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CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 13310 of 2016
Shri Ashok Motiram Jadhav
Age : 55 years, Occ. Service
R/o E-29, 423, Somwar Peth, Sasoon Quarters, Pune – 411 001. ...petitioner
Vs.
1. The Director Medical Education
And Research
Dental College and Hospital Building, Mumbai – 400 001.
2. Dean, B. J. Medical College, Dental Department, Pune – 411 001.
3. The State of Maharashtra
Through its Secretary, Medical Education and Dental
Department, Mantralaya, Mumbai – 400 032. ...respondents
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Ms. Indrayani M. Koparkar a/w Ms. Ankita Naik - Advocate for the petitioner
Shri N. C. Walimbe – Addl. GP a/w Shri S. P. Kamble – AGP for the respondent-State
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ORAL JUDGMENT
1. Heard learned counsel for the petitioner and learned AGP for the respondent-State.
2. The challenge in this petition is to the order dated 27.03.2015 passed in Original Application No. 253 of 2012 (for short ‘O.A.’), passed by the Maharashtra Administrative Tribunal (For short ‘Tribunal’). The O.A. was filed by the petitioner before the Tribunal challenging the communication dated 17.02.2012, issued by the respondent No. 2 rejecting the demand of the petitioner for grade-pay scale of Rs. 4,200/- in the Pay Band of Rs. 9300-34800 in respect of Time Bound Promotion.
3. The brief facts are that petitioner was appointed as Dental Technician on 08.09.1981, in pay scale of Rs. 365-760 which was revised to Rs. 1400-2300 with effect from 01.01.1986 (as per 4th pay commission). The petitioner was granted Time Bound Promotion (for short ‘TBP’) on completion of 12 years of continuous service on 01.10.1994 in terms of G.R. dated 08.06.1995. The petitioner’s pay was fixed in the pay scale of Rs. 5500-9000 after implementation of 5th Commission i.e. with effect from 01.01.1996. The petitioner’s pay was fixed in the Pay Band Rs.5200-20, 200 with effect from 01.01.2006 after implementation of 6th Pay Commission. The petitioner is seeking fixation of pay in the Pay Band of Rs.9300-34800 with grade pay of Rs.4300/-.
4. Learned counsel for petitioner submitted that he has been getting pay in the payband of Rs. 1400-2300 with effect from 01.01.1986. The petitioner was granted TBP with effect from 01.10.1994. As per the Government Resolution dated 03.08.2001, for isolated posts, separate pay scales on TBP were granted. In terms of Schedule I of the G.R., for the pay scale of Rs. 1400-2300, the pay scale on TBP was Rs. 1640-2900. In terms of G.R. dated 03.08.2001, the pay scale as per the 5th Pay Commission corresponding to pay scale of Rs.1640-2900 is Rs.5500-9000. However, according to the learned counsel, the petitioner was entitled to pay scale of Rs.6500-10,500 as per G.R. dated 27.03.1997.
5. The learned counsel submitted that petitioner is entitled to get pay in the Pay Band of Rs. 9300-34800 with grade pay of Rs. 4300/with effect from 01.01.2006, as the Hakim Committee has recommended grant of this Pay Band in 6th Pay Commission to those who were in the pay scale of Rs. 5500-9000 in the 5th Commission.
6. The learned counsel for the petitioner submitted that the Tribunal was not justified in holding that as petitioner does not possess the qualification for the promotional post, the petitioner is not entitled for benefit of higher pay scale. It is further submitted that benefit of the second TBP is not given to him though the petitioner is entitled for the same. The said aspect has not been considered by the Tribunal according to learned counsel.
7. Learned AGP on the other hand supported the order passed by the Tribunal. It is submitted that after the TBP was granted with effect from 01.10.1994, the petitioner’s pay was fixed in the scale of 1600- 2500 in revised pay of Rs. 5500-9000 as per Schedule-I of G.R. dated 03.08.2001. It is submitted that the petitioner is not entitled to get higher pay scale as per Schedule-2 of the aforesaid Government Resolution as he was granted the TBP before the 01.01.1996.
8. Learned AGP submitted that the pay scale of Dental Technician in 5th Pay Commission was Rs.4500-7000. As per 6th he was entitled to revised pay scale of Rs.5200-20200 with grade pay 2800/- + Rs. 300/-. Hence, the petitioner’s pay scale has been correctly fixed at higher pay of Rs. 5200-20200 with grade pay 2800+ Rs. 300 on TBP. It is submitted that the petitioner is occupying an isolated post and accordingly granted higher pay scale of Rs. 1640-2900 as per schedule to GR dated 8.6.1995 on 01.10.1994 as a TBP benefit.
9. We have heard learned counsel. Perused the memo of the petition, the exhibits and the impugned order. We have also perused the affidavits-in-reply of respondents.
10. The Tribunal while rejecting the petitioner's claim has observed in para no. 7 as under:-
11. Let us first appreciate the object and purpose for introducing the TBP Scheme. The object and purpose has been explained by the Hon’ble Supreme Court in Amresh Kumar Sinha and Ors. Vs. The State of Bihar and Ors. in Civil Appeal arising out of SLP (C) Nos. 8219-8226 of 2019. In the context of the Assured Career Progression Scheme (for short ‘ACP’) Their Lordships observed thus:-
12. It is thus seen from the decision of the Hon’ble Supreme Court that fulfillment of the education qualifications prescribed under the Recruitment Rules are not required for the purposes of non-functional promotion in-situ promotion. In other words, the educational qualification required for the purposes of promotion is not necessary for the grant of in-situ promotion, i.e., only for extending the monetary benefits where there are no promotional avenues and the employees are likely to be stagnated. In the present case, it is significant to note that the petitioner is working on an isolated post. Thus, there are no promotional avenues available to the petitioner.
13. The rejection of the petitioner’s claim by the Tribunal on account of non-fulfillment of the educational qualifications for entitling the petitioner to claim the benefit of one TBP is therefore erroneous and unsustainable. Moreover, the Tribunal erred in observing that if the effect of benefit as claimed by the petitioner is to be granted, then, in that case, he despite possessing lesser qualification, would draw a much higher pay as compared to those who are much more qualified than he is. The petitioner is working on an isolated post. He does not get the benefit of seniority or otherwise. Only monetary benefits are extended to relieve frustration on account of stagnation. The effect of the Scheme must be judged keeping in view the object and purpose of the Scheme. The consequence that the petitioner would draw a much higher pay compared to those who are much more qualified is hardly of any significance in the context of the Scheme. In our opinion, this would be in consonance with the object for which the TBP Scheme has been introduced. The object is to remove stagnation. In any case, the petitioner is not receiving the actual benefits of promotion to a higher post, but is only placed in the higher pay scale for grant of financial upgradation without granting actual promotion.
14. Learned AGP relied on the G.R. dated 05.07.2010 which has been placed on record today which provides for the benefits of one TBP to be conferred in respect of isolated post. The said G.R. prescribes that the benefit of one TBP is to be granted once after completion of 12 years of service and second is after completion of 24 years of service.
15. It is an admitted position, even according to the affidavit-in-reply filed on behalf of the respondents that the benefit under this scheme was applicable to the employees working on an isolated post. Thus, this being a post having no promotional avenues and the petitioner does not have any opportunity for further promotion. It is further stated in the affidavit-in-reply that, since the petitioner was working on isolated post, appropriate higher pay scale i.e. 5500-175-9000 as per 5th pay commission was granted as benefit of one Time Bound Promotion. It is then stated that the G.R. dated 03.8.2001 was not about promotion but it prescribes TBP to be granted to isolated posts and other posts. It is stated that the correct admissible higher pay scale i.e. 5500- 175-9000 as per fifth pay commission according to the G.R. dated 03.08.2001 was granted to the petitioner.
16. We find that this G.R. dated 03.08.2001 provides for one Time Bound Promotion scheme in respect of Class - C and D employees. The same G.R. stipulates the pay scale which is admissible to those employees who are eligible for one Time Bound promotion under the said scheme.
17. So far as the petitioner is concerned, admittedly after the petitioner was given the benefit of one Time Bound Promotion upon completion of 12 years. The petitioner was placed in the pay scale of Rs. 1640-60-2600-Daro-75-2900 which upon promotion under the one Time Bound Promotion Scheme was revised to Rs. 5500-175- 9000 with effect from 01.01.1996. Schedule-2 of the said GR dated 03.08.2001 prescribes that those employees who are getting pay scale of Rs. 5500-175-9000 on getting one Time Bound promotion, they would be entitled to the revised pay scale of 6500-200-10500. It is this pay scale of Rs 6500-200-10500 which the learned counsel for the petitioner is demanding on behalf of the petitioner.
18. As stated earlier, the petitioner was given the benefit of first promotion on completion of 12 years under the one Time Bound Promotion scheme. The petitioner was accordingly granted the benefit with effect from 01.10.1994. In terms of G.R. dated 05.07.2010, the petitioner was also entitled for the promotion on completion of 24 years service. Accordingly, the petitioner should have been given the benefit of second Time Bound promotion with effect from 01.10.2006. This has not been granted to the petitioner. Though such a case of grant of second TBP is not pleaded in so many words before the Tribunal, we find that there is nothing adverse against the petitioner and in fact even as per Government Resolution dated 05.07.2010 relied upon by learned AGP, the petitioner is entitled for second Time Bound promotion upon completion of 24 years of service. The said Government Resolution is in respect of isolated post. Since the petitioner was placed in the pay scale of Rs. 5500- 175- 9000 consequent upon his entitlement to get first TBP, in view of the Schedule-II, after having completed 24 years of service, on 01.10.2006 the petitioner is entitled to placed on the revised pay scale of Rs. 6500-200-10500.
19. The respondents have based their calculations only on the premise that the petitioner is entitled for TBP only once. The petitioner having completed 24 years of service on 01.10.2006 was entitled to the Second Time Bound promotion with effect from 1.10.2006 in revised pay scale of Rs. 6500-200-10500 in terms of Schedule-II of the Government Resolution dated 03.08.2001.
20. It is accordingly directed that the benefits and arrears of the petitioner be calculated on the basis that the petitioner’s eligibility for the revised pay scale of Rs. 6500-200-10500 with effect from 01.10.2006 and all consequential benefits be paid to the petitioner in terms of GR dated 05.07.2010.
21. Let this exercise including payment of arrears be completed within a period of four months from the date of communication of this order.
22. The Writ Petition is partly allowed to the aforesaid extent. The impugned order passed by Maharashtra Administrative Tribunal is quashed and set aside. No order as to costs.
23. Pending Interim Application, if any, also stands disposed of. (S. M. MODAK, J.) (M. S. KARNIK, J.)