Promotion decisions must consider overall service record and misconduct penalties; seniority alone does not guarantee promotion.

JUDGMENT

Nitin Jamdar, J. - The Municipal Corporation of Greater Mumbai has not considered the Petitioner for the post of its Law Officer. Being aggrieved, the Petitioner has filed this petition for direction to the Respondent Corporation to promote her as the Law Officer.

2. Respondent No.1 is the Municipal Corporation of Greater Mumbai, the employer of the Petitioner. Respondent Nos.2 and 3 are Municipal Commissioner and Deputy Municipal Commissioner respectively. Respondent No.4 is appointed to the post of Law Officer.

3. The entry-level post in the Legal Department of the Corporation was a Junior Law Officer which is now being abolished. The next levels are Assistant Law Officer and Assistant Law Officer Grade II, which after the abolition of the post of Junior Law Officer, are the entry-level posts in the Legal Department. The post of Assistant Law Officer is filled in by direct recruitment. The positions of Deputy Law Officer and Joint Law Officer are filled in by promotion. The appointment to the post of Law Officer is by way of promotion as well as by selection.

4. The Petitioner was appointed as Assistant Law Officer in Legal Department of the Respondent- Corporation on 25 February 1995. The Petitioner was promoted as Deputy Law Officer with effect from 1 June 2012. Thereafter the Petitioner was promoted as Joint Law Officer on 18 May 2018. Respondent No.4 was appointed on the post of Assistant Law Officer in the year 1998 and was promoted to the post of Deputy Law Officer in the year 2014.

5. On 30 September 2021, the incumbent Law Officer retired on superannuation, and the post became vacant. As per the resolution of the Respondent-Municipal Corporation dated 28 September 1984 and the Government Resolution dated 8 May 1985, a procedure is prescribed to appoint a Law Officer. The process was initiated for the constitution of the Departmental Promotion Committee (DPC) for recommending suitable officers for promotion to the post of Law Officer. Additional charge of the post of Law Officer was given to Respondent No.4 on 7 November 2021. The Petitioner challenged the action of the Respondent- Corporation of giving charge of the post of Law Officer to Respondent No.4 on the ground that the Petitioner was junior to her and also made a grievance regarding denial of regular promotion.

6. Show cause notices issued to her in March 2018 and a memorandum of charge sheet for conducting a disciplinary enquiry. The Petitioner filed Writ Petition No.23165/2021 challenging the show cause notices. The Petitioner also filed Writ Petition (L) No.23789/2021 challenging the handing over of the additional charge of the post of Law Officer to Respondent No.4. The Division Bench heard these petitions together, and the judgment was reserved on 26 October 2021.

7. Meanwhile, the first Departmental Promotion Committee (DPC-I) had convened a meeting on 13 October 2021. In the said proceeding, the candidature of three, the Petitioner, Respondent No.4 and one Mr.Anant Babu Kajrolkar was considered for promotion to the post of Law Officer. A decision was taken to keep the case of the Petitioner in a sealed cover in view of the pendency of disciplinary enquiry. The DPC-I recommended the name of Respondent No.4 to be promoted to the post of Law Officer. The proposal for the promotion of Respondent No.4 was placed before the Law Committee by the Municipal Corporation, and the Committee accepted the said proposal on 26 October 2021. The General Body of the Municip