Bombay High Court
Suryakant Sayajirao Ghorpade vs The State Of Maharashtra And ... on 28 July, 2022
Bench: Mangesh S. Patil, Sandeep Vishnupant Marne
1 WP / 6948 / 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6948 OF 2015
Suryakant S/o Sayajirao Ghorpade
Age : 53, Occu. Service
R/at : Vivekanand Nagar, Hingoli
Dist. Hingolie .. Petitioner
Versus
1] The State of Maharashtra
through the Secretary,
Rural Development and Water
Conservation Department,
Maharashtra State, Mantralaya,
Mumbai - 32.
2] The Chief Executive Officer,
Zilla Parishad, Hingoli
3] The Executive Engineer (Z.P.),
Hingoli Tal and Dist. Hingoli
4] The Block Development Officer
Panchyat Samiti, Shengaon
Dist. Hingoli .. Respondents
...
Advocate for petitioner : Mr. P.R. Bhumkar h/f.Mr. V.R.Bhumkar
AGP for the respondent - State : Mrs. R.P. Gour
Advocate for the respondents 2 to 4 : Mr. Vivek V. Bhavthankar
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 28 JULY 2022
ORAL ORDER (PER - SANDEEP V. MARNE, J.) :
Heard.
2. Leave to amend. Amendment to be carried out forthwith.
3. Rule. Rule made returnable forthwith. With the consent of
the parties, the petition is heard finally at the stage of admission.
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2 WP / 6948 / 2015
4. The petitioner was appointed on the post of रोड कारकून
(Road Clerk) in the year 1987 and completed 12 years of service on
01-04-1999 and would have ordinarily become due for grant of
upgradation in the scale of Junior Engineer on completion of 12 years
of service i.e. on 01-04-1999. However, passing of departmental
examiantion appears to be a pre-condition for being promoted to the
post of Junior Engineer. The petitioner had not passed such
departmental examination and was apparently granted the benefit of
upgradation in the scale of Junior Engineer with effect from
01-04-1999, though he was not entitled to be granted the same.
As per the Government resolution dated 23 August 2010, officer
completing the age of 45 years are exempted from the requirement of
passing the departmental examination and become eligible to be
promoted as Junior Engineer without passing such examination.
5. The petitioner completed the age of 45 years on
01-08-2007 and became eligible for grant of financial upgradation in
the scale of Junior Engineer with effect from 01-08-2007. By order
dated 12-12-2012, the petitioner has been granted upgradation in the
scale of Junior Engineer with effect from 01-08-2007.
6. Mr. Bhumkar appearing for the petitioner states that the
petitioner is satisfied with the date of 01-08-2007 from which such
financial upgradation is granted and does not want to create any
dispute about the petitioner's entitlement for grant of such benefit from
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3 WP / 6948 / 2015
01-04-1999. His only grievance is that by the order dated 12-12-2012,
notional effect is granted to such financial upgradation from 01-10-2007
and actually the effect is given only from 12-12-2012. Another
grievance of the petitioner is that in respect of erroneous grant of
financial upgradation from 01-04-1999 up to 01-08-2007, the
respondent have effected recovery of Rs.1,84,180/-.
7. Mr. Bhavthankar appearing for respondents no. 2 to 4 has
submitted that the petitioner was not entitled to be granted the financial
upgradation from 01-04-1999 and petitioner became eligible to be
granted the same only after crossing the age of 45 years on
01-10-2007.
8. So far as the issue of notional grant of financial
upgradation, the issue is no more res integra and is covered by
judgment dated 26-11-2009 passed by this Court in the writ petition
no. 13735 of 2017 (Shivaji S/o Sidram Tungenwar Vs. The State of
Maharashtra and others) in which this Court, in paragraphs no. 9 and
10 has held as under :-
"9. In such a case, either way, actual benefits should not
be detained and particularly when there is no plausible and
equitable reason as to why such benefits should not be
given to petitioners from the date they became eligible and
qualified to under the policies of the State government.
10. Impugned order dated 12-12-2012 to that extent
appears to be unreasonable and capricious. As such,
following the decisions hitherto, we deem it appropriate
that the petitioners should get benefit of promotional pay
scale and would be entitled to the benefits of time bound
promotional scale from the date on which they become
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4 WP / 6948 / 2015
eligible and qualified for said benefits and as has been
granted in many other cases."
9. It is therefore directed that the petitioner be granted the
actual benefit of the upgradation with effect from 01-08-2007.
10. So far as the aspect of recovery is concerned, in our
opinion, the case of the petitioner is squarely covered by the judgment
of the Hon'ble Supreme Court in the case of State of Punjab and
others Vs. Rafiq Masih (White Washer); (2015) 4 SCC 334. Petitioner
is a class-III employee and the period of recovery exceeds 5 years.
Therefore, the recovery effected by the respondent is required to be
quashed and set aside.
11. We, therefore, pass the following order :-
ORDER
I) Writ petition is allowed.
II) The respondents are directed to grant actual benefit of
financial upgradation to the petitioner with effect from
01-10-2007.
III) The respondents are directed to refund the recovered
amount of Rs.1,84,180/- to the petitioner within a period
of 8 weeks from today.
IV) Rule is made absolute in the above terms.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
