Bombay High Court
Shri Gajanan S/O Vithoba Doifode vs State Of Maha. Through Secretary ... on 21 March, 2017
Bench: V.A. Naik
2103WP3597.13-Judgment 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3597 OF 2013
PETITIONER :- Shri Gajanan S/o Vithoba Doifode, Aged 43
years, Occ: Service, R/o Plot No.27,
Mahavishnu Nagar, Near Sitalama Mandir,
Narsala Road, Nagpur.
...VERSUS...
RESPONDENTS :- 1] State of Maharashtra, Through its Secretary
for Ministry of Sports and Education
Secretariat, Mumbai-32.
2] Commissioner of Higher Education, Sport
Youth Services, Maharashtra State Pune.
3] Deputy Director of Sports and Education
Youth Welfare Maharashtra State, Pune-1.
4] Ishwar Deshmukh Sharirik Shikshan
Mahavidyalaya, Through its Principal, Krida
Chowk, Hanuman Nagar, Nagpur.
Dismissed in Default 5] Citizen Education Society, Through its
as per order dtd.8.8.14 President, Hanuman Nagar, Nagpur.
6] Naresh Ramchandra Panchabudhe, aged
major, Occ: Service, R/o Chitnavis Nagar,
Motha Tajbag, Umred Road, Nagpur
440009.
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Mr.A.B.Moon, counsel for the petitioner.
Mr. D.P.Thakre, Addl.Govt.Pleader for the respondent Nos.1 to 3.
B.G.Kulkarni, counsel for the respondent No.6.
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CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 21.03.2017
2103WP3597.13-Judgment 2/4
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner challenges the order of
the Director of Higher Education, Sports Youth Services dated
15/03/2015 holding that the appointment of the respondent No.6 on
the post of junior clerk was made in accordance with law.
2. The petitioner was appointed as a peon in the respondent
No.4-college on 28/07/1988. According to the petitioner, the petitioner
was promoted to the post of junior clerk in the year 2000 but he was
not paid the salary of the junior clerk as the education authorities had
refused to grant approval to his promotion. On 09/03/2010, the
respondent No.3-Deputy Director appointed the respondent No.6 on the
post of junior clerk. The petitioner challenged the appointment of the
respondent No.6 before this court and this court directed the
respondent No.3 to reconsider the matter pertaining to the appointment
of the respondent No.6 on the post of junior clerk on 09/03/2010. The
respondent No.3 passed the impugned order on 15/03/2013 rejecting
the representation of the petitioner and holding that the respondent
No.6 was rightly appointed.
3. Shri Moon, the learned counsel for the petitioner,
submitted that since the petitioner is working on the post of peon for a
long time, he was entitled to be promoted to the post of junior clerk as
2103WP3597.13-Judgment 3/4
soon as the vacancy arose. It is submitted that the respondent No.6 was
appointed on compassionate ground as a peon and hence he could not
have been further appointed as a junior clerk on 09/03/2010. It is
stated that the petitioner being senior to the respondent No.6 in the
post of peon, the petitioner was entitled to be promoted to the post of
junior clerk. It is stated that a qualified class-IV employee is entitled to
be promoted in the class-III post.
4. Shri Thakre, the learned Additional Government Pleader
appearing for the respondent Nos.1 to 3, has supported the order of the
respondent No.3. It is stated that though the petitioner was seeking
promotion to the post of junior clerk and the management had also
tried to promote him, approval was never granted to the promotion of
the petitioner on the post of junior clerk as there was only one post of
junior clerk in the respondent No.4-college and the same could not have
been filled by promotion as only 25% of the posts were entitled to be
filled by promotion. It is submitted that since there is only one post of
junior clerk in the respondent No.4-college, the same could not have
been filled by promotion. It is stated that the respondent No.6 was
appointed in the post of junior clerk on 25/03/2011 on compassionate
ground, as he possessed the requisite qualifications for holding the said
post.
2103WP3597.13-Judgment 4/4
5. On hearing the learned counsel for the parties and on a
consideration of the relevant rules, it appears that only 25% of post in
class-III service could be filled by promotion of eligible employees
working in class-IV service. Certain conditions are laid down for the
promotion of the class-IV employees to the class-III posts, one of them
being that the number of such appointment/promotions to the class-III
posts should not exceed 25% of the total appointment to be made in the
particular year. There is only one post of junior clerk in the respondent
No.4-college and if that be so, the respondent No.3 rightly did not grant
approval to the promotion of the petitioner on the post of junior clerk as
that would have resulted in granting 100% reservation for promotion.
Since only 25% of the posts are liable to be filled by promotion and
since there is only one post of junior clerk in the respondent No.4-
college, the petitioner did not have any right to seek his promotion to
the post of junior clerk. In the absence of any right in the petitioner to
seek promotion to the post of junior clerk, the order of the respondent
No.3 cannot be faulted.
In the result, the writ petition fails and is dismissed with
no order as to costs.
JUDGE JUDGE
KHUNTE
