State of Maharashtra vs Madhukar Antu Patil Case

State of Maharashtra vs Madhukar Antu Patil Case

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1985 OF 2022
The State of Maharashtra and another …Appellants
Versus
Madhukar Antu Patil and another …Respondents
J U D G M E N T
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
the ’Tribunal’), by which the Tribunal allowed Original Application No.
238/2016 and quashed and set aside orders dated 06.10.2015 and
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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
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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
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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
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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
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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.
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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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