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Bombay High Court
Ashok Genu Zarekar vs The State Of Maharashtra And Others on 12 January, 2026
2026:BHC-AUG:1256-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9054 OF 2016
ASHOK GENU ZAREKAR
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Shri Jadhavar Santosh S., Advocate for the Petitioner.
Mrs. K.B. Bharaswadkar, Addl. GP for Respondent Nos.1 to
3/State.
...
CORAM : KISHORE C. SANT
&
SUSHIL M. GHODESWAR, JJ.
DATE : 12 January 2026
P. C. :-
1. Heard the learned advocate for the petitioner and the
learned Additional Government Pleader for the respondents/
State.
2. It is the case of the petitioner that he joined services
in the year 1986. As per the time bound promotion scheme
applicable at the relevant time, he became entitled to get the
benefits of promotional post after completion of 12 years of
service and he was accordingly, given the said benefits in the
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year 1998. After 1998, he again became due for benefits of next
promotional post in the year 2010, however, as no substantive
post was available the respondents did not grant him benefits of
promotional post. The petitioner was subsequently offered actual
promotional post in the year 2013 subject to submitting his caste
validity certificate. However, in 2013, the petitioner informed the
authorities that he is unable to accept the promotional post for
one year and he be promoted after one year on the substantive
post. However, for that reason, the Government has refused to
grant benefits of the 'Assured Progress Scheme' vide the
impugned order dated 16.02.2016. It is the case of the petitioner
that when the petitioner was entitled to receive benefits of
promotion in the year 2010, it was necessary for the authorities
to grant the said benefits from 2010 itself. The action of not
granting benefits of promotional post is arbitrary and capricious.
It is, therefore, prayed that the benefits of promotion be extended
to the petitioner from 2010.
3. The learned AGP vehemently opposed the petition
and submitted that the petitioner was offered the substantive
promotional post in the year 2013. However, he refused to accept
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the said promotional post citing personal reasons. The learned
AGP relies on clause 3 of the Government Resolution dated
01.04.2010, which prescribes that if a person refuses the
substantive promotion, then benefits granted to such person are
to be withdrawn. In the present case, the petitioner is not entitled
to receive the said benefits in view of his subsequent refusal to
accept the substantive promotional post. In support of these
contentions, the learned AGP has relied upon the judgment in
Union of India and others vs. Manju Arora and others, reported
in 2022(2) SCC 151. The learned AGP, therefore, prayed for
dismissal of this petition.
4. We have perused clause 3 of the Government
Resolution dated 01.04.2010. We have also seen the refusal letter
sent by the petitioner refusing to accept the actual promotional
post. Clause 3 of the said Government Resolution prescribes that
the benefits taken by such person, if he refuses to join on actual
promotional post, are to be withdrawn. The communication dated
12.02.2014 addressed by the petitioner to the Deputy Director,
Audit and Treasury, Nashik Division, Nashik, clearly states that
due to personal difficulty, he is unable to accept the promotional
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post for some period, however, he has not stated the exact period.
There is also earlier communication dated 19.12.2023 wherein
the petitioner has requested to stay the promotion for one year.
The Deputy Director, Audit and Treasury, Nashik, has clearly
intimated by communication dated 11.02.2014 that person can
either accept the promotion or can refuse it, but in any case, it
cannot be suspended.
4. Paragraph Nos.13 and 16 of the judgment in the case
of Manju Arora (supra) read thus:-
"13. Reading of the ACP Scheme shows that
financial upgradation would accrue to an
employee only if no regular promotions have
been received by her/him at the prescribed
intervals of 12 and 24 years respectively. In the
entire service career, an employee is entitled to
financial upgradation if the concerned
employee had to suffer stagnation in the same
post without benefit of any regular promotion
and, as earlier stated, the O.M. dated 9.8.1999
was introduced as a "safety net" to deal with
the problems of genuine stagnation and
hardship faced by the employees due to lack of
adequate promotional avenues. But can the
benefit of the Scheme be claimed by an
employee when she, despite offer of regular
promotion, refuses to accept the same and
chooses to remain in the existing grade of her
own volition?"
"16. We are quite certain that if a regular promotion
is offered but is refused by the employee before
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becoming entitled to a financial upgradation,
she/he shall not be entitled to financial
upgradation only because she has suffered
stagnation. This is because, it is not a case of
lack of promotional opportunities but an
employee opting to forfeit offered promotion,
for her own personal reasons. However, this
vital aspect was not appropriately appreciated
by the High Court while granting relief to the
employees."
5. Considering all above, this Court finds that when the
petitioner was offered the promotional post, it is the petitioner,
who on his own, refused to accept the same. Technically the
petitioner is right in saying that he was entitled to get benefits
from 2010 itself and the Government should not have withdrawn
it till 2013. He is also submitting that giving substantive
promotional post was not depending on the fact of submission of
the caste validity certificate and the Government could have
immediately offered the promotional post. However, this Court
finds that the scheme itself is introduced not to deprive the
person of promotional post merely for the reason that no
substantive promotional post is available. At the same time, it is
necessary that the person must be eligible to be appointed to the
promotional post. The Assured Progress Scheme was introduced
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in the year 1995, in 2001 it was modified and again in 2010,
some changes were made. Even if the benefits are given, those
are required to be recovered in view of clause 3 of the
Government Resolution dated 01.04.2010. In any case, we do not
find any merit in the petition. The Writ Petition is, therefore,
dismissed. No order as to costs.
kps (SUSHIL M. GHODESWAR, J.) (KISHORE C. SANT, J.)
