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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

936 WRIT PETITION NO.3409 OF 2019

Shaikh Sajid Shaikh Hamid

Age : 48 years, Occu : Service as

Junior Clerk, Aurangabad Cantonment

Board, Aurangabad.

.. Petitioner

Versus

1.

The Union of India

Through its Secretary,

Ministry of Defense,

New Delhi.

2.

The Principal Director,

Defense Estate, Government of India,

Ministry of Defense, Southern Command,

Pune

3.

The General Office Commanding

In Chief (GOD-in -C)

Southern Command, Pune

4.

The President, Cantonment Board,

Aurangabad, Dist. Aurangabad.

5.

The Chief Executive Officer,

Aurangabad Cantonment Board,

Aurangabad, Dist. Aurangabad

6.

Mohd. Bashir Mohd. Jamal

Age: Major, Occu : Service as Accountant,

Aurangabad Cantonment Board, Aurangabad

Tal. & Dist. Aurangabad.

.. Respondents

…

Mr Nitin T Tribhuwan, Advocate for Petitioner

Mrs S.S. Kulthe, Standing Counsel for Respondent Nos.1 to 3

Mr A.D. Soman, Advocate h/f. Mr D.V. Soman, Advocate for

Respondent No.4 & 5

Gajanan

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Mr Vinod Khairnar, Advocate h/f. Mr Vijay Y. Gangtire,

Advocate for Respondent No.6

…

CORAM : S. V. GANGAPURWALA

AND

R.N. LADDHA, JJ.

DATE : 03-08-2021

ORAL JUDGMENT ( Per: S. V. GANGAPURWALA, J.) : -

1.

Rule. Rule made returnable forthwith. With the consent

of the parties, the matter is taken up for hearing.

2.

The petitioner seeks directions against the respondents to

promote the petitioner on the post of accountant with effect from the

date of retirement of respondent no.6 i.e. on 06-06-2020. The

petitioner also seeks directions to set aside the order dated 23-01-2019

promoting respondent no.6 to the post of accountant.

3.

Mr Tribhuwan, learned Advocate for the petitioner

submits that, the petitioner was eligible to be promoted for the post of

accountant. The claim of the petitioner was illegally negatived and

respondent 6 was promoted, the same is illegal. The learned Counsel

in alternate submits that, respondent no.6 has stood retired as an

Gajanan

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accountant with effect from 06-06-2020. Since 06-06-2020 the post

of accountant is vacant. The petitioner is the senior-most Jr. Clerk in

the department and is working in the account section for more than

one year. The petitioner is not considered for the post of promotion.

The learned Counsel relies upon Rule 5 (B) (8) of the C.F.S. Rules,

1937. The learned Counsel referring to annexure - ‘C’ to CFS rules

submits that, the post of accountant is to be filled in by promotion and

post of Jr Clerk is a feeder cadre for the post of accountant.

4.

Mr Soman, learned Advocate for the respondent submits

that, the order dated 23-01-2019 does not suffer from any illegality.

Respondent no.6 was senior to the petitioner. Respondent no.6 was

rightly promoted. The petitioner does not have much experience in

the field of account. The post of the accountant is a responsible post

and financial powers are given to the accountant. So, the Board by

meeting dated 27-10-2020 held that the petitioner should gain some

work experience of working in account section, but the petitioner is

not taking his duty seriously as Jr Clerk in account section and he is

showing the casual approach. The petitioner was issued show cause

notice on 04-01-2021 as to why action should not be taken against him

for the casual approach towards his duties. According to the learned

Gajanan

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Advocate, if the petitioner gains adequate experience and takes work

seriously then the respondents may consider the petitioner for the

promotional post.

5.

We have considered the submissions made on behalf of

the learned Counsel appearing for the parties. Right to be promoted is

not a fundamental right, but to be considered for promotion is right. It

is not disputed by either parties that, the petitioner is the senior-most

junior clerk and the post of accountant is to be filled in from the feeder

cadre of Jr. Clerk.

6.

No doubt, the