VERDICTUM.

IN
2023:BHC-AUG:21568-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 1672 OF 2022

Ashok Madhukar Nand

Age. 54 years, Occ. Senior Clerk,
SSC Board, Nashik,
R/o. Jaibhavani Nagar,
Survey No. 68, Aurangabad,
Taluka and District Aurangabad. ….Petitioner

Versus

1. The State of Maharashtra.

2. The Chairman,
Maharashtra State Secondary and
Higher Secondary Board,
Maharashtra State, Pune.

3. The Secretary,
Maharashtra State Secondary and
Higher Secondary Board,
Maharashtra State, Pune. ….Respondents

Advocate for Petitioner : Mr. Swapnil Joshi

and Mr. Sai Joshi i/b. J.P. Legal Associates
AGP for Respondent No. 1 : Mr. A.S. Shinde
Advocate for Respondent Nos. 2 & 3 : Mr. Yugant R. Marlapalle
…

CORAM : MANGESH S. PATIL &

SHAILESH P. BRAHME, JJ.

Reserved on : 21 SEPTEMBER 2023

Pronounced on : 05 OCTOBER 2023

JUDGMENT ( PER : SHAILESH P. BRAHME, J) :

1. Rule. Rule is made returnable forthwith with the consent of

the learned counsel of both the parties. With their consent the matter is

heard finally at the admission stage.

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2. The petitioner is seeking direction to consider him for the

promotion to the post of ‘supervisory clerk’ with effect from 15.06.2021

as well as a direction to include his name in the seniority list.

3. Both the parties are ad idem on following facts :

i. Petitioner is an employee of Maharashtra State Secondary

and Higher Secondary Board (hereinafter referred to as ‘Board’)

being appointed as ‘Junior Clerk’ on 24.06.1992.

ii. Petitioner was promoted to the post of ‘Senior Clerk’ on

19.04.2014.

iii. An offence bearing C.R. No. 116 of 2016 was registered

with Taluka Police Station Jalna under provisions of Indian Penal

Code, Maharashtra Prevention of Malpractices at University,

Board and other Specified Examinations Act, 1982 and Prevention

of Corruption Act, against 26 persons including the petitioner.

iv. On 31.03.2016, the petitioner was suspended.

v. He was reinstated on 01.06.2017.

vi. Mr. D.R. Brahmapurkar and Mr. R.V. Gaikwad, were also

involved in the above offence. They were also suspended and

reinstated.

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vii. On 15.06.2016, a charge sheet was filed before the

Criminal Court in which the petitioner is accused no. 11, Mr.

Brahmapurkar is accused no. 10 and Mr. Gaikwad is accused

no.14. The Criminal case is sub judice.

viii. On 20.11.2017, charge sheet and statement of

allegations were served upon the petitioner and above referred

Officers also. The disciplinary action is underway and yet to be

concluded.

ix. On 11.01.2021, seniority list of the Senior Clerk was

published in which the petitioner is shown at serial no.34.

x. On 11.04.2018, Mr. Brahmapurkar and on

30.01.2019, Mr. Gaikwad were promoted to the post of

Supervisory clerk temporarily.

xi. On 24.12.2021, the list of the promoted employees to

the post of ‘Supervisory Clerk’ was published.

xii. The petitioner was shown not eligible for the

promotional post of ‘Supervisory Clerk’ as the disciplinary action

and criminal proceeding are pending.

4. The grievance of the petitioner is that he was eligible for the

promotion to the post of Supervisory Clerk and his name was also

included in the Seniority list. Despite that he was denied the promotion

citing the reason that the disciplinary action and the criminal proceeding

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pending against him. Whereas, similarly circumstanced employees Mr.

Brahmapurkar and Mr. Gaikwad were given promotion which is

discriminatory. The petitioner has placed reliance upon Government

Resolutions dated 15.12.2017, 30.08.2018 and 01.08.2019 to make out a

case that an employee against whom the disciplinary action or the

criminal prosecution is pending is entitled to temporary promotion

subject to the outcome of the actions. It is contended that on 16.09.2021

and thereafter, the petitioner made representation to the respondents

requesting to promote him to the post in question. However, there was no

response.

5. The learned counsel for the petitioner submits that the

refusal to promote the petitioner is against the provisions of G.R. dated

15.12.2017 and 30.08.2018. The petitioner is discriminated because

other two similarly situated employees were given temporary promotion.

He would submit that there is no substantial progress in the disciplinary

action as well as the prosecution. Without there being any fault on his

part those proceedings could not be concluded. He would submit that the

right to be considered is violated and the procedure contemplated by the

government resolutions has not been followed by the respondent

authorities.

6. The respondent nos. 2 and 3 have filed affidavit-in-reply to

oppose the claim of the petitioner. According to them, sealed cover

procedure as contemplated by Government Resolution dated 15.12.2017

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was followed by Divisional Promotion Committee (hereinafter referred

to as Committee) in case of petitioner. In a meeting dated 24.12.2021,

the entitlement of the petitioner to the promotional post was considered.

Thereafter, the decision was revisited in a meeting dated 27.09.2022. It is

emphatically made clear that the Committee applied necessary criteria

contemplated by clause 9 of G.R. dated 15.12.2017 and found the

petitioner ineligible for temporary promotion.

7. It is further clarified by the answering respondent that the

decision of entitlement to the promotional post cannot be re-considered

before lapse of two years from the date of first meeting. Therefore, the

petitioner has to wait till any decision is taken in the meeting to be held

in December 2023 or January 2024. It is denied that other two employees

namely Mr. Brahmankar and Mr. Gaikwad are similarly placed. They

were given temporary promotion subject to the outcome of proceedings

before the Supreme Court. It is further averred that Mr. Brahmankar is

also not given the next promotion to the post of Assistant Superintendent

due to sealed cover procedure, to refute the allegation of discrimination.

The respondents have prayed to dismiss the petition.

8. The learned counsel for the respondent nos. 2 and 3 submits

that the petitioner does not have a right to the promotion but has a

limited right to be considered for the promotion. He would submit that

there are various factors to be considered by the Committee to decide the

eligibility of an employee for the promotional post. He would submit

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that the Committee has meticulously followed the sealed cover

procedure as contemplated by Government Resolutions which are sought

to be relied upon by the petitioner. The ground of parity which is pressed

into service by the petitioner is strongly refuted by the learned counsel.

He would submit that the petitioner’s claim can be re-considered in a

meeting which is to be held in December 2023 or January 2024 and

presently the petitioner is not entitled to any relief. The learned counsel

for the petitioner has placed reliance upon the judgment rendered by the

Supreme Court in the matter of Union of India Versus K.V. Jankiraman

and others, reported (1991) 4 SCC 109.

9. The petitioner has filed a re-joinder to the affidavit-in-reply

of the respondents, reiterating his grounds of objections and the

grievance stated in the memo of the petition. It is averred that the

minutes of the meeting dated 27.09.2022 have not been produced on

record. The respondents have deliberately and mala fide denied

promotion to the petitioner. It is clarified that the other two employees

were given promotion subject to the outcome of the result of the

proceedings before Supreme Court. Those proceedings are in respect of

the Krushna Value Development Corporation. The petitioner could have

been promoted with a similar rider.

10. We have considered the rival submissions canvassed by the

learned counsel for the respective parties. The learned counsel for the

respondent has placed reliance upon judgment of the Supreme Court in

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the matter of Union of India Versus K.V. Jankiraman and others (supra),

especially on para no. 29, to buttress a submission that an employee does

not have any right to promotion but has right to be considered for the

promotion. The modality in case of an employee facing disciplinary or

criminal action is prescribed in the judgment. The differential treatment

and the parameters which are made applicable for the promotion of such

an employee are laid down.

11. In view of the law laid down by Supreme Court, the

government resolution dated 15.12.2017 was issued by the State

Government. There is corrigendum to the marginal extent which is

provided by Government Resolution dated 30.08.2018. The present

matter is covered by the modality of sealed cover procedure laid down

by G.R. dated 15.12.2017 is undisputed. The learned counsel for the

respondents has rightly submitted that the petitioner does not have any

right to the promotion in question but has only right to be considered for

the promotional post.

12. The right of the petitioner to be considered for the

promotion is regulated by G.R. dated 15.12.2017. An employee who is

facing a disciplinary action or prosecution is subjected to the procedure

contemplated by the Government Resolution. Clause 6 contemplates

reconsideration by the Committee if the performance of an employee is

enclosed in the sealed envelope. If such an employee who is reinstated

and against whom the disciplinary action has not begun then he can be

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held to be eligible for the promotion subject to the parameters. If the

disciplinary action culminates into penalty then his claim can be deferred

to the next meeting without opening the sealed envelope. Following is

the text of clause 6 :

“६) वि भागीय पदोन्नती सवि तीच्या बैठकीच्या विदनांकाच्या ६

वि ण्यानंतर ो ोरबंद पाकीटात ठे लेले प्रकरण विनयुक्त्ती प्राधि%कारी

यांनी पुनर्वि लोविकत करा े . पुनर्वि लोकनाच्या ेळी विनलंबीत अधि%काऱ्यास

पुनःस्थापीत केले असल्याचे त्यांचेवि रुद्व कोणती ी शि3स्तभंगवि षयक

काय5 ा ी सुरु झालेली नसल्याचे आढळू न आल्यास , ो ोरबंद

लिलफाफा उघडू न त्यातील विनष्कषा5नुसार तो पदोन्नतीस पात्र असल्यास

त्यास पदोन्नती देण्यात या ी. तसेच ज्या अधि%कारी / क 5 चाऱ्यावि रुद्धची

शि3स्तभंगवि षयक काय5 ा ी संपुष्टात ये ून शि3क्षा विदली असल्यास,अ3ा

अधि%कारी / क 5 चाऱ्यांचे सीलबंद लिलफाफे न उघडता त्यांची

पदोन्नतीसाठीची पात्रता पुढील विनयवि त वि भागीय पदोन्नती सवि तीच्या

बैठकी ध्ये तपासण्यात या ी.”

13. It is relevant to notice clause 9 which is as follows :

“९) वि भागीय पदोन्नती सवि तीच्या ूळ बैठकीच्या विदनांकापासून दोन

षG झाल्यानंतर ी ो ोरबंद पाकीटात विनष्कष5 ठे लेल्या अधि%कारी /

क 5 चाऱ्यांच्या, शि3स्तभंगवि षयक / न्यायालयीन काय5 ा ी प्रकरणी

अंधित विनण5 य झालेला नसल्यास, अ3ा प्रकरणी विनयुक्ती प्राधि%कारी

स् वि ेकानुसार संबं%ीत अधि%कारी/क 5 चाऱ्याला तदथ5 पदोन्नती

देण्याबाबत जाणी पू 5 क विनण5 य घेईल. असा विनण5 य घेताना विनयुक्ती

प्राधि%कारी, खालील ुद्दे वि चारात घेईल.

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अ) संबंधि%तांवि रुद्धची शि3स्तभंवि षयक / न्यायालयीन काय5 ा ी बराच

काळ प्रलंविबत रा ण्याची 3क्यता,

ब) दोषारोपांचे गांभीय5 ,

क) द्या याची पदोन्नती जनवि ताच्या वि रुद्ध जाईल का,

ड) शि3स्तभंगवि षयक / न्यायालयीन काय5 ा ी लांबण्यास संबंधि%त

अधि%कारी/क 5 चारी जबाबदार आ े का?

इ) संबंधि%त अधि%कारी/क 5 चाऱ्यास तदथ5 पदोन्नती विदल्यानंतर ,

पदोन्नतीच्या पदा र का केल्या ुळे,संबंधि%त अधि%कारी/क 5 चाऱ्याच्या

शि3स्तभंगवि षयक/न्यायालयीन काय5 ा ीच्या प्रकरणां र परिरणा

ोण्याची 3क्यता आ े का? किंक ा संबंधि%त अधि%कारी /क 5 चारी

पदोन्नतीच्या पदाचा त्यासाठी दरु
ु पयोग करण्याची 3क्यता आ े का?
फ) न्यायालयीन काय5 ा ी बाबतची सद्यस्थिस्थती/अशिभयोगाबाबतचे विकती
टप्पे पार पडले याबाबतची ावि ती करून घ्या ी.

ग) से ाविन ृत्तीस १ ष5 शि3ल्लक असेल तर पदोन्नती न देण्याच्या

अनुषंगाने से ाविन ृत्तीचा काला %ी वि चारात घेणे (तदथ5 पदोन्नती

विदल्यास रीष्ठ ेतनश्रेणी प्राप्त झाल्या ुळे से ाविन ृत्तीनंतर वि ळणारे

से ाविन ृत्ती ेतनाचा ज्यादा लाभ प्राप्त ोणार असल्या ुळे

से ाविन ृत्तीस एक ष5 शि3ल्लक असलेल्यांना तदथ5 पदोन्नती देण्यात येऊ

नये याकरीता ी बाब तपासणे आ 3यक आ े).

14. In the present matter both the parties are relying upon clause

nos. 6 and 9 of the Government Resolution dated 15.12.2017. The

petitioner’s contention is that he was eligible for the promotion along

with the similarly situated employees on temporary basis. Whereas, the

submission of the respondent is that the petitioner was not found to be

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eligible in the meeting dated 24.12.2021 and thereafter, in the meeting

dated 27.09.2022. Additionally, clause 11 is pressed into service for

deferring the decision for two years from the first meeting.

15. The learned counsel for the petitioner is harping upon the

ground of parity. It can be seen from the charge sheet which is placed on

record by the petitioner that the names of the petitioner as well as Mr.

Gaikwad and Mr. Brahmapurkar are figuring as accused nos. 11, 10 and

14, respectively. The charge sheet was filed on 15.06.2016 and the

prosecution is sub-judice. The petitioner as well as other two employees

were suspended and thereafter reinstated. All these persons are facing

disciplinary action. The petitioner has placed on record the statement of

allegations and charge sheet dated 20.11.2017. An enquiry Officer is

appointed and disciplinary enquiry is underway.

16. The learned counsel for the petitioner has placed on record a

seniority list at exhibit ‘I’. The petitioner’s name is at serial no. 34 (page

no. 87). On 13.04.2018, Mr. Brahmapurkar and on 31.01.2019, Mr.

Gaikwad were promoted temporarily to the post of Supervisory Clerk.

Considering the position of the petitioner, Mr. Brahmapurkar and Mr.

Gaikwad, their involvement in the criminal case and disciplinary action

initiated against them, we are of the considered view, that they are

similarly circumstanced.

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17. The learned counsel for the respondents has not placed on

record any material to indicate that the petitioner played more

incriminating role than other persons. Similarly, there is nothing on

record to show that the charges in disciplinary enquiry against the

petitioner are more grievous than the charges against other persons. It

appears from the record that the respondents have applied sealed cover

procedure in case of petitioner as well as other persons.

18. The minutes of the meeting dated 24.12.2021 are placed on

record at page no. 147. It refers to the petitioner at page no. 153 at serial

no. 13 indicating that the petitioner was not eligible. Learned counsel for

the respondents pointed out that there was a benchmark of average four

marks for confidential report to qualify for promotion. A reference is

made to G.R. dated 01.08.2019. As the petitioner was not satisfying the

benchmark and a disciplinary action was underway he was held to be not

eligible. Learned counsel also contended that on 27.09.2022 the case of

the petitioner was reconsidered but deferred.

19. The minutes of the meeting of 27.09.2021 have not been

placed on record by the respondents. The minutes of the meeting dated

24.12.2021, holding the petitioner ineligible for the promotion do not

show the objective analysis of the petitioner’s case. The Committee is

expected to record the decision by applying parameters laid down in

clause no. 9. The objective satisfaction of the committee has not been

brought on record to support the decision of denial of temporary

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promotion to the petitioner. When a query is made to disclose the

reasoning or the satisfaction of the committee in that regard, it is replied

that he would produce the same on record.

20. Its a matter of record that Mr. Brahmankar was given adhoc

promotion on 11.04.2018, and Mr. Gaikwad was given adhoc promotion

on 30.01.2019. The respondents have applied the parameters of

Government Resolution dated 15.12.2017. The petitioner was similarly

situated. The respondents might have applied sealed cover procedure as

laid down by Government Resolution dated 15.12.2017, to the petitioner.

They might have assessed the overall performance and eligibility of the

petitioner as to deny him an adhoc promotion. They should have

produced the record of the petitioner. The affidavit-in-reply and

submissions of the respondents do not refer to the assessment of the

petitioner done at the relevant time.

21. In the absence of relevant material to indicate that the

petitioner was not eligible even for the temporary promotion like that of

Mr. Brahmapurkar and Mr. Gaikwad we find that the petitioner has made

out the case of parity and discrimination. The affidavit-in-reply and

submissions of the learned counsel for the respondents fall short to

demonstrate that parameters of clause 9 were made applicable and the

decision of eligibility of petitioner for promotion was deferred till next

date. The respondents are under obligation to show that the other persons

were better placed and therefore, they were considered and given

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temporary promotions. We do not accept the submissions of the learned

counsel for the respondents that there was no discrimination.

22. We have noticed that the charge-sheet is filed in the criminal

court on 15.06.2016. The charge-sheet with the statement of allegations

in the disciplinary action is served upon petitioner on 20.11.2017. The

first meeting of the Committee is stated to have been conducted on

24.11.2021. It is not clear from the record any meeting was convened

prior to 24.12.2021 and the claims of the petitioner and others were

considered for the promotion. As per the submissions of respondents

after six months from 24.12.2021, a meeting was conducted on

27.09.2022 to reconsider the claim of the petitioner. For want of record

and material particulars we have our reservations to accept the

submissions of learned counsel for the respondents that due procedure as

contemplated by G.R. dated 15.12.2017 was ever followed.

23. The promotional orders of Mr. Brahmapurkar and Mr.

Gaikwad are placed on record which are at exhibit ‘Q’. It is stated in

clause no. 1 that the promotions are temporary and subject to the

decision of the Supreme Court in Special Leave Petition No. 28306 of

2017. In the rejoinder, the petitioner has contended that the Special

Leave Petition pertained to the employees of Krishna Valley

Development Corporation. It does not have any nexus with the issue of

promotion of the employees of the board. The particulars of Special

Leave Petition have not been placed on record to show the exact nature

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of litigation, pleadings and the relief. It is incomprehensible why the

condition which is incorporated in the promotional orders of Mr.

Brahmapurkar and Mr. Gaikwad could not have been made applicable to

the petitioner. We find that this is another instance to show pick and

choose method adopted by the respondent.

24. Learned counsel for the respondent has invited our attention

to the prohibition of two years in considering the claim of any employee

like petitioner whose eligibility is closed in the sealed cover. The

procedure as contemplated by clause 9 of G.R. dated 15.12.2017 is

pressed into service. It is informed that in a next meeting which is to be

convened in December 2023 or January 2024, the claim of the petitioner

would be reconsidered. The respondents have not placed on record the

objective satisfaction for holding the petitioner ineligible. We find that

the petitioner is illegally deprived of the promotion. Therefore, the

respondents cannot keep the petitioner waiting for two years. The

submission of learned counsel relying upon clause 9 cannot be approved.

25. Its a matter of record that the disciplinary action and the

prosecution have not been progressed substantially. The respondents/

authorities have not adhered to the procedure contemplated by

Government Resolution dated 15.12.2017. The petitioner is entitled to be

considered for promotion along with similarly placed employees. The

petitioner has only right to be considered for the promotion and in a strict

sense the direction to promote him cannot be issued. Having made out a

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case of discrimination and illegal deprivation to the promotional post we

are of the considered view that there is no point in relegating the

petitioner to the Committee to reconsider his claim for promotion. The

bar of two years engrafted in clause 9 is a legal impediment to such a

type of direction.

26. Under these special features of the matter, we deem it

appropriate to direct the respondents to grant temporary promotion to the

petitioner though under normal circumstances we would not have

granted such a relief to an employee. We are fortified in issuing such a

direction by the fact that from the minutes of the meeting dated

24.12.2021, two promotional posts of Supervisory Clerk appear to be

vacant. It is possible to accommodate the petitioner against one of those

posts. However, he is not entitled to any other consequential benefits

except an adhoc promotion, notionally.

27. We have already recorded the finding of discrimination and

illegal deprivation of promotion in favour of the petitioner.

Simultaneously we find that it is a dereliction of the duties of the

respondent nos. 2 and 3. They failed to adhere to the procedure

contemplated by G.R. dated 15.12.2017 and 01.08.2019. The learned

counsel for the respondents has faintly mentioned that the decision or the

reasons recorded to deprive the petitioner of temporary promotion has

been arrived at and record to that effect is maintained by Committee

which is not before Court.

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28. We are not prepared to accept the justification. The

Committee is part and parcel of the respondent no. 2. The plea of non-

joinder of necessary party has not been taken by the respondents.

Therefore, the respondent nos. 2 and 3 cannot disown the

action/omission of the Committee. They are liable to respond to the

Court in that regard. We find that the petition succeeds and the following

order is passed :

ORDER

i. The respondent nos. 2 and 3 shall issue an order of

temporary promotion to the petitioner to the post of

Supervisory Clerk with effect from 15.06.2021 within a

period of two weeks from the date of this order. However, the

petitioner shall not be entitled to claim any arrears.

ii. The respondents shall accordingly, modify the seniority

list by incorporating the name of the petitioner in it.

iii. Rule is made absolute in the above terms.

[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]

spc/

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