Case Note & Summary
The Bombay High Court, in a writ petition under Article 226 of the Constitution, considered the challenge to a judgment of the Maharashtra Administrative Tribunal dated 07/05/2024. The Tribunal had set aside an order dated 21/09/2023 by which the State Government restored the additional charge of the post of Director, Directorate of Medical Education and Research (DMER) to the petitioner, Dr. Dilip Mhaisekar, after he returned from medical leave. The 1st respondent, who had been given the additional charge during the petitioner's leave, challenged the restoration order before the Tribunal. The Tribunal found that the initial order dated 05/07/2021 granting additional charge to the petitioner was not in accordance with the Circular dated 05/09/2018 and that the 1st respondent was senior, and thus set aside the restoration order. The High Court held that the 1st respondent had not challenged the initial order dated 05/07/2021 for over two years and had thereby acquiesced to it. The Tribunal erred in examining the validity of that unchallenged order. Moreover, the order dated 13/07/2023 giving additional charge to the 1st respondent also did not follow the Circular. The High Court found that the Tribunal had travelled beyond the pleadings and that the 1st respondent's conduct estopped him from challenging the restoration. The Court allowed the writ petition, set aside the Tribunal's judgment, and upheld the order dated 21/09/2023 restoring additional charge to the petitioner.
Headnote
A) Service Law - Additional Charge - Legal Right - Grant of additional charge does not confer any legal right to hold such charge nor does it amount to promotion - Held that an officer cannot claim entitlement to additional charge as a matter of right (Paras 7-8).
B) Service Law - Acquiescence - Estoppel - Failure to challenge an order granting additional charge for over two years amounts to acquiescence - Held that such conduct estops the officer from later challenging the restoration of that charge to the original holder (Para 8).
C) Administrative Law - Tribunal's Jurisdiction - Scope of Pleadings - Tribunal cannot travel beyond the pleadings and scope of the application - Held that examining the validity of an unchallenged order dated 05/07/2021 was beyond the Tribunal's jurisdiction (Para 8).
D) Service Law - Circular dated 05/09/2018 - Procedure - Non-compliance - When both the order granting additional charge to the 1st respondent and the order restoring it to the petitioner suffered from non-compliance with the Circular, the Tribunal could not set aside only the latter - Held that the Tribunal's order was unsustainable (Para 9).
Issue of Consideration
Whether the Maharashtra Administrative Tribunal was justified in setting aside the order dated 21/09/2023 restoring additional charge of Director, DMER to the petitioner, when the 1st respondent had not challenged the initial order dated 05/07/2021 granting such charge to the petitioner.
Final Decision
The High Court allowed the writ petition, set aside the judgment of the Maharashtra Administrative Tribunal dated 07/05/2024, and upheld the order dated 21/09/2023 restoring additional charge of the post of Director, DMER to the petitioner.
Law Points
- Additional charge does not confer legal right
- Acquiescence bars challenge to earlier order
- Tribunal cannot travel beyond pleadings
- Circular dated 05/09/2018 procedure not followed on both occasions
Case Details
2024 LawText (BOM) (7) 111
Writ Petition No. 1234 of 2024
Shri A. A. Kumbhakoni (Senior Advocate for petitioner), Shri R.R. Shetty (for 1st respondent), Shri P. P. Kakade (Additional Government Pleader for 2nd respondent)
Dr. T. P. Lahane & State of Maharashtra
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Nature of Litigation
Writ petition under Article 226 challenging the judgment of the Maharashtra Administrative Tribunal setting aside an order restoring additional charge of Director, DMER to the petitioner.
Remedy Sought
Petitioner sought quashing of the Tribunal's judgment dated 07/05/2024 and restoration of the order dated 21/09/2023 giving him additional charge.
Filing Reason
The Tribunal set aside the order restoring additional charge to the petitioner, holding that the initial grant of additional charge to the petitioner was not in accordance with the Circular dated 05/09/2018.
Previous Decisions
The Tribunal in Original Application No.1226 of 2023 set aside the order dated 21/09/2023 and directed that additional charge be given following the Circular dated 05/09/2018.
Issues
Whether the Tribunal was justified in examining the validity of the order dated 05/07/2021 when it was not challenged by the 1st respondent.
Whether the 1st respondent's conduct of not challenging the order dated 05/07/2021 for over two years amounts to acquiescence, barring him from challenging the restoration order.
Whether the Tribunal's order is sustainable when both the orders dated 13/07/2023 and 21/09/2023 suffered from non-compliance with the Circular dated 05/09/2018.
Submissions/Arguments
Petitioner argued that the 1st respondent did not challenge the initial order dated 05/07/2021 granting additional charge to the petitioner, and thus the Tribunal erred in examining its validity. Additional charge does not create a legal right, and the restoration order was justified as the petitioner had only gone on medical leave.
1st respondent argued that he was senior to the petitioner and the order dated 21/09/2023 divesting him of additional charge was arbitrary. The Circular dated 05/09/2018 required reasons to be recorded for bypassing seniority, which was not done.
State Government submitted that the order dated 21/09/2023 was passed considering administrative exigencies.
Ratio Decidendi
An officer who does not challenge an order granting additional charge to another for over two years acquiesces to that order and is estopped from later challenging the restoration of that charge. The Tribunal cannot travel beyond the pleadings and examine the validity of an unchallenged order. Additional charge does not confer a legal right, and non-compliance with a circular on both occasions does not justify setting aside only one order.
Judgment Excerpts
Conferring of additional charge is normally with a view to meet administrative exigencies and that by itself would not give any legal right either to seek grant of such additional charge or to raise a grievance that such additional charge is not given.
The 2nd respondent by his conduct of not challenging the order dated 05/07/2021 for a period of more than two years was estopped from making any grievance whatsoever about the same.
The Tribunal was not justified in examining that aspect in the absence of any challenge to the same in the Original Application.
Procedural History
The petitioner was given additional charge of Director, DMER on 05/07/2021. On 13/07/2023, due to the petitioner's medical leave, additional charge was given to the 1st respondent. On 21/09/2023, after the petitioner rejoined, additional charge was restored to him. The 1st respondent challenged the order dated 21/09/2023 before the Maharashtra Administrative Tribunal in Original Application No.1226 of 2023. The Tribunal set aside the order on 07/05/2024. The petitioner then filed the present writ petition under Article 226 before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 226
