The State Of Maharashtra vs Madhukar Antu Patil

The State of Maharashtra and another …Appellants

Versus

Madhukar Antu Patil and another …Respondents

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 09.09.2021 passed by the High Court of Judicature at

Bombay in Writ Petition No. 3118 of 2021, by which the High Court has

dismissed the said writ petition preferred by the appellants herein and

has confirmed the judgment and order dated 25.06.2019 passed by the

Maharashtra Administrative Tribunal, Mumbai (hereinafter referred to as Signature Not Verified Digitally signed by R Natarajan Date: 2022.03.22 11:00:17 IST Reason: the ’Tribunal’), by which the Tribunal allowed Original Application No.

238/2016 and quashed and set aside orders dated 06.10.2015 and 1 21.11.2015, thereby down-grading his pay scale and pension, the State

of Maharashtra and others have preferred the present appeal.

2. That respondent no.1 herein was initially appointed on 11.05.1982

as a Technical Assistant on work charge basis and continued on the said

post till absorption. By G.R. dated 26.09.1989, 25 posts of Civil

Engineering Assistants were created and respondent no.1 herein was

absorbed on one of the said posts. Respondent no.1 was granted the

benefit of first Time Bound Promotion (for short, ‘TBP’) considering his

initial period of appointment of 1982 on completion of twelve years of

service and thereafter he was also granted the benefit of second TBP on

completion of twenty four years of service. Respondent No.1 retired

from service on 31.05.2013. After his retirement, pension proposal was

forwarded to the Office of the Accountant General for grant of pension on

the basis of the last pay drawn at the time of retirement.

2.1 The Office of the Accountant General raised an objection for grant

of benefit of first TBP to respondent no.1 considering his date of initial

appointment dated 11.05.1982, on the basis of the letter issued by Water

Resources Department, Government of Maharashtra on 19.05.2004. It

was found that respondent no.1 was wrongly granted the first TBP

considering his initial period of appointment of 1982 and it was found

that he was entitled to the benefit from the date of his absorption in the

2 year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay

scale was down-graded and consequently his pension was also re-fixed.

2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015

and 21.11.2015 down-grading his pay scale and pension, respondent

no.1 approached the Tribunal by way of Original Application No.

238/2016. By judgment and order dated 25.06.2019, the Tribunal

allowed the said original application and set aside orders dated

06.10.2015 and 21.11.2015 and directed the appellants herein to

release the pension of respondent no.1 as per his pay scale on the date

of his retirement. While passing the aforesaid order, the Tribunal

observed and held that respondent no.1 was granted the first TBP

considering his initial period of appointment of 1982 pursuant to the

approval granted by the Government vide order dated 18.03.1998 and

the subsequent approval of the Finance Department, and therefore, it

cannot be said that the benefit of the first TBP was granted mistakenly.

The Tribunal also observed that the services rendered by respondent

no.1 on the post of Technical Assistant (for the period 11.05.1982 to

26.09.1989) cannot be wiped out from consideration while granting the

benefit of first TBP.

2.3 Feeling aggrieved and dissatisfied with the judgment and order

passed by the Tribunal, quashing and setting aside orders dated

3 06.10.2015 and 21.11.2015, refixing the pay scale and pension of

respondent no.1, the appellants herein preferred writ petition before the

High Court. By the impugned judgment and order, the High Court has

dismissed the said writ petition. Hence, the present appeal.

3. We have heard Mr. Sachin Patil, learned counsel appearing on

behalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned

counsel appearing on behalf of the contesting respondent.

3.1 At the outset, it is required to be noted and it is not in dispute that

respondent no.1 was initially appointed on 11.05.1982 as a Technical

Assistant on work charge basis. It is also not in dispute that thereafter

he was absorbed in the year 1989 on the newly created post of Civil

Engineering Assistant, which carried a different pay scale. Therefore,

when the contesting respondent was absorbed in the year 1989 on the

newly created post of Civil Engineering Assistant which carried a

different pay scale, he shall be entitled to the first TBP on completion of

twelve years of service from the date of his absorption in the post of Civil

Engineering Assistant. The services rendered by the contesting

respondent as Technical Assistant on work charge basis from

11.05.1982 could not have been considered for the grant of benefit of

first TBP. If the contesting respondent would have been absorbed on the

same post of Technical Assistant on which he was serving on work

4 charge basis, the position may have been different. The benefit of TBP

scheme shall be applicable when an employee has worked for twelve

years in the same post and in the same pay scale.

4. In the present case, as observed hereinabove, his initial

appointment in the year 1982 was in the post of Technical Assistant on

work charge basis, which was altogether a different post than the newly

created post of Civil Engineering Assistant in which he was absorbed in

the year 1989, which carried a different pay scale. Therefore, the

department was right in holding that the contesting respondent was

entitled to the first TBP on completion of twelve years from the date of

his absorption in the year 1989 in the post of Civil Engineering Assistant.

Therefore both, the High Court as well as the Tribunal have erred in

observing that as the first TBP was granted on the approval of the

Government and the Finance Department, subsequently the same

cannot be modified and/or withdrawn. Merely because the benefit of the

first TBP was granted after the approval of the Department cannot be a

ground to continue the same, if ultimately it is found that the contesting

respondent was entitled to the first TBP on completion of twelve years of

service only from the year 1989. Therefore both, the High Court as well

as the Tribunal have committed a grave error in quashing and setting

aside the revision of pay scale and the revision in pension, which were

5 on re-fixing the date of grant of first TBP from the date of his absorption

in the year 1989 as Civil Engineering Assistant.

5. However, at the same time, as the grant of first TBP considering

his initial period of appointment of 1982 was not due to any

misrepresentation by the contesting respondent and on the contrary, the

same was granted on the approval of the Government and the Finance

Department and since the downward revision of the pay scale was after

the retirement of the respondent, we are of the opinion that there shall

not be any recovery on re-fixation of the pay scale. However, the

respondent shall be entitled to the pension on the basis of the re-fixation

of the pay scale on grant of first TBP from the year 1989, i.e., from the

date of his absorption as Civil Engineering Assistant.

6. In view of the above and for the reasons stated above, the present

appeal succeeds in part. The impugned judgment and order passed by

the High Court as well as that of the Tribunal quashing and setting aside

orders dated 6.10.2015 and 21.11.2015 down-grading the pay scale and

pension of the contesting respondent are hereby quashed and set aside.

It is observed and held that the contesting respondent shall be entitled to

the first TBP on completion of twelve years from the year 1989, i.e., from

the date on which he was absorbed on the post of Civil Engineering

Assistant and his pay scale and pension are to be revised accordingly.

6 However, it is observed and directed that on re-fixation of his pay scale

and pension, as observed hereinabove, there shall not be any recovery

of the amount already paid to the contesting respondent, while granting

the first TBP considering his initial appointment from the year 1982.

7. The present appeal is partly allowed to the aforesaid extent. No

costs.

…………………………………J. [M.R. SHAH]

NEW DELHI; …………………………………J. MARCH 21, 2022. [B.V. NAGARATHNA]

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