Bombay High Court
Padmanath Gotiram Lande vs The State Of Maharashtra And ... on 15 July, 2016
Bench: S.S. Shinde
9423.15WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9423 OF 2015
Padmanath S/o Gotiram Lande
Age : 61 years, Occ : Nil (Retired),
R/o Plot No. 24, Gajanan Colony,
Garkeda Parisar, Aurangabad.
PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary
Water Supply and Sanitation Department,
Mantralaya, Mumbai-32.
2. The Member Secretary,
Maharashtra Jeewan Pradhikaran,
Express Tower, Nariman Point,
Mumbai-32.
3. The Chief Administrative Officer,
Maharashtra Jeewan Pradhikaran,
CIDCO Bhavan, Belapur,
New Mumbai.
4. The Superintending Engineer and
President Circle Committee,
Maharashtra Jeewan Pradhikaran,
Shantipura, Chavani, Aurangabad.
5. The Executive Engineer,
Maharashtra Jeewan Pradhikaran,
Rural and Urban Water Supply Scheme
Division Aurangabad
Vedant Nagar, Near Rail-Way Station,
Aurangabad, Dist. Aurangabad.
::: Uploaded on - 16/07/2016 ::: Downloaded on - 30/07/2016 09:29:15 :::
9423.15WP
2
6. The Dy. Chief Account Officer (II),
Maharashtra Jeewan Pradhikaran,
Cidco Bhuvan (Dakshin Kakshi),
Belapur, New Mumbai 400 614.
RESPONDENTS
...
Mr.R.P. Bhumkar, Advocate for petitioner.
Mr. A.G. Magre, A.G.P. Respondent No.1.
Mr. D.P. Bakshi, Advocate for Respondent
Nos. 2 to 6.
...
ig CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : 30TH JUNE, 2016
PRONOUNCED ON : 15TH JULY, 2016
PER COURT :-
This petition is filed with the
following prayers :-
"B. By issuing writ of certiorari or
any other appropriate writ, order or
direction, or writ of certiorari like
nature and to quash and set aside the
letter dated 18/12/2012, PPO No. 8737
issued by the respondent No.6 and
direct the respondents to release the
pension and amount which is withheld
by respondent No.6 and its
consequential benefits to the
petitioner within two months and
9423.15WP
revise the pension of the petitioner."
C. By issuing writ of certiorari or
any other appropriate writ, order of
direction, or writ of certiorari like
nature and to direct the respondent
No.6 to release the amount which is
withheld by the respondent, to the
petitioner with @ 18% interest till
the realization of amount and said be
recovered from the official head of
the respondent No.6."
2. The learned counsel appearing for
the petitioner submits that without issuing
any notice or assigning any reasons, the
Respondents have withheld the amount payable
to the petitioner towards pension and
gratuity. It is submitted that the impugned
order dated 18th December, 2012 issued by
Respondent Nos. 5 and 6 withholding the
amount of gratuity to the extent of
Rs.2,20,000/- drastically affects his right
to receive the entire payment of gratuity and
9423.15WP
pension. Such an unilateral decision of
Respondent Nos. 5 and 6, without affording
opportunity to the petitioner to put forth
his contention, is arbitrary exercise of
powers. It is submitted that the petitioner
retired from the service on 31 st December,
2012 with unblemished record. The petitioner
was promoted on 17th May, 2008 and was getting
the pay scale of Rs. 5000-8000 and as per the
Sixth Pay Commission, it comes to Rs.9300-
38500, Grade pay Rs.4200/-. It is submitted
that the pension proposal ought to have been
prepared, keeping in view the length of
service rendered by the petitioner and also
last pay drawn. However, Respondent No.6
reduced the basic pay of the petitioner by
Rs.1245/- from the pension of the petitioner.
The pension proposal was not prepared as per
last pay drawn, but considering the basic pay
of Rs. 8,915/-. The gratuity amount of
Rs.2,60,000/-, commutation of Rs.58,000/- and
9423.15WP
pension difference of Rs.75,000/- is not paid
to the petitioner. Therefore, the learned
counsel appearing for the petitioner submits
that the Petition deserves consideration.
3. On the other hand, the learned
counsel appearing for Respondent Nos. 2 to 6,
relying upon the averments made in the
affidavit-in-reply submits that when the
petitioner retired on 31st December, 2012 on
attaining the age of superannuation, his
pension papers were scrutinized by Respondent
No.6 and it was noticed that the petitioner
was eligible for time bound promotion, as per
the Government Resolution dated 8th June,
1995, on 19th December, 1994, when he was
working on the post of Pump Operator.
However, at that time no time bound promotion
was given to him, but instead of that he was
given the regular promotion to the post of
Electrician by order dated 8th January, 1996
9423.15WP
and further on completion of 12 years on the
post of Electrician, the petitioner was given
benefit of Assured Career Progression (ACP)
scheme as per Government Resolution dated 20 th
July, 2001, and was granted higher pay scale
of the post of Electrical Supervisor i.e. Rs.
9300/- Grade Pay of Rs. 4200/- as per the
Sixth Pay Commission Report, by way of ACP
Scheme. It is submitted that had the time
bound promotion been given to the petitioner
in the year 1994 (i.e. 19th December, 1994)
after completion of 12 years on the post of
Pump Operator, he would have not been
eligible for getting the benefit of ACP
Scheme for second time to the post of
Electrical Supervisor for the reason that the
benefit of time bound promotion is to be
given only once in the entire service tenure
of the employee. It is submitted that so far
the scheme of giving again benefits of
assured promotion after completion of 24
9423.15WP
years of service as per Government Resolution
dated 1st April, 2010 has not been made
applicable to the employees of the
Respondents.
4. It is further submitted that in
order to correct the mistake made by the
Respondents, the benefit of time bound
promotion was given to the petitioner with
effect from 19th December, 1994 and the
benefit of ACP Scheme that was given to him
for the post of Electrical Supervisor was
withdrawn, since the benefit of ACP Scheme
can not be given for second time to the
employees, during his entire tenure of
service, as far as the Respondent -
establishment is concerned. As a result of
withdrawal of the benefit of second ACP
Scheme with effect from 17th May, 2008, it was
found that the excess amount of Rs.2,10,465/-
has been paid to the petitioner due to this
9423.15WP
wrong action. Hence the said amount of
Rs.2,10,465/- was ordered to be recovered
from the gratuity payable to the petitioner
as per Rule No.132(3b) of the Maharashtra
Civil Services (Pension) Rules, 1982, vide
order No. 13347, dated 25th January, 2016. As
a result of withdrawal of the benefit of
second ACP Scheme, his pension is also
required to be revised on the basis of last
pay drawn. Accordingly the pension has been
revised and fixed as Rs. 7,670/- vide PPO No.
8737 dated 18th December, 2013.
5. It is submitted that as per Rule
132(3b) of the M.C.S. (Pension) Rules, 1982,
which are applicable to the Respondent -
establishment and employees working under the
Respondent, the over payment/excess payment
towards pay and allowances, are liable to be
adjusted against the death-cum-retirement
gratuity, payable to the retiring employee.
9423.15WP
The learned counsel further submits that as
per amendment to the said Rules, it is
specifically provided that if it is found
that during the service period of the
retiree, any amount over/in excess paid to
him for whatsoever reason, such over payment
can be recovered from the pension of the
retiree. The learned counsel invited our
attention to the said amended portion of the
Rules. He submits that the action of recovery
over the payment made to the petitioner to
the tune of Rs.2,10,465/- and/or revising/re-
fixing his pension to that effect is
perfectly legal and in consonance with the
prevailing pension rules, hence the Petition
is liable to be rejected.
6. We have given careful consideration
to the submissions advanced by the learned
counsel appearing for the petitioner, the
learned A.G.P. appearing for Respondent No.1
9423.15WP
and the learned counsel appearing for
Respondent Nos. 2 to 6. With their able
assistance, we have perused the
pleadings/grounds taken in the Petition,
annexures thereto, reply filed by Respondent
Nos. 2 to 6, and we are of the opinion that
without entering into the merits of the
Petition, in the peculiar facts and
circumstances of this case, since an action
of Respondent No.2 to reduce the basic pay of
the petitioner by Rs. 1245/- from the pension
of the petitioner is without issuing notice
to the petitioner and seeking his response to
such reduction, either in the basic pay or
withholding the gratuity amount, this
Petition can be conveniently disposed of by
quashing the impugned order and directing to
the respondents to take decision afresh.
7. It is well settled that the right to
pension is recognized as a right to property.
9423.15WP
There is no manner of doubt that unilateral
decision of Respondent No.6 reduction in the
basic pay scale and withholding of the
gratuity amount, drastically affected the
right of the petitioner to receive the full
pension and gratuity amount, as contended by
him. Therefore, in our considered view, the
Respondents ought to have afforded an
opportunity of hearing to the petitioner and
ought to have allowed him to submit the
documents, if any, in support of his
contention that he is entitled for full
pension, keeping in view the last pay drawn
at the time of retirement from the service
and also full amount of gratuity.
8. For the reasons aforesaid, the
impugned order dated 18th December, 2012, to
the extent it has reduced the amount of
gratuity stands quashed and set aside. The
Respondents, in particular, Respondent Nos. 5
9423.15WP
and 6 are directed to issue notice to the
petitioner within two weeks from today,
indicating therein particular date for
appearance of the petitioner before
Respondent No.5. The petitioner, after
receiving the notice from the concerned
Respondents, shall appear before the said
authority and if necessary file his reply
with documents in support of his contentions.
9. Upon receiving such reply with
documents, if any, the concerned Respondents
shall take appropriate decision and pass
order afresh, on its own merits, keeping in
view the relevant rules, about the
entitlement of the petitioner for pension and
gratuity amount. In case the petitioner's
contentions raised on merits are found to be
correct, in that case, the Respondents shall
resubmit the proposal of pension and also
issue fresh order for payment of gratuity, as
9423.15WP
expeditiously as possible, and preferably,
within two weeks from taking such fresh
decision/passing the order. However, it will
be open for the concerned respondent to
adjust the amount already paid, if any, to
the petitioner towards pension or gratuity.
10.
We direct Respondent Nos. 2 to 6 to
complete the entire exercise, as
expeditiously as possible, and preferably
within 10 weeks from today and communicate
the said decision to the petitioner. We make
it clear that we have not entered upon the
merits of the contentions raised by the
petitioner or by Respondent Nos. 2 to 6.
11. The Petition is partly allowed and
the same stands disposed of. No costs.
Sd/- Sd/-
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
SGA
