Bombay High Court
The State Of Maharashtra Through ... vs Shri. Hari Shamrao Survase on 24 August, 2017
Bench: V.K. Tahilramani
18.cwp.4537.16.j.doc
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4537 OF 2016
The State of Maharashtra
through Secretary to Govt.
Medical Education & Drugs Deptt.
of Maharashtra and Others .. Petitioners
Vs.
Shri. Hari Shamrao Survase .. Respondent
.........
Appearances
Mr. N.C. Walimbe AGP for the State / Petitioner
None for the Respondent
...................
CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : AUGUST 24, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. The challenge in this petition is to the judgment
and order dated 13.3.2014 passed by the Maharashtra
Administrative Tribunal, Mumbai in O.A. No. 838 of 2013
preferred by the respondent.
2. The petitioner - State of Maharashtra has
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formulated Revised Assured Career Progression Scheme .
This scheme, which was notified vide G.R. dated 1.4.2010
entitles employees to second benefit of Assured Career
Progression Scheme (ACPS) upon completion of 24 years of
service. Although, the scheme was made applicable
retrospectively from 1.10.2006, however the State by yet
another G.R. dated 1.7.2011 has purported to "clarify" that
even though the G.R. dated 1.4.2010 makes applicable the
Assured Career Progression Scheme retrospectively with
effect from 1.10.2006, the benefit of such scheme will not
apply to such of the employees who may have retired from
service between the period 1.10.2006 and 31.3.2010. It may
be stated that the respondent retired between 1.10.2006 to
31.3.2010. The Tribunal, by the impugned judgment and
order has struck down such "clarification" inter alia on the
ground that the same is arbitrary, unreasonable, violative of
Article 14 of the Constitution of India and therefore
unconstitutional. Aggrieved by such determination, the State
has instituted the present petition.
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3. Mr. Walimbe, learned AGP for the petitioners-
State, has submitted that there is no obligation on the part of
the State to either formulate or extend schemes like the ACP
Scheme. The very formulation and extension of such
scheme, is a policy matter. Therefore, the date from which
and the extent to which the benefits of such schemes are to
be extended, is also a policy matter. The Tribunal was quite
unjustified in interfering with such a policy matter.
4. The effect of such retrospective application of
G.R. dated 1.4.2010 could never have been nullified by the
State, on the basis of the impugned clarification. The
impugned clarification has effected an artificial classification
amongst the set of employees similarly placed and such
classification has no nexus whatsoever with the objective of
the ACP Scheme, which is to relieve the employees from
baneful effects of stagnation in service. It is seen that only
notional benefits and not arrears for the retrospective
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period, have been provided under the scheme.
5. One of the notorious features of Government
service is that several employees, though eligible and ever
willing to be promoted, do not actually secure such
promotions, sometimes, during the entire tenure of their
service. This stagnation, naturally leads to frustration. The
State has consequently adopted schemes for redressal of
such situation arising out of lack of sufficient promotional
avenues and the consequent stagnation. Broadly, such
schemes do not contemplate actual promotions to the next
higher post, but by way of consolation, award the pay-scale
of the promotional posts, generally, upon an employee
stagnating in a particular post for twelve years or twenty four
years respectively. Such schemes, were earlier referred to as
Time Bound Promotion Schemes and are now referred to as
Assured Career Progression Schemes. The ACP Scheme, with
which, we are presently concerned was formulated by the
State Government vide G.R. dated 1.4.2010. This G.R
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specifically states that the scheme will be applicable with
retrospective effect, i.e., from 1.10.2006.
6. The G.R. dated 1.4.2010 makes reference to the
objective of the scheme, which is alleviation of the
sufferings on account of stagnation. In case of Dwijen
Chandra Sarkar & Anr. vs. Union of India & Ors.1, the
Supreme Court had occasion to explain the objective of such
schemes and further, the importance of such objective, in
the interpretation of such schemes. At paras 11 and 12, it is
observed thus:
"11. However, the position in regard to
"time- bound" promotions is different. Where
there are a large number of employees in any
department and where the employees are not
likely to get their promotion in the near future
because of their comparatively low position in the
seniority list, the Government has found it
necessary that in order to remove frustration, the
employees are to be given a higher grade in terms
of emoluments -- while retaining them in the same
category. This is what is generally known as the
time-bound promotion. Such a time-bound
promotion does not affect the normal seniority of
1 (1999) 2 SCC 119
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those higher up.
12 If that be the true purpose of a time-bound
promotion which is meant to relieve frustration on
account of stagnation, it cannot be said that the
Government wanted to deprive the appellants who were
brought into the P&T Department in public interest -- of
the benefit of a higher grade. The frustration on account
of stagnation is a common factor not only of those
already in the P&T Department but also of those who are
administratively transferred by the Government from the
Rehabilitation Department to the P&T Department. The
Government while imposing an eligibility condition of 16
years' service in the grade for being entitled to time-
bound promotion, is not intending to benefit only one
section of employees in the category and deny it to
another section of employees in the same category. The
common factor for all these employees is that they have
remained in the same grade for 16 years without
promotions. The said period is a term of eligibility for
obtaining a financial benefit of a higher grade."
(Emphasis Supplied)
7. The entire ACP Scheme, with which we are
concerned is set out in great detail in the G.R. dated
1.4.2010. The salient features of the ACP Scheme, are as
follows:
i) The scheme is made applicable from
1.10.2006. However, for the period between
1.10.2006 till the date of G.R., i.e., 1.4.2010, the
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employees will be entitled to only notional benefits
and not actual arrears.
ii) Under this scheme, an eligible
employee is entitled for the pay scale of next
promotional post twice in his service career i.e. eligible
for two financial upgradations on completion of 12
years and 24 years of service.
iii) In the case of an employee who has been
granted time bound promotion/ACP it would be
presumed that he got the first benefit of this modified
ACP Scheme on that date.
iv) The second financial upgradation will
be available to the employee on completion of 12
years of service from the date of first financial
upgradation.
8. In order to combat certain practical difficulties in
the matter of implementation of ACP Scheme, the State vide
G.R. dated 1.7.2011 has issued certain clarification. At serial
No.1 of Annexure to the said G.R. dated 1.7.2011, it is
"clarified" that the benefit of ACP Scheme, as formulated in
G.R. dated 1.4.2010 will not be available to employees, who
have retired from service between the period 1.10.2006
(retrospective date from which scheme was made
applicable) and 31.3.2010 (one day prior to the date of G.R.
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dated 1 April 2010, by which the scheme was directed to be
implemented with retrospective effect). As noted earlier, it
is this clarification, which has been struck down by the
impugned judgment and order of the Tribunal.
9. Although, the formulation and extension of ACP
Scheme may be in realm of policy, nevertheless, once such
scheme is formulated and implemented by the State of its
own accord, there is no question of State practising
discrimination, as between the class of persons, otherwise
uniformly entitled to benefit of such scheme. Once, the State
has taken a decision to formulate and implement the ACP
Scheme, Article 14 of the Constitution will ensure that such
scheme is not implemented with an unequal hand and that
the employees who are otherwise entitled to avail the benefit
of such scheme, are left out on basis of irrational or
unreasonable parameters. Therefore, there is no merit in the
submission of Mr. Walimbe that since the very formulation
and implementation of ACP Scheme is in the realm of policy,
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the State has unfettered discretion in the matter of choice of
beneficiaries or that such choice is not capable of judicial
review.
10. The circumstance that the class of employees
excluded on account of the impugned clarification were not
capable of availing de facto promotions, is quite an
irrelevant circumstance, particularly considering the terms of
the ACP Scheme as stated in the G.R. dated 1 April 2010
and the objective of such scheme. In fact, the question of
extension of benefits under the ACP Scheme arise,
precisely because the employees are in no position to avail
de facto promotions. That apart, since ACP Scheme has
been made retrospectively applicable since 1.10.2006, for
the period between 1.10.2006 and 31.3.2010, the employees,
prior to their actual retirement, were theoretically capable of
availing de facto promotions. Therefore, employees
completing twelve years or twenty four years of service in
any particular post between the period 1.10.2006 and
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31.3.2010 cannot be deprived of the benefits of the scheme,
merely on account of fortuitous circumstance that they may
have retired between the period 1.10.2006 and 31.3.2010.
Such exclusion appears to be arbitrary, unreasonable and
based upon no rational criteria. This is admittedly not a case
where ACP Scheme, by itself, has been made applicable with
effect from 1.4.2010. This is a case where the scheme has
been made applicable from 1.10.2006 retrospectively.
Therefore, there is no justification in the creation of artificial
classification on the basis of the impugned clarification. Such
classification bears no intelligible differentia whatsoever
and in any case, differentia, if any, has no nexus
whatsoever with the objective of the scheme, i.e., to
compensate employees for stagnation on account of lack of
promotional avenues, whilst in service. Thus, construed we
detect no error in the view taken by the Tribunal in the
impugned judgment and order.
11. The G.R. dated 1.4.2010 was quite clear in that
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the ACP Scheme was made applicable with retrospective
effect from 1.10.2006. Accordingly, there was neither any
reason nor any occasion for issuance of the impugned
clarification, which has the effect of excluding employees,
who are otherwise on par with the other employees, in the
matter of receipt of benefits under the ACP Scheme. Besides,
we note that the ACP Scheme contemplates only notional
pay fixation for the period between 1.10.2006 and 1.4.2010,
without there being any liability to make actual payment of
arrears. In the absence of any ambiguity in the G.R. dated
1.4.2010, there was no question of issuance of impugned
clarification. Further, it is impermissible for the State to
substantively modify the G.R. dated 1.4.2010, under the
guise of issuance of impugned clarification. Such a cut off
date is clearly discriminatory. There is no rationale behind
stating that the said scheme would not be applicable to those
who have retired in between 1.10.2006 to 31.3.2010. If the
said explanation is accepted, then those persons retiring
before 1.10.2006 would be given the benefit of that scheme
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so also the persons retiring after 31.3.2010 would be given
the benefit of said scheme and only those persons retiring in
between 1.10.2006 to 31.3.2010 would be deprived of the
said benefits which is clearly discriminatory and arbitrary and
violative of Article 14 and hence, cannot be allowed.
12. There is neither any jurisdictional error nor any
perversity in the view taken by the Tribunal in the impugned
judgment and order. We are, accordingly, satisfied that
there is no case made out to interfere with the impugned
judgment and order, hence, the Writ Petition is dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.] [ SMT. V.K. TAHILRAMANI, J.]
kandarkar
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