Shri Rajesh Dnyandeo Waghmode vs The Chief Secretary, Govt Of ...
2016 Latest Caselaw 5169 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                        CIVIL APPELLATE SIDE JURISDICTION
                           WRIT PETITION NO.539 OF 2016




                                                      
     Shri Rajesh Dnyandeo Waghmode,                    )
     Sr.No.161/41, Adarsh Coony Road 1,                )
     Tingre Nagar, Pune - 411015.                      )..              Petitioner




                                                     
              Versus

     1.       The Chief Secretary,                     )




                                        
              Government of Maharashtra,               )
              Mantralaya, Mumbai.
                              ig                       )

     2.       Chief Commissioner,                      )
              Pune Municipal Corporation,              )
                            
              Shivajinagar, Pune.                      )..              Respondents
              -

     Shri Shamrao N. Patole i/b Ms. Vidya G. Langade for the Petitioner.
      

     Shri Rhishikesh Mukund Pethe for the Respondent No.2.
           --
   



                                        CORAM  : A.S. OKA & P.D. NAIK, JJ 





     DATE ON WHICH SUBMISSIONS WERE HEARD :                    28TH APRIL 2016


     DATE ON WHICH JUDGMENT IS PRONOUNCED:                     2ND SEPTEMBER 2016





     JUDGMENT ( PER A.S. OKA, J )

1. The Petitioner was appointed as a Junior Grade Clerk on

the establishment of the Pune Municipal Corporation by an order dated

31st July 2003. The Petitioner is relying upon the certificate of disability

issued by the Superintendent of Sassoon General Hospital, Pune by

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which his permanent disability was assessed at 55%. By an order dated

21st May 2008, the Petitioner was confirmed in the employment.

2. On 3rd July 2010, the Petitioner made a representation to

the Commissioner for the Persons with Disabilities (for short "the said

Commissioner") making a grievance that the claim of the Petitioner for

promotion has not been deliberately considered. On 15 th July 2011, the

Commissioner after hearing the Municipal Secretary of the Pune

Municipal Corporation passed an order directing the Municipal

Corporation to consider the case of the Petitioner for grant of

promotion. A Resolution was passed by the Standing Committee of the

Pune Municipal Corporation on 13 th September 2011 by which a

deemed date of promotion i.e. 29 th April 2008 was granted to the

Petitioner to the post of Clerk. As the Petitioner was denied

consequential benefits, representations were made by the Petitioner. A

communication was issued by the Commissioner on 4 th January 2013

directing the Municipal Corporation to pay salary and allowances

admissible to the post of Clerk to the Petitioner from the deemed date

of promotion. On 4th March 2013, the Petitioner was further promoted

to the post of Committee Clerk. The challenge in this Petition under

Article 226 of the Constitution of India is to the Resolution of the

Standing Committee dated 13th September 2011 on the ground that

monetary reliefs have been denied to the Petitioner from the deemed

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date. There is a further prayer made for directing implementation of

the orders passed by the Commissioner on 15 th July 2011 and 4 th

January 2013.

3. The learned counsel appearing for the Petitioner submits

that though the Petitioner ought to have been promoted with effect

from 29th April 2008, he was granted promotion by a Resolution dated

13th September 2011 by giving a deemed date. Therefore, monetary

reliefs could not have been denied to the Petitioner.

4. There is a reply filed by Shri Sunil Parkhi, the Municipal

Secretary of the Pune Municipal Corporation. In the said affidavit, a

stand has been taken that the Petitioner is not entitled to get any

monetary benefits with effect from 29 th April 2008 admissible to the

promotional post. The learned counsel appearing for the Municipal

Corporation firstly submitted that the Commissioner had no jurisdiction

to issue the directions which he has issued. He relied upon a decision

of this Court in the case of The State of Maharashtra, through the

Joint Director, Vocational Education and Training Office, Nashik v.

Shri Kuber Govindrao More1 and submitted that the powers of the

Commissioner for the Persons with Disabilities is very limited. He

submitted that as the Petitioner has not worked on the promotional

post, he is not entitled to get any monetary benefit.

     1     Decided on 20th October 2015 in WP No.9125 of 2014



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     5.                We have  considered the  submissions.    The  Petitioner  has 




                                                                                  

not disputed the correctness of the deemed date fixed as 29 th April 2008

of the promotion to the post of Clerk. The issue which survives for

consideration is whether the Petitioner is entitled to salary and other

allowances admissible to the promotional post with effect from the

deemed date i.e. 29th April 2008. As far as the seniority of the

Petitioner is concerned, in Paragraph XII of the affidavit of Shri Sunil

Parkhi, the Municipal Secretary of the Pune Municipal Corporation, he

has stated thus:

"XII. In view of the above factual matrix and

considering the promotion of Shri Vishnu Kadam, the docket was put up making it clear that the Petitioner

will not be entitled for any monetary benefit from the Deemed Date of Promotion i.e 29 th April 2008. I say that the Petitioner's seniority will be counted from 29 th April 2008 for further promotional avenues."

6. Thus, there is a clear statement that for the purposes of

seniority, the Petitioner shall be deemed to have been appointed to the

post of Clerk with effect from 29 th April 2008. As stated earlier, the

Petitioner was promoted with effect from 4 th March 2013 to the post of

Committee Clerk.

7. Government Resolution dated 29th October 2001 is

tendered across the bar. The said Government Resolution is about the

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payment of salary to the promotional post from the deemed date. The

said Government Resolution refers to the earlier Government Resolution

dated 14th September 1982 which provided that if there is a time gap of

more than three months between the deemed date and the actual

promotion, the Promotee will be entitled to the benefits of salary and

other allowances from the deemed date.

8. The Government Resolution dated 29 th October 2001

provides for deleting that part of the Government Resolution dated 14 th

September 1982 which provided for grant of back wages from the

deemed date of promotion provided the promotion is actually granted

three months after the deemed date. Prior to that, there was a

Government Resolution dated 25th February 1965. The said

Government Resolution records the following decision of the

Government.

"Government has considered this question and decided that in such cases the Government servants concerned

should be deemed to have been promoted to higher posts from the date from which they would have been promoted to higher posts from the date from which they would have been promoted but for their wrongful supersession i.e. from the date from which their juniors who were promoted by superseding them started to officiate in such posts and they should be allowed pay in such posts as if they were promoted on the dates on which their juniors were promoted and also paid arrears of pay and allowances from such dates."

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9. The said Government Resolution was modified on 14 th

September 1982 by providing that the arrears will be payable provided

the time gap between the actual promotion and the deemed date of

promotion is of more than three months. That portion of the

Government Resolution dated 14th September 1982 was deleted by the

Government Resolution dated 29th October 2001.

10.

Coming back to the facts of the case, the Commissioner in

his order dated 15th July 2011 recorded a finding that while conducting

the process of promotion for the year 2007-2008, the case of the

Petitioner for promotion was not considered. On the basis of the

decision of the Commissioner, a note was put up before the Standing

Committee in its meeting dated 13th September 2011. In the said note,

it is mentioned that the Petitioner is suffering from 55% permanent

physical disability. It is stated that the post of Clerk is a promotional

post for which the feeder cadre is of Junior Clerks. It is stated that the

process of promotion to the said post was conducted in January 2008

and concluded in the year 2009. The said note further records that one

Shri Rajendra Parate was promoted to the post of Clerk on 29 th April

2008 as per the seniority. In the year 2009, the promotion was granted

to one Shri Vishnu Kadam with effect from 26 th February 2009. It is

stated that the said Shri Rajendra Parate retired in August 2011. In the

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light of the order of the Commissioner dated 15 th July 2011, it was

recorded that the deemed date of 29th April 2008 will have to be given

to the promotion of the Petitioner to the post of Clerk.

11. Based on the judgment of this Court in the case of The

State of Maharashtra v. Shri Kuber Govindrao More, it was submitted

that the Commissioner has no adjudicatory powers and at the most he

can take up the matter with the concerned Authorities by submitting a

report. The argument that the order of the Commissioner dated 15 th

July 2011 is illegal is not available to the Municipal Corporation in the

facts of the present case for the two reasons. Firstly, the said order has

been acted upon by the Municipal Corporation way back on 13 th

September 2011 without any protest. Secondly, only direction issued by

the Commissioner was to take a decision on the proposal submitted

before the Standing Committee within a period of two months. Further

it is observed that if it is decided to give promotion to the Petitioner, the

order of promotion be issued within one month from the date of

decision of the Standing Committee and a decision should be taken for

fixation of the deemed date of promotion. Therefore, there is no

direction to grant promotion. It is true that in the letter dated 4 th

January 2013 at Exhibit-I issued by the Commissioner, there is a

direction to pay salary and other benefits admissible to the promotional

post from the deemed date. Such a direction could not have been

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issued in the light of the aforesaid decision of this Court in the case of

Kuber Govindrao More. In the present case, there is an independent

prayer made in this Petition for issuing a direction to pay salary from

the deemed date of promotion.

12. The question is whether the Petitioner is entitled to the

benefit of salary and allowances payable to the promotional post from

the deemed date.

13. On this aspect, the law has been laid down by the Apex

Court in the case of Ramesh Kumar v. Union of India and Others 2. The

argument before the Apex Court was that in such a case, the principle of

"no work no pay" will apply as the Promottee had not worked on the

promotional post from the deemed date of promotion. This argument

has been considered by the Apex Court in Paragraphs 14 and 15, which

read thus:

"14. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as the monetary benefits with regard to retrospective promotion are concerned that depends upon case to case. In State of Kerala v. E.K.

Bhaskaran Pillai [(2007) 6 SCC 524 : (2007) 2 SCC (L&S) 487] , this Court held that the principle of "no work no pay" cannot be 2 (2015)14 SCC 335

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accepted as a rule of thumb and the matter will have to be considered on a case-to-case basis and in para 4, it was held as under: (SCC p.

527)

"4. ... We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is

concerned, that depends upon case to case.

There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back

wages or 50 per cent of back wages looking ig to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes

in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of

his case from the date persons junior to him were appointed, in that case the court may

grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that

case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast

rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

15. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay"

would not be attracted where the

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respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post

of Naib Subedar carrying higher pay scale.

In the facts of the present case when the

appellant was granted promotion w.e.f. 1-1- 2000 with the ante-dated seniority from 1-8- 1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the

promotional position of Naib Subedar."

(emphasis added)

14. In the present case, the deemed date of 29th April 2008 is

fixed as a similarly placed person (Shri Rajendra Parate) was promoted

to the post of Clerk. Thus, after accepting that the Petitioner was

entitled to the promotion to the post of Clerk from the deemed date

that the benefit of the deemed date has been granted to the Petitioner.

Thus, the Municipal Corporation has committed an error by not

considering the case of the Petitioner for promotion to the post of Clerk

which was carrying higher pay. For no fault on his part, the Petitioner

was denied promotion from the said date. A note was put up by the

Municipal Secretary on 23rd June 2010 before the Standing Committee

proposing to grant promotion to the Petitioner to the post of Clerk.

However, the same was placed before the Standing Committee belatedly

on 13th September 2011 only after a direction was issued by the

Commissioner on 15th July 2011. In the light of the principles laid

down by the Apex Court in the case of Ramesh Kumar, the benefit of

pay to the promotional post from the deemed date cannot be totally

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denied especially when in the affidavit-in-reply filed by the Municipal

Corporation, it is specifically contended that the seniority of the

Petitioner to the promotional post will be counted on the basis that he

was promoted to the said post with effect from 29 th April 2008.

Therefore, we propose to grant benefit of salary of the promotional post

from 23rd June 2010.

15. Hence, the Petition must succeed. We propose to direct the

Pune Municipal Corporation to pay costs quantified at Rs.15,000/- to

the Petitioner and we pass the following order:

ORDER :

(a) We hold that the Petitioner is entitled to salary and

allowances admissible to the post of Clerk with

effect 23rd June 2010;

(b) We direct the Pune Municipal Corporation to make

fixation of the pay of the Petitioner on the footing

that he was promoted to the post of Clerk with

effect from 29th April 2008. The Petitioner will be

entitled to all the benefit of the promotional post

with effect from 29th April 2008 except the actual

salary and allowances;

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                      (c)          The Respondents shall pay the difference in salary 

and allowances to the Petitioner with effect from

23rd June 2010;

(d) All other consequential benefits shall be provided to

the Petitioner on the basis of the deemed date;

(e) We grant time of six months to the Pune Municipal ig Corporation to pay the aforesaid amount to the

Petitioner;

(f) On the failure of the Pune Municipal Corporation to

pay the said amount to the Petitioner within the

stipulated period of six months, the amount shall

carry interest at the rate of 8% per annum from the

date of the institution of the Petition till the actual

date of payment of amount;

(g) The Rule is made absolute on above terms. The

Pune Municipal Corporation shall pay costs of

Rs.15,000/- to the Petitioner within a period of six

weeks from today.

      ( P.D.NAIK, J )                                                   ( A.S. OKA, J )