Bombay High Court
Ashwani S/O. Dwarakaprasad Gupta vs Union Of India, Ministry Of Mines, Thr. ... on 28 April, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:5130-DB
WP7330-24.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7330 OF 2024
Ashwani Dwarakaprasad Gupta,
Aged about 60 years, Occ. Retired,
R/o 149-A, Wardhaman Nagar, Nagpur-440008. PETITIONERS
- VERSUS -
1. Union of India, Ministry of Mines,
Through its Secretary, Shastri Bhavan,
New Delhi-110 001.
2. Indian Bureau of Mines, Through its
Controller General, Indira Bhavan, Civil Lines,
Nagpur-440001.
3. Pay and Accounts Officer,
Indian Bureau of Mines, Nagpur,
RESPONDENTS
Indira Bhavan, Civil Lines, Nagpur-440001.
______________________________________________________________
Shri A.S. Jaiswal, Senior Advocate with A.A. Sambaray, counsel for the
petitioner.
Shri N.S. Deshpande, DSGI for the respondent-Union of India.
Shri C.J. Dhumane, counsel for the respondent no.3.
______________________________________________________________
CORAM : NITIN W. SAMBRE AND VRUSHALI V. JOSHI, JJ.
DATE : APRIL 28, 2025
ORAL JUDGMENT (PER : NITIN W. SAMBRE, J.)
RULE. Rule returnable forthwith. Heard finally with the consent of
the learned counsel for the parties.
2. The petitioner questions the action on part of the respondent no.3,
in issuing a pension pay order with reduced last Pay of Rs.1,17,400/- on
November 05, 2024 as a result of which the pay level of the Petitioner has
been reduced from Level 12 to 10, which has also resulted in pay cut of
Rs. 1000/- from the Basic pay of his pension, which is claimed to be
contrary to the approved merger of the posts of Senior Technical Assistant
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(Geology) [STA (Geo) for short hereinafter] and Assistant Mining
Geologist/ Mineral Officer (Intelligence) [AMG/ MO (I), for short
hereinafter] which was done on January 15, 2010 and implemented with
effect from January 01, 2006, and consequential benefits arising there
from. Gratuity of petitioner was withheld even after one month of
retirement. The petitioner also claims discrimination, between the persons
of the same cadre, by the respondent no.3, by treating the petitioner and
persons similarly situated to him, on a different footing, than those who
belonged to the same cadre and have superannuated.
3. The facts giving rise to the present petition are as under :
3.1 The Petitioner, a retired employee of the Indian Bureau of Mines
(IBM), served for 35 years, retiring as Junior Mining Geologist on October
31, 2024 with a basic pay of Rs.1,19,300/-.
3.2 The petitioner originally joined as a STA (Geo) in 1989. Initially, his
pay scale was Rs.5500-9000, which was later upgraded to Rs.6500-10500
in 2003, placing STA (Geo) and its promotional post AMG/MO (I) in the
same pay scale. Despite this, the posts were not merged at the time, and
promotions were granted with only a Rs.100/- increment as per
Department of Personnel & Training [for short, 'DoPT'] clarification.
3.3 That consequent to the 6th Pay Commission, pay scales were
replaced with grade pay; STA (Geo) was granted a Grade Pay of Rs.4600/-
from January 01, 2006.
3.4 Eventually, after continued representations, the posts of STA (Geo)
and AMG/MO (I) were officially merged on January 15, 2010, making the
WP7330-24.odt 3 Judgment
merged post, the new entry-level position in the hierarchy. The petitioner
got financial upgradation under MACP vide Office Order dated May 21,
2010.
3.5 The Petitioner was granted the 1st and 2nd Modified Assured
Career Progression (MACP) benefits with Grade Pay of Rs.4800 and
Rs.5400 in 2008 and 2009 respectively.
3.6 Initially, the merger of the STA (Geo.) and AMG/MO(I) posts was
made effective from January 15, 2010. However, employees, including the
Petitioner, sought retrospective merger from January 01, 2006, citing pay
parity and the Ministry of Finance Office Memorandum dated November
13, 2009.
3.7 The respondent no.1, following representations and departmental
review, accepted this demand and officially revised the merger date to
January 01, 2006 which is reflected from the letter dated July 12, 2013.
This granted all financial benefits retrospectively.
3.8 The Departmental Screening Committee (DSC) approved 1st ACP in
Grade Pay Rs.5400 (PB-3) effective from January 01, 2006 and
subsequently 2nd MACP with Grade Pay Rs.6600 from 01.09.2008. These
pay fixations were implemented without objection by the Pay & Accounts
Office (PAO), IBM/ Respondent No. 3.
3.9 The 3rd MACP was granted after 30 years of service via Office
Orders in 2021, with approvals from higher authorities, and again pre-
verified by the PAO/respondent no.3. This consistent implementation over
15 years according to the petitioner confirms that the revised merger date
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of January 01, 2006 was accepted and acted upon by all Respondents.
3.10 That following a long-standing demand by 73 officers, including the
Petitioner, the merger of STA (Geo) with AMG/MO(I) was officially
recognized to take effect from January 01, 2006, based on Ministry of
Finance's Office Memorandum dated November 13, 2009 and in
consultation with DoP&T and Department of Expenditure. This decision
was implemented by Respondent No. 1, & was carried out by Respondent
No. 2, and fully accepted by Respondent No. 3 (PAO, IBM Nagpur) for
over a decade without any objection. Financial upgradations under
ACP/MACP were accordingly granted and pension benefits provided.
3.11 However, in 2021, the then incumbent of Respondent No. 3 raised
an objection for the first time, wrongly claiming the merger was actually a
cadre restructuring, which invalidated the retrospective grant of ACP
benefits. This objection contradicted past approvals.
3.12 Despite clarifications by IBM (Respondent No. 2), and even DoPT's
reaffirmation in 2023 that it was a merger (not restructuring), the PAO
continued discriminatory actions.
3.13 It is also claimed that out of 73 officers in the merged cadre of
STA(Geo.)/AMG& MO(I), as many as 68 persons have already retired with
the benefit of the merger granted to them. One Shri Shailendra Saklani,
was granted full benefits. Another officer Shri R.A. Yadav, in respect of
whom deductions were made, and who had approached the Chief
Commissioner for persons with Disabilities, was also granted full benefits,
by withdrawing the order of deductions, made earlier against him. Only
WP7330-24.odt 5 Judgment
remaining 4 employees, of which the petitioner is one, have been denied
the financial upgradation. This according to the petitioner creates
discrimination between persons similarly situated in the same cadre and
this violates the fundamental rights of the petitioner of being treated
identically, with persons in the same cadre.
3.14 It is thus contended that the petitioner's pension was unjustly
reduced in November-2024, from Level 12 to Level 10, ignoring the Last
Pay Certificate and 15 years of accepted pay structure.
3.15 It is also contended that the respondent no.3, had no authority to
refuse to implement the accepted position of merger of posts ordered by
the Ministry of Mines and thereby administratively review decisions by his
superior and make hostile discrimination between identically situated
employees and thereby illegally reduce the basic pay and pension of the
petitioner on the last day of his service.
4. Shri N.S. Deshpande, Learned DSGI, for the respondents 1 and 2
admits the merger of the posts of STA (Geo) and AMG /MO(I) with effect
from January 01, 2006. He also admits that out of total 68 persons in the
merged cadre, 64 persons in the cadre have retired and been granted the
benefits. It has also been admitted that the grant of the First, Second
ACP/MACP and Third MACP to the persons in the merged cadre was
examined by the respondent no.3, who vide letter dated January 21,
2021, had intimated that the recommendations for grant of ACP/MACP
were in order. It is further stated that in the internal audit of the accounts
of the respondent no.1 for the period upto March 31, 2020 no objection
WP7330-24.odt 6 Judgment
was raised by the internal audit wing of the Ministry of Mines in respect of
the ACP/MACP granted to the merged posts. It is also admitted that upon
implementation of the recommendations of the 7th Pay Commission, the
pay fixation in the 7th CPC scale was also made and all such pay fixation
cases of the posts were checked by the respondent no.3 and no anomaly
or irregularity was found. It is however contended that the then
incumbent of respondent no.3, for the first time vide letter dated March
22, 2021 raised an objection regarding grant of First ACP to the officials
of the erstwhile post of STA (Geo) on the basis of his understanding that
the merger of the post of STA (Geo) with the post of AMG/MO(I), effected
from January 01, 2006 amounted to Cadre restructuring, on account of
which, clarification issued by the DoPT against point of doubt no.41 was
claimed to be attracted by him. It is contended that in spite of a reply
dated March 31, 2021, by the respondent no.2, that the bringing together
of the post of STA (Geo) with the post of AMG/MO(I), was in fact a
merger and not the outcome of Cadre restructuring, the same was not
accepted by the respondent no.3, who continued with his stand that it was
cadre restructuring and not merger. It was stated that the matter was
pending with the DoPT again in view of the clarification sought vide the
proposal dated January 07, 2025, in response to its stand as indicated in
the letter of DoPT dated June 28, 2023.
5. Mr. Charan Dhumne, learned Counsel for the respondent no.3,
submits that though the post of STA (Geo) and that of AMG/MO(I) have
WP7330-24.odt 7 Judgment
been merged with effect from January 01, 2006, however, since the
clarification to Doubt 41 was attracted, the same would amount to cadre
restructuring on account of which the grant of revised 1st ACP to the
petitioner was not permissible and the First ACP granted to the petitioner
would have to be counted as an ACP, independently, on account of which
the pay grade of the petitioner and persons similarly situated to him,
would have to be downgraded and that having been correctly done, the
petition is required to be dismissed. Chandi Prasad Uniyal /State of
Utttrarakhand (2012) 8 SCC 417, is also being relied upon.
6. In rebuttal Shri A.S. Jaiswal, learned Senior Counsel for the petitioner,
has pointed out that the bringing together of the posts of STA (Geo) and
AMG/MO(I), was in fact a merger, which is a position which stands as an
admitted position by the respondents 1 and 2, who are the employers of
the petitioner. Not only this he further invites our attention to the letter of
DoPT dated June 28, 2023, and specifically para 2(e), thereof, to submit
that even the DoPT, has admitted that the same is a merger and not cadre
restructuring and therefore the stand which now is been taken by the
respondent no.3, to deny the benefits to the petitioner and similarly
situated persons, is clearly not tenable. Even the further clarification
issued by DoPT dated March 18, 2025 and the subsequent communication
issued by the Ministry of Mines dated March 21, 2025 states that the
aforesaid letter of DoPT dated June 28, 2023 holds the field where it is
admitted that merger of erstwhile posts of STA (Geology) and AMG in
IBM does not amount to cadre restructuring but it is a mere merger.
WP7330-24.odt 8 Judgment
7. Entire controversy, boils down to whether the posts of STA(Geo) and
AMG/MO(I) together, was a merger or cadre restructuring. In this regard
the stand of the respondent nos. 1 and 2, as noted above indicates that
they agree with the stand of the petitioner that the same was merger and
not cadre restructuring. The DoPT, also has admitted to this position. The
respondent no.3, however insists that it is not a merger but cadre
restructuring. In this context, it is necessary to note that the Office
Memorandum ('OM' for short) dated November 23, 1987, by the DoPT,
speaks about how a Cadre restructuring is to take place. In terms of this
OM, the Cadre review for the cadre restructuring is to be carried out by
the Cadre Controlling Authority, by setting up Departmental Cadre Review
Committees, which Committees are to comprise of representatives of (a)
Attached/Subordinate officers concerned, (b) Integrated Finance, (c) The
personnel Unit, (d) Concerned Field Organisations and (e) any other
member considered necessary by the Cadre Controlling Authority. The
O.M. then goes on to delineate the principles governing Cadre reviews in
paras 3.3 to 3.9. Here, admittedly, the entire exercise, as indicated by the
OM dated November 23, 1987, has never been done. That would indicate
to us, that when cadre re-restructuring requires the exercise to be done, in
terms of the above O.M, absence of such an exercise, would indicate that
what had actually taken place was a simple merger of the post of STA
(Geo) in the post of AMG/MO(I), and not cadre restructuring, in view of
which the clarification to Doubt no.41, which is being relied upon by the
respondent no.3, would not be attracted at all.
WP7330-24.odt 9 Judgment
8. That there was a merger is also indicated from the Circular dated
February 19, 2010, issued by the Chief Administrative Officer,
Government of India, Ministry of Mines, which records that the sanctioned
strength of STA (Geo) was 68, out of which 18 posts would stand merged
with MO(I) and 50 with AMG, thereby increasing the sanctioned strength
of MO(I) to 22 and that of AMG to 65, in view of which all the STA(Geo)
in IBM were called upon to give their option to merge with MO(I) or
AMG, subject to the conditions as stated therein.
9. The letter dated January 15, 2010 by the Deputy Secretary to the
Government of India, also records that the Competent Authority after due
consideration has approved the merger of the posts of STA (Geo) with
AME/MO(I) in Indian Bureau of Mines thereby converting the post of
AMG and MO(I) as junior most post in the hierarchy and feeder post for
the next promotional post of Junior Mining Geologist and Assistant
Mineral Economist (I) respectively, which also indicated that the
Government has also accepted it as a merger.
10. In this context, the minutes of the meeting of the Departmental
Screening Committee under ACP scheme held on February 12, 2014 for
consideration of financial upgradation for AMG/MO(I) in IBM, placed by
the petitioner on record, needs to be considered. In this meeting what has
been recorded being material, is reproduced as under :
"5. The DSC noted that Senior Technical Assistant (Geology)
were initially in the pay scale of Rs.5500-9000 and accordingly
on completion of 12 years regular service, employees concerned
WP7330-24.odt 10 Judgment
were granted 1st ACP in the scale of Rs.6500-10500 (pre-
revised) as per ACP Scheme of 9.8.99 and fixation were done as
per rules. The pay scale of Rs.5500-9000 of Senior Technical
Assistant (Geology) was upgraded (after 5th CPC) to Rs.6500-
10500 vide Ministry's letter No.26/3/2001-Mines.III dated
21.10.2003 w.e.f. 1.1.1996. In 6th CPC the Pay Scales of Rs.
6500-10500 and Rs.7450-11500 were merged and placed in GP
of Rs.4600 w.e.f. 1.1.2006 in terms of DOPT OM dated
13.11.2009. Consequent to this the 1st ACP granted in the pay
scale of Rs. 6500-10500 had been ignored, being in identical GP
of Rs.4600, on the analogy of clarification of doubt No.27 (iii) of
FAQs issued by DOPT vide file No.35034/3/2008-Estt.(D) dated
1.4.2011. The post of STA(Geology) has been merged with the
cadre of Assistant Mining Geologist/Mineral Officer (int.) and
re-designated as Assistant Mining Geologist or Mineral Officer
(int.) respectively, with effect from 1.1.2006 vide Ministry's
letter No.31/65/2009-M.III dated 12.7.2013."
This would clearly indicate that the ACP was not revised but only the
benefits of financial upgradation was given to the persons in the merged
post, which was done by the Ministry of Mines. In that view of the matter,
the contention of the learned Counsel for the respondent no.3, cannot be
sustained.
11. The respondent no.3, in its written submissions in this Court dated
March 10, 2025, has also in para 3, stated that there was merger of these
two posts, it, however in the same breadth, goes on to contradict it, by
stating that Clarification to Doubt no.41, would be attracted, making it a
cadre restructuring, which in law is not permissible on the principles of
approbate and reprobate, as these stands are contrary to each other.
12. In this context the clarification given by the DoPT, in respect to
Doubt No.41, which is being relied upon by the respondent no.3, as
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quoted in its reply dated March 10, 2015, needs to be considered. A
perusal of the clarification, and its language would indicate that it
specifically considers a case of Cadre restructuring, in the context of the
example cited therein regarding a Cadre consisting of Grades A, B, C & D
in ascending order wherein upon restructuring, Grade B is abolished. This
would indicate that what is being clarified is the abolishing of a post
within a Cadre and not a case of a post outside the Cadre being brought
in. Thus in our considered opinion, neither Doubt 41 nor its clarification
have any applicability in the present context, when the post of STA (Geo),
was initially never a part of the Cadre to which the post of AMG/MO(I)
belonged, but was brought in, on account of a merger. The reliance by the
respondent no.3, on the clarification to Doubt 41, to deny the benefit to
the petitioner and persons similarly situated to him, would therefore clearly
be unjustifiable in law and cannot be sustained, as the petitioner and persons
similarly situated to him, were entitled to the financial up gradation.
13. What also is to be considered is that the then incumbent of the
respondent no.3, itself, has accepted the bringing together of the posts of
STA (Geo) and AMG/MO(I), as being a merger, by approving the Pension
Pay Order of one Shri Shailendra Saklani, who was identically situated to
the petitioner, by granting him full benefits. It is also not disputed that
another officer Shri R.A. Yadav, in respect of whom deductions were
made, by the same then incumbent of the Respondent no.3, and who had
approached the Chief Commissioner for persons with Disabilities, was also
granted full benefits, by withdrawing the order of deductions, made
WP7330-24.odt 12 Judgment
earlier against him, by the same incumbent. The same person, has then
taken a contradictory stand, thereafter which is being sought to be justified
by relying on the communication of the Chief Controller of Accounts,
which ignores the position as discussed above, which again cannot be
countenanced, in law, for if the then incumbent of the respondent no.3
was of a particular opinion, he cannot be heard to say that the said
opinion regarding a particular position, would be applied, selectively, at
his discretion, to individual employees, for consistency of applicability of
the service conditions and the grant of benefit, on an even keel, are the
very gravamen of the rule of equality and equal treatment, in law.
14. This would further indicate that out of total strength of the Post
of AMG/MO(I), which on account of the merger became 68 according to
the respondents 1 & 2, as many as 64 persons have already retired, who
have already been granted the benefit and it is only four persons including
the petitioners, who have been denied the benefit, on the plea that the
merger was not in fact a merger but cadre restructuring. Such an action
on part of the respondent no.3, cannot be sustained in law, as that denies
a similar treatment to the petitioner, and persons similarly situated to him,
as that granted to the persons who were identically situated to the
petitioner. The action of the respondent no.3, of denying the benefit to
the petitioner and persons similarly situated to him, would therefore be
violative to the principle of equality as enshrined in Article 14 of the
Constitution.
WP7330-24.odt 13 Judgment
15. Though Chandi Prasad Uniyal (supra) is being relied upon,
however considering what has been discussed above, we do not see its
applicability to the present case.
16. We are therefore of the considered opinion, that the petitioner and
persons similarly situated to him, in light of what has been held in Lt. Col.
Suprita Chandel Versus Union of India and Others , 2024 SCC OnLine SC
3664, which holds that it is a well settled principle of law that where a
citizen aggrieved by an action of the government department has
approached the court and obtained a declaration of law in his/her favour,
others similarly situated ought to be extended the benefit without the
need for them to go to court, are entitled to the benefits as claimed, which
have been wrongly denied to them.
17. In view of the above discussion, we allow the petition in terms of
prayer clauses A to E, and further direct the respondent to ensure actual
disbursement to the petitioner, within a period of two weeks from the date
of this judgment.
18. The writ petitions stands disposed of in aforesaid terms. In the
facts of the case, there would be no order as to costs.
(VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)
