Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2286 OF 2019
G. Vishweshwar Rao
Adult, Occ.: Service
Being Joint City Engineer
(Superintendent Engineer) (Electrical Division)
Now reverted to the post of Executive Engineer on the account of impugned order) of the Navi Mumbai Municipal Corporation
R/at: G/5-04, Garden View Co-operative
Housing Society, Sector 7, Sanpada, Navi
Mumbai - 400705 ...Petitioner
The Municipal Corporation Established under the provisions of Maharashtra Municipal
Corporation Act, Belapur, Navi Mumbai
2. The Municipal Commissioner
Navi Mumbai Municipal Corporation
Belapur, Navi Mumbai ...Respondents
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Mr. Anil Anturkar, Senior Advocate a/w Amol Gatne for the
Petitioner.
Mr. Tejesh Dande a/w Bharat Gadhavi, Aniket Shitole, Vinayak
Shelar, Sarvesh Deshpande i/b Tejesh Dande for
Respondent/Corporation.
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ORAL JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally Sneha Chavan CHAVAN by consent of the parties.
2. The Petitioner has put forth prayer clauses (A) and (AA), as under. “A] That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, quashing and setting aside Order bearing No. Ja. Kra.NMumPa/Prasha/Astha-6/Pra. Kra.F- 565/270/2019 dt:-5/2/2019, passed by the Resp.No.2, to the extent it directs the Petitioner being appointed to the post of "Executive Engineer" and further direct the Respondents to Reinstate the Petitioner to the post of "Jt. City Engineer" of the Navi Mumbai Municipal Corporation, along with full backwages from 30/10/2017. [AA] That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, quashing and setting aside letter dt: 13/4/2023 bearing No. Ja. Kra.NmumPa/ Prasha/Astha- 6 /Pra.Kra./1265/2023, issued by the Resp.No.2 and on account of Petitioner's superannuation on 25/8/2020, further direct the Respondents to Notionally Reinstate the Petitioner to the post of "Jt.City Engineer" of the Navi Mumbai Municipal Corporation, along with full backwages and consequentially backwages from 30/10/2017.”
FACTUAL MATRIX
3. The Petitioner was appointed on the post of Joint City Engineer, on 27.07.2012. It is contended that the said post is equivalent to the post of Superintendent Engineer (Electrical Division). After a preliminary enquiry having been conducted against him, a departmental enquiry was commenced by virtue of the chargesheet, dated 15.06.2016. The Petitioner tendered a reply to the chargesheet, on 24.06.2016. The Enquiry Officer tendered his report, dated 17.12.2016 and concluded that all four charges leveled against the Petitioner were proved in the Enquiry. A second show cause notice, dated 07.01.2017 was issued to him proposing the punishment of removal from service, without affecting his future right for employment. The Petitioner tendered his reply, on 17.01.2017.
4. Respondent No.1 Municipal Corporation wrote a letter dated 07.03.2017, through the Municipal Commissioner, to the Secretary of the Municipal Corporation, to place the matter before the General Body of the Corporation seeking approval to the proposed punishment of removal from service.
5. By a Resolution No. 1552, dated 17.03.2017, the General Body rejected the proposed punishment. The Municipal Commissioner issued the order of demotion to the Petitioner, dated 22.03.2017, thereby demoting him from the post of Joint City Engineer to the post of Executive Engineer. The Petitioner questioned this decision before the standing committee, which set aside the order of reversion vide Resolution dated 12.04.2017.
6. The Government of Maharashtra issued a Government Resolution dated 25.10.2017, under Section 451 (3) of the Maharashtra Municipal Corporations Act, 1949 and rescinded the General Body Resolution No. 1552, dated 17.03.2017. An order dated 30.10.2017, came to be passed by the Municipal Commissioner thereby removing the Petitioner from service. The Petitioner moved Writ Petition No. 12290 of 2017, challenging the decision of the State. By an order dated 14.12.2018, the Writ Petition was allowed by this Court and the matter was remitted to the General Body for reconsideration. The General Body, once again rejected the proposal of the Commissioner, vide Resolution dated 19.01.2019. As a consequence of the same, Respondent No.2 reinstated the Petitioner on 05.02.2019, albeit, on the lower post of Executive Engineer, on the spacious plea that the post of Joint City Engineer did not exist in view of the Government Resolution dated 21.08.2017 and that the Petitioner was already demoted.
7. We are informed that the staffing pattern was formalized vide Government Resolution, dated 21.08.2017. By a decision of the State Government dated 03.07.2020, the proposal forwarded by the Commissioner for rescinding the General Body Resolution dated 19.01.2019, was rejected by the State Government. The Petitioner, thereafter, superannuated from service, on 25.08.2020.
8. Since the Petitioner’s reinstatement was made on the lower post of the Executive Engineer, despite the decision of the Municipal Commissioner having been set aside, the Petitioner approached this Court vide this Writ Petition. In a hearing on 14.03.2023, this Court observed in paragraph Nos. 3 to 6, as under:
SUBMISSIONS OF THE PARTIES
9. Shri Anturkar submitted that, this Court had come to a prima facie conclusion that when an employee is reinstated, he is deemed to be reinstated on the post which he legally holding and he could not have been reinstated on a lower post. So also, since the order of demotion was rendered a nullity in the light of the facts recorded above, the order of reversion was neutralised and the Petitioner had to be reinstated on the post of Joint City Engineer, which he legally occupied.
10. He has relied upon the Government Resolution dated 21.08.2017 and it is his contention that the said Government Resolution lends a meaning that as long as the excess appointees in Navi Mumbai Municipal Corporation are working, they would continue to work on the said post on which they have been appointed and working, till their probation or superannuation. It is only thereafter, that the said post would be removed from the staffing pattern.
11. He further submits that the Commissioner of the Municipal Corporation had then passed one more order dated 13.04.2023, which has been impugned in this petition, vide an amendment, stating therein that the post of Joint City Engineer is not in existence. It is in this backdrop, that this Court had passed the order dated 07.08.2024, directing the Corporation to verify the staffing pattern.
12. The learned Advocate for the Municipal Corporation, Shri Dande, has entered an Additional Affidavit-in-Reply dated 10.10.2024, filed through Shri. Sharad Pawar, the Deputy Municipal Commissioner (Administration), Navi Mumbai Municipal Corporation. While addressing the issue posed by this Court to the Corporation, as to whether the post of the Additional City Engineer could be comparable or equivalent to the post of Joint City Engineer, the view expressed in paragraph no. 7 is that, there is no difference between the Grade-pay as per the 6th and 7th pay commission or service pension or family pension, in between the posts of Joint City Engineer and Additional City Engineer.
13. It is further set out that there is a clear distinction and separation of the duties insofar as the Additional City Engineer/Joint City Engineer and the Executive Engineer. Paragraph Nos. 8 and 9 of the Affidavit-in-Reply clearly indicate such distinction. Even the Grade-pay as per 6th and 7th pay commission is different and so is the service pension/family pension. The service pension gratuity is identical to both the positions once they reached the maximum/sealing of the payment.
14. The Corporation has further taken a stand that as the Petitioner was terminated on 30.10.2017, while he was demoted on the post of Executive Engineer, his reinstatement has been rightly made on the post of Executive Engineer and the Corporation has adopted a correct stand before this Court.
ANALYSIS AND CONCLUSIONS
15. We have elaborately analysed the factual matrix of this matter in the foregoing paragraphs. It is beyond debate that the Petitioner’s order of demotion has been set aside. So also, his order of removal from service has been set aside. Once the order of demotion does not exists, it would be far-fetched on the part of the Corporation to take a stand that the reinstatement of the Petitioner was on a lower post since he was earlier demoted to the said post. When the demotion does not legally survive, it is a foregone conclusion that the Petitioner is reinstated to the position which he earlier occupied, prior to the issuance of the order of demotion. In this backdrop, the contention that the Petitioner was reinstated on the post from which he was terminated, would be fallacious, because his termination has already been set aside.
16. The analysis and the view expressed by the Corporation in paragraph 7, fortifies the fact that the positions viz. Joint City Engineer and Additional City Engineer, are comparable and there is no distinction between the two, even insofar as the salary, service pension and family pension is concerned. Even the service pension, gratuity and the quantum of balance earned leave encashment.
17. While dealing with the contention of the Corporation that the post of the Joint City Engineer was not existing when the Petitioner was reinstated in service, the Government Resolution dated 21.08.2017, can be pressed into service. For the sake of assumption, had the Petitioner occupied the post of Joint City Engineer and the post was held to be abolished or non-existing, the service benefits available to the Petitioner and the service conditions applicable, could not have been altered to his prejudice. At best, he would have been moved to an equivalent position, which apparently is the post of Additional City Engineer, or else he would have been continued on the post of Joint City Engineer, until his superannuation, following which the said post would have been declared lapsed/non existent.
18. The Affidavit-in-Reply of the Corporation clears the air as regards the comparison or equivalence of the post of Joint City Engineer vis-a-vis Additional City Engineer. It is undisputed that the post of Additional City Engineer is in the staffing pattern of the Corporation. We are not required to deal with the aspect of whether any other person was occupying the said post when the Petitioner was granted reinstatement in the services, for the reason that the Petitioner has now superannuated and the consequence of entertaining this petition would be in the nature of monetary benefits that will have to be paid by the Corporation to the Petitioner.
19. In view of the above, the stand of the Corporation that, notwithstanding the setting aside of the demotion order and the termination, the Petitioner will continue to be an Executive Engineer, cannot be countenanced. We have no hesitation in concluding that such stands taken by the Corporation are baseless and unsustainable.
20. In view of the above, this Writ Petition is allowed. The impugned order dated 05.02.2019 and the subsequent impugned order dated 13.04.2023, are quashed and set aside. The Petitioner stands notionally reinstated on the post that he occupied before his demotion. All monetary benefits would be calculated as per the last drawn pay scale applicable to the post of the Joint City Engineer.
21. On the aspect of back wages, the learned Advocate for the Petitioner has drawn our attention to the Judgment dated 14.12.2018, delivered by this Court [Coram: Abhay S. Oka, J. (as his Lordship then was) and Sandeep K. Shinde,J.] in Writ Petition NO. 12290 of 2017. This Court has recorded a finding in paragraph 15 of the said Judgment, for depriving the Petitioner of the back wages. Further, in paragraph 16(iii), this Court recorded that after the matter is revisited by the General Body of the Corporation, if the penalty awarded to the Petitioner is disapproved by the General Body, the Municipal Corporation would immediately reinstate the Petitioner in employment with all consequential benefits, except back wages. The General Body arrived at a decision on 19.01.2019, negating the order imposing the punishment of termination on the Petitioner and the Corporation reinstated the Petitioner on 05.02.2019.
22. As such, considering the Judgment of this Court dated 14.12.2018, the Petitioner would not be entitled for back wages until 05.02.2019. Thereafter, he has been working as an Executive Engineer, which has a lessor pay-scale and has superannuated in August, 2020. As such, for this period from February, 2019 till August, 2020, the Petitioner would be entitled for the difference of wages since we have concluded that he stood reinstated on the post of Joint City Engineer. The said difference in pay scale is payable to the Petitioner along with simple interest of 6% per annum. The retiral benefits and the pensionary benefit would be recalculated by presuming that the Petitioner superannuated from the post of Joint City Engineer. Such calculations shall be made along with 6% simple interest per annum and the said amount shall be paid to the Petitioner, within a period of 120 days from today.
23. Rule is made absolute in the above terms. (M.M. SATHAYE, J.) (RAVINDRA V. GHUGE, J.)