Shivaji Kishan Mutkule v. The State of Maharashtra Through Its Chief Secretary and Others

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 8769 OF 2023 Shivaji Kishan Mutkule age 34 years, occ. Service r/o Muda, Post Bori Taluka Jintur, Dist. Prabhani .. Petitioner versus

¶1The State of Maharashtra Through its Chief Secretary Department of Agriculture Mantralaya, Mumbai.

¶2Vasantrao Naik Marathwada Agriculture University Krushinagar, Vasmat Road, Parbhani, Through its Rgistrar

¶3Shriram Devidas Waghmare age 41 years, occ. Service r/o c/o Office of Associate Dean and Principal, Agriculture College, Parbhani .. Respondents Mr. S. S. Jadhavar, Advocate for the Petitioner. Mr. S. K. Tambe, AGP for Respondent No. 1. Mr. M. N. Navandar, Advocate for Respondent No. 2. Mr. R. G. Nirmal, Advocate for Respondent No. 3.

CORAM : RAVINDRA V. GHUGE AND R. M. JOSHI, JJ. RESERVED ON : 3rd APRIL, 2024. PRONOUNCED ON : 19th APRIL, 2024 2024:BHC-AUG:8285-DB JUDGMENT : ( Per R. M. Joshi, J.)

¶1Rule. Rule made returnable forthwith and heard finally by consent.

¶2The Petitioner is seeking to raise challenge to the promotion order dated 29th December, 2022 issued by the Registrar, Vasantrao Naik Marathwada Agriculture University, Parbhani, in favour of Respondent No. 3 to the post of Agriculture Assistant (Group-C). He further seeks direction to grant promotion to the Petitioner on the said post with effect from 29th December, 2022 with all consequential benefits and difference in salary.

¶3The Petitioner is working as a Watchman with Respondent No. 2 – University and, in the seniority list of Class IV employees prepared for the purpose for promotion to the higher post, he stands at Serial No. 217 whereas Respondent No. 2 is at Serial No.

¶216It is further case of the Petitioner that he is qualified as Diploma in Agriculture and B.Sc. (Horticulture) and possesses requisite qualification for the promotional post of Agriculture Assistant (Group C). According to the Petitioner, Respondent No. 3 was promoted as Junior Clerk by order dated 6th April, 2022. However, he did not join the promotional post and as such he refused the promotion. It is claimed that in view of Government Resolutions dated 12th September, 2016 and 1st August, 2019, in the event the employee refuses the promotion granted to him, he should not be considered for promotion in subsequent two years. It is submitted that inspite of the refusal for promotion by Respondent No. 3, the impugned order dated 29th December, 2022 came to be issued by granting promotion to him to the post of Agriculture Assistant (Group C). The Petitioner claims that Respondent No. 3 ought to have been removed from the seniority list of Group IV employees for the period of two years as per the aforestated Government Resolutions and hence the promotion granted to this respondent is illegal and bad in law.

¶4Respondent No. 2 opposed the Petition by filing affidavit-in-reply of Purbha s/o Kondiba Kale, Registrar, Vasantrao Naik Marathwada Krishi Vidyapeeth, Parbhani. He has not disputed the facts narrated by the Petitioner with regard to the employment of the Petitioner as well as Respondent No. 3 and the order of promotion issued to him. It is however claimed that the post of Junior Clerk as well as Agriculture Assistant have different pay scales and an Agriculture Assistant draws higher salary than the Junior Clerk.

¶5Respondent No. 3 also by filing affidavit-in-reply opposed the Petition. It is his contention that the Government Resolution dated 12th September, 2016 is applicable to the employees who deliberately avoid to take promotion order but in the present case, Respondent No. 3 claims to have possessed five different types of qualification to avail any promotional post of his choice and as per his convenience. It is therefore his contention that there is no substance in the Petition and that he could not have been removed from the select list of Group IV employees.

¶6We have extensively heard the submissions of learned Advocates for the rival parties and carefully considered the material placed on record.

¶7This Petition revolves around the interpretation of Government Resolution dated 12th September, 2016. The relevant provisions of the said Government Resolution are reproduced as under :- izLrkouk & ,[kkn;k deZpkÚ;kus inksUurh ukdkjY;koj v'kk izdj.kh d'kk izdkjs dk;Zokgh djkoh ;kckcrps vkns'k fn-30-04-1991 P;k 'kklu fu.kZ;kUo;s fnysys vlwu R;kuqlkj ojP;k laoxkZr inksUurhlkBh fuoM >kY;kuarj ,[kkn;k lsodkus inksUurhps in fLodkj.;kl udkj n'kZfoY;kl R;kps ukao inksUurhlkBh ik= vl.kkÚ;k lsodkaP;k fuoM;knhrwu dk<wu Vkd.;kckcr o inksUurhlkBh ik= vl.kkÚ;k deZpkÚ;kaph fuoM ;knh R;kuarj tsOgk cufo.;kr ;sbZy R;kosGh R;k deZpkÚ;kP;k izdj.kkpk xq.koRrsizek.ks iqUgk fopkj dj.;kckcr vkns'k fnysys vkgsr- lnjgw vkns'k veykr vlwuns[khy dkgh vf/kdkjh@deZpkjh oS;fDrd dkj.kkLro okjaokj inksUurh ukdkjr vlY;kps vk<Gwu vkys vkgs- 'kkldh; vf/kdkjh@deZpkjh ;kaP;k inksUurh ukdkj.;kP;k izo`Rrhl vkGk ?kky.;klkbh lanHkkZ/khu 'kklu fu.kZ;ke/;s cny dj.;kph ckc 'kklukP;k fopkjkf/ku gksrh- 'kklu fu.kZ; & ojhy ckchapk fopkj d#u ;k 'kklu fu.kZ;kUo;s vkrk iq<hyizek.ks vkns'k ns.;kr ;sr vkgsr %& 1-ojP;k laoxkZr inksUurhlkBh fuoM >kY;kuarj vFkok rRiwohZp , [kkn;k deZpkÚ;kus inksUurhps in fLodkj.;kl udkj n'kZfoY;kl] R;kps ukao inksUurhlkBh ik= vl.kkÚ;k vf/kdkjh@depkÚ;kaP;k fuoM;knhrwu dk<wu Vkd.;kr ;kps o iq<hy nksu o"khZ gks.kkÚ;k fuoMlwP;kae/;s lacaf/kr vf/kdkjh@deZpkÚ;kph inksUurhlkBhph ik=rk rikl.;kr ;koh- R;kosGsP;k xq.koRrsizek.ks lacaf/kr vf/kdkjh@deZpkjh inkUurhlkBh ik= BjY;kl R;kpk fu;fer fuoMlwphr lekos'k dj.;kr ;kok-¼mnk-lu 2015 P;k fuoMlwphdfjrk ¼fn-1-09-2014 rs fn-31-08-2015½ fn-15-01-2015 jksth >kysY;k fuoMlwphr ,[kkn;k vf/kdkÚ;kpk lekos'k dj.;kr vkyk vlsy o R;kauh inksUurhl udkj fnY;kl R;kaps uko 2015 P;k fuoMlwphrwu oxGwu R;kapk lu 2016 o lu 2017 P;k fuoMlwphdfjrk ns[khy fopkj u djrk lu 2018 P;k fuoMlwphdfjrk fopkj dj.;kr ;kok-½ 2-T;k vf/kdkjh@deZpkÚ;kus dk;eLo#ih inksUurh ukdkjysyh vkgs] R;kapk iq<hy dks.kR;kgh fuoMlwphdfjrk fopkj dj.;kr ;sm u;s-3- T;k vf/kdkjh@deZpkjh ;kapk ifgY;k osGsl inksUurh ukdkjY;kuarj 3 o"kkZauarj nqlÚ;k osGsl fuoMlwphdjhrk fopkj dj.;kr vkY;kuarj o lacaf/kr vf/kdkjh@deZpkjh inksUurhl ik= BjY;kl] ek= lacaf/kr vf/kdkjh@deZpkÚ;kus iqUgk inksUurhl udkj fnY;kl R;kapk R;k fuoMlwphr o iq<hy nksu o"kkZP;k fuoMlwphr fopkj dj.;kr ;s.kkj ukgh- ;kizek.ks iq<hy izR;sd osGsl ojhyizek.ks dk;Zokgh dj.;kr ;koh-4- T;k izdkj.kkr fuoMlwph r;kj dj.;kph dk;Zokgh iq<hy 2 o"ksZ u gksrk frlÚ;k o"khZ fuoMlwph dsY;kl ifgY;k osGsl inksUurhl udkj fnysY;k vf/kdkjh@deZpkÚ;kapk frlÚ;k o"khZ gks.kkÚ;k fuoMlwphr inksUurhlkBh fopkj dj.;kr ;kok- ¼mnk-lu 2015 P;k fuoMlwphr udkj fnysY;k vf/kdkjh@deZpkÚ;apk lu 2016 o 2017 e/;s tjh fuoMlwph >kyh ukgh rjh lu 2018 e/;s fuoMlwph >kY;kl lu 2018 P;k fuoMlwphe/;s R;kapk fopkj dj.;kr ;kok-½ 5-inksUurh ukdkj.kkÚ;k vf/kdkjh@deZpkÚ;kpk inksUurh ukdkj.;klanHkkZrhy vtZ foHkkxh; inksUurh lferhP;k cSBdhP;k fnukadkiwohZ izkIr >kY;kl fdaok inksUurhps vkns'k fuxZfer dsY;kuarj ns[khy izkIr >kY;kl rs fopkjkr ?ksmu lacaf/kr vf/kdkjh@deZpkÚ;kps uko fuoMlwphrwu oxG.;kr ;kos-6- ojP;k inkoj inksUurhlkBh fuoM >kY;kuarj inksUurhps in fLodkj.;kl udkj fnysY;k vf/kdkjh@deZpkÚ;aph ojP;k inkojhy lsokT;s"Brk gh] T;kosGh lacaf/kr vf/kdkjh@deZpkjh iq<hy fuoMlwphr ¼3 o"kkZuarjP;k½ inksUurhl ik= Bjsy o izR;{k inksUurhP;k inkoj #tw gksbZy R;k fnukadkiklwu fopkjkr ?ksryh tkbZy-7- inksUurh ukdkjysY;k vf/kdkjh@deZpkÚ;kl] R;kus T;k fuoMlwphe/;s fuoM gksmu ns[khy inksUurh fLodkjyh ukgh R;k fuoMlwphrhy vf/kdkÚ;kpk o R;kuarjP;k nksUgh fuoMlwphrhy vf/kdkU;kapk ekuho fnukad izkIr gks.kkj ukgh-8- inksUurh ukdkjysY;k vf/kdkjh@deZpkÚ;kauk v'okflr izxrh ;kstus varxZr ykHk fnys vlY;kl rs dk<wu ?ks.;klanHkkZr foRr foHkkxkus osGksosGh fuxZfer dsysY;k vkns'kkuqlkj dk;Zokgh dj.;kr ;koh-9- inksUurh ukdkjysY;k vf/kdkjh@deZpkÚ;keqGs fjDr >kysY;k fdaok fjDr gks.kkÚ;k inkoj lacaf/kr vf/kdkjh@deZpkÚ;kP;k izoxkZuqlkj@T;s"Brsuqlkj ik= Bj.kkÚ;k dfu"B vf/kdkjh@deZpkÚ;kpk fuoMlwphr lekos'k dj.;kr ;kok-2- lnjgw vkns'k lu 2016&2017 ;k fuoMlwph o"kkZiklwu r;kj dj.;kr ;s.kkÚ;k fuoMlwP;kauk ¼rnFkZ inksUurhlwph@fu;fer fuoMlwph½ ykxw jkgrhy-Above Government Resolution clearly shows that the refusal of promotion by any Government servant would result into removal of his name from the select list for two years and that his case could be considered for promotion again only in third year of such refusal.

¶8There is no dispute about the fact that the Petitioner as well as Respondent No. 3 as on 6th April, 2022 were in the select list of Group IV employees. There is no denial of the fact that for promotion of Junior Clerk and Agriculture Assistant, group IV employees formed a feeder cadre. Admittedly, Respondent No. 3 was promoted to the post of Junior Clerk by order dated 6th April, 2022. He did not join the promotional post, which amounts to refusal thereof. It thus can be safely held that Respondent No. 3 has refused the promotion as Junior Clerk (Group C) by order dated 6th April, 2022.

¶9It is sought to be canvassed on behalf of the Petitioner that since Respondent No. 3 has refused the promotion of Junior Clerk, his name deserves to be removed from the select list of Grade IV employees for the period of two years and hence he is not entitled for promotion to the post of Agriculture Assistant. Whereas Respondent No. 3 claims that Government Resolution dated 12th September, 2016 pertains to the cases wherein the Government employee deliberately avoids to take promotion order. According to him, he is possessing qualification and that it is his choice to accept or not to accept any one of such promotions. The learned Advocate for this Respondent has also sought to draw our attention to the pay scale of Junior Clerk and Agriculture Assistant to show that Agriculture Assistant draws more salary than the Junior Clerk and hence it was always open for Respondent No. 3 to refuse promotion for the post of Junior Clerk.

¶10At the first blush, the argument sought to be canvassed on behalf of Respondent No. 3 appears to be attractive to say that if more than one promotional avenues are available to him, it is open for him to choose any one of them, more particularly, when he has requisite qualification to occupy both the posts. However, a careful perusal of Government Resolution dated 12th September, 2016, does not support such contention, as there is no condition laid down, under which circumstances promotion can be denied. The Government Resolution clearly states that whenever any Government employee refuses promotion, his name is required to be removed from the select list and that his case cannot be considered for the purpose of promotion for further two years and can be considered only in the third year. The Government Resolution is thus unambiguous. Resultantly, whenever any employee refuses the promotion, as a consequence thereof, his name must be removed from the select list. Here in this case, Respondent No. 3 was from Group IV employees which is a feeder cadre for the purpose of promotion to the post of Junior Clerk and Agriculture Assistant. Thus, it is clear that unless his name appears/included in the select list, he would not be entitled for any further promotion, even to post of Agriculture Assistant.

¶11By not accepting the promotion granted to him by order dated 6th April, 2022 to the post of Junior Clerk, he has refused the promotion and as such, his name ought to have been removed from the select list of Group IV employees. If his name would not appear in the select list, the question of granting him promotion does not arise. Though to some extent, we may agree with submissions on behalf of Respondent No. 3 that he has right to choose better promotion avenue and cannot be compelled to accept one of them. But Government Resolution dated 12th September, 2016 as it stands today, does not permit any such contention of any employee to be accepted. We, however, hope and trust that the Government will take into consideration this aspect and ensure that there is no injustice caused to the genuine Government employee who has not refused the promotion for any personal reason of not going on transfer on account of promotion, but, wants to avail one of the promotional posts, available to him.

¶12In view of the above, there is no scope for drawing the conclusion that the promotion order dated 29th December, 2022 issued by Respondent No. 2 in favour of Respondent No. 3 is in contravention with the Government Resolution dated 12th September, 2016 and hence it cannot be sustained.

¶13Consequently, this Writ Petition stands partly allowed. The impugned order stands quashed and set aside. However, we direct that the benefits of actual work down by Respondent No. 3, shall not be taken away or recovered.

¶14Though the Petitioner is seeking a direction to Respondent No. 2 to appoint him on the post of Agriculture Assistant, we do not wish to issue such directions as it would be for the employer to take decision about his promotion, depending upon he fulfilling all requisite conditions and there being no other impediment for promotion of the Petitioner to the said post. Hence, Respondent No. 2 to consider the case of the Petitioner for promotion to the said post in accordance with the law.

¶15Rule made partly absolute.

( R. M. JOSHI) ( RAVINDRA V. GHUGE) JUDGE

JUDGE dyb