Shri Popat Baban Ghavte vs Pimpri Chinchwad Municipal ...
2021 Latest Caselaw 16071 Bom

                                                                              J-WP-2516-21.doc


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         Digitally
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         signed by
         RAJSHREE
RAJSHREE KISHOR                         CIVIL APPELLATE JURISDICTION
KISHOR   MORE
MORE     Date:
         2021.11.24
         14:56:44
                                         WRIT PETITION NO.2516 OF 2021
         +0530




                      Shri Popat Baban Ghavte                    ]
                      Age - 59 Years, Occupation-Retired,        ]
                      R/at Flat No.D-204, Runal's Royal Casa,    ]
                      Adjacent to Bhondwa Corner,                ]
                      Dr.D.Y. Patil College Road, S. No.206/4,   ]
                      Ravet, Pune - 411 044.                     ]    ..      Petitioner
                                         vs
                      1]    Pimpri Chinchwad Municipal Corp. ]
                            A Body Corporate established under ]
                            The Maharashtra Municipal Corporation]
                            Act, 1949, Through its Municipal     ]
                            Commissioner, Having his Office at   ]
                            Pimpri Chinchwad Municipal Corp.     ]
                            Mumbai-Pune Road, Pimpri,            ]
                            Pune - 411 018.                      ]


                      2]    The State of Maharashtra             ]
                            Through the Secretary,               ]
                            Urban Development Department.        ]    ..      Respondents


                      Mr.R.M. Pethe, for Petitioner.
                      Mr.Rohit Sakhadeo for Respondent No.1.
                      Mrs.A.A. Purav, AGP for Respondent/State.


                                         CORAM : PRASANNA B. VARALE &
                                                 N.R.BORKAR, JJ.

                                         RESERVED ON   :         06.09.2021
                                         PRONOUNCED ON :         22.11.2021





                                                       J-WP-2516-21.doc



JUDGMENT : (PER : N.R.BORKAR, J)
1]    This petition takes an exception to the order dated 16.03.2020

passed by respondent No.1-Pimpri Chinchwad Municipal Corporation.

2] The petitioner was initially appointed as surveyor in respondent No.1-Corporation on 20.04.1987. Time Bound Promotion Scheme was introduced by Government Resolution dated 08.06.1995 to address the issue of stagnation. Under the said Scheme benefit of pay of promotional post was to be given to the employees who have completed 12 years of service in the same cadre. In terms of the said Scheme the petitioner was granted benefit of promotional pay by Office Order dated 07.12.2001 with effect from 20.04.1999.

3] The petitioner, thereafter, by order dated 09.04.2002 was promoted to the post of Junior Engineer. In view of the Government Resolution dated 16.04.1984 on completion of 5 years of service as Junior Engineer the petitioner, by order dated 10.06.2009 was designated as Sectional Engineer and his pay was revised.

4] By Government Resolution dated 20.07.2001 Assured Career Progression Scheme was introduced and Time Bound Promotion Scheme was repealed. The said scheme was thereafter modified by Government Resolution dated 01.04.2010. Under the said Scheme first benefit of pay of promotional post was to be given on completion of 12 years of service and second benefit was made admissible on completion of 12 years of service after grant of first benefit. Accordingly, the petitioner was granted second benefit i.e. pay of promotional post under the modified Assured Career Progression Scheme with effect from 20.04.2011 by order dated 21.04.2015.

J-WP-2516-21.doc

5] By the order impugned the second benefit which was granted to the petitioner by order dated 21.04.2015 came to be withdrawn, and recovery of excess amount paid to the petitioner pursuant to the said order dated 21.04.2015 is ordered.

6] We have heard the learned counsel for the petitioner and learned counsel for the contesting respondent No.1.

7] We have perused the order impugned. Respondent No.1 has relied upon Clause 2(b)(3) of the Government Resolution dated 01.04.2010 to withdraw the second benefit. According to the respondent No.1 the petitioner was granted first benefit by office order dated 7.12.2001 and second benefit by order dated 10.06.2009 by which pay of the petitioner was revised on being designated as Sectional Engineer. According to the respondent No.1, the petitioner was thus not entitled to any further benefit of pay of promotional post and it was wrongly granted to him by order dated 21.04.2015.

8] We have perused the Clause 2(b)(3) of the Government Resolution dated 01.04.2010. It speaks of in certain situation what would constitute first benefit. It is, thus, clearly inapplicable to the case of the petitioner. Apart from it, this Court has dealt with similar controversy in the case of Association of the Sub-Ordinate Service of Engineers Maharashtra State and Others vs. State of Maharashtra and Ors., 2019(4) Mh.L.J. 629. This Court has held :

"30. Nonetheless, we would deal with the question on merits of the matter, independently. In the light of the facts, extracted above, in our view, the fate of the claim of the applicants hinges more on the construction of the GR dated 16 th April, 1984 than Clause 2(b)(3) of MACP Scheme. What was the nature of the dispensation given under the GR dated 16th April, 1984 ? From

J-WP-2516-21.doc

the text of the said resolution, the following salient features emerge:

(i) The preamble indicates its object. It was decided to confer the gazetted status initially upon degree-holder junior engineers. Subsequently, it was decided to confer the gazetted status upon the under-qualifed and unqualifed junior engineers, also.

(ii) While giving the gazetted status, the Government considered the aspects of the pay-scale to be given, the nomenclature of the post and the eligibility for conferring the gazetted status.

(iii) The conferment of the gazetted status upon the degree-holder engineers was with efect from 1st April, 1981. Whereas the said status was deferred in the case of the underqualifed and unqualifed junior engineers, till they put in a specifed years of service, that is, fve years for three year diploma-holders, seven years for two year diploma-holders and ten years for unqualifed junior engineers.

(iv) Two distinct cadres were created in the Maharashtra Engineering (Civil) Services Class-II, namely Assistant Engineer Grade-II, to be manned by degree-holder junior engineers, and sectional Engineer, to be manned by underqualifed/unqualifed junior engineers after putting in specifed years of service.

(v) Both the cadres were to be placed in the pay-scale Rs.600-30-700-40-950.

(vi) The posts of Assistant Engineer Class-II and Assistant Engineer Class-I, which were superior to that of the junior engineers, were to be re-designated as Assistant Engineer Grade-I and Assistant Executive Engineer, respectively.

(vii) The duties and functions which the erstwhile junior engineers were discharging and performing would thenceforth be discharged and performed by the Assistant Engineer Grade-II and Sectional Engineers.

31. It is evident that the aforesaid GR was an exercise in cadre review. The principal object of the aforesaid GR was to give

J-WP-2516-21.doc

gazetted status (Class-II) to junior engineers working at the lowest level. Not only the restructuring was done in the lowest cadre of junior engineers but also the immediately superior cadre of Assistant Engineer Class-II and Class-I were restructured. Yet, most importantly, the duties and functions which the erstwhile junior engineers discharged, were mandated to be discharged by the Assistant Engineers Grade-II and sectional Engineers.

32. The primary purpose of the aforesaid GR was, thus, restructuring of the cadre and rechristening of the designation of the post. The placement of the under-qualifed and unqualifed junior engineers in the newly designated post of sectional engineers was deferred, till they put in the specifed years of service. It is pertinent to note that no new posts were sought to be created under the said GR. The fact that a new pay-scale was prescribed for both Assistant Engineers Grade-II and sectional Engineers, was incidental."

.. This court has further held :

"35. We are unable to agree with the aforesaid reasoning of the learned Vice-Chairman. Having held that the beneft of the pay revision under GR dated 16th April, 1984 was neither a promotion nor a functional upgradation, the Tribunal could not have held that the said upgradation was schematic. As indicated above, the entire exercise was driven by the objective of conferring the gazetted status and restructuring engineering service at the lowest level. The provision that the diploma- holder and unqualifed junior engineers were to be placed in the cadre of sectional engineers, after putting in a specifed years of service, was a measure to bring them at par with the degree-holder junior engineers. It was uniformly applicable to all. There was admittedly no element of selection.

36. It is now well neigh recognised that the terms "promotion" and "upgradation" far from being identical and interchangeable are distinct and have specifc meaning and connotation in service jurisprudence. Promotion, in common parlance, connotes advancement to a higher position. Ordinarily promotion entails both enhanced position and pay.

J-WP-2516-21.doc

In legal parlance, promotion can be to a higher position as well as to a higher pay -scale. There can be promotion to a higher pay scale without there being an advancement to a higher position. Upgradation, on the other hand, is mere increase in the scale of pay, without any corresponding increase in position. There are shades to upgradation also. It may be upgradation simplicitor, available to all who satisfy the eligibility criteria. It may be preceded by selection. If upgradation involves a process of selection, as distinct from mere elimination, it may have the trappings of promotion, and in that event may be subject to quota rule or principle of reservation, wherever applicable.

38. In the light of the above, we are of the considered view that the learned Tribunal had committed an error in construing that the exercise of restructuring of the cadres, without there being any consequent creation of new posts and any change in the duties and responsibilities, constituted the grant of non- functional pay-scale for the mere reason that the pay-scale of all the junior engineers was revised, as a class."

.. It is further held :

39. Another factor, which has a material bearing on the claim of the applicants is that under ACP and MACP Scheme, the basic postulate is the beneft of pay-scale of the promotional post. It is nobody's case that under the GR dated 16 th April, 1984 the applicants were given the beneft of the pay-scale of the promotional post. Mere revision of the pay-scale can not be equated with the grant of pay-scale of the promotional post. On the contrary, it is pertinent to note that under the same GR, the Government had re-designated the next higher post as Assistant Engineers Grade-I and Assistant Executive Engineers.

42. In this view of the matter, the denial of the 'second beneft' under the MACP Scheme, with reference to an exercise of cadre restructuring and the revision in pay scale, in the year 1984, appears to be legally unsustainable. We are, thus, inclined to answer the aforesaid question in the 'negative'. We hold and declare that the upgradation under GR dated 16th April, 1984

J-WP-2516-21.doc

does not constitute grant of non-functional pay- scale and cannot be treated as the 'frst beneft' within the meaning of Clause 2(b)(3) of the GR dated 1st April, 2010. We are, thus, inclined to allow the petition."

9] This Court in the above Judgment in no uncertain terms has held that upgradation under Government Resolution dated 16.04.1984 does not constitute grant of non-functional pay scale and cannot be treated as the 'benefit' within the meaning of Clause 2(b)(3) of the Government Resolution dated 01.04.2010. The respondent No.1 was, thus, not justified in withdrawing the second benefit granted to the petitioner by order dated 21.04.2015. The order impugned thus cannot be sustained. Hence, following order is passed :

            1]    Writ Petition is allowed.
            2]    The order impugned dated 16.03.2020 is quashed
                  and set aside.



     [N.R.BORKAR, J]                  [PRASANNA B. VARALE, J]