Vishnu Arjun Kadam And Ors vs State Of Maharashtra And Anr
2017 Latest Caselaw 4299 Bom

                                                                   WP 5575-07.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION
                           WRIT PETITION NO. 5575 OF 2007

       1. Vishnu Arjun Kadam
       Age - 39 years, Occ. Service,
       Address at C/o. Vidyamandir Prashala,
       Brajmanpuri, Miraj,
       District - Sangle.

       2. Adhok Sidhdhppa Awale
       Age - 50 years, Occ. Service,
       Address at C/o.Vidyamandir Prashala,
       Brajmanpuri, Miraj,
       District - Sangle.

       3. Rajaram Shivaji Pawar
       Age - 50 years, Occ. Service,
       Address at C/o.Vidyamandir Prashala,
       Brajmanpuri, Miraj,
       District - Sangle.

       4. Atmaram Bandu Desai
       Age - 55 years, Occ. Service,
       Address at C/o. Swami Ramanand
       Bharati Vidyamandir, Tasgon,
       District - Sangli.

       5. Bhagwan Ganpati Patil
       Age - 54 years, Occ. Service,
       Address at C/o. Swami Ramanand
       Bharati Vidyamandir, Tasgon,
       District - Sangli.

       6. Subhash Babu Yadav
       Age - 52 years, Occ. Service,

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 Address at C/o. Swami Ramanand
 Bharati Vidyamandir, Tasgon,
 District - Sangli.

 7. Madhukar Yashwant Jadhav
 Age - 50 years, Occ. Service,
 Address at C/o. Modern High School,
 Sakharale, Tal. Walwa,
 District - Sangli.

 8. Ramkrishna Mahadeo Mahamuni
 Age - 50 years, Occ. Service,
 Address at Krishna Mahavidyalaya,
 Rethare Budruk, Tal. Karad,
 District - Satara.

 9. Bhanudas Narayan Warke
 Age - 45 years, Occ. Service,
 Address at Krishna Mahavidyalaya,
 Rethare Budruk, Tal. Karad,
 District - Satara.                                .. Petitioners

         Vs.

 1. State of Maharashtra
 (Summons to be served on the Learned
 Additional Government Pleader appearing
 for the State of Maharashtra under Order
 XXVII, Rule 4, of the Code of Civil Procedure, 1908).

 2. Secretary,
 Higher and Technical Education,
 Mantralaya Annex, Mumbai - 32.
 (Summons to be served on the Learned
 Additional Government Pleader appearing
 for the State of Maharashtra under Order
 XXVII, Rule 4, of the Code of Civil Procedure, 1908).


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                                                                         WP 5575-07.doc

 3. Subhash Ganpati Dhamal (Pawar),
 Age - 48 years, Occ. Service,
 R/at. 1765, Ambedkar Road,
 Ganesh Nagar, Vikas Chowk,
 Sangli.                                                       .. Respondents


 Mr. V. A. Shastry, for the Petitioners.
 Mr. K. R. Kulkarni, AGP for the Respondent no.1/State.


                                   CORAM                         : A.A.SAYED AND
                                                                    M.S.KARNIK, JJ.

RESERVED ON : 30th JUNE, 2017

PRONOUNCED ON : 11th JULY, 2017

JUDGMENT (PER M.S. KARNIK, J.) :-

The Petitioners are aggrieved by the implementation

of G.R. dated 12th July 2004 issued by Respondent no.2

extending the benefits of 'Periodical Promotion Scheme' ('PPS'

for short) from the year 2004 instead of 1994. The Petitioners'

case is that similarly situated non-teaching employees of the

educational institutions in the State of Maharashtra are granted

the benefits of PPS from the year 1994. The Petitioners are

granted this benefit only from the year 2004 and therefore the

alleged discrimination.

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2. The Petitioners are Class 'C' and Class 'D' non-

teaching employees of different non-Governmental granted

schools/colleges imparting education in Technical and bifocal

vocational courses based in minimum skill. By a G.R. dated 8 th

June 1995 the decision was taken to adopt a policy of the PPS to

the Government employees falling in Class 'C' and Class 'D' for

the reason of non-availability of the opportunity for the

promotions in the said class as well as non-availability of vacant

promotional post in spite of acquiring eligibility for the

promotion after completion of long services, when there is an

opportunity for promotion. The benefit of the PPS was made

effective from 1st October 1994. Accordingly, the employees of

the Government who have rendered 12 years regular service

who are given the benefit of the PPS by giving increment in the

pay scale next to the one held by them and further, when there

is no promotional post, in that eventuality, the employees of the

Government are given benefit of increment of pay scale as

explained in the said G.R. along with the conditions as

applicable to the employees of the State Government. The

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intention behind the G.R. was to remove the stagnation in the

services of the Government employees due to non-availability or

there being no vacancy in the promotional posts as the case may

be.

3. The Petitioners contend that with a view to remove

the stagnation in the services of the non-teaching staff of the

private schools, employees of Class 'C' and Class 'D', by G.R.

dated 30th April, 1998, the benefit of PPS was extended to the

non-teaching employees of the private schools. The benefits of

the PPS to those covered by the G.R. dated 30 th April, 1998 was

made applicable from 1st October, 1994 as in the case of

Government employees. This aspect was clarified by the G.R.

dated 23rd July, 1998.

4. By issuance of the G.R. dated 12 th July, 2004, it was

decided to extend the benefit of PPS to the teaching and Class 'C'

and Class 'D' non-teaching employees of various non-

Governmental granted schools/colleges imparting education in

Technical and bifocal vocational courses based on minimum

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skill. The benefits of the said scheme were however made

applicable from 1st June, 2004. The grievance of the Petitioners

is in respect of the date of implementation of the benefits under

the PPS vide G.R. dated 12 th July, 2004. According to the

Petitioners, similar situate employees have got the benefits of

increment in the pay scale under the said Scheme from 1st

October, 1994. Depriving the Petitioners of the benefits of

increments in the pay scale from 1st October, 1994 is arbitrary

and discriminatory in the submission of the learned Counsel for

the Petitioners.

5. According to the learned Counsel for the Petitioners,

the terms and conditions of the service and the statute

governing the services of the Petitioners herein as well as non-

teaching employees in non-technical department are same and

the pay scale applicable to both the categories of the employees

were similar prior to the implementation of the G.R. dated 30 th

April, 1998 and 12th July, 2004.

6. The learned Counsel for the Petitioners invited our

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attention to the difference in the pay scales of the similarly

situated employees working in technical and non-technical

department. It is also contended that by virtue of inter

departmental transfers Petitioner no.2 who was initially

appointed in the non-technical department was transferred as

non-teaching employee of the technical department. Thus, in the

submission of the learned Counsel for the Petitioners the

implementations are discriminated in the matter of grant of

benefits under the PPS.

7. In the submission of the learned Counsel for the

Petitioners due to the different dates of implementation of the

PPS to the Petitioners being non-teaching employees of technical

department on one hand and non-teaching employees of non-

technical department on the other hand, different basic pay and

consequently different total salaries are paid to the employees.

In the submission of the learned Counsel for the Petitioners the

date of implementation of the G.R. dated 12 th July, 2004

extending the benefit of PPS scheme belatedly is unreasonable

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and without any rational.

8. It is the submission of the learned Counsel for the

Petitioners that different dates of the implementation is arbitrary

and without discernible principle and it results in discriminatory

treatment to the similarly situate. As regards the inter

departmental transfers of non-teaching employees, the same

have resulted in implementation of the said PPS to the

transferred and non-transferred employees with effect from

different dates and consequently resulted into different pay scale

to the transferred and non-transferred department.

9. Learned AGP on the other hand supported the G.R.

dated 12th July 2004 in its application of the scheme with effect

from 1st June, 2004. Learned AGP submitted that the

implementation of the PPS to the employees of different

departments is a policy decision of the State as the said issue

falls within the exclusive purview of the State Government.

10. In the submission of the learned AGP the object of

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introducing the PPS is for removal of stagnation in promotion

and pay scales in the services of the Class 'C' and Class 'D'

employees not having the opportunities of promotions in the

Government services, the scheme of giving senior pay scale by

Periodical promotion after rendering 12 years service to the

employees has been made applicable by the issuance of G.R.

dated 8th June 1995. By the G.R. dated 12 th July, 2004, it was

decided to extend these benefits of the G.R. to the teaching and

non-teaching employees in non-Governmental technical

secondary schools as well as non-teaching employees in the +2

level non-Governmental granted bifocal and vocational courses

based on minimum skill. If a decision has been taken by the

Government that the scheme shall come into force from 1 st July,

2004, the same is a policy decision which is not arbitrary or

irrational. Learned AGP also invited our attention to the

affidavit-in-reply filed by Shri S. K. Wayadande on behalf of

respondent nos.1 and 2. In the affidavit-in-reply in paragraph 3,

it is stated that subject matter was placed before the Cabinet of

the Government of Maharashtra and a conscious Cabinet

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decision was taken by the Government of Maharashtra stating

therein that the time bound promotion for the non-teaching staff

of the non-government vocational schools/Junior colleges shall

be applicable w.e.f. 1st June, 2004. After this decision was taken

the G.R. dated 12th July, 2004 was issued. Even thereafter

proposal to change the date to give time bound promotion to the

non-teaching staff like petitioners was also placed before the

Cabinet to revise the date of 1st June, 2004 to 1st October, 1994.

However, the Cabinet has firmly denied the same. Learned AGP

therefore submits that a conscious decision has been taken and

therefore, the action of the Government cannot be said to

arbitrary or irrational.

11. We have considered the submissions advanced by the

learned Counsel for the Petitioners and learned AGP. The very

object of introducing the PPS vide G.R. dated 8 th June, 1995 was

to remove stagnation due to non-availability of the opportunities

of the promotion in Class 'C' and Class 'D' (Class 3 and Class 4)

employees who are in Government services. Reading of the G.R.

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dated 8th June, 1995 indicates that the opportunities for

promotion are not available in some places in Class 'C' and Class

'D' in Government services, whereas, in some places, though the

opportunity for promotion is available, long time is required for

getting the promotion. A demand was made by the Employee's

Union for implementation of time bound promotion. The State

took into consideration that a similar scheme is implemented by

some other States and therefore in interest of the class of

employees, the decision for implementing the scheme for State

Government employees was taken. The scheme was to take

effect from 1st October, 1994. Initially therefore the G.R. dated

8th June, 1995 was made applicable to the class of employees

viz. Class 'C' and Class 'D', who are in Government service.

12. By G.R. dated 23rd July, 1998, the PPS was made

applicable to non-teaching employees in private schools in the

State and the same was to come into effect from 1 st October,

1994.

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13. In so far as the impugned G.R. dated 12 th July, 2004

is concerned, a decision was taken to make PPS applicable to

another class of employees which covers the Petitioners but the

effective date of implementation is 1st June, 2004. As indicated

earlier the very object of the scheme is to remove stagnation due

to non-availability of the opportunities of the promotion or in

respect of those employees for whom the promotional post in

the promotion chain is not available, such employees are to be

given the upper pay scale after completing of 12 years of regular

service.

14. In these circumstances, as the very purpose of the

scheme is to provide the periodical promotion after rendering 12

years of the services to the employees, the benefit made

available to the employees is a policy decision of the State. The

right of the employees to the benefit of the PPS is dependent on

the applicability of the PPS to a particular class of the employees

in the first instance. The Petitioners are eligible to the benefit of

the PPS consequent upon the issuance of the G.R. dated 12 th

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July, 2004 whereby a decision is taken by the State Government

to apply the PPS to the non-teaching employees in non-

Governmental technical secondary schools as well as non-

teaching employees in the +2 level non-Governmental granted

bifocal and vocational courses. The object of the grant of the

benefit of the PPS is to provide an opportunity to those

employees who are required to retire after rendering long

service on very same post on which they were appointed and

they do not get any opportunity of promotion. It is therefore that

the Government has taken the decision to make applicable the

above scheme of periodical promotion to such employees. In

these circumstances, if the State has taken a decision to apply

the G.R. dated 12th July, 2004 with effect from 1st June, 2004

and not retrospectively, we do not find the G.R. arbitrary or

irrational only on the ground that it is not made effective from

1st October, 1994.

15. Learned Counsel for the Petitioners relied on the

decision of the Apex Court in the case of Purshottam Lal versus

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Union of India (1973 (1) SCC 651) in support of his

contention that the G.R. should be made applicable

retrospectively. The Apex Court in the context of the terms of

reference which included the Petitioners therein held that as the

recommendations are accepted, the Government is bound to

implement the recommendations in respect of all Government

employees. The Apex Court observed that if Government does

not implement the report regarding some employees only, it

commits a breach of Articles 14 and 16 of the Constitution. The

ratio of the Apex Court's decision in the case of Purshottam Lal

(supra), therefore, in our opinion, is not applicable to the facts

of the instant case.

16. As held by the Apex Court in the case of State of

Mysore v. P. Narasinga Rao (AIR 1968 SC 349), the relevant

law on the subject is well settled. Under Article 16 of the

Constitution there shall be equality of opportunity for all citizens

in matters relating to employment or appointment to any office

under the State or to promotion from one office to a higher

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office thereunder. Article 16 of the Constitution is only an

incident of the application of the concept of equality enshrined

in Article 14 thereof. It gives effect to the doctrine of equality in

the matter of appointment and promotion. It follows that there

can be a reasonable classification of the employees for the

purpose of appointment or promotion. The concept of equality

in the matter of promotion can be predicated only when the

promotees are drawn from the same source. In para 4 it is

observed by the Apex Court thus :-

"It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational

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nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of the general rule of equality laid down in Art. 14 and it should be construed as such. Hence, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured ; Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection".

17. The same view has been reiterated by the Apex

Court in the case of C. A. Rajendran v. Union of India and

others (AIR 1968 SC 507) by holding that it is well established

that there can be a reasonable classification of employees for the

purpose of appointment by promotion and classification as

between direct recruits and promotees.

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18. A profitable reference can also be made to the

decision of the Apex Court in the case of The General Manager,

South Central Railway, Secunderabad and another v. A.V.R.

Siddhanti and others (AIR 1974 SC 1755) and it is material to

quote para 25 which reads as under :-

25. The fundamental right of equality means that persons in like situation, under like circumstances are entitled to be treated alike. "The Constitutional Code of Equality and Equal Opportunity", observed this Court in State of Jammu and Kashmir v. Triloki Nath Khosla, Civil Appeal No.2134 of 1972, D/- 26- 9-1973 = (reported in AIR 1974 SC 1), "is a charter for equals." So long as employees similarly circumstanced in the same class of service are treated alike, - the question of hostile discrimination does not arise. The equality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall substantially, within the same class or unit of service. The guarantee of equality is not applicable as between members of distinct and different classes of the service. The Constitution does not command that in all matters of employment absolute symmetry be

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maintained. A wooden equality as between all classes of employees regardless of qualifications kind of jobs, nature of responsibility and performance of the employees is not intended, nor it is practicable if the administration is to run. Indeed, the maintenance of such a 'classless' and undiscerning 'equality' where, in reality, glaring inequalities and intelligible differential exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible. That is to say, reasonable classification according to some principle, to recognise intelligible inequalities or to avoid or correct inequalities is allowed, but no miniclassification which creates inequality among the similarly circumstanced members of the same class or group.

19. In the light of the above, we are of the opinion that

the applicability of the PPS to the different class of employees in

the State is dependent on the decision being taken by the State

making the PPS applicable to the particular class of employees.

Having regard to the object of introducing the Time Bound

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Promotion Scheme, we do not find the decision of the

Respondents to apply the G.R. dated 12 th July, 2004 to be

implemented from 1st June, 2004 instead of 1st October, 1994 as

arbitrary or irrational. The Petition therefore fails and is

dismissed with no order as to costs.

20. Rule is discharged.

 (M.S.KARNIK, J.)                                            (A.A.SAYED, J.)