Sachin Namdev Wadgaye v. Maharashtra Housing area and Development Authority

later one Mr. S. B. Kumthekar was appointed on the post of ICT Officer in the year 2016, but he resigned on 31 January 2017 and once again additional charge of the post was given to Petitioner on 6 February 2017. It is averred that when Petitioner was on leave during 24 May 2017 to 26 May 2017, additional charge of the post of Chief ICT Officer was handed over to Respondent No.3. However, when Petitioner resumed duties after leave, the charge of the post of Chief ICT Officer was not given back to him.

#5. Petitioner avers that the Chief Vigilance Security Officer of MHADA submitted a report to the Vice Chairman and Chief Executive Officer of MHADA about certain irregularities committed by Respondent No.3 and recommended initiation of departmental proceedings against him. Petitioner further contends that accordingly Respondent No.3 came to be censured for commission of irregularities by letter dated 23 August 2021. Petitioner was also issued letter dated 23 August 2021 blaming him for misplacement of file, in respect of which inquiry was going on against Corrected by speaking to minutes order dated 03 July 2023. kishor 4/20 wp 5747 of 2021 as.doc Respondent No.3. He alleges that this was done for denial of promotion to him.

#6. The recruitment Rules for the post of Chief ICT Officer were notified on 16 June 2021 which envisages promotion to the post on the basis of merit and seniority from amongst persons holding post of ICT Officer for 3 years. Preference is to be given to officer possessing MBA or M.E./M.Tech in Computer Engineering/ Computer Technology / Computer Science and Engineering/ Information Technology Engineering or to a person possessing experience of information about software / software domain. Petitioner questions requirement of MBA qualification prescribed in the recruitment rules and alleges that the said qualification is included in preference criteria only for the purpose of favouring Respondent No.3.

#7. Respondent MHADA commenced the process for filling up post of Chief ICT Officer by promotion and called for information relating to Petitioner and Respondent No.3 by letter dated 16 September 2020. He contends that though a departmental inquiry was proposed against Respondent No.3, the information relating thereto was suppressed from the Departmental Promotional Committee(DPC). Petitioner also alleges various complaints received against Respondent No.3.

#8. The DPC meet on 7 August 2021 and considered cases of Petitioner and Respondent No.3 for promotion to the post of Chief ICT Officer and recommended Respondent No.3 for promotion. However one of the members of the DPC differed with the opinion of other members and recommended obtaining views of the State Government. Based on the Corrected by speaking to minutes order dated 03 July 2023. kishor 5/20 wp 5747 of 2021 as.doc recommendations of the DPC, order dated 27 August 2021 was issued promoting Respondent No.3 to the post of Chief ICT Officer. Petitioner has challenged the order 27 August 2021 in the present petition. He has also challenged preference condition in the recruitment rules for officers possessing MBA Decree. He has also sought records relating to inquiry initiated against Respondent No.3. For the sake of convenience, prayers made by Petitioner in the petition are reproduced below. “a) That this Hon’ble Court may be pleased to issue Writ of Certiorari and/or any other appropriate Writ, Order of directions of this Hon’ble Court which the court may deem fit. b) That this Hon'ble Court may be please to issue any order of direction for calling the papers and Proceeding related to the Order dated 27.08.2021 passed by the Respondent No. 2 and after examining the legality and validity thereof to quash and set aside the order dated 27.08.2021 & the Petitioner may be considered for promotion & if found fit then may be promoted to the post of Chief ICT officer. c) That this Hon'ble Court may be pleased to issue any order of direction for calling all the papers and files concerning the involvement of Respondent No.3 in enquiry in respect of fabrication of a tender concerning grant of renewal of Oracle License to LDS Info Tech Private Limited passed in respect of renewal of oracle license in the year 2017 and also the report submitted to Vice President, Mhada by the Vigilance Department dated 29.01.2020. d) The condition mentioned in the Recruitment Rules dated 16.06.2021 about degree in management (MBA) for the promotion to the post of Chief ICT Officer may be declared as malafide, arbitrary and not in accordance with law. e) Pending the hearing and final disposal of the petition this Hon'ble Court be pleased to stay execution, implementation and operation of the impugned order dated 27.08.2021 passed by the Respondent No.2. Interim and ad interim relief in terms of prayer clause (e) above be granted. f) Corrected by speaking to minutes order dated 03 July 2023. kishor 6/20 wp 5747 of 2021 as.doc g) Cost of this petition be provided for. h) Such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”

#9. Appearing for Petitioner Mr. Anturkar, the learned senior advocate would submit that though Petitioner was always senior than Respondent No.3, the seniority list was deliberately tweaked by bifurcating the same into the post of ICT Officer-I (Application and Database Management Software) and ICT Officer-II (Systems Analysis). He would submit that this was done with a view to ensure Petitioner’s supercession in promotion to the post of Chief ICT Officer. He would submit that the cadre of ICT Officer has not been bifurcated and continuous to be single cadre and therefore bifurcation of seniority into two posts was clearly unwarranted. He would further submit that since Petitioner is senior to Respondent No.3, due weightage ought to have been given to his seniority position. Inviting our attention to the minutes of the DPC, he would submit that one of the members of the DPC had clearly disagreed with the opinion of other members and had recommended that views of the Government be sought. That without obtaining the views of the Government, MHADA went ahead and issued promotion order to the Respondent No.3.

#10. He would further submit that departmental inquiry was recommended against Respondent No.3 by Chief Vigilance and Security Officer of MHADA, who is in the rank of Additional Director General of Police. He would draw our attention to letter dated 29 January 2020 of Chief Vigilance and Security Officer in which Respondent No.3 was indicted for various commissions and omissions with regard to award of tender to M/s. Corrected by speaking to minutes order dated 03 July 2023. kishor 7/20 wp 5747 of 2021 as.doc LDS Infotech Pvt. Ltd. for Oracle Software. Inviting our attention to the letter dated 16 September 2020, calling for information regarding pending, completed and proposed disciplinary inquiries, Mr. Anturkar would allege that though departmental inquiry was proposed against Respondent No.3 the information was deliberately suppressed from the DPC. He would submit that though Respondent No.3 was solely responsible for acts of commission and omission with regard to tender process, letter dated 23 August 2021 was deliberately issued to Petitioner admonishing him for misplacement of file. He would submit that instead of initiating departmental proceedings against Respondent No.3, who was the main culprit in the tender process, she was let off by issuance of a mere admonition letter dated 23 August 2021. Even that aspect of Respondent No.3 being admonished has not been taken into consideration by the DPC. That proposal for initiation of departmental inquiry against Respondent No.3 in respect of serious misconduct was the relevant factor, which ought to have been taken into consideration by the DPC. He would therefore submit that the recommendations of the DPC suffers from non-application of mind and that therefore promotion order of Respondent No.3 passed on the recommendations of the DPC deserves to be quashed and set aside.

#11. Petition has opposed by Respondent-MHADA by filing affidavit in reply. Mr. Lad, the learned counsel appearing for the MHADA would submit that cases of Petitioner and Respondent No.3 for promotion to the post of Chief ICT Officer have been objectively considered. That the promotion is to be granted on the criteria of merit-cum-seniority and that therefore seniority alone cannot be a factor for deciding suitability of officer. That though Corrected by speaking to minutes order dated 03 July 2023. kishor 8/20 wp 5747 of 2021 as.doc Petitioner is senior to Respondent, the DPC has found Respondent No.3 to be more meritorious than Petitioner. Respondent No.3 also possesses better qualifications than Petitioner. He would invite our attention to the additional affidavit dated 14 June 2023 pointing out that a lenient view was taken against Respondent No.3 by closure of inquiry as Respondent No.3 clarified that the amount in the work order was mentioned by mistake and that the steps were taken for the recovery of the said amount with interest thereby causing no loss to the MHADA.

#12. Mr. Naidu, the learned counsel would appear for Respondent No.3 and would oppose the petition. He would submit that the DPC has adjudged Respondent No.3 as more meritorious than Petitioner. That there is difference between the criteria of ‘merit cum seniority’ and ‘seniority cum merit’. That in the criteria of ‘merit cum seniority’ more emphasis is required to be given to merit and seniority is relevant only in the event both candidates secure same merit. He would submit that recommendations for initiation of departmental inquiry is an irrelevant factor for consideration of case of officer for promotion. He would also seek to justify actions of Respondent No.3 and would make an attempt to demonstrate as to how Respondent No.3 has not committed any irregularities. In support of his contention Mr. Naidu would rely upon following judgments: i) Central Council for Research in Ayurveda & Siddha & Anr. Vs. Dr. K. Santhakumari1 1 (2001) 5 SCC 60. Corrected by speaking to minutes order dated 03 July 2023. kishor 9/20 wp 5747 of 2021 as.doc ii) U. V. Mahadkar Vs. Subhash Anand Ahavan & Ors.2 iii) Kumar Shailendra Sinha and Ors. Vs. Union of India & Ors.3 iv) Union Public Service Commission Vs. L. P. Tiwari & Ors.4 v) Union of India & Ors Vs. K. V. Jankiraman & Ors.5

#14. Rival contentions of the parties now fall for our consideration. Before we advert to the competing claims of Petitioner and Respondent for promotion to the post of Chief ICT Officer, it would be necessary to consider the manner in which the post can be filled up. By Notification dated 15 June 2021, Chief Information and Communication Technology Officer (Recruitment to Service) Rules 2021 were notified. Rule 3 deals with appointment to the post of Chief ICT Officer and provides thus- “3. The post of Chief Information and Communication Technology Officer in Engineering services on the establishment of the Authority can be filled by way of promotion from amongst suitable officer holding the post of Information and Communication Technology Officer and completing 3 years’ service on that post on the basis of merit and seniority. Preference would be given to persons possessing qualification of MBA or M.E./M.Tech in Computer Engineering/ Computer Technology / Computer Science and Engineering/ Information Technology Engineering or to a person possessing experience of information about software / software domain.”

#15. Thus, the post of Chief ICT Officer is to be filled in by promotion from amongst officers completing 3 years of service on the post of 2 3 4 5