The State Of Maharashtra And Ors vs Shri Vasant Trimbakrao Chobe And ...
2018 Latest Caselaw 1268 Bom

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO. 11424 OF 2014


            The State of Maharashtra & Ors.                                    .. Petitioners

                                 Versus
            Vasant Trimbakrao Chobe & Ors.                                     .. Respondents

                                                  ...................
            Appearances
            Mr. N.C. Walimbe         AGP for the State / Petitioners
            Ms. Prabha Badadare i/by
            Ms. Shubhangi S. Barve   Advocate for the Respondents
                                                   ...................



                              CORAM       : SMT. V.K. TAHILRAMANI, Acting C.J. &
                                              M.S. SONAK, J.

DATE : MARCH 20, 2018.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, A.C.J.] :

1. Rule. Rule is made returnable forthwith and the matter

is heard finally by consent of the parties.

2. The challenge in this petition is to the judgment and

order dated 22.4.2014 passed by the Maharashtra

Administrative Tribunal, Mumbai in the O.A. preferred by the

respondents.

            jfoanz vkacsjdj                                                                         1 of 12





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3.           The petitioner - State of Maharashtra has                    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. 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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4. 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.

5. 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

period, have been provided under the scheme.

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6. 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

specifically states that the scheme will be applicable with

retrospective effect, i.e., from 1.10.2006.

jfoanz vkacsjdj                                                             4 of 12





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7.           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 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 1 (1999) 2 SCC 119

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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)

8. 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 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

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from the date of first financial upgradation.

9. 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.

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.

10. 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

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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, the learned AGP that since

the very formulation and implementation of ACP Scheme is

in the realm of policy, the State has unfettered discretion in

the matter of choice of beneficiaries or that such choice is

not capable of judicial review.

11. 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

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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 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

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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.

12. The G.R. dated 1.4.2010 was quite clear in that 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

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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 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.

13. 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

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there is no case made out to interfere with the impugned

judgment and order, hence, Rule is discharged.

[ M.S. SONAK, J ]                     [ ACTING CHIEF JUSTICE ]




jfoanz vkacsjdj                                                         12 of 12