card through another employee at

10.24 but actually she came on duty late. Till july 2006, because of frequent absence of Smt.Sanghimitra Rajesh Sandansingh, Joint Law Officer, there was an adverse impact on the court proceeding and office work and therefore, a Departmental enquiry was initiated against her and therefore as a punishment her one annual increment was temporarily withheld.

4. in the case of unauthorized construction in G-South Ward Manjarakar compound, 55 Dr.E.Mozes Road, Worli, proper court proceedings has not been made by Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer, Her said act was found to be gross misconduct followed, irresponsible and negligent and dereliction in duty and therefore, as per summery enquiry bearing No. CHOE/DE/SHQ/1824 Dated 15.10.2007 she was Imposed punished, fine amount of Rs.1000/- and recovered same from her August 2009 salary.

5. Though she was aware that, the construction made by Shri Husain, on the land owned by the Municipal Corporation was unauthorized construction, this fact was not brought to the notice of the court and on the other hand the documents submitted by the petitioner were accepted in the court without any verification, no cross-examination was conducted. Her said act was found to be gross misconduct, Irresponsible and negligent and dereliction in duty and therefore, as per order passed by Deputy Commissioner (Central Recruitment Authority) bearing No DMC/CRA/5770/dated 28.03.2013 as a punishment, her one annual increment dated 01.07.2013 was permanently withheld. Out of the remaining enquiry matters of Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer, she was exonerated in one case and in other case she was omited from enquiry. Similarly, in one case of preliminary enquiry, she was directed to submit her statement. In other two preliminary enquires, Absent Without Leave was done and Departmental Summery enquiry under number CHOE/DE/RVB/4704/Gen/281/MBN was set aside as per the Order dated 04.02.2022 passed by Hon’ble High Court. The promotion committee Members discussed following points- At first, the Promotion Committee has made inspection of seniority and grading of last five years Confidential Reports of Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer and noted that Smt. Sanghmitra Rajesh Sandansingh, Joint Law Officer, is complied with the prescribed criteria for the post of Law Officer. Also the Promotion Comittee has noted that Smt. Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer, had complied with the prescribed criteria while promoted on the post of Joint Law Officer, from 01.01.2021. However, pursuant to direction issued in paragraph No.37 the Order passed by the Hon’ble High Court, it is decided to take final decision after considering the service record and above mentioned enquiries of Smt Sanghmitra Rajesh Sandansingh, Joint Law Officer. Legal department is an extremely important as well as sensitive department Leagal departmet is known as the back bone of Municipal Corporation. It is the responsibility of Law Officer to ensure that while handling various matters as representative of Municipal corporation there is no loss caused to Municipal Corporation. Therefore, in order to ensure smooth functioning of the Legal department, there is a requirement of having an efficient and honest Head Of the Department. Such Law officer by their behavior improve the morality and working capacity of the Junior Officers. Hence it is important to decide thoughtfully while appointing the head of the head of Department. Since, Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer has already undergone punishment in the departmental enquiries and if such officer has been promoted as a Head Of Department, there is no creditability in her junior subordinates. Due of which, the image of the Department will be tarnished and there will be adverse effect on the day to day work of the Legal Department. Considering the above noted enquiry matters during the entire service period and the punishments imposed on Smt.Sanghmitra Rajesh Sandansingh, Joint Law Officer it is unanimously decided that, it is not feasible to give promotion to the post of "Law Officer" which is very important post of Head of Department. Thereafter by giving vote of thanks, the work of Promotion Committee was finished.”

32. Thus, perusal of the minutes of the DPC held on 12th May 2022 would indicate that the DPC took into consideration the entire service record of the petitioner which included 5 punishments imposed on her as under:

(i) Withholding of one increment permanently. (charge sheet dated 30th September, 1998).

(ii) Censure on 23rd July 2007.

(iii) Withholding of one increment temporarily on account of absence in July 2006.

(iv) Fine of Rs.1000/- in minor penalty proceeding in pursuance of charge sheet dated 15th October 2007.

(v) Withholding of one increment permanently vide order dated 28th March 2013.

33. It appears that some more proceedings were initiated against the petitioner, which resulted in her exoneration or setting aside of penalties. The DPC also took into consideration Confidential Reports of the petitioner for 5 years and held that she was meeting benchmark. After considering service record of the petitioner, the DPC decided not to recommend her name for promotion to the post of Law Officer.

34. It would also be necessary to reproduce the relevant portion of the DPC held on 13th October 2021 which recommended name of respondent No.4 for promotion: "अनु. dz. ३ वरील Jh- सुनिनल कचेश्वर सोनावणे, उप कायदा अनि कारी हे खुल्या वर्गााचे vlwu rs निद. २५.०५.२००४ रोजीच्या सेवाज्येष्ठता नि&'तीनुसार सेवाज्येष्ठ आहेत. Jh. सुनिनल कचेश्वर सोनावणे, उप कायदा अनि कारी हे कायदा अनि कारी या पदासाठी आवश्यक असणारी उप कायदा अनि कारी या पदावरील ५ o"ksZ vgZdkjh सेवा पूण करतात. खात्याच्या चौकशी izek.ki= dz.एलओ/एलईए / ४१२२ निद.१५.०६.२०२१ नुसार rlsp निद. १५.०६.२०२१ रोजीच्या सँप काय iz णाली चौकशी izek.ki=k नुसार Jh- सुनिनल कचेश्वर सोनावणे, उप कायदा अनि कारी यांच्या निवरुद्ध कोणतीही न्यायालयीन, फौजदारी निक ं वा लाचलुचपत iz करण iz लंनि8त नाही. तसेp lnj अनि का-यानिवरुद्ध izk 'नि9क अ'वा खात्यांतर्गात चौकशी iz लंनि8त अ'वा iz &तानिवलेली नाही तसेच ते निशक्षा ीन नहीr त्यांच्या 9ार्गाील पाच वर्षााच्या र्गाोपनीय अहवालांची iz तवारी तपासण्यात आली असता, सदर पदासाठी vko’;d असलेली iz तवारी Jh. सुनिनल कचेश्वर सोनावणे, उप कायदा अनि कारी हे ारण करीत आहेत. त्या9ुळे त्यांना 'कायदा अनि कारी या निरक्त असलेल्या पदावर सेवाज्येष्ठतेनुसार निनव्वळ तात्पुरत्या &वरुपातील पदोन्नतीसाठी 8ाहेर अटीसापेक्ष पा= ठरनिवण्यात आले.”

35. Comparison of the minutes of the DPC held on 12th May 2022 and 13th October 2021 would indicate that the confidential reports of 5 years of both the officers were taken into consideration. However, while the DPC held on 12th May 2022 went on to consider entire service record of the petitioner, consideration of service record of respondent No.4 was apparently restricted to only 5 years in the DPC held on 13th The DPC held on 13th October 2021 recorded status of respondent No.4 as on the date of DPC when he was not undergoing any punishment or penal or criminal proceedings. However, what is altogether ignored by the DPC held on 13th October 2021 is the factum of imposition of penalty of permanent withholding of increment vide order dated 26th November 2018 which was subsequently reduced to that of fine of Rs.1000/- vide order dated 19th May 2019. Thus, while punishments imposed on petitioner in the past period have been taken into consideration by the DPC held on 12th May 2022, punishment imposed on respondent No. 4 on 19th August 2019 was ignored by the DPC held on 13th October 2021. Thus past punishments imposed on Petitioner dating back to 10-24 years (1998 to 2013) are relied upon by DPC but punishment imposed on Respondent No. 4 just 2 years before the date of DPC is ignored. This has happened because DPCs met on two different dates to consider cases of two officers.

36. We are therefore of the considered view that the cases of petitioner and respondent No.4 are considered for promotion to post of Law Officer by applying different yardstick, which cannot be countenanced in law. Respondent Municipal Corporation ought to have apply same yardstick for two officers while considering their cases for promotion.

37. Mr. Bukhari has strenuously contended that this court cannot sit in appeal over the recommendations of DPC. In support of his contention, he has relied upon several judgments. There cannot be two opinions on the settled legal position propounded in those judgments. Though this court would not go into merits of decision taken by the DPC, it can certainly examine the procedure adopted by DPC while considering cases of officers for promotion. In the event of procedure being found flawed, this court would be justified in interfering. We thus cannot turn blind eye to the fact that the cases of two officers are considered by applying different yardsticks. In doing so, we are not sitting in appeal over the decision of the DPC held on 12th May 2022. All that we are holding is that the procedure adopted by the DPC is erroneous and that therefore cases of both the officers deserve to be reconsidered.

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 on 25th 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.

39. Respondent No.4 has already been promoted to the post of Law Officer by order dated 31st December 2021. Both MCGM and Respondent No. 4 have raised objection about absence of challenge to DPC minutes dated 13th October 2021 and promotion order of Respondent No. 4. So far as minutes of DPC are concerned, it is not necessary to challenge the same. True it is that Petitioner ought to have challenged promotion order dated 31st December 2021 of Respondent No. 4. However, since we have held that cases of Petitioner and Respondent No. 4 for promotion deserve to be reconsidered, dismissal of present petition for the reason of absence of challenge to promotion order of Respondent No. 4 would be too technical. We therefore proceed to mold the relief appropriately. Accordingly, promotion of respondent No.4 as Law Officer shall be provisional and subject to outcome of recommendations made by DPC. He shall be entitled to hold the post provisionally till final decision is taken by the Municipal Corporation for effecting promotion to the post of Law Officer as directed by us.

40. In the result we proceed to pass following order:

(i) The respondent Municipal Corporation shall convene review DPC to review minutes of DPCs held on 13th October 2021 and 12th May 2022.

(ii) The review DPC shall reconsider the cases of petitioner and respondent No.4 for promotion to the post of Law Officer and make appropriate recommendations.

(iii) On receipt of the recommendations so made by the review DPC, the respondent Municipal Corporation shall issue the order of promotion in the name of recommended officer to the post of Law Officer. The entire exercise shall be carried out within the period of 4 months from today.

(iv) In the meantime, the promotion of respondent No.4 to the post of Law Officer shall be deemed to be provisional and subject to outcome of recommendations of regular DPC.

(v) Respondent No.4 shall continue to hold the post of 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 December 2021 with all consequential benefits, except backwages. 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.

SANDEEP V. MARNE, J. S. V. GANGAPURWALA, ACJ