wp 4383-2016.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.4383 OF 2016 1. Maharashtra Rajya Vidhut Mandal Kamgar Sena, Camp at Near C.P. & Berar College, Tulshi bag road, Mahal, Nagpur. Through its Secretary shri Shankar Ghorse 2. Suresh s/o Vasudeorao Patil Aged about 54yrs., Occ: service R/o Plot No.12, old Thaware Colony, Jaripatka, Nagpur. … PETITIONERS VERSUS 1. Maharashtra State Power Generation Co. Ltd Prakashgad, 2nd floor, Bandra (East), Station road, Mumbai - 400 051. Through its Chairman / Managing Director 2. The Chief Engineer (Generation), Maharashtra State Power Generation Co.Ltd KTPS Koradi, Distt. Nagpur. … RESPONDENTS ------------------------------------------------------------------------------------------ Shri B.C. Chandrakapure, Advocate for petitioners Shri A.D. Mohgaonkar, Advocate for respondents ------------------------------------------------------------------------------------------ CORAM : PRAVIN S. PATIL , J. DATE D : 17.08.2026 2026:BHC-NAG:10808 wp 4383-2016.odt 2 ORAL JUDGMENT 1. Heard. 2. In the present petition, the challenge is to the judgment and order passed by Industrial Court dated 14.07.2015 in Complaint ULP No. 292 of 2003, whereby the complaint of the petitioner has been dismissed. 3. It is the case of the petitioner No.2 that on the basis of his qualification, he was initially appointed as a Lower Division Clerk (LDC) Accounts with effect from 07.02.1990, and became confirmed in the service on 01.04.1993. His service record is clean and unblemished. 4. The petitioner No.2 has filed a complaint before the Industrial Court vide Complaint ULP No. 292 of 2003 by stating that since he had passed required departmental examination i.e. Lower Accountant Exam held on 03.10.1994 became entitled to the promotion in the post of Upper Division Clerk (UDC) wp 4383-2016.odt 3 Accounts. He belongs to S.C. Category and post of UDC Accounts was vacant since year 1994-95, but same was not filled-in and kept vacant till date with a view to deprive petitioner No.2 from promotion. 5. It is further stated that by his continuous service and considering his first entitlement, he became eligible for second promotion against the post of Divisional Accountant. It is stated that he has also passed departmental exam i.e. Higher Account Examination on 10.07.1998. But he deprived from second promotion as Divisional Accountant and third promotion as Assistant Accountant/ Auditor and Divisional Accountant. He also raised grievance of not granting benefit of G.O. 74 which was due and payable on completion of 12 years continuous service. As such, keeping the post of UDC Accounts vacant in unfair labour practice on the part of respondents. 6. In view of above submission, he has made prayer before the Industrial Court to grant him deemed date promotion wp 4383-2016.odt 4 on the post of Assistant Accounts since 17.04.2012 and as a Deputy Manager (F & A) with effect from 30.09.2013. He further prays before the Industrial Court to grant him promotion in the category of UDC Accounts, IInd in the post of Accountant/Auditor, and IIIrd in the post of Divisional Accountant respectively, along with all arrears of pay scale and arrears of first benefit of G.O. 74 from 16.02.1996 and IInd benefit of G.O. 74 from 17.02.2002 along with the interest. 7. The complaint filed by the petitioner No.2 was strongly opposed by the respondents. The respondents contended that mere seniority and passing of the examination does not confer an automatic right to promotion. Promotion to the post of UDC was subject to prescribe selection procedure, suitability, and recommendations of the Competent Selection Committee. According to the respondents, promotion is based upon seniority- cum-merit. According to respondents, they have not done any discrimination while effecting promotion. It is stated that though petitioner No.2 has passed the Higher Account Examination, wp 4383-2016.odt 5 passing such examination by itself did not create an indefeasible right to promotion to the post of Divisional Accountant. According to him, promotion is not a vested right, and same is subject to seniority-cum-merit. Hence, on all these counts, the claim made by the petitioner No.2 was opposed before the Industrial Court. 8. In this background, the parties entered into the witness box and led their respective evidence before the Industrial Court. The petitioner No.2 has entered into the witness box and reiterated his case as to how he is entitled for promotion, and the efforts which he has taken to get promotion in the matter. The petitioner No.2 was cross-examined by the respondents employer. It would be relevant to refer the certain admissions which were given by the petitioner No.2 during his cross-examination. The petitioner No.2 has admitted that promotion from the post of LDC to UDC is based upon the zonal seniority. He has further admitted that he has not produced any promotion orders of the employees who were junior to him. It is wp 4383-2016.odt 6 also admitted by him that from the year 1994 till 2003, from LDC to UDC (Accounts) in Koradi Zone, no candidate of SC category was promoted to the post of UDC (Accounts) from LDC. He has categorically admitted the fact that in the month of July 2003, he was promoted to the post of UDC Accounts. 9. It is further pertinent to note that the respondents also entered into the witness box and categorically stated the confidential reports of the petitioner No.2 for the period from 01.04.1996 to 31.03.1997 communicated on 30.08.1997, the confidential report for period 01.04.2000 to 31.03.2001, 01.04.2001 to 31.03.2002, and 01.04.2002 to 31.03.2003, was not satisfactory, and therefore, the case of petitioner No.2 was not considered by the Competent Selection Committee. 10. In this background, the learned Industrial Court has decided the complaint, and by recording the finding that petitioners failed to establish unfair labour practice on the part of the respondents, dismissed the complaint. wp 4383-2016.odt 7 11. It would be relevant in the present matter to record the fact that during the pendency of the complaint before the Industrial Court, the services of petitioner No.2 was terminated on 03.07.2007. The said termination was by conducting the inquiry against petitioner No.2. The petitioners, after receipt of the said termination order, filed Complaint ULP No. 127 of 2007 before the Labour Court, Nagpur. The learned Labour Court, Nagpur has granted him interim protection during the pendency of the said complaint. 12. In the Complaint ULP No. 127 of 2007, in response to the notices issued by the Labour Court, the respondent Management appeared and raised a preliminary objection of territorial jurisdiction of the Labour Court to entertain the complaint. The Labour Court has upheld the said objection and dismissed the complaint. As a result, the interim protection granted therein was also merged into the order of Labour Court. wp 4383-2016.odt 8 13. Petitioner No.2 challenged the said order of Labour Court before the Industrial Court. The Industrial Court has held that the Labour Court has jurisdiction to decide the complaint on its own merits. Therefore, the matter was remanded back to the Labour Court to decide the same on its own merits. 14. After remanding back of the matter to the Labour Court, the petitioner No.2 was not protected by any interim order during the pendency of the complaint before the Labour Court. The Labour Court thereafter by recording the evidence of the parties and by granting opportunity to the respondent Management to prove the charges leveled against the present petitioner, has decided the complaint, and thereby by judgment and order dated 22.10.2021, dismissed the complaint filed by petitioner No.2. 15. The petitioner No.2 states that the said judgment of Labour Court is now under challenge before the Industrial Court in revision. But he fairly admitted the fact that there is no interim wp 4383-2016.odt 9 relief is operating in the matter. As such, it is clear that at present, the petitioner No.2 is not in employment with the respondent Department. 16. In the background of above said factual position, this matter is taken up for hearing. The petitioners have pointed out to this Court that the respondents have deliberately not promoted the petitioner No.2 though he was entitled for the same, and thereby the learned Industrial Court failed to consider the unfair labour practice which was alleged and proved by him before the Industrial Court, and therefore, seeks indulgence of this Court in the matter. 17. In the present petition, issue which arose for consideration is that whether keeping post vacant and not promoting any candidate on vacant post including petitioner No.2 amounts to unfair labour practice. In this regard, it will be pertinent to record that it is well settled position of law that right of promotion came into effect from the date of post is filled in wp 4383-2016.odt 10 and not from the date the vacancy occurs. There is no fundamental right to promotion, but has only right to be considered as and when the promotional post is filled in. In this regard, it will be relevant to refer the judgment of the Hon’ble Supreme Court of India in case of Government of West Bengal and others Vs. Dr. Amol Satpathi and others reported in 2024 SCC OnLine SC 3512, wherein it is observed in paragraph No.21 which reads as under: “21. While we recognize respondent No. 1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” 18. In the present case, from the finding of Industrial Court, it is seen that while considering the promotion of the employees, it was necessary on the part of the Selection wp 4383-2016.odt 11 Committee to consider three years confidential report of the employee and on the basis of said report decide his eligibility for the promotional post. The respondents have produced confidential reports for the year 1994 to 2003 and specific finding was recorded that all those reports appears in average and therefore, the Committee has not considered his case for second benefit under the G.O. 74 though he has passed the departmental examination, i.e. Lower Account Examination held on 03.10.1994. 19. It is further pertinent to note that in the present case during the pendency of the complaint before the Industrial Court, the petitioner No.2 was charge-sheeted for his misconduct during the tenure of his service. Therefore, the departmental inquiry was initiated against him and his services were terminated. Therefore, the learned Industrial Court has rightly held that petitioner No.2 was not a meritorious candidate and as the departmental inquiry was initiated against him, he cannot be held entitled for promotion on the basis of seniority-cum-merit. wp 4383-2016.odt 12 20. In the facts and circumstances, it is clear that the learned Industrial Court while deciding the complaint has dealt with the every issue raised by the petitioners before the Industrial Court. The Industrial Court on the basis of evidence and documents which were made available by the parties has decided the complaint. Learned Industrial Court on the basis of evidence available on record held that petitioners failed to establish any unfair labour practice on the part of the respondents in the matter. 21. In the present petition, the petitioners failed to establish that the judgment and order passed by the Industrial Court is erroneous or the findings recorded therein are perverse in nature. Only the attempt is made to point out that as the vacancies were available, petitioner No.2 was not promoted and therefore, it was a case of unfair labour practice. In this regard, the law is well settled that any employee cannot claim the promotion as of right. So also, the employer cannot be forced to wp 4383-2016.odt 13 fill up the promotional post only because same are lying vacant. It is the prerogative of the Management to fill up the said post on the basis of suitability and availability of candidate. 22. In view of all this factual as well as legal position, in my considered opinion, the Industrial Court did not commit any error while deciding the complaint. The judgment is based upon the documentary evidence as well as oral evidence which was produced before him by the parties. Therefore, considering the fact that the Industrial Court has rightly dealt with all the issues involved in the matter, it is not a fit case to invoke the extraordinary jurisdiction in the matter. Therefore, for the aforesaid reasons, I find no merit in the present petition, accordingly petition stands dismissed. No order as to costs. (PRAVIN S. PATIL J.) R.S. Sahare Signed by: Mrs. Ranjana Sahare Designation: PA To Honourable Judge Date: 20/08/2026 17:24:19