Bombay High Court
Babasaheb Kisan Raut And Others vs The State Of Maharashtra And Others on 24 February, 2018
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7396 OF 2016
1) Babasaheb s/o Kisan Raut,
Age-54 years, Occu:Pensioner,
R/o-Shendi, Tq. & Dist-Ahmednagar,
2) Gawaji s/o Sundraji Zine,
Age-52 years, Occu:Service,
R/o-7A, Ravindranagar,
Near Pach Godwan, Kedgaon,
Ahmednagar, Dist-Ahmednagar,
3) Sunil s/o Shivaji Khalche,
Age-49 years, Occu:Service,
R/o-Room No.13, Block No.3,
Siddharth Nagar, Ahmednagar,
Tq. & Dist-Ahmednagar,
4) Sau. Chandrakala Sunil Khalche,
Age-49 years, Occu:Service,
R/o-As Above,
5) Shaikh Ejaz Ahmed Hashm,
Age-51 years, Occu:Service,
R/o-House No.1672, Zendigate,
Ahmednagar, Dist-Ahmednagar,
6) Wikar Anjum Mohammed Ibrahim Khan,
Age-61 years, Occu:Pensioner,
R/o-House No.2484, Tambatkar Galli,
Ahmednagar, Dist-Ahmednagar.
...PETITIONERS
VERSUS
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1) The State of Maharashtra,
Through its Department of
Urban Development,
Mantralaya, Mumbai,
2) The Municipal Corporation,
Ahmednagar,
Through its Commissioner,
3) The Deputy Commissioner,
Ahmednagar Municipal Corporation,
Ahmednagar.
...RESPONDENTS
...
Mr.S.S. Jadhavar Advocate for Petitioners.
Mr.C.S. Kulkarni, A.G.P. for Respondent No.1.
Mr.K.N. Lokhande Advocate for Respondent
Nos. 2 and 3.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 13TH FEBRUARY, 2018
DATE OF PRONOUNCING JUDGMENT: 24TH FEBRUARY, 2018
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
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2. This Petition under Article 226 of the
Constitution of India, has been filed with
following substantive prayers:
"(B) By issuing writ of certiorari or any
other appropriate writ, order or direction
in the nature of writ, the order dated
03.05.2016 issued by respondent No.3,
denying benefits of time bound promotion
scheme to the Petitioners No.1 to 5, may
kindly be quashed and set aside to the
extent of petitioners,
(C) By issuing writ of certiorari or any
other appropriate writ, order or direction
in the nature of writ, the order dated
07.05.2013 issued by respondent No.3,
denying benefits of time bound promotion
scheme to the petitioner No.6 may kindly be
quashed and set aside to the extent of
petitioners;
(D) By issuing writ of mandamus or any
other appropriate writ, order or direction
in the nature of writ, respondent Nos.2 and
3 may kindly be directed to grant benefits
of time bound promotion scheme to the
petitioners on completion of period of 12
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years after grant of earlier benefits of
time bound promotion scheme."
3. It is the case of the Petitioners that
they were appointed on 7th August, 1987, 5th
October, 1987, 29th April, 1988, 17th February,
1989, 17th February, 1989 and on 14th November,
1986 respectively. After completion of twelve
years service, the Petitioners were granted
benefits of time bound promotion scheme in view of
Government Resolution dated 8th June, 1995, issued
by the General Administration Department,
Government of Maharashtra. After completion of
further twelve years, the Petitioners are entitled
for benefit of second stage of time bound
promotion scheme, since they have not been granted
promotion to the higher post during said period.
After completion of such period of twelve years,
the Petitioners repeatedly requested Respondent
Nos.2 and 3 to grant them benefits of time bound
promotion scheme, however, they have not been
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granted the said benefit. By order dated 7th May,
2013 Petitioner No.6 and other similarly situated
persons were denied benefit of time bound
promotion scheme mainly on the ground that they
were not having qualification of LSGD and they had
not cleared MS-CIT qualification. The said order
was challenged by one of the employees before this
High Court in Writ Petition No.5786 of 2013. By
order dated 28th February, 2014 this Court allowed
the said Writ Petition and directed Respondent
No.2 Municipal Corporation to grant benefit of
time bound promotion scheme to the petitioner
therein.
4. The Petitioners further contended that
relying upon the decision in said Writ Petition
No.5786 of 2013, the Petitioners made several
representations to the Respondents claiming
benefits of time bound promotion scheme. In the
light of decision rendered by this Court in the
said Writ Petition No.5786 of 2013, directing
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grant of time bound promotion scheme to one of the
similarly situated person, the Respondents ought
to have considered prayer of the Petitioners for
grant of similar benefit to them, however ignoring
the entitlement of the Petitioners, so also
verdict of this Court in an identical case, the
Respondents have denied benefits of time bound
scheme to the Petitioner Nos.1 to 5 vide order
dated 3rd May, 2016, on the ground that the
Petitioners were not possessing qualification of
LSGD. It is contended that qualification of LSGD
is not necessary qualification for the employees
of Municipal Corporation and therefore the reason
assigned by Respondent No.3 while denying claim of
the Petitioners for time bound promotion scheme is
unjust, illegal and unsustainable. Hence this
Petition is filed by the Petitioners.
5. Learned counsel appearing for the
Petitioners submits that vide order dated 7th May,
2013 and 3rd May, 2016 the Respondents have denied
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the claim of the Petitioners for time bound
promotion on the ground that they were not
possessing qualification of LSGD and MS-CIT. It is
stated that the Confidential Reports of the
Petitioners were not available. It is submitted
that in the impugned order itself it was mentioned
that the LSGD was not necessary qualification for
the employees of the Respondent Municipal
Corporation. The said qualification OF LSGD is not
necessary for any post on the establishment of
Respondent Corporation. Laying down the condition
of qualification of LSGD, subsequent to the
appointments of the Petitioners and when they have
rendered services for considerable period, is
unreasonable and due to non fulfillment of such
condition benefit of time bound promotion scheme
after completion of 24 years service cannot be
taken away.
6. On the other hand learned counsel
appearing for Respondent Nos.2 and 3, invites our
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attention to the affidavit in reply filed on
behalf of Respondent No.3 and submits that as per
the Government Resolution dated 1st April, 2010
issued by the Finance Department, Government of
Maharashtra, for getting benefits under the scheme
qualification for the said post is necessary. It
is submitted that after receipt of first benefit,
for getting second benefit the said employee has
to fulfill prescribed terms and conditions of the
post for which he is claiming benefits. As per the
Government Resolution, referred above, as the
Petitioners did not fulfill terms and conditions,
hence benefits are not awarded to them. It is
submitted that as per the report submitted to
departmental promotion selection committee dated
3rd May, 2016, it reveals that present Petitioners
are not possessing Local Self Government Diploma
(LSGD) course which is necessary as per Award
No.51 of 1979. It is submitted that appointment of
Petitioner Nos.1 to 5 is made as per said Award
No.51 of 1979 on compassionate ground.
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7. We have given careful consideration to
the submissions of learned counsel appearing for
the Petitioners, learned A.G.P. appearing for the
State and learned counsel appearing for
Respondent Nos.2 and 3, With their able
assistance, we have perused the grounds taken in
the Petition, annexures thereto, the affidavit in
reply and additional affidavit in reply filed on
behalf of Respondent Nos.2 and 3 and the annexres
thereto.
8. At the outset it would be relevant to
refer the Judgment of the Division Bench of this
Court (CORAM: R.M. BORDE AND N.W. SAMBRE, JJ.) in
Writ Petition No.5786 of 2013 (Bhaskar s/o Amrut
Ghodke vs. the State of Maharashtra and others),
dated 28th February, 2014. The Petitioner therein
was appointed as a clerk with Respondent No.2 -
Municipal Corporation, Ahmednagar on 21st April,
1986. On completion of twelve years service, in
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view of the Government policy pronounced by the
State Government in its Resolution dated 8th June,
1995, issued by the General Administration
Department, Government of Maharashtra, the
Petitioner therein was granted promotional pay-
scale. The Petitioner therein relied upon the
Government Resolution dated 20th July, 2001, issued
by the Finance Department, Government of
Maharashtra and claimed further benefit as
accruable to him in respect of second promotional
pay-scale on completion of twelve years service
from receiving the benefit of first twelve years
service. In the said case the benefit of higher
pay scale on completion of 24 years service on
second time was refused to the Petitioner therein
on the ground that he did not acquire the MS-CIT
qualification as prescribed in the Government
Resolution dated 1st April, 2010 issued by the
Finance Department, Government of Maharashtra. The
Petitioner therein contended that in view of the
Government Resolution dated 2nd September, 2003, on
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completion of 50 years of age the employee stands
exempted from acquiring the said qualification of
passing MS-CIT. It appears that the stand was
taken by the Respondents in the said Petition that
such of those employees who completed 50 years of
age on 2nd September, 2003 i.e. the date of
issuance of Government Resolution, are exempted
from acquiring computer proficiency certificate.
The Division Bench of this Court considered the
rival submissions and held that on the date of
consideration of the proposal of the Petitioner
for grant of second promotional benefits he was
beyond 50 years of age and therefore he ought to
have been granted exemption from acquiring
computer proficiency qualification. The denial of
the benefit of promotional pay scale to the
petitioner on irrelevant consideration has put him
to prejudice in terms of financial loss. In Para 8
of the Judgment, it is further observed that:
"On application of the policy
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prescribed under the Government
Resolution in respect of grant of
exemption from acquiring computer
proficiency qualification. The
petitioner shall have to be deemed
entitled for the acquisition of the
benefits of assured promotional
scheme provided under the Government
Resolution dated 1st April, 2010. It
has not been brought to our notice
that the confidential reports of the
petitioner are adverse or that on
the basis of the scrutiny of the
reports he is not entitled to claim
benefits."
. Accordingly, the Respondents therein were
directed to extend the benefits of assured
promotional scheme/ time bound promotional pay
scale to the petitioner with effect from 21st
April, 2010, the date on which the petitioner
completed 12 years tenure after grant of the
earlier benefits under the time bound promotional
scheme.
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9. Coming to the facts of the present case,
the Petitioners have placed reliance upon the
afore said Judgment and also Ahmednagar Municipal
Corporation, Employment Condition Rules, 2008 (for
short Rules of 2008) and in particular Rule 3(M)
2) to 4) of the said Rules. It would be
appropriate to reproduce herein below the
aforesaid provisions of Rule 3(M) of the Rules of
2008, which are as under:
"3 e inksUurhus use.kqd dj.ks
1½ inksUurhus djko;kP;k loZ use.kqdk ßts"Brk RkFkk
ik=rkÞ ;k rRokoj o fu;e ^3 y* uqlkj foghr foHkkxh;
ijh{kk mRrh.kZ >kysY;k o brj vgZrk /kkj.k dj.kk&;k
deZpk&;karwu dsY;k tkrhy-
2½ ijarq dkgh ts"BinkaP;k ckcr ßfuoM i/nrhusÞ vlk
ifjf'k"Vkr mYys[k vlY;kl R;kckcr dsoG ßik=rkÞ ;k
fud"kkP;k vk/kkjs rlsp fu;e ^3 y* uqlkj foghr foHkkxh;
ijh{kk mRrh.kZ >kysY;k o vko';d R;k brj fdeku vgZrk
/kkj.k dj.kk&;k loZ deZpk&;karwu xq.kksRrj fuoM d:u rh ins
Hkjyh tkrhy-
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3½ dks.kR;kgh inkoj inksUurh nsrkuk R;k inkps dke dj.kkj
vlY;kckcr laca/khr deZpk&;kps ys[kh ?ks.;kr ;srhy- laca/khr
deZpk&;kus inksUurhP;k inkoj dke u dsY;kl R;kl iwohZP;k
inkoj inkour dj.;kr ;sbZy- lnjckcr foHkkx izeq[kkus
izLrko ns.ks vko';d jkghy-
4½ o; o"ksZ 45 vFkok R;kis{kk vf/kd o; vl.kk&;k
mesnokjkl inksUurhlkBh L.G.S. o L.S.G.D ca/kudkjd
jkg.kkj ukgh-"
10. The Respondents have not denied the
assertion of the Petitioners that their cases are
covered by the afore said provisions of the Rules
of 2008. It is the stand of the Respondent
Corporation that the staffing pattern of the
Respondent Corporation has been sanctioned by the
Government on 6th February, 2016 and now the LSGD
qualification is not necessary and in view of the
Government Resolution dated 14th June, 2016 and the
staffing pattern rules, the benefit would be given
to the Petitioners regarding the time bound
promotion. The Respondents also tried to rely upon
the newly introduced Rules titled as " Ahmednagar
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Municipal Corporation, Employment Condition Rules,
2008". The counsel for the Petitioners is right in
his submissions that those Rules cannot be made
applicable in the case of the Petitioners and same
would be applicable prospectively and not with
retrospective effect. The Petitioners have been
appointed during the period from 14th February,
1986 to 17th February, 1989 on various dates. If
those dates are taken into consideration, it
cannot be disputed that by this time the
Petitioners have completed more than 25 years of
service. It is a matter of record that some of the
Petitioners are already retired from the services.
11. In the light of discussion herein above,
in the peculiar facts and circumstances of this
case, and keeping in view the length of service
rendered by the Petitioners and also other
documents placed on record, we are inclined to
allow this Petition. Hence we pass following
order:
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O R D E R
(I) The impugned orders dated 7th May, 2013 and 3rd May, 2016 passed by the Respondent Corporation denying the benefits of the assured promotional scheme and not granting promotional pay scale to the Petitioners, are quashed and set aside.
(II) The Respondents shall extend the benefits of assured promotional scheme/ time bound promotional pay scale to Petitioner Nos.1 to 6 from the date on which each of the Petitioner completed 12 years tenure after grant of the earlier benefits under the time bound promotional scheme.
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wp7396.16 17 (III) The Respondents shall take appropriate decision as directed by us before 31st May, 2018 and shall also pay all the Petitioners the arrears as expeditiously as possible, preferably within a period of three months from such decision. (IV) The Rule is made absolute on above terms. The Writ Petition stands disposed of, accordingly. [S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/FEB18 ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:49:36 :::