Bombay High Court
Shaikh Sajid Shaikh Hamid vs The Union Of India And Others on 3 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
936 WRIT PETITION NO.3409 OF 2019
Shaikh Sajid Shaikh Hamid
Age : 48 years, Occu : Service as
Junior Clerk, Aurangabad Cantonment
Board, Aurangabad. .. Petitioner
Versus
1. The Union of India
Through its Secretary,
Ministry of Defense,
New Delhi.
2. The Principal Director,
Defense Estate, Government of India,
Ministry of Defense, Southern Command,
Pune
3. The General Office Commanding
In Chief (GOD-in -C)
Southern Command, Pune
4. The President, Cantonment Board,
Aurangabad, Dist. Aurangabad.
5. The Chief Executive Officer,
Aurangabad Cantonment Board,
Aurangabad, Dist. Aurangabad
6. Mohd. Bashir Mohd. Jamal
Age: Major, Occu : Service as Accountant,
Aurangabad Cantonment Board, Aurangabad
Tal. & Dist. Aurangabad. .. Respondents
...
Mr Nitin T Tribhuwan, Advocate for Petitioner
Mrs S.S. Kulthe, Standing Counsel for Respondent Nos.1 to 3
Mr A.D. Soman, Advocate h/f. Mr D.V. Soman, Advocate for
Respondent No.4 & 5
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Mr Vinod Khairnar, Advocate h/f. Mr Vijay Y. Gangtire,
Advocate for Respondent No.6
...
CORAM : S. V. GANGAPURWALA
AND
R.N. LADDHA, JJ.
DATE : 03-08-2021
ORAL JUDGMENT ( Per: S. V. GANGAPURWALA, J.) : -
1. Rule. Rule made returnable forthwith. With the consent
of the parties, the matter is taken up for hearing.
2. The petitioner seeks directions against the respondents to
promote the petitioner on the post of accountant with effect from the
date of retirement of respondent no.6 i.e. on 06-06-2020. The
petitioner also seeks directions to set aside the order dated 23-01-2019
promoting respondent no.6 to the post of accountant.
3. Mr Tribhuwan, learned Advocate for the petitioner
submits that, the petitioner was eligible to be promoted for the post of
accountant. The claim of the petitioner was illegally negatived and
respondent 6 was promoted, the same is illegal. The learned Counsel
in alternate submits that, respondent no.6 has stood retired as an
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accountant with effect from 06-06-2020. Since 06-06-2020 the post
of accountant is vacant. The petitioner is the senior-most Jr. Clerk in
the department and is working in the account section for more than
one year. The petitioner is not considered for the post of promotion.
The learned Counsel relies upon Rule 5 (B) (8) of the C.F.S. Rules,
1937. The learned Counsel referring to annexure - 'C' to CFS rules
submits that, the post of accountant is to be filled in by promotion and
post of Jr Clerk is a feeder cadre for the post of accountant.
4. Mr Soman, learned Advocate for the respondent submits
that, the order dated 23-01-2019 does not suffer from any illegality.
Respondent no.6 was senior to the petitioner. Respondent no.6 was
rightly promoted. The petitioner does not have much experience in
the field of account. The post of the accountant is a responsible post
and financial powers are given to the accountant. So, the Board by
meeting dated 27-10-2020 held that the petitioner should gain some
work experience of working in account section, but the petitioner is
not taking his duty seriously as Jr Clerk in account section and he is
showing the casual approach. The petitioner was issued show cause
notice on 04-01-2021 as to why action should not be taken against him
for the casual approach towards his duties. According to the learned
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Advocate, if the petitioner gains adequate experience and takes work
seriously then the respondents may consider the petitioner for the
promotional post.
5. We have considered the submissions made on behalf of
the learned Counsel appearing for the parties. Right to be promoted is
not a fundamental right, but to be considered for promotion is right. It
is not disputed by either parties that, the petitioner is the senior-most
junior clerk and the post of accountant is to be filled in from the feeder
cadre of Jr. Clerk.
6. No doubt, the employer has to promote a competent and
eligible person to the post. The competency and eligibility can be
considered only after the selection committee and / or the authority
takes up the proceedings for promotion. The show cause notice is said
to have been issued to the petitioner on 04-01-2021. More than 7
months have lapsed since the date of issuance of the show cause
notice. The petitioner undisputedly is working since June-2020 in the
account section. More than one year experience has been gained by
the petitioner in the account section. In such a scenario, there is no
impediment for the respondents to consider the petitioner for the
promotional post, of course, on its own merit.
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7. In light of the above, we pass the following order.
ORDER
(i) The respondents may consider the petitioner for the post
of accountant in accordance with its rules and considering the
eligibility and competency of the petitioner.
(ii) The said exercise shall be done by the respondents within
three months.
8. Rule made accordingly absolute in above terms. No costs.
[ R.N. LADDHA ] [ S. V. GANGAPURWALA ]
JUDGE JUDGE
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