Bombay High Court
Gopal S/O Kisanji Dhone vs State Of Maharashtra, Through ... on 30 November, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:16912-DB
-1- 16.WP.4189.2020. Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4189 OF 2020
PETITIONER : Gopal S/o. Kisanji Dhone, Aged : 51
Years, Occupation : Service as
Laboratory Attendant, R/o. C/o. Shri
Mathuradas Mohta College of Science,
Sakkardara, Umred Road, Nagpur.
//VERSUS//
RESPONDENTS : 1. State of Maharashtra, through its
Secretary, Higher and Technical
Education, Mantralaya, Mumbai -
400 032.
2. Joint Director, Higher Education,
Nagpur Division, Nagpur.
3. Nagpur Shikshan Mandal, Sakkardara
Chowk, Umred Road, Nagpur, through
its Secretary/President.
4. Shri Mathuradas Mohta College of
Science, Sakkardara, Umred Road,
Nagpur, through its Principal.
5. Avinash S/o. Late Shankarrao Kholkute,
Aged about 53 years, Occ. Service, R/o.
63, Vitthal Nagari No.1, Near Barai
Samaj Mandir, Nagpur.
**************************************************************
Mr. A.R. Ingole, Advocate for the Petitioner.
Mr. P.P. Pendke, AGP for Respondent Nos.1 & 2.
Mr. V.P. Marpakwar, Advocate for Respondent Nos.3 & 4.
Mr. S.S. Ghate, Advocate for Respondent No.5.
**************************************************************
-2- 16.WP.4189.2020. Judgment.odt
CORAM : SMT. ANUJA PRABHUDESSAI AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 30th NOVEMBER, 2023.
ORAL JUDGMENT (Per: Smt. Anuja Prabhudessai, J.)
. Leave granted to the Petitioner to carry out
amendment as per the order dated 20.09.2023. Amendment to be
carried out forthwith.
02] Rule. Rule made returnable forthwith. Petition is
heard finally with the consent of learned counsel for the respective
parties.
03] This petition under Article 226 of the Constitution of
India has been filed seeking the following reliefs:
"(i) By an appropriate Writ, Order and/or Direction,
quash and set aside the impugned order of rejection of
approval to the promotion of the petitioner dated
02.09.2020 issued by respondent no.2-Joint Director
Higher Education, Nagpur Division, Nagpur (Annexure-
F) and upon quashing the same direct the respondent
no.2 to consider the petitioner by giving approval to the
promotion of the petitioner on the post of Junior Clerk;
(ii) by an appropriate Writ, Order and/or Direction,
hold and declare that the Government
Gazette/Notification dated 06.06.2017 issued by
respondent no.1-State Government (Annexure-G) is
-3- 16.WP.4189.2020. Judgment.odt
being ultra-vires the Article 14 of the Constitution of
India."
04] The Petitioner was appointed as a Laboratory
Attendant in Respondent No.4-College. The Petitioner claims
that being the senior-most employee in Group-D category, he is
entitled for promotion to Group-C post. The Petitioner had also
given consent for being considered for promotion by combined
seniority list, and the Respondent No.4-College had submitted
the proposal of the Petitioner for promotion. The Respondent
No.2 by order dated 02.09.2020 rejected the claim of the
Petitioner for promotion to the post of Junior Clerk Group-C on
the ground that the post of Junior Clerk is an administrative post
and that only the employees from Group-D, as specified in
Government Gazette dated 06.06.2017, are entitled to be
considered for promotion to Group-C post.
05] The Petitioner claims that he was declined promotion
since the post of Laboratory Attendant is not included in the
Government Gazette dated 06.06.2017. The Petitioner submits
that the said Notification creates sub-classification in class of
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employees in Group-D, without any reasonable basis. It is
contended that the Government Gazette/Notification is arbitrary,
discriminatory and violative of Article 14 of the Constitution of
India.
06] It is not in dispute that even before filing of the
petition, the Respondent No.5 was already appointed as a Junior
Clerk and approval for the promotional post was also granted.
The Petitioner suppressed the above fact and filed the petition
without impleading him as party respondent. The Respondent
No.5 came to be impleaded only after he sought intervention in
that petition.
07] It is also to be noted that the petition proceeds on the
basis that the Petitioner is the senior-most employee in Group-D
category. The seniority list, which is placed before us, indicates
that the Petitioner was appointed on 01.12.1992 and his name is at
Serial No.15 in the seniority list of Group-D category, thus
falsifying his claim that he is the senior-most employee in Group-
D category.
-5- 16.WP.4189.2020. Judgment.odt
08] Now, coming to the merits of the matter,
undisputedly there are two Notifications both dated 6 th June,
2017. Notification No.90 specifies the posts eligible for
promotion, whereas Notification No.91 prescribes requisite
qualification for the post of Junior Clerk from Group-D to
Group-C, and the same is as under:
"3. Appointment to the post of Clerk-Typist, Group
"C" in Government offices, outside Greater Mumbai shall
be made either,-
(a) by promotion of a suitable person, on the basis of
seniority subject to fitness from amongst the persons
holding the post in Group "D", having not less than three
years of regular service on the post in Group "D" and
possess qualifications mentioned in sub-clauses (ii) and
(iii) and clause (b); or
(b) by nomination from amongst the persons, who,-
(i) are not less than nineteen years of age and
not more than thirty eight years of age in case of
persons belonging to General Class and not more
than forty three years of age in case of persons
belonging to Backward Class;
(ii) possess a degree; and
(iii) possess the Government Commercial
Certificate or Computer Typing Certificate with a
speed of not less than 30 words per minute in
Marathi Typewriting or 40 words per minute in
English Typewriting; or (c)............"
-6- 16.WP.4189.2020. Judgment.odt
09] The Notification No.91 stipulates that appointment
to the post of Clerk-Typist Group-C in Government Offices can
be made either by promotion or nomination. The appointment by
promotion is on the basis of seniority subject to fitness from
amongst the persons holding the post in Group-D, having not less
than three years of regular service on the post in Group-D and
possess a degree and the Government Commercial Certificate or
Computer Typing Certificate with a speed of not less than 30
words per minute in Marathi Typewriting or 40 words per minute
in English Typewriting.
10] The Petitioner does not dispute the authority to
prescribe such qualification nor does he claim that the
requirement of possessing a degree as eligibility criteria is not fair,
reasonable and that it is arbitrary. The fact situation is that the
Petitioner does not posses a degree and hence he was not eligible
for consideration for the post of Clerk-cum-Typist in Group-C
category. The Petitioner not being an aggrieved person, he has no
locus standi to question the promotion of Respondent No.5.
Hence, the petition is misconceived and is dismissed.
-7- 16.WP.4189.2020. Judgment.odt
11] Rule is discharged. No order as to costs.
12] It is stated that because of the pendency of the
petition, pay fixation of Respondent No.5 has been stalled. Now,
that the petition is disposed of, the Respondent No.2 may
proceed with the pay fixation.
(VRUSHALI V. JOSHI, J.) (ANUJA PRABHUDESSAI, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 08/12/2023 10:58:37
