Authorities Can’t Keep Employee Waiting For 2 Years For Promotion: Bombay HC Directs Maharashtra SSC To Grant Temporary Promotion To Man

The Bombay High Court, Aurangabad Bench has directed the Maharashtra State Secondary and Higher Secondary Board (SSC) to grant a temporary promotion to a man on account that the authorities cannot keep an employee waiting for two years for promotion.

The petitioner, in this case, was seeking direction to consider him for the promotion to the post of ‘supervisory clerk’ as well as a direction to include his name in the seniority list.

A Division Bench comprising Justice Mangesh S. Patil and Justice Shailesh P. Brahme held, “We find that the petitioner is illegally deprived of the promotion. Therefore, the respondents cannot keep the petitioner waiting for two years. The submission of learned counsel relying upon clause 9 cannot be approved. … Its a matter of record that the disciplinary action and the prosecution have not been progressed substantially. The respondents/ authorities have not adhered to the procedure contemplated by Government Resolution dated 15.12.2017.”

The Bench said that the petitioner is entitled to be considered for promotion along with similarly placed employees.

Advocate Swapnil Joshi represented the petitioner while AGP A.S. Shinde and Advocate Yugant R. Marlapalle represented the respondents.

Factual Background -

The petitioner was an employee of Maharashtra State Secondary and Higher Secondary Board (Board) being appointed as ‘Junior Clerk’ in 1992 and was promoted to the post of ‘Senior Clerk’ in 2014. An offence was registered under provisions of Indian Penal Code, Maharashtra Prevention of Malpractices at University, Board and other Specified Examinations Act, 1982 and Prevention of Corruption Act, against 26 persons including the petitioner in 2016 as a result of which he was suspended. He was reinstated in 2017 and a charge sheet was filed before the Criminal Court in which he was the accused no. 11.

The disciplinary action was underway and yet to be concluded and in 2021, seniority list of the Senior Clerk was published in which the petitioner was shown at serial no.34. In 2018 and 2019 other accused were promoted to the post of Supervisory clerk temporarily. Thereafter, the petitioner was shown not eligible for the promotional post of ‘Supervisory Clerk’ as the disciplinary action and criminal proceeding were pending. The grievance of the petitioner was that he was eligible for the promotion and his name was also included in the Seniority list. Despite that he was denied the promotion citing the reason that the disciplinary action and the criminal proceeding were pending against him. Whereas, similarly circumstanced employees were given promotion which was discriminatory.

The High Court in view of the above facts observed, “The petitioner has only right to be considered for the promotion and in a strict sense the direction to promote him cannot be issued. Having made out a case of discrimination and illegal deprivation to the promotional post we are of the considered view that there is no point in relegating the petitioner to the Committee to reconsider his claim for promotion. The bar of two years engrafted in clause 9 is a legal impediment to such a type of direction.”

The Court, therefore, directed the respondents to grant temporary promotion to the petitioner and said that though under normal circumstances it would not have granted such a relief to an employee.

“We are fortified in issuing such a direction by the fact that from the minutes of the meeting dated 24.12.2021, two promotional posts of Supervisory Clerk appear to be vacant. It is possible to accommodate the petitioner against one of those posts. However, he is not entitled to any other consequential benefits except an adhoc promotion, notionally”, clarified the Court.

Accordingly, the High Court directed the respondents to issue an order of temporary promotion to the petitioner within two weeks and modify the seniority list by incorporating his name in it.

Cause Title- Ashok Madhukar Nand v. The State of Maharashtra & Ors. (Neutral Citation: 2023:BHC-AUG:21568-DB)

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