Bombay High Court
Nandkishor Narayansinh Thakur ... vs The State Of Maharashtra And ... on 2 August, 2022
Bench: Mangesh S. Patil, Sandeep Vishnupant Marne
1 wp8009.21 (& 3) Judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL WRIT PETITION NO.8009 OF 2021
1. Suhas s/o Prabhakarrao Dharasurkar
Age: 51 years, Occ. Service,
R/o : "Dharasurkar Complex", Subhash
Road, Shivaji Chowk, Parbhani,
District : Parbhani -431401.
2. Nagesh s/o Mahadevrao Chaudhari,
Age : 53 years, Occ. Service,
R/o; Behind new Mondha, Nagar
Panchayat Road, Palam,
Dist. Parbhani-431720.
3. Deepak s/o Raghunathrao Shriramwar
Age: 55 years, Occ. Service,
R/o; Shivram Nagar Parbhani,
District: Parbhani-431401.
4. Ravindra s/o Ramchandra Mathekar,
Age; 55 years, Occ; Service,
R/o; Gurukrupa Niwas, Wadgalli,
Parbhani, District: Parbhani-431401.
5. Usha d/o Trimbakrao Motipavle,
Age; 54 years, Occ; Service,
R/o; Ashirwad Nagar, Near Deshmukh
Hotel Karegaon Road, Parbhani,
District: Parbhani-431401.
6. Annasaheb s/o Kisanrao Tode,
Age; 52 yers, Occ; Service,
R/o; Yashodhan Nagar, Near Kalyan
Mandapam Jaikwadi, Hudeco Road,
Parbhani, District; Parbhani.
7. Pramod s/o Gangaram Annapure,
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Age; 52 years, Occ; Service,
R/o; Yashodhan Nagar, near Kalyan
Mandapam Jaikwadi, Hudeco Road,
Parbhani, District: Parbhani.
8. Prakash s/o Pandurangrao Gaikwad,
Age; 52 years, Occ; Service,
R/o; Yashodhan Nagar, Ner Kalyan
Mandapam Jaikwadi, Hudeco Road,
Parbhani, District: Parbhani-431401.
9. Sunil s/o Manikrao Bembalkar
Age; 54 years, Occ; Service,
R/o; Kalyan Nagar Basmat Road,
Parbhani, District: Parbhani-431401.
10. Deepak s/o Chandrashekhar Ambekar,
Age; 55 years, Occ; Service,
R/o; Prabhavati Nagar,Parbhani,
Dist. Parbhani.
11. Mohan s/o Laxmanrao Burange,
Age; 53 years, Occ; Service,
R/o; Pratap Nagar, Old Pedgaon Road,
Parbhani, Dist. Parbhani- 431401.
12. Pandit s/o Ramrao Gadhave,
Age; 53 years, Occ; Service,
R/o; Yeldarkar Colony,Basmat Road,
Parbhani Dist; Parbhani-431401.
13. Vitthal s/o Tukaramji Gingine,
Age; 52 years, Occ; Service,
R/o; Saraswati Nagar Parbhani,
District; Parbhani.
14. Balasaheb s/o Shrirangrao Samale,
Age; 54 years, Occ; Service,
R/o; Yogkshem Colony, Visava Corner
Pathri Road, Parbhani Dist. Parbhani-
431401.
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15. Shaikh Moinoddin S/o Shaikh Noor,
Age; 54 years, Occ; Service,
R/o; Inayat nagar, Old Padegaon Road,
Parbhani Dist. Parbhani-431401.
16. Yeshwant s/o Munjaji Maske,
Age; 56 years, Occ; Service,
R/o; Chaitanya, Ganesh nagar
Darga Road, Parbhani
District Parbhani-431401.
17. Shrikrishna s/o Narayanrao Shinde,
Age; 53 years, Occ; Service,
R/o; Anandnagar, Teacher's Colony,
Basmat Road, Parbhani,
District; Parbhani-431401.
18. Tukaram s/o Karbhari Murkute,
Age; 58 years, Occ; Service,
R/o; Shivram Nagar, Parbhani-431401.
19. Bhimashankar s/o Haribhau Trimale,
(Retired)
Age; 58 years, Occ; Retired,
R/o; Vaibhav Nagar Parbhani
District; Parbhani-431401.
20. Sunil s/o Deorao Dhakne (Retired)
Age; 56 years, Occ; Retired,
R/o; Darga Road, Parbhani,
Parbhani-431401.
21. Nandkishor s/o Baburao Tane,(Retired)
Age; 54 years, Occ; Retired,
R/o; NandPrit Niwas, Jagruti Colony,
Basmat Road, Parbhani,
Dist; Parbhani-431401.
22. Madhukar s/o Shrirangrao Dandewad,
(Retired),
Age; 57 years, Occ; Retired,
R/o; Vithal Niwas, Near Shree Swami
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Samarth Mandir,
Sinchan Nagar, Parbhani,
District; Parbhani-431401.
23. Madan s/o Piraji Dadewad (Retired)
Age; 59 years, Occ; Retired,
R/o; Mathura Nagar, Basmat Road,
Parbhani Dist; Parbhani-431401.
24. Madhav s/o Bhanudasrao Mundhe
(Retied),
Age; 56 years, Occ; Retired,
R/o; Manasi Nivas, Arogya Colony,
Parbhani, Dist. Parbhani-431401.
25. Virbhadra s/o Gangadharappa Soundale
(Died)Through Legal Heirs
Smt. Manisha Virbhadra Soundale,
Age; 47 years, Occ; Household,
R/o; Virmani Niwas, Arogya Colony,
Parbhani Dist; Parbhani-431401.
...PETITIONERS
VERSUS
1. The State of Maharashtra
(Through the Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032).
2. The Secretary,
Rural Development Department,
25, Bandhkam Bhavan, 7th Floor,
Marzban Path, Fort, Mumbai-400001.
3. The Secretary,
Department of Finance,
Government of Maharashtra,
Mantralaya, Mumbai-400032.
4. The Chief Executive Officer,
Zilla Parishad Parbhani,
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5 wp8009.21 (& 3) Judgment
Dist. Parbhani. ...RESPONDENTS
...
Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad
(Patil)
AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar
Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep
V.Tapse Patil
Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021)
: Mr.Sambhaji S. Tope
...
AND
WRIT PETITION NO. 9791 OF 2021
1. Raju s/o Pralhadrao Balurkar
Age; 46 years, Occ; Service,
R/o; "Pralhad Smruti", Yogeshwari Nagar,
Behind Bachat Bhavan, Old Jalna
Tal. and Dist. Jalna-431213.
2. Satish s/o Narayanrao Ambhore,
Age; 50 years, Occ; Service,
R/o; Plot No. 11, Samarthnagar,
Behind Zilla Parishad Office, Jalna
Tal. & Dist. Jalna-431213.
3. Ganesh s/o Tejrao Shinde,
Age; 49 years, Occ; Service,
R/o; Saraf Nagar, Old Jalna,
Near Nagar Parishad Stadium,
Old Jalna-431213.
4. Sanjay s/o Ashrappa Kapse,
Age; 53 years, Occ; Service,
R/o; Plot No. 5, Rukmini Apartment,
Railway Station Road, Old Jalna.
5. Subhash s/o Vaijanathrao Acharya
Age; 57 years, Occ; Service,
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R/o; Quarter No. 21, Vikas Nagar,
Panchyat Samiti, Jalna-431203.
6. Santosh s/o Dattatraya Sakharkar,
Age; 48 years, Occ; Service,
R/o; Plot No. 42B, Nisarg Garden Colony,
Railway Station Road, Old Jalna-431203. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
(Through the Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032).
2. The Secretary,
Rural Development Department,
25, Bandhkam Bhavan, 7th Floor,
Marzban Path, Fort, Mumbai-400001.
3. The Secretary,
Department of Finance,
Government of Maharashtra,
Mantralaya, Mumbai-400032.
4. The Chief Executive Officer,
Zilla Parishad, Jalna,
Dist. Jalna. ...RESPONDENTS
...
Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad
(Patil)
AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar
Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep
V.Tapse Patil
Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021)
: Mr.Sambhaji S. Tope
...
AND
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WRIT PETITION NO.9789 OF 2021
1. Suresh s/o Dagduba Sapkal,
Age; 55 years, Occ. Service,
R/o; Phule Chowk, Bhokardan,
Tq. Bhokardan, Dist. Jalna-431114.
2. Laxmikant s/o Shivram Raut,
Age; 52 years, Occ; Service,
R/o; Income Tax Colony, Jalna,
Tal. & Dist. Jalna-431203.
3. Sudhakar s/o Rangnath Danve,
Age; 56 years, Occ; Service,
R/o; Gajanan Mandir, MHADA Colony,
Bhokardan, Tal. Bhokardan,
Dist. Jalna-431114.
4. Pramod s/o Madhukarrao Khot,
Age; 59 years, Occ; Retired as Sectional
Engineer,
R/o; Plot No. 27, Samarthnagar,
Near Civil Hospital, Jalna-431203.
5. Sunil s/o Satwaji Kharat,
Age; 56 years, Occ; Service,
R/o; Ambedkar Statute, Nutan Vasahat,
Ambad Road, Jalna-431203. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
(Through the Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032).
2. The Secretary,
Rural Development Department,
25, Bandhkam Bhavan, 7th Floor,
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Marzban Path, Fort, Mumbai-400001.
3. The Secretary,
Department of Finance,
Government of Maharashtra,
Mantralaya, Mumbai-400032.
4. The Chief Executive Officer,
Zilla Parishad, Jalna,
Dist. Jalna. ...RESPONDENTS
...
Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad
(Patil)
AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar
Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep
V.Tapse Patil
Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021)
: Mr.Sambhaji S. Tope
...
AND
WRIT PETITION NO.9485 OF 2021
1. Nandkishor s/o Narayansinh Thakur,
Age; 67 years, Occ; Civil Engineering
Assistant, PWD Colony, Plot No. 25,
Mustafabad, Beed-bye-pass,
Aurangabad.
2. Madhavrao w/o Nagorao Sarwadikar,
Age; 68 years, Occ; Civil Engineering
Assistant, Plot No. 26, Nagarjun Niwas,
Rajarshee Shahu Nagar,
(Back to Ashirwad Hotel),Ambad Road,
Tq. and Dist. Jalna, Jalna.
3. Sarfraj Khan Pathan,
Age; 71 years, Occ; Civil Engineering
Assistant,
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Eakta Bhavan Building,
In raont of Bawala Hospital,
Malipura, Old Jalna,
Tq. & Dist. Jalna, Jalna.
4. Trimbak s/o Chimanrao Dake,
Age; 71 years, Occ; Civil Engineering
Assistant,
Plot No. 35, Trimbak Niwas,
Near Kanchneshwar Ganpati Temple,
Kanchannagar, Tq. & Dist. Jalna, Jalna.
5. Phakira s/o Laxman Barde,
Age; 68 years, Occ; Civil Engineering
Assistant, At Post Phattepur,
Tq. Bhokardan, Dist; Jalna.
6. Prakash s/o Kashinath Deshpande,
Through its LR's,
Saroj s/o Prakash Deshpande,
Age; 69 years, Occ; Family Pensioner,
Plot No. 23, G.N.99, Shilpnagar, Renuka
Mandir Road, Satara Parisar,
Aurangabad, Tq. & Dist. Aurangabad.
7. Ramdhan s/o Ukhardu Deore,
Age; 68 years, Occ; Civil Engineering
Assistant,
At Garkheda, Post Phattepur,
Tq. Bhokardan, Dist. Jalna.
8. Pundlik s/o Santukarao Sapate,
Age; 68 years, Occ; Civil Engineering
Assistant,
At Post Rajut, Tq. Bhokardan,
Dist; Jalna.
9. Keshav s/o Digambarrao Panchbhaiye,
Age; 68 years, Occ; Civil Engineering
Assistant,
Sahkar Bank Colony, Near Gajanan
Mandir, Railway Station Road, Jalna.
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Tq. & Dist. Jalna.
10. Damodhar s/o Namdeo Barde,
Through its LR's Rukhmabai Damodhar
Barde,
Age; 66 years, Occ; Family Pensioner,
At Post Phattepur,
Tq. Bhokardan, Dist; Jalna.
11. Kashinath s/o Pandurang Chaudhari,
Age; 68 years, Occ; Civil Engineering
Assistant, Priyadarshani Colony,
Sambhaji Nagar, Lakkadkot, Jalna, Tq. &
Dist. Jalna.
12. Nandkishor s/o Dajiba Deshpande,
Age; 68 years, Occ; Civil Engineering
Assistant, Pangarkar Nagar, Mauli U
Pride Corner, Ambad Road, Jalna,
Tq. & Dist. Jalna.
13. Ramdhan s/o Bhavsingh Chavan,
Age; 59 years Occ; Junior Engineer,
Plot No. 102-C, Wing Rishipark-05,
Ambadevi, Ambad Chauphuli, Jalna,
Tq. & Dist. Jalna.
14. Madhavrao s/o Maharudra Deshmukh,
Age; 58 years, Occ; Junior Engineer,
H. No. 23, Ramnagar Colony,
Near to Aazad Ground, Jalna,
Tq. & Dist. Jalna.
15. Shivajirao s/o Prahladrao Aatole,
Age; 58 years, Occ; Junior Engineer,
Indani Colony, Near to Pachod Chowk,
Jalna Road Ambad, Dist; Jalna.
Tq. & Dist. Jalna.
16. Prashant s/o Hariharrao Koleshwar,
Age; 62 years, Occ. Junior Engineer,
H. No. 03-12-59, Kalweshwar Lane,
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Ganpati Lane, Old Jalna.
Tq. & Dist. Jalna. ...PETITIONERS
VERSUS
1) The State of Maharashtra,
(Through its Principal Secretary,
Rural Development Department,
Bandhkaam Bhavan, 26 Marjhaban Path,
Fort, Mumbai 32.
2) The Zilla Parishad Jalna,
Through its Chief Execitive Officer,
Jalna. ...RESPONDENTS
...
Advocate for Petitioners : Mr. V.D.Sapkal (Senior Counsel) i/by
Mr.Sapkal Sandip R.
AGP for Respondent No. 1: Mrs.M.D.Deshpande
Advocate for Respondent No. 2 : Mr.Tope Sambhaji S.
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
Reserved on : 25.07.2022
Pronounced on : 02.08.2022
JUDGMENT : [PER :- SANDEEP V. MARNE - J.]
1. Rule. Rule made returnable forthwith. With the consent
of the learned advocates for the parties, heard finally at the stage of
admission.
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2. The learned AGP Mr.S.B.Yawalkar, waives service of
notice on behalf of respondent Nos. 1 to 3-State, in Writ Petition Nos.
WP-8009/2021, WP-9791/2021 & WP-9789/2021. The learned
Advocate Mr. Tapse Patil Pradeep V. waives service of notice on behalf
of respondent No. 3, in WP-8009/2021. The learned Advocate
Mr.Tope Sambhaji S., waives service of notice on behalf of respondent
No. 4, in WP-9791/2021 & WP-9789/2021 and the learned AGP Mrs.
M.A.Deshpande, waives service of notice on behalf of respondent No.
1, in Writ Petition No.9485 of 2021. The learned Advocate Mr.Tope
Sambhaji S. waives service of notice on behalf of respondent No. 2, in
Writ Petition No.9485 of 2021.
3. The common issue involved in the present petitions is
whether the upgradation granted on the post of Sectional Engineer
can be treated as a set-off against the financial upgradation to be
granted under the provisions of Assured Career Progression
Scheme/Modified Assured Career Progression Scheme, (Hereinafter
referred to as "ACP & MACP").
4. In Writ Petition Nos. 8009 of 2021, 9791 of 2021 and
9789 of 2021, the petitioners were appointed on the post of Junior
Engineer and were subsequently granted non functional upgradation
on the post of Sectional Engineer. Their grievance is that the non
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functional upgradation granted to them on the post of Sectional
Engineer cannot be counted while determining their entitlement for
grant of financial upgradation under the provisions of ACP/MACP
Scheme. Under the ACP Scheme, two financial upgradations were
admissible, on completion of 12/24 years of service. Subsequently
MACP scheme was introduced vide Government Resolution dated 2
March 2019, under which three financial upgradations are
admissible on completion of 10, 20 and 30 years of service. The
MACP Scheme is made effective from 1 January 2016.
5. In Writ Petition No. 9485 of 2021, the petitioners were
initially recruited as Mistri Grade-I, Mistri Grade-II, Road Karkoon,
Muster Clerk, Samaypal and Tracer. All these cadres were
subsequently amalgamated into a single cadre as "Civil Engineering
Assistant", vide Government Resolution dated 20.05.1999. They were
given status of post of Junior Engineer by way of promotion from the
post of Civil Engineering Assistant. They also claim that the non
functional upgradation to the post of Sectional Engineer cannot be
counted while granting financial upgradation under the provisions of
ACP/MACP Scheme.
6. The issue involved in the present petitions is no more
res-integra, and is squarely covered by the judgment of this Court
14 wp8009.21 (& 3) Judgment
dated 6 February 2019 passed in Writ Petition No. 2605 of 2017, in
the case of The Association of Subordinate Service of Engineers
Maharashtra State and Ors Vs. The State of Maharashtra and Ors. In
the said judgment this Court has held that
"Non functional upgradation to the post of Sectional
Engineer cannot be counted as set-off for financial
upgradation admissible under ACP/MACP Scheme."
7. The circular dated 13 June, 2016 providing for
withdrawal of benefits and/or recovery, came to be set aside by the
said judgment.
8. Towards the implementation of the judgment dated 6
February, 2019, the Government of Maharashtra issued a circular
dated 21 August, 2019, by which the earlier circular dated 13 June
2016 was rescinded and a direction was issued to the Irrigation
Department, PWD Department and the Rural Development
Department to implement the directives issued in paragraph No. 44
of the judgment dated 6 February 2019.
9. The grievance of the petitioners is that despite the
judgment dated 6 February 2019, as well as the circular darted 21
August 2019, some of the Zilla Parishad, particularly Zilla Parishad
Parbhani and the Zilla Parishad Jalna are not extending the benefits
15 wp8009.21 (& 3) Judgment
of the judgment to the petitioners.
10. On behalf of the Zilla Parishad, Parbhani, an affidavit-in-
reply is filed, in which the principle enunciated by this Court in its
judgment in the case of The Association of Subordinate Service of
Engineers Maharashtra State and Ors (supra) has not been disputed.
However, some averments are made with regard to the eligibility of
some of the petitioners for grant of financial upgradation. Same is the
case with regard to the affidavit-in-reply filed by the Zilla Parishad,
Jalna in Writ Petition No. 9485 of 2021.
11. We, however, do not propose to go into the individual
cases and entitlement of the individual petitioners for grant of a
particular financial upgradation, under ACP/MACP Scheme. Since
this Court has already laid down law that the non functional
upgradation granted on the post of Sectional Engineering cannot be
counted as set off for any financial upgradation under the ACP/MACP
Scheme, the direction is binding on the respondents including the
Zilla Parishad, Parbhani and the Zilla Parishad, Jalna.
12. Accordingly, the present petitions are allowed. The
respondents are directed to grant admissible financial upgradation
under ACP/MACP Scheme to the respective petitioners, by ignoring
16 wp8009.21 (& 3) Judgment
non functional upgradation granted/admissible, on the post of
Sectional Engineer. The consequential benefits be paid to the
respective petitioners.
13. Rule is made absolute in the above terms.
( SANDEEP V. MARNE ) ( MANGESH S. PATIL )
JUDGE JUDGE
mahajansb/
