Bombay High Court
The State Of Maharashtra vs Manohar Gopalji Shah on 29 January, 2010
Author: P.D. Kode
Bench: A.P. Lavande, P.D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2717/2008
The State of Maharashtra,
Through the Secretary,
Public Works Department,
Mantralaya, Mumbai -32. .. PETITIONER
.. Versus ..
1. Manohar Gopalji Shah,
B.E. (Civil), Retired Superintending
Engineer, Aged 68 years,
R/o 6, Ramankunj, New Ratanlal Plots,
Akola-01.
2. Bhalchandra Shivrao Chaugule,
B.E. (Civil Retired S.E. P.W.D)
Aged about 71 years,
R/o Sshaishanri Saket Society,
Near Sangam Press, Kothrud,
Pune-38.
3. Someshwar Guruslddappa Sinfal,
B.E. (Civil), Retired S.E. PWD,
Aged about 69 years, R/o. H/6,
Mantro Avenue (II), Panchavati,
Pashan Road, Pune-8.
4. Laxmikant Ramchandra Shirlekar,
(DCE) Retired E.E. PWD,
Aged about 75 years, R/o. 4,
Geetanjali Society, 59, Ideal
Colony, Kothrud, Pune-29.
5. Anand Vinayak Phadke,
(DCE) Retired E.E. PWD,
Aged about 74 years, R/o. 93,
Deendayal Nagar, Layout 4,
Nagpur-22.
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6. Prabhakar Shankar Mukte,
(DCE) Retired E.E. PWD,
aged about 74 years, R/o. 61,
Deendayal Nagar, Layout 4,
Nagpur-22.
7. Narayan Ganesh Kane,
(DCE) Retired E.E. P.W.D.)
Aged about 74 years., R/o. 909, Ashta,
Vinayak Flats, Khare Town,
Dharampeth, Nagpur-10.
8. Prabhakar Ganpat Hardas, (Dead),
(DCE) Retired E.E. P.W.D.
Aged about 74 years, R/o. 254,
Abdeo Galli, Mahal, Nagpur-2.
8.1. Sau. Pratibha wd/o Prabhakar
Ganpat Hardas, aged about 74 years,
8.2 Rajendra s/o Prabhakar Hardas,
Aged about 49 years.
8.3. Sunil s/o Prabhakar Hardas,
Aged about 47 years.
L.Rs. Of late Applicant No. 8.
L.Rs. 1, 2 and 3 of applicant No. 8 are
resident of Nagpur. R/o. 254, Abdeo Galli,
Mahal, Nagpur. .. RESPONDENTS
----------------------------------------------------------------------------------------------
Mrs. B.H. Dangre, Additional Government Pleader for Petitioner
Mr. A.V. Phadke, Respondent no.5 in person appearing for
Respondent nos.1 to 8 as representative.
CORAM : A.P. LAVANDE & P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : SEPTEMBER 24, 2009
DATE OF PRONOUNCING THE JUDGMENT: JANUARY 29, 2010
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JUDGMENT ( per P.D. Kode, J.)
1. By present petition under Articles 226 and 227 of the Constitution, petitioner - State of Maharashtra has prayed for issuing a writ in the nature of certiorari and/or suitable writ for quashing and setting aside the judgment and order dated 15.10.2007 passed by Maharashtra Administrative Tribunal in Original Application No. 7 of 2005, amongst other directing to fix pay of respondent Nos.1 to 8 on par with their juniors on the date of their promotion as Executive Engineers.
2. The respondent nos.1 to 8 initially appointed as Overseers in Public Works Department of the petitioner and during course of service ultimately retired as Executive/Superintending Engineers had preferred said original application before Tribunal with prayers:
(a) to publish seniority list of Superintending Engineers so far as related to the respondents, to fix pays of the respondents at the level of their immediately below ones on the dates on which their juniors were promoted and to pay arrears of pay from the actual dates of promotion of their juniors till date of said application;
(b) to fix the pays of the respondents at the level of their immediately below ones, in the seniority list of Executive Engineers as already published and to pay arrears due to such ::: Downloaded on - 09/06/2013 15:33:47 ::: 4 fixation from the deemed dates assigned to them in seniority list till date of said application;
(c) to pay interest on arrears due to respondents as per relief granted w.e.f. expiry of the target dates fixed by this Court in Shri Bagayat Patil's case or the deemed dates in respect of Executive Engineers cadre whichever is later and from the date of promotion of the juniors in Superintending Engineers cadre.
3. The Tribunal though had ig partly upheld claim of the respondents and given the direction as narrated in paragraph number 1 hereinabove, had further observed of the respondents being not entitled to any back wages from deemed date of promotion to the date of actual promotion, however, respondents be paid difference of pay drawn when respondents became Executive Engineer and pay paid to their Junior colleagues on that day till their retirement with consequent effect on their pension.
4. As per the judgment of Tribunal impugned, the main issue raised in said application was regarding promotions of respondents being delayed due to non-granting of confirmation to the respondents in time, as directly appointed Deputy Engineers getting confirmation within two years, were becoming eligible to further promotion as Executive Engineer; while the respondents promoted from the post of Overseers, as per recruitment rules were required to be declared confirmed first as Deputy Engineers were ::: Downloaded on - 09/06/2013 15:33:47 ::: 5 thereafter only becoming entitled to be considered for promotion.
5. It is the case of respondents in said application that grave injustice has been caused on account of inaction on part of the petitioner in not complying with the directions given by this Court in W.P. No. 3483 of 1980 in a case of S.G. Bagayat Patil and others .vs. State of Maharashtra (decided on 7.9.1991).
6. It is case of respondents that ultimately petitioner published final seniority list in pursuance of the said judgment vide circular dated 15.2.1997 of the Executive Engineer from 21.12.1970 to 31.12.1995. As per said list respondents were listed with their deemed dates as shown hereunder :
Respondent No. At Sr. No.In list Deemed Date
4 210 04/11/77
5 242 30/12/78
6 327 08/10/82
7 319 12/08/82
8 324 30/09/82
7. It is further case of the respondents that they were not aggrieved by the deemed dates assigned to them as Deputy Engineers and Executive Engineers but they were aggrieved by the denial of the consequential benefits to them by virtue of Government PWD decision under Order No. PWD- No. STU/1697/15/Asthapana dated 17.3.1998.
::: Downloaded on - 09/06/2013 15:33:47 ::: 68. Thus the main prayer of the respondents was for stepping up pay equal to the persons junior to the respondents as per the seniority list of 1997 i.e. junior who was promoted much earlier due to being direct Class -II recruits i.e. by giving them such pay from date of their promotions as Executive Engineers.
9. The petitioner had contested claim of the respondents amongst others contending that:
a) there was no lapse on part of the Government and the action was taken by the petitioner in furtherance of directives given ig by Apex Court in case of S.B. Pawardhan .vs. State of Maharashtra reported in AIR 1977 Supreme Court 2051 - and as per the decision delivered by this Court in a case of S.B. Bagayat Patil;
b) the action was taken by petitioner in accordance with service rules existing at relevant time and which were amended and modified in view of directives issued by this Court from time to time;
c) MAT Mumbai Bench while dealing with similarly situated Original Applications No.833 of 1996, 834 of 1996 and 835 of 1996 (in all 10 original applications) filed by similarly situated employees had rejected the prayer by a common judgment dated 19.2.1998 and as such application preferred by respondents was liable to be rejected.
10. The learned AGP assailed the judgment and prayed for quashing and setting aside the order impugned on the count of same being arbitrary and illegal. In the context of rules of ::: Downloaded on - 09/06/2013 15:33:47 ::: 7 recruitment and seniority and the decisions pronounced and the events occurred, learned AGP urged that :
a) Prior to reorganization of Bombay state, recruitment of Class-I and Class-II of the engineers were governed by Bombay Services of Engineers "Class-I and Class-II" framed in exercise of powers conferred by Government of India Act, 1939.
b) Government Resolution issued on 29.4.1960 of PWD specified that said appointments under the said rules shall be made either by promotion or by nomination in the ratio of ig 25 x 75.
The said rules were stipulating a period of service for becoming entitled for confirmation.
c) After bifurcation on 1.5.1960 of State of Maharashtra in State of Maharashtra and State of Gujarat; on 19.12.1970 earlier resolution dated 29.4.1960 was superseded and the ratio of 25 : 75 was modified to 34 : 66.
d) Rule 33 of the said Resolution provided for a preference to direct recruit for mentioning their names in seniority list with reference to date of continuous officiation except where the promotion were due to an officiation by way of purely temporary arrangements.
e) In the case of S.B. Patwardhan .vs. State of Maharashtra reported in AIR 1977 SC 2051 challenge thrown by Overseers Petitioners promoted as Deputy Engineers for their placement in the seniority fixed as per the said rules was upheld by the Apex Court and the Apex Court had given the directions as stated in the said ::: Downloaded on - 09/06/2013 15:33:47 ::: 8 judgment.
f) In the case of S.G. Bagayat Patil and others, some Overseers promoted as Deputy Engineers Class- II and working as Executive Engineers had approached this Court posing challenge similar as in the case of S.B. Patwardhan on the count of steps being not taken for implementing decision of Supreme Court and while deciding the same on 7.9.1991 this Court amongst others directions, had directed readjustment of all promotions made to the post of Superintending Engineers and Chief Engineers from 1.5.1960 in the light of revised Seniority list of Executive Engineers by granting them deemed date and also directed to make reversions.
g) On 7.10.1982 and 7.4.1983 , in the light of the judgment in Bagayat Patil's case, the petitioner framed Rules for Executive Engineers and Asstt. Engineers belonging to State of Maharashtra of Engineers Class I and II (Regulation of Seniority and preparation of Seniority List) Rules, 1983.
h) In the writ petition filed in this Court on 26.7.1983 Shri A.Y. Dafle and Shri S.N. Lele , working on the post of Superintending Engineer; this court had given directions for implementation of judgment in a case of S.B. Patwardhan as in spite of six years having passed, the Government had not done anything.
i) On 10.9.1984 final seniority list of Deputy Engineers as on 1.5.1960 was published.
j) On 2.5.1990 Apex Court while deciding the case of Direct Recruits Class- II Engineering Officers' Association and ors .vs. State ::: Downloaded on - 09/06/2013 15:33:47 ::: 9 of Maharashtra reported in AIR 1990 SC Page 1607 laid down guidelines for determining the seniority of Officers belonging to Engineering cadre in accordance with various seniority rules and formulated parameters for reckoning seniority of direct recruits and promotees.
k) In accordance with the aforesaid directives and in consonance with the parameters laid down by the apex court the final seniority list of Deputy Engineers for the period from 1.5.1960 to 20.12.1970 was ig published on 22.2.2000 while provisional seniority list of Superintending Engineers for a period from 19.2.1982 to 31.3.1986 was published on 24.6.2005 which was containing names of the respondents.
l) On 17.3.1998 Government Resolution was issued by PWD on the backdrop of the provisional seniority list of Executive Engineers in PWD published on 30.7.1993 for the period from 21.12.1970 to 31.3.1990 which was finalized by the State Government on 15.2.1997.
m) The said resolution in terms specified that this Court in a case of S.G. Bagayat Patil and others, decided on 7.9.1981 had directed conferment of deem date on finalization of the said seniority list of Executive Engineers and in light of the said directives the petitioners considered the issue of payment of salary and allowances to Executive Engineers as per the deemed date conferred and so also considered the issue of revision of their pay scale on retirement and payment of arrears.
::: Downloaded on - 09/06/2013 15:33:47 ::: 10n) On the basis of the said Government Resolution, the Executive Engineers on the basis of the deemed date assigned to them in the light of the revised seniority list were granted payment of arrears. The said Government Resolution permitted withdrawal of arrears of pay on the basis of deemed date conferred and the appendix annexed to the said GR gave the list of the Executive Engineers who were conferred with deemed date. The respondents names were also in said list and they were paid difference of pay scales on conferment of deemed date of promotion.
o) Respondents no.1 to 3 retired as Superintending Engineers whereas the remaining respondents retired as Executive Engineers on various dates ranging from 1987 to 1994 i.e. as per chart A annexed with petition.
11. The learned AGP further urged that :
i) considering circumstances including directives of the Court which had led to publication of final seniority list of Deputy Engineers and so also Superintending Engineers and so also the Government Resolution dated 17.3.1998, respondents have neither any reason to make any grievance as tried to be made out by them nor they have any right to stake such claim nor the Tribunal was justified in upholding the same.
ii) the claim staked by the respondents and/or upheld by the Tribunal is de-hors any basis, inasmuch as the respondents have failed to give any specific instance in the original ::: Downloaded on - 09/06/2013 15:33:47 ::: 11 application regarding the junior/juniors qua particular respondent being placed above said respondents and/or the said respondents having received lesser salary than him.
iii) That without any such a data truthfulness of their so called grievance/claim could neither have been ascertained nor could have been upheld.
iv) The respondents were bound to implead such juniors for comparison as party respondents in the application for determining merits of their claim.
v) Same was absolutely necessary in view of specific contention /submission/stand of the respondents that they were not aggrieved by deemed dates assigned to them nor were challenging the same.
vi) The contention of the respondents that they were aggrieved by denial of consequential benefits to them by virtue of Government Resolution 17.3.1998 after stating that they were not aggrieved by the deemed date assigned is wholly incorrect as on the basis of the deemed date confirmed, they have been paid arrears in terms of the said Government Resolution.
vii) The claim of the respondents for further stepping up in the pay-scale is neither permissible nor justiciable as there was no change in nature of duty, for stepping of pay-scale, as permissible under service jurisprudence.
viii) Apart from the respondents having failed to justify the ::: Downloaded on - 09/06/2013 15:33:47 ::: 12 stepping of pay by laying a finger on any service rules or making a case within such service rules, present service rules also do not reveal the respondents being entitled for stepping of pay and/or arrears as awarded by the Tribunal.
ix) No issue with regard to respondents no.1 to 3 survives in view of observation of the tribunal of themselves being promoted as Superintending Engineers since they were Graduates and they were also promoted as Executive Engineers because of rule of confirmation.
x) With regard to the issue relating to remaining respondents, the order passed by the Tribunal is totally erroneous as it does not discuss as to who were the juniors and how the respondents can be brought up on par with the said junior colleagues and as such only on assumption the conclusion had been arrived by tribunal that the respondents deserve fixation of pay at par with their juniors on the date of their promotion as Executive Engineer.
xi) Tribunal clearly failed to appreciate that such an exercise was already effected by the Government by issuing a Resolution on 17.3.1998 and hence Tribunal once again conferring the said benefit on the respondents would result into stepping of the respondents on two occasions which impermissible as per service law.
xii) The respondents being Government employees were bound by Maharashtra Civil Services (Pay) Rules, 1981 and ::: Downloaded on - 09/06/2013 15:33:47 ::: 13 their pay was required to be fixed as per Rules 10, 11 and 12 and particularly by Rule 11 providing for fixation of pay on appointment to another post.
xiii) The enhancement of the pay of the senior to his junior has been governed by the provisions of the Maharashtra Civil Services (Pay) Rules, 1981 i.e. as per terms and conditions prescribed in Instruction No. 1 (i) and (iii) under Note -5 for said Rule 11.
xiv) As per the provisions of said Instruction No. 1 (i) of the said Rules, for enhancing the pay of senior to his junior, the senior and junior appointed must be from same cadre.
xv) In the present case original appointments of the respondents of the juniors are from different cadres.
xvi) According to the provisions of Instruction No. 1 (iii), the difference between pay of the senior and their junior should be made on account of fixation of pay as per the provisions of Rule 11 of MCS Pay Rules, 1981. But in the instant case the difference of the pay of senior and junior has been made due to change of their seniority because of amendment in the service Recruitment Rules.
xvii) In view of the same, said provisions for stepping of pay are clearly not applicable in the case of the respondents.
xviii) The decision given by the Apex Court in case of Swaminathan clearly reveals that when junior employees had officiated in any promotional post for different periods on ::: Downloaded on - 09/06/2013 15:33:47 ::: 14 account of local and ad-hoc promotions granted to them and were given higher pay on promotion than their seniors, the difference in the pay of a junior and the senior is not a result of application of Rule 22 (I) (a) (1). The increased pay drawn by junior because of ad-hoc officiating or regular service rendered by him in higher post for periods earlier than the senior is not an anomaly because pay does not depend on seniority alone nor same alone can be criteria for stepping up of pay.
xix) In the said decision Apex Court was dealing with fixation of time scale of pay and FR 22 (1) which is akin to Rule 11 of MCS Pay Rules, 1981. Since the respondents are governed by MCS Pay Rules, 1981, said decision would be clearly applicable to their case and as such no stepping of the pay can be ordered as ordered by the Tribunal.
xx) By virtue of said Rule the pay can be enhanced only when the appointment to a new post involves assumption of duties, or responsibilities of greater importance than those attached to old post and there can be stepping up of pay scale.
xxi) In case of the respondents no such event having occurred, the conclusion arrived by the Tribunal of respondents deserving fixation of pay at par with their juniors on date of their promotion as Executive Engineers, is manifestly erroneous and liable to be set aside.
xxii) Such a conclusion arrived by the Tribunal upon the assumption without demonstration of any particular case and ::: Downloaded on - 09/06/2013 15:33:47 ::: 15 granting the relief is unsustainable and unknown to the service jurisprudence and hence same deserves to be quashed and set aside.
12. Respondent no.5 in person for himself and as a representative for all respondents prayed for dismissal of petition appeal by making the following submissions supporting the judgment impugned :
a) the Tribunal had correctly held that the decision in the case of Swaminathan's case was not applicable to the case of respondents with cogent reasons i.e. otherwise than as held by the Principal Seat of MAT Mumbai in a case of Irrigation Engineers.
b) The demand of respondents for stepping up of pay has been based since beginning upon the judgment of the Apex Court in the case of Telecommunication Engineering Service Association (India) and another .vs. Union of India and another reported in 1995 CLR dated 13.5.1994 and Government (GAD) Circular dated 25.2.1965 in terms of the ratio of the said decision, respondents are entitled to refixation of the pay ( on promotion) not less than the ones who were immediately below them.
c) The petitioners have misconstrued Rule 11 of MCSR (Pay) in paragraph no.25 of the writ petition by urging that in the case of respondents, the original appointments of the juniors are from different cadres.
d) As per guideline no.(I) given in paragraph no.44 in the ::: Downloaded on - 09/06/2013 15:33:47 ::: 16 decision of the Apex Court in a case of Direct Recruit Class-I Engineering Officers' Association and ors. .vs. State of Mah. And ors reported in AIR 1990 S.C. 1607, "The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers".
e) Thus the respondents were governed by common seniority list and pay-scale of Deputy Engineer, the question posed by the petitioner of "original appointments" will not survive.
f) While considering stepping up of pay on promotion to the post of Executive Engineer Class I, along with DR- II (direct recruits) who were also considered as promotees as per final S/L of Executive Engineers, the respondents were unnecessarily superseded.
g) Since the earlier appointments of respondents' juniors (DR-II) were illegal as declared by Supreme Court in the case of S.B. Patwardhan and the fact that they stood reverted but in defiance of the said decision they were continued as Executive Engineers by the Government by grating special concession, the demand of the respondents based upon the judgment of Apex Court deserves to be respected rather than looking out for finding out any possible error therein.
h) By discarding/ignoring misleading statement in the writ petition that difference of pay of senior and junior has been made/occurred due to change of their seniority because of amendment in Service Recruitment Rules; as it is not in the interest ::: Downloaded on - 09/06/2013 15:33:47 ::: 17 of service to unsettle settled position as directed by Apex Court in the decision AIR 1990 SC 1607.
i) Though in the writ petition it is averred that by the said judgment Apex Court crystallized the entire dispute governing seniority between direct recruits and promotees in fact during actual working , the same was derailed/decrystallized.
j) This Court in a decision in the case of Bagayat Patil had not stipulated specific dates for refixation of pays and there is no reason to believe that the same were from deemed dates as this Court had merely directed to prepare seniority list granting deemed dates and payment of arrears.
k) The respondents were not aggrieved by the deemed date assigned in the cadre of Deputy Engineers/Executive Engineers and have only sought consequential benefits of stepping up of pay of seniors to the level above the ones which were immediately below them.
l) The demand made by the respondents was identical to the one as decided by the Apex Court vide judgment in a case of Telecommunication Engineering dated 13.5.1994 and the same fits in the rules made in Government (F.D.) circular dated 25.2.1965 already incorporated in Service Rules.
m) Government/Petitioner has already ordered fixation of pay of late Shri P.G. Hardas (original respondent no.8) as per the Rules issued, on 4.12.2007 and the same is acted upon SE VQC Nagpur in terms of the decision of MAT Nagpur on 15.10.2007.
::: Downloaded on - 09/06/2013 15:33:47 ::: 18n) There were no fixed Rules or fixed policy for giving promotions to the posts of Executive Engineers/Superintending Engineers and the promotions were made by the petitioner arbitrarily. The irregular promotions given to direct recruits (DR-II), which were declared void by Supreme Court were not set right in spite of specific directions given in the case of S.B. Patwardhan and so also by this Court in the case of Bagayat Patil.
o) In view of the same in terms of Government circular dated 25.2.1965 respondents should be deemed to have been promoted but for their wrongful suppression i.e. from the date from which their juniors were promoted by superseding them started to officiate in such a post and the respondents should be paid the pay as if they were promoted on the dates on which their juniors were promoted and thus deserved to be paid arrears of pay.
p) Since the respondents do not have a grievance regarding the promotions of the juniors, there was no question of impleading them as a party to the application for their claim.
q) Since the consequential reliefs sought by the respondents were reasonable and just, MAT neither disallowed the same nor commented the same being inadmissible.
r) Hence respondents are also entitled for the said consequential relief, for the same reasons for which their claim was partly upheld by the Tribunal. They are entitled for the same for the reasons because of which this Court had given specific direction in the case of Bagayat Patil for taking step in terms of the ::: Downloaded on - 09/06/2013 15:33:47 ::: 19 decision of the Supreme Court in the case of S.B. Patwardhan.
s) Since 1974 to 1975 technocrats coming from Engineering cadre of Direct Recruit Class-I in the State Engineering Department are in charge of entire administration of the Engineering Departments and has been indulging in gross irregularities as pointed out by respondents in the written statement and the written arguments submitted.
t) In view of the same, respondents fear that without any specific directions being given by this Court, justice would be denied to them.
u) Hence relief prayed for respondents no 1 to 3 be considered in the promotional post of Superintending Engineers i.e. back wages also be allowed from the dates of actual supersessions by their juniors as the same were effected by the petitioner deliberately and in complete disregard of number of Court directives. Such a relief is permissible according to Circular dated 25.2.1965 by the State.
v) Similarly since the petitioner has deliberately delayed the matter in spite of there being specific provision in Service Rules for stepping up pays and the same being denied on flimsy grounds , the interest deserves to be awarded and so also the respondents having incurred expenditure of Rs.25,000/- in the litigation, be also taken into consideration while giving final decision in the writ petition.
::: Downloaded on - 09/06/2013 15:33:47 ::: 2013. Having considered rival submissions and having considered the relevant decisions, we find substantial merit in the submissions canvassed by learned AGP regarding the circumstances which had led to the publication of seniority list and granting of deemed dates to the respondents. We are of such a view after taking into consideration all the events which had occurred including the decisions delivered by the Apex Court and so also by this Court.
14. In the same context the reference to the first relevant decision in the case of S.B. Patwardhan .vs. State of Maharashtra reveals that in a said case Overseers Petitioners promoted as Deputy Engineers had thrown a challenge to their placement in the seniority fixed as per the said rules. The perusal of the said decisions in terms reveals the Apex Court for the reasons given having struck down Rule 8 (3) of Government Resolution dated 29..1960 as being ultra vires of Article 14 and 16 of Constitution of India and so also had struck down Rule 33 of the Government Resolution of 1970, insofar as it made seniority dependent on fortuitous circumstances of confirmation.
15. The perusal of the same further reveals that for the reasons recorded in paragraph no.51 of the said decision, the apex court had not taken task of framing the Recruitment Rules for seniority and had directed petitioner to frame Rules in a manner that instant confirmation cannot be an intelligible for demanding ::: Downloaded on - 09/06/2013 15:33:47 ::: 21 seniority between direct recruits and promotes. It also reveals that therein Apex Court had further clarified that list of seniority for the period till November, 1956, prepared by the Government of Maharashtra would govern the seniority of direct recruits and promotes as on November 01, 1956.
16. The reference to the further decision relevant to issue in the case of S.G. Bagayat Patil and others reveals that while considering challenge thrown by ig some Overseers promoted as Deputy Engineers Class- II and working as Executive Engineers on similar lines as in the case of S.B. Patwardhan (supra) on the count of steps being not taken for implementing said decision of apex court in the case of S.B. Patwardhan, this court while deciding the same on 7.9.1991 amongst others directions given at the end in clause no.2 had directed the petitioner :
a) to prepare seniority list of Deputy Engineers and Executive Engineers from 21.12.1970 onwards in light of revised rules within 9 months from the date of receipt of the said list with amongst other direction
b) to readjust all promotions made to the post of Executive Engineers, Superintending Engineers and Chief Engineer from 21.12.1970 onwards in light of revised seniority list of Deputy Engineers and Executive Engineers by assigning deemed date of promotion and to make reversion, if any, and to pay arrears of pay, allowances and pension, etc. upon such promotions within 15 months from the date of receipt of the writ
c) (i) to regulate ad-hoc promotions given in the interim period to the post of Executive Engineers on the basis of deemed length of service without giving any preference to the persons promoted on the ground that he had originally been directly recruited as Deputy ::: Downloaded on - 09/06/2013 15:33:47 ::: 22 Engineer in Class-II.
(ii)to make ad hoc promotions in the interim period to the post of Superintending Engineers on the basis of deemed length of service as Executive Engineer without giving preference to any Executive Engineer on the ground that he had been originally directly recruited as an Assistant Engineer Class-I. (Emphasis supplied)
17. Now further reference to the decision delivered on 25/26.7.1983 by this Court in Writ Petition Nos.955 and 956 of 1983 filed by Shri A.Y. Dafle and Shri S.N. Lele respectively, working on the posts of Superintending Engineer challenging Rule 4 and 9 of Maharashtra Services of Engineers (Regulation of Seniority and Preparation and Revision of Seniority List for Specified Period), 1983 as being unconstitutional and violative of Article 14 and 16 of the Constitution and seeking a direction to fix relative seniority between promotee Deputy Engineers and directly appointed Deputy Engineers on the basis of continuous length of service; reveals that by the same this court had given the directions for implementation of judgment in the case of S.B. Patwardhan and so also in the case of Bagayat Patil in view of failure of the petitioner to take such a step in spite of passage of six years.
18. Now considering series of all aforesaid decisions and particularly specific direction highlighted hereinabove given in the case of Bagayat Patil as a sequel to the decision in the case of S.B. ::: Downloaded on - 09/06/2013 15:33:47 ::: 23 Patwardhan and directions for implementation of the same given in the writ petition preferred by Shri Dafle and Lele considered in proper perceptive repels all the submissions of the respondent that by the said decisions this Court has not stipulated specific dates for refixation of pays or there is no reason to believe that the same were from the deemed dates or that this court has merely directed to prepare seniority list granting deemed dates and payment of arrears. Needless to add that considering the purpose behind giving such a directions clearly reveals such submission advanced being devoid of any merit. The same also in turn supports the contention of the petitioner of the publication of seniority list and so also conferring the deemed dates and making the payments on the said basis being the out-come of the directions given by the Hon'ble Apex Court and this Court vide said decisions for removal of the grievances made from time to time by the Engineers from Maharashtra cadre regarding the relevant respects.
19. Having regard to the aforesaid we find all the merit in the submission of the learned AGP that in view of the aforesaid, the petitioner were within their right to issue the Government Resolution specifying that this Court in the case of S.G. Bagayat Patil and others decided on 7.9.1981 had directed conferment of deemed date on finalization of the said seniority list of Executive Engineer and so also in further submission of learned AGP that petitioner in light of same had considered the issue of payment of salary and ::: Downloaded on - 09/06/2013 15:33:47 ::: 24 allowance to the Executive Engineers as per the deemed date and issue of revision of their pay scale on retirement and payment of arrears.
20. In the case of Direct Recruits Class- II Engineering Officers' Association and others .vs. State of Maharashtra reported in AIR 1990 SC Page 1607 the Apex Court laid down the following guidelines for determining the seniority of Officers belonging to Engineering cadre and formulated parameters for reckoning seniority of direct recruits and promotees in paragraph no.44 of the said decision :
(i) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The contrary of the above rule is that where the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(ii) If the initial appointment is made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.
(iii) When appointments are made more than once source, it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard they must ordinarily be followed strictly.
(iv) If it becomes impossible to adhere to the existing appropriate rule it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the ::: Downloaded on - 09/06/2013 15:33:47 ::: 25 quota rule had broken down.
(v) Where the quota rule has broken down and the appointments are made from once source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(vi) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(vii) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instructions have ceased to remain operative.
(viii) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(ix)The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of service to unsettle a settled position.
21. The perusal of decision in the case of Union of India .vrs. Swaminathan, reported in AIR 1997 SC 3554 reveals that while considering fundamental Rules 22(I)(a)(I) and question of promotion and fixation of pay in the event of juniors having availed ad hoc promotion the apex court has observed in paragraph nos.10 and 11 :
::: Downloaded on - 09/06/2013 15:33:47 ::: 26Where junior employee had officiated in the promotional post for different period on account of local ad hoc promotion granted to them and were given higher pay on promotion than their seniors the different in a pay of juniors and senior is not a result of the application of fundamental rules 22 (I)(a)(I). The higher pay received by junior is on account of his earlier officiation in the higher post because of local officiating promotions which he had got in the past. Because of the proviso to Rule 22, he may have earned increments in the higher pay scale of the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. It is this two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping of the pay of the seniors. The memorandum makes it clear that in such instances a junior drawing more than than his seniors will not constitute an anomaly and therefore stepping up of the pay will not be admissible. The increased pay drawn by a Junior because of ad hoc officiating of regular service render by him in the higher post for period earlier than senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone criteria for stepping up of pay.
While in paragraph no.13 apex court in the said decision amongst other observed :
Senior therefore, not entitled to have their pay step up under government order bearing no.F2(78-E(III) A/66 dtd. 4th Feb. 1966 issued for removal of anomaly because the deference in the pay drawn by them and the higher pay drawn by their juniors is not a result of any anomaly nor is it a result of application of fundamental rule 22 (I)(a)(I).
22. Now perusal of the said decisions clearly supports submission of learned AGP that in the said case the apex court was considering the question of fixation of pay of the junior employees who had officiated in promotional post for different periods on account of local and ad-hoc promotions granted to them and were given higher pay on promotion than their seniors. Similarly the ::: Downloaded on - 09/06/2013 15:33:47 ::: 27 perusal of Rule 11 of MCS Pay Rules also supports further submission of learned AGP that fundamental rule 22 considered by Apex Court in the said decision is akin to Rule no.11 of MCS Pay Rules. Similarly we also find merit in further submission of learned AGP that since the respondents are governed by MCS Pay Rules, 1981, the said decision would be clearly applicable to their case and as such no stepping of the pay could have been ordered as ordered by the Tribunal, as by virtue of the said Rule 11, the pay could have been enhanced only when the appointment was to a new post involving assumption of duties, or responsibilities of greater importance than those attached to old post warranting stepping up of pay scale and no such event having occurred, the conclusion arrived by the Tribunal of respondents deserving fixation of pay at par with their juniors of date of their promotion as Executive Engineers, is manifestly erroneous.
23. We also find substance in her further submission that such a conclusion has been arrived by the Tribunal upon the assumption without there being demonstration of case of any respondent in particular, apart from the respondents themselves having not pleaded any specific case to such a effect and/or cited any instance in support of the same. In view of decision in the case of Swaminathan (supra) pointed we find substance in submissions of learned AGP that controversy tried to be agitated by the respondent before the Tribunal was fully covered by the said ::: Downloaded on - 09/06/2013 15:33:47 ::: 28 decision and Tribunal was in error in holding that the same was inapplicable to the case of the respondents.
24. Now while coming to the conclusion as aforesaid we have taken into consideration the reasons given in paragraph nos.5,6, 7 of the impugned order. Perusal of the record and the impugned order clearly reveals that before the Tribunal the respondents had never given any instances regarding the juniors qua particular respondents for comparing the case of the said respondent for ascertaining truthfulness, if any, in the grievance of the respondent of the said junior getting higher pay without any other rhyme and reason and particularly only because of junior being promoted earlier than the concerned respondent due to there being delay in confirmation of the concerned respondent. We are in agreement with the submission of learned AGP that only in event of furnishing of such details by the respondents the substance, if any, about the grievance made could have been ascertained and upheld.
25. Similarly the careful perusal of the order impugned clearly reveals that the tribunal while upholding the claim of the respondents has mainly concluded of the ratio in the case of Swaminathan being not applicable to the case of the respondents only on the count of the respondents having not refused the promotion as Executive Engineer. The tribunal has clearly missed to take into account the other reasons for which the juniors to the respondents could have been and/or were promoted. Having ::: Downloaded on - 09/06/2013 15:33:47 ::: 29 regard to the same and particularly on failure of respondents to rule out such a possibility the conferment of the benefits upon the respondents and that too without ascertaining the relevant factors clearly appears to be erroneous. The order impugned is wholly silent upon the relevant aspects and rules out the ratio in the decision in the case of Swaminathan being not applicable to the case of respondents in spite of applications of similar nature being rejected by the principal seat of the Tribunal at Mumbai.
26. In addition to the aforesaid it will be necessary to observe that the reasoning given in the order also reveals of the tribunal having missed to take into consideration the reasons and events which had necessitated delivery of the decision referred hereinabove which had led to publication of seniority list, conferment of deemed dates and making of the payments of arrears on the said basis and even respondents having received difference of pay scales on conferment of deemed dates. It clearly appears that on failure on part of respondents to make any grievance regarding conferment of an deemed dates and/or challenging the seniority list again allowing them to make a grievance on the count of the juniors being promoted earlier and that too without furnishing the necessary details clearly appears to be erroneous and/or allowing the respondents to approbate and reprobate.
::: Downloaded on - 09/06/2013 15:33:47 ::: 3027. In the same context it will be necessary to observe that considering the above referred decisions in the case of S.B. Patwardhan, Bagayat Patil, Dafle and Lele and the reason and purpose for which the publication of the seniority lists of the Engineers and conferment of the deemed date was directed and effected and the stand of the respondents that they do not have grievance about the same makes it extremely difficult to accept that without throwing any challenge to the same on any count, inclusive of violation of parameters of fixation of the seniority list fixed by the Apex Court in a case of Direct Recruits Class-II Engineering Officers' Association, respondents can be said to have any legitimate grievance about the juniors receiving higher salary than them or themselves receiving lesser than them and that too without pointing out any concrete case of such an event having taken place. At the costs of repetition , it will be necessary to say that in the event of respondent having any sort of grievance regarding the said list published and/or deemed date conferred for any reason as stated aforesaid or otherwise, then they were bound to challenge the said list and conferment of deemed date by pointing out errors crept in the same. Needless to add that only thereafter the merits in the same could have been ascertained. The respondents having failed to do so, they could not be said to be entitled to make any such a grievance with such a stand regarding the seniority list published and/or deemed date conferred and that too after taking up of benefit under the same.
::: Downloaded on - 09/06/2013 15:33:47 ::: 3128. In view of the above discussion, it is wholly unnecessary to make threadbare dilation once again upon the said submissions which are recorded in details aforesaid. In view of the same, the further reasoning are confined only to the submissions which are either not covered within the same and/or requires elaboration upon certain aspects.
29. Now with regard to the submissions of the demand of respondents being based upon the decision of the Apex Court in the case of Telecommunication Engineering Service Association , after perusal of the same it is difficult to accept that the said decision in which the question of deemed promotion from the earlier dates for about 10,000 Telecom Engineers was considered by the Apex Court, can be of any assistance for the respondents for advancing their case. Needless to add that no events regarding publication of seniority list and conferment of deemed dates as happened in the case of the Engineers in Maharashtra had taken place with regard to the Engineers from Telecommunication Department. In the instant case seniority list being prepared and published, deemed dates of promotion being conferred as directed by the decisions referred hereinabove and even arrears being received by the respondents, it is extremely difficult to accept that the respondents can stake any claim on the basis of the said decision in the case of Telecommunication Engineering Service Association.
::: Downloaded on - 09/06/2013 15:33:47 ::: 3230. Similarly with regard to the submission of petitioner having misconstrued Rule 11 of MCSR Pay by stating "original appointments of juniors of the respondents were for different cadres" or the Apex Court in the case of Direct Recruits Class-II having observed of both of them belonged to the single cadre, it will be necessary to say that since getting of salary by Junior Engineer officiating or otherwise can be for other reasons as pointed out in the case of Swaminathan and respondents themselves having failed to pinpoint such an event having not occurred, the grievance tried to be made by the respondents on the said count clearly appears to be inconsequential. Similarly the grievances made on part of the respondents and recorded in paragraph no. 12 hereinabove in clauses in (f) and (g) will not also survive in view of failure to give the specific instances on part of the respondents thereto and/or the controversy being set at rest by complying with the directives given by publication of seniority list and conferment of the deemed dates.
Needless to add that in view of the same, the grievances, if any, which were also not specified on the basis of earlier circular dated 25.2.1965 will also not hold good.
31. The case regarding the instance of the order said to have been passed by the petitioner in respect of claim of original respondent no.8 Shri P.G. Hardas also cannot be said to be different for want of furnishing of further precise details about the same and ::: Downloaded on - 09/06/2013 15:33:47 ::: 33 the letter dated 20.2.1998 at page no. 163 of the Desk Officer itself not revealing of the salary being refixed as per the representation made and apparently giving an impression of the same being forwarded to the Superintending Engineer, Vigilance Department.
Similarly the respondents having not taken any further proceedings regarding the other part of their claim which was not granted by the Tribunal and the said act of Tribunal amounting to such a claims of respondents being not upheld, no question will survive of upholding the same in the present petition preferred by the petitioner and/or awarding any compensation as sought on behalf of the respondents during submissions.
32. For the foregoing reasons, in our considered opinion, order passed by the Tribunal upholding part of the claim of the respondents is clearly unsustainable and is liable to be quashed and set aside. Consequently, the impugned order dated 15.10.2007 passed by the Maharashtra Administrative Tribunal in Original Application No.7 of 2005 is quashed and set aside.
33. Rule is made absolute with no order as to costs.
JUDGE JUDGE
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