Bombay High Court
Pandurang Ananda Jadhav And ... vs State Of Maharashtra And Others on 15 April, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.746 OF 2015
1] Chandrapuri s/o Janardhan Puri,
Age: 66 Occ.Retired,
R/At: Ganori, Tal. Phulambri,
Dist. Aurangabad
2] Bhagchand s/o. Dadabhau Jagdale,
Age: 66 Years Occ: Retired,
R/At: Dadegaon, Post Harshi
Tal.Paithan, Dist. Aurangabad PETITIONERS
VERSUS
1] The State of Maharashtra,
Through the Secretary,
Rural Development and Water
Conservation Department,
Maharashtra State, Mantralaya,
Mumbai-32.
[Copy to be served on Govt.
Pleader High Court of Bombay
Bench at Aurangabad].
2] The Chief Executive Officer,
Zilla Parishad, Aurangabad
Dist. Aurangabad.
3] The Executive Engineer,
Zilla Parishad Aurangabad,
Tal. and Dist. Aurangabad. RESPONDENTS
...
Mr.R.P.Bhumkar, Advocate for the Petitioners
Mr.V.S.Badakh, AGP for the Respondent No.1
Mr.Z.Y.Pathan, Advocate for Respondent Nos.2
& 3.
...
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2
WITH
WRIT PETITION NO.3198 OF 2015
1] Pandurang s/o Ananda Jadhav,
Age: 66 Occ.Retired,
R/At: Sillod, Tal. Sillod,
Dist. Aurangabad
2] Inayetulla Ahemdulla Khan,
Age: 67 Years Occ: Retired,
R/At: Galli No.31, New Baijipura,
Indiranagar, Aurangabad,
Dist. Aurangabad. PETITIONERS
VERSUS
1] The State of Maharashtra,
Through the Secretary,
Rural Development and Water
Conservation Department,
Maharashtra State, Mantralaya,
Mumbai-32.
[Copy to be served on Govt.
Pleader High Court of Bombay
Bench at Aurangabad].
2] The Chief Executive Officer,
Zilla Parishad, Aurangabad
Dist. Aurangabad.
3] The Executive Engineer,
Minor Irrigation,
Zilla Parishad Aurangabad,
Tal. and Dist. Aurangabad. RESPONDENTS
...
Mr.R.P.Bhumkar, Advocate for the Petitioners
Mr.V.S.Badakh, AGP for the Respondent No.1
Mr.C.D.Biradar, Advocate for Respondent Nos.2
& 3.
...
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3
WITH
WRIT PETITION NO.3199 OF 2015
1] Sayyed Latif Sayed Yassin,
Age: 66 Occ.Retired,
R/At: Post Mustafa Park Ladgaon Road,
Vaijapur, Ta. Vijapur,
Dist. Aurangabad PETITIONER
VERSUS
1] The State of Maharashtra,
Through the Secretary,
Rural Development and Water
Conservation Department,
Maharashtra State, Mantralaya,
Mumbai-32.
[Copy to be served on Govt.
Pleader High Court of Bombay
Bench at Aurangabad].
2] The Chief Executive Officer,
Zilla Parishad, Aurangabad
Dist. Aurangabad.
3] The Executive Engineer,
(Construction),
Zilla Parishad Aurangabad,
Tal. and Dist. Aurangabad. RESPONDENTS
...
Mr.R.P.Bhumkar, Advocate for the Petitioners
Mr.V.S.Badakh, AGP for the Respondent No.1
Mr.C.D.Biradar, Advocate for Respondent Nos.2
& 3.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 06.04.2016
Pronounced on : 15.04.2016
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JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable
forthwith, and heard with the consent of the
parties.
3]
Writ Petition No.746/2015 takes
exception to the letter dated July, 2014,
issued by the respondent no. 3 bearing
Outward No.GPA/Ban/Asta 344/-2-2014-3019.
Writ Petition No.3198/2015 is filed,
seeking directions to the respondent no.2 to
decide the representations made by the
petitioners dated 10.01.2008, 22.07.2010,
09.03.2011, 13.09.2012, 23.12.2014,
02.01.2015 and 15.01.2015 and grant time
bound pay scale benefits with effect from
01.10.1994 or as granted to the junior
employees by order dated 24/12/2007, and
further seeking directions to the respondents
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to grant benefits at par with junior
employees who are given benefits by
respondents vide order dated 24/12/2007 as
well as also grant higher pay scale as per
the assured progression scheme with effect
from 01.10.1994 and onwards, and further
seeking directions to the respondent no. 2 to
decide the representation made by the
petitioners dtd. 10.01.2008, 22.07.2010,
09.03.2011, 13.09.2012, 23.12.2014,
02.01.2015 and 15.01.2015 afresh in view of
the directions issued by the Hon'ble Bombay
High Court Bench at Nagpur in Writ Petition
No.1434/2009.
Writ Petition No.3199/2015 is filed,
seeking directions to the respondent no.2 to
decide the representations made by the
petitioner dated 10.01.2008, 25.06.2008,
14.10.2008, 11.12.2008, 22.12.2008 and
18.10.2013 and grant time bound pay scale
benefits at par with junior employees which
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are given benefits by respondents vide order
dated 24.12.2007 with effect from 01.10.1994,
and further seeking directions to
respondents to grant benefits as per with
junior employees who are given benefits by
respondents vide order dated 24/12/2007 as
well as grant higher pay scale as per the
assured progress scheme with effect from
01.10.1994 and onward and further seeking
directions to the respondent no. 2 to decide
the representation made by the petitioners
dtd. 10.01.2008, 25.06.2008, 14.10.2008,
11.12.2008, 22.12.2008 and 18.10.2013 afresh
in view of the directions issued by the
Hon'ble Bombay High Court Bench at Nagpur in
Writ Petition No.1434/2009.
4] The chart indicating the details
about the appointments of the petitioners,
posts held at the time of initial
appointment, dates of completion of attaining
the age of 45 years and the dates of
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retirement in the respective Writ Petitions,
are as under :-
Sr. Name of the Date of Post held at Date of Date of
No. petitioners appointment the time of completion retirement
initial of attaining
appointment the age of 45
years
1 Chandrapuri 20.09.1974 Mistri Grade- 01.06.1994 31.01.2007
Janardhan II
Puri
2 Bhagchand
ig 13.06.1975 Road Karkoon 13.01.1994 31.05.2007
Dadabhau
Jagdale
3. Pandurang Mistri Grade-I 28.02.2006
Ananda
Jadhav
4. Inayetulla Mistri Grade-I 11.09.1993 30.09.2006
Ahemdulla
Khan
5. Sayyed Latiff 01.04.1981 Mistri Grade- 08.08.1993 31.08.2006
Sayed Yassin II
The petitioners were holding the
posts, which are mentioned in the above-
mentioned chart at the time of retirement.
5] Govt. of Maharashtra has issued a
policy decision on 20th May, 1999, a copy
whereof is at Exhibit `B'.
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6] By the said Govt. decision dated 20th
May, 1999 (Exhibit-B), Govt., has created a
cadre titled as "Civil Engineering Assistant"
with a pay-scale of Rs. 1200-1800/-, and
created 406 posts in each year from May, 2000
to May, 2004.
7]
Admittedly, by Govt. decision dated
7th November, 2001, Govt. proposed and
prescribed two-and-half months' training to
unqualified employees for considering them
for grant of absorption in the cadre of Civil
Engineering Assistant.
8] Govt has distributed these posts to
different establishments of Zilla Parishads
in the State through its Circular dated 29th
July, 2003.
9] In the meantime, i.e. before giving
effect to the policy decision of the Govt.,
the petitioners have attained age of
superannuation, and have been superannuated.
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10] Govt. of Maharashtra has also
adopted a policy decision of relaxing the
qualification and condition of undergoing
training to those who have crossed 45 years
of age, and that such employees should apply
for exemption.
It is contended by the petitioners
and admitted by respondents that such policy
exists.
11] Admittedly, the petitioners have
retired on various dates from 28th February,
2006 till 31st May, 2007. It is obvious that
on the date when the posts were allotted to
various districts, the petitioners had
already crossed 45 years of age.
Admittedly, no facility was, and
could have been made available to the
petitioners and similarly placed personnel
for undergoing the training, till the year of
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retirement, as the said policy decision is
later in point of time.
12] Much after retirement of the
petitioners, the Respondent No.2 has promoted
some of the employees giving them higher pay
scales retrospectively.
13]
There is no denial to the assertion
of the petitioners that, the employees, who
have given pay scale of Rs. 1200-2040 from 1st
October, 1994, and on later dates as per
their eligibility. It is also not denied by
the Respondents that, some juniors to the
petitioners have been granted the said pay
scale.
14] The petitioners in all Writ
Petitions filed representations to the Chief
Executive Officer, Zilla Parishad, requesting
to the said Authority to grant pay scale of
the Junior Engineer to them, keeping in view
the Government Resolutions dated 22nd June,
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2007, 4th August, 2007, 29th September, 2007
and also 23rd August, 2010 issued from time to
time by the Respondent - State. The said
representations / applications were filed by
petitioners. The contents of one of such
representations read thus :-
ig fnukad [email protected]@2011
izrh]
es- dk;Zdkjh vHkh;ark ¼cka/kdke½
ftYgk ifj"kn vkSjaxkckn-
fo"k; %& dfu"B vfHk;ark v'oklhr izxrh ;kstus
varxZr ;kinkph ijh{ke/kqu lqV ehG.ks c|y o
nql;k lq/kkfjr v'oklhr izxrh ;kstuspk ykHk
ehG.ks c|y-
egksn;]
ojhy fo"k;h lfou; fouarh fd eh lhapu mifoHkkx
vkS-ckn ;sFks LFkk- vHkh- lgk¸;d ;k inkoj dk;Zjr gksrks-
eh fn- [email protected]@2007 jksth lsokfuoRr >kyks- eyk ifgY;k
dkyc/n inksUUkrhpk ykHk fn- [email protected]@1994 jksth ehGkyk
vkgs- 'kklu fu.kZ;kuqlkj eyk nql&;k lq/kkjhr v'oklhr
izxrhP;k ;kstuspk ykHk fn- [email protected]@2006 iklwu ns; gksrks-
d`i;k eyk ykHk ehGkok gh fouarh rlsp duh"B
vHkh;ark ;k inkP;k ijh{kse/kqu lqV ns.;kr ;koh gh fouarh-
1- ;kph ,dizr dk;Zdkjh vHkh;ark ¼lhapu½ ;kauk
ekghrhLro lknj-
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2- ;kph ,d izr mi vHkh;ark ¼lhapu½ th-i- mi foHkkx
vk-Sckn ;kauk ekghrh Lro o ;ksX; R;k dk;ZokghLro lknj-
vkiyk fo'oklw
[email protected]&
panziqjh tuknZu iqjh
LFkkiR; vHkh;kaf=dh lgk¸;d
¼lsokfuo`Rr [email protected]@2007½
Representations filed by other
petitioners are also having similar contents.
15] The Petitions have been opposed by
the Respondents by raising various grounds in
their reply. It is submitted that, the
petitioners are not eligible for grant of
benefit and therefore request of the
petitioners for promotion has rightly been
rejected by the respondents. It is submitted
that, there is delay in filing Petitions. In
support of the said contentions, the learned
counsel pressed into service exposition of
the Hon'ble Supreme court in the case of
Bhakra Beas Management Board Vs. Krishan
Kumar Vij and Anr.1 It is submitted that the
1 AIR 2010 SC 3342
746.2015WP+.odt
petitioners are given benefit of 1st time
bound promotion w.e.f. 01.10.1994 as
petitioners were incorporation in Civil
Engineer Assistant Cadre on 09.03.2005 and as
per Government letter dated 22.06.2007 and
29.09.2007. It is submitted that, detail
clarification vide Government Circulation
dated 28.07.2014, and Government Resolution
dated 01.07.2011 is given and the same is
self explanatory that, only after completion
of 12 years regular service on the said
post / cadre from the date of incorporation
of petitioners as Civil Engineer Assistant
i.e. from 09.03.2005, then only petitioners
are eligible for benefit of 2nd time bound
promotion. However, petitioners have not
completed 12 years regular service as Civil
Engineer Assistant since 09.03.2005 i.e. date
of incorporation in the same cadre and
petitioners have got retired from their
services from 28th February, 2006 till 31st
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May, 2007 respectively. Therefore, the
petitioners are not at all eligible to get 2nd
time bound promotion benefit of the cadre of
Junior Engineers.
16] It is submitted that in view of the
Government Resolution dated 20.07.2001, only
one time benefit was given in the whole
service. According to the provisions in the
Government Resolution dated 08.06.1995, if
already higher pay scale / benefit was given
then 2nd time or again such employee is not
entitled for higher pay scale. It is
submitted that the Government Resolution
dated 28.07.2014 and detail explanation given
in Government Resolution dated 01.07.2011
squarely cover all the previous Government
Resolutions and recent Government policy in
respect of 2nd time bound promotion as well
as benefit of higher pay scale. The cases of
the present petitioners are not at all
maintainable in law because the Government
746.2015WP+.odt
Resolution dated 22.06.2007, is set aside in
Government Resolution dated 28.06.2014, and
in the said Government Resolution norms are
given in respect of service of Civil Engineer
Assistant.
17] It is further submitted that, in
fact petitioners themselves have admitted in
para no. 13 in the Writ Petition that,
respondent Zilla Parishad has made clear
communication and informed to the petitioners
by letter dated 16.07.2014, regarding denial
of benefits in view of explanation given in
Government Resolution dated 01.07.2011.
Therefore, the petitioners are already
informed by the respondent Zilla Parishad
before filing of the present Writ Petitions,
that the petitioners are not eligible for
grant of benefit and their applications /
representations for promotion made by the
petitioners have been rightly rejected by
sending communication on 16.07.2014 by the
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Zilla Parishad. It is submitted that,
petitioners' representations were rightly and
properly rejected by the respondent Zilla
Parishad. As per the Government Resolution
dated 01.07.2011, it has been made clear
that, the employees, who retired between
01.10.2006 to 31.03.2010, will not get 2nd
time bound pay scale benefit. Therefore, the
respondent Zilla Parishad has not granted
benefit of Senior pay scale i.e. Junior
Engineer cadre / post to the petitioners.
It is submitted that the petitioners retired
from 28th February, 2006 till 31st May, 2007
respectively and made claim in the year 2015
in the present Writ Petitions. The delay for
filing petitions after 8 years is not
explained with reasons. Only on the ground
of unexplained delay, the present Writ
Petition deserves to be dismissed. It is
submitted that, the judgment and order dated
16th February, 2016 in Writ Petition No.5511
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of 2013 as well as the judgment and order
dated 22.04.2014 in Writ Petition No.
5003/2013 are not applicable to the present
case since the Government Resolution dated
28.07.2014 was not considered in both of the
judgments. It is further submitted that, the
petitioners having been already retired prior
to introduction of this scheme and not having
been absorbed in the cadre of Civil
Engineering Assistants due to non
implementation of scheme by that time cannot
be granted pay scale of Asstt. Engineer.
Moreover, the petitioners were not qualified
employees as per G.R. dated 20.5.1999 and
therefore, they were not absorbed on the
posts of Civil Engineering Assistants. The
Govt. notification dated 2.2.2006 has issued
Recruitment Rules for the post of Civil
Engineering Assistant which require an
employee to undergo 2 1/2 months training
under I.T.I. and the employees who have
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completed 45 years of age can be granted
relaxation from passing the examination by
competent authority."
18] We have heard the learned counsel
appearing for the respective parties and
tested their submissions in the light of the
material placed on record.
19] It is seen that, the higher pay
scales of pay granted by the Government were
to be awarded to the eligible personnel on
phased basis. The higher post and pay scales
have been given to some of the junior
employees, who according to the Respondents
were eligible, and were denied to the
petitioners due to superannuation etc.
20] Zilla Parishad has not properly
explained as to how the petitioners, who were
employed from 1967 to 1982, could not be
eligible to get the benefit after crossing 45
years of age if they were not possessing the
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qualification, in comparison with those to
whom the benefit has been given, who were
similarly placed, by granting relaxation in
qualification as permissible under policy
decision of the Govt.
21] It is not properly explained as to
with reference to which dates the petitioners
were not qualified. It is also not explained
as to which amongst those candidates to whom
the benefit is granted, is granted after
relaxing the qualification in view of Clause
(c) quoted in para 19 above, and as to how
the same cannot be done for the petitioners.
22] In these premises, this Court finds
that, the petitioners are denied the benefit
without application of mind and without
objectively assessing their cases and by
assigning the reason which is irrelevant and
untenable.
23] The issue raised in these Petitions
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is no more res integra and is covered by the
unreported Judgment of the Bombay High Court,
Bench at Nagpur in the case of Shriniwas s/o
Parshuramji Meshram Vs. Zilla Parishad,
Chandrapur and another in Writ Petition No.
1434 of 2009, decided on 27.01.2010. In the
said Judgment, the Division Bench allowed
Petition and directed the respondents therein
as under:
21. In the result, this Court orders
as follows:-
(I) The declinement of Respondent No.1
of petitioner's candidature as is
expressed through the Affidavit-in-
Reply is struck down as unjustified.
(II) Respondent no. 1 is directed to
consider the case of the petitioner:
(a) By ignoring the fact of :-
(i) retirement, and
(ii) lack of qualification of the
petitioner.
(b) consider the case of the
petitioner based on eligibility of
the petitioner for relaxation of
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qualification on the basis that on
the relevant date, the petitioner
has already crossed 45 years of
age.
(III) The petitioner be granted the
benefit of scale of pay given to any
one amongst the juniors to the
petitioner to whom the benefit is given
through the order dated 12th Feb.. 2008
(Annex.J to the petition), and should
be given the all and same benefits as
given to such junior candidate who is
similarly placed, and was given the
benefit only because he was in the
employment on the date of passing of
order or allotment of posts."
24] In the light of discussion herein
above and keeping in view afore-mentioned
Judgment in the case of Shriniwas s/o
Parshuramji Meshram Vs. Zilla Parishad,
Chandrapur and another [cited supra], we pass
the following order:
I] The declinement of Respondents of
petitioners' candidature as is expressed
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through the Affidavit-in-Reply is struck down
as unjustified.
II] The Respondent No.2 is directed to
consider the case of the petitioners by
ignoring the fact :-
(i) retirement, and
(ii) lack of qualification of the
petitioners,
(iii) consider the case of the
petitioners based on eligibility
of the petitioners for relaxation
of qualification on the relevant
date since the petitioners have
already crossed 45 years of age.
III] The petitioners be granted the pay
scale equal to the employee who is junior to
them and should be given all and the same
benefits as were given to such junior
employee, who is similarly placed.
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IV] The entire exercise should be done
by Respondent No.2, as expeditiously as
possible, and preferably within six months
from today.
25] Needless to observe that the
respondents will be entitled to verify from
the office record the initial dates of
appointments of the petitioners, posts held
by them at the relevant time, when they
attained the age of 45 years and their dates
of retirement.
26] Rule made absolute accordingly.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
