Writ Petition No. 8009 of 2021 · The High Court
Case Details
1 wp8009.21 (& 3) Judgment IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL WRIT PETITION NO.8009 OF 2021 1. 2. 3. 4. 5. 6. Suhas s/o Prabhakarrao Dharasurkar Age: 51 years, Occ. Service, R/o : “Dharasurkar Complex”, Subhash Road, Shivaji Chowk, Parbhani, District : Parbhani -431401. Nagesh s/o Mahadevrao Chaudhari, Age : 53 years, Occ. Service, R/o; Behind new Mondha, Nagar Panchayat Road, Palam, Dist. Parbhani-431720. Deepak s/o Raghunathrao Shriramwar Age: 55 years, Occ. Service, R/o; Shivram Nagar Parbhani, District: Parbhani-431401. Ravindra s/o Ramchandra Mathekar, Age; 55 years, Occ; Service, R/o; Gurukrupa Niwas, Wadgalli, Parbhani, District: Parbhani-431401. Usha d/o Trimbakrao Motipavle, Age; 54 years, Occ; Service, R/o; Ashirwad Nagar, Near Deshmukh Hotel Karegaon Road, Parbhani, District: Parbhani-431401. Annasaheb s/o Kisanrao Tode, Age; 52 yers, Occ; Service, R/o; Yashodhan Nagar, Near Kalyan Mandapam Jaikwadi, Hudeco Road, Parbhani, District; Parbhani. 7. Pramod s/o Gangaram Annapure, 2 wp8009.21 (& 3) Judgment Age; 52 years, Occ; Service, R/o; Yashodhan Nagar, near Kalyan Mandapam Jaikwadi, Hudeco Road, Parbhani, District: Parbhani. 8. 9. Prakash s/o Pandurangrao Gaikwad, Age; 52 years, Occ; Service, R/o; Yashodhan Nagar, Ner Kalyan Mandapam Jaikwadi, Hudeco Road, Parbhani, District: Parbhani-431401. Sunil s/o Manikrao Bembalkar Age; 54 years, Occ; Service, R/o; Kalyan Nagar Basmat Road, Parbhani, District: Parbhani-431401. 10. Deepak s/o Chandrashekhar Ambekar, Age; 55 years, Occ; Service, R/o; Prabhavati Nagar,Parbhani, Dist. Parbhani. 11. Mohan s/o Laxmanrao Burange, Age; 53 years, Occ; Service, R/o; Pratap Nagar, Old Pedgaon Road, Parbhani, Dist. Parbhani- 431401. 12. Pandit s/o Ramrao Gadhave, Age; 53 years, Occ; Service, R/o; Yeldarkar Colony,Basmat Road, Parbhani Dist; Parbhani-431401. 13. Vitthal s/o Tukaramji Gingine, Age; 52 years, Occ; Service, R/o; Saraswati Nagar Parbhani, District; Parbhani.
Legal Reasoning
the said judgment this Court has held that “Non functional upgradation to the post of Sectional Engineer cannot be counted as set-off for financial upgradation admissible under ACP/MACP Scheme.” 7. The circular dated 13 June, 2016 providing for withdrawal of benefits and/or recovery, came to be set aside by the said judgment. 8. Towards the implementation of the judgment dated 6 February, 2019, the Government of Maharashtra issued a circular dated 21 August, 2019, by which the earlier circular dated 13 June 2016 was rescinded and a direction was issued to the Irrigation Department, PWD Department and the Rural Development Department to implement the directives issued in paragraph No. 44 of the judgment dated 6 February 2019. 9. The grievance of the petitioners is that despite the judgment dated 6 February 2019, as well as the circular darted 21 August 2019, some of the Zilla Parishad, particularly Zilla Parishad Parbhani and the Zilla Parishad Jalna are not extending the benefits 15 wp8009.21 (& 3) Judgment of the judgment to the petitioners. 10. On behalf of the Zilla Parishad, Parbhani, an affidavit-in- reply is filed, in which the principle enunciated by this Court in its judgment in the case of The Association of Subordinate Service of Engineers Maharashtra State and Ors (supra) has not been disputed. However, some averments are made with regard to the eligibility of some of the petitioners for grant of financial upgradation. Same is the case with regard to the affidavit-in-reply filed by the Zilla Parishad, Jalna in Writ Petition No. 9485 of 2021. 11. We, however, do not propose to go into the individual cases and entitlement of the individual petitioners for grant of a particular financial upgradation, under ACP/MACP Scheme. Since this Court has already laid down law that the non functional upgradation granted on the post of Sectional Engineering cannot be counted as set off for any financial upgradation under the ACP/MACP Scheme, the direction is binding on the respondents including the Zilla Parishad, Parbhani and the Zilla Parishad, Jalna. 12. Accordingly, the present petitions are allowed. The respondents are directed to grant admissible financial upgradation under ACP/MACP Scheme to the respective petitioners, by ignoring 16 wp8009.21 (& 3) Judgment non functional upgradation granted/admissible, on the post of Sectional Engineer. The consequential benefits be paid to the respective petitioners. 13. Rule is made absolute in the above terms. ( SANDEEP V. MARNE ) ( MANGESH S. PATIL ) JUDGE JUDGE mahajansb/
Arguments
14. Balasaheb s/o Shrirangrao Samale, Age; 54 years, Occ; Service, R/o; Yogkshem Colony, Visava Corner Pathri Road, Parbhani Dist. Parbhani- 431401. 3 wp8009.21 (& 3) Judgment 15. Shaikh Moinoddin S/o Shaikh Noor, Age; 54 years, Occ; Service, R/o; Inayat nagar, Old Padegaon Road, Parbhani Dist. Parbhani-431401. 16. Yeshwant s/o Munjaji Maske, Age; 56 years, Occ; Service, R/o; Chaitanya, Ganesh nagar Darga Road, Parbhani District Parbhani-431401. 17. Shrikrishna s/o Narayanrao Shinde, Age; 53 years, Occ; Service, R/o; Anandnagar, Teacher’s Colony, Basmat Road, Parbhani, District; Parbhani-431401. 18. Tukaram s/o Karbhari Murkute, Age; 58 years, Occ; Service, R/o; Shivram Nagar, Parbhani-431401. 19. Bhimashankar s/o Haribhau Trimale, (Retired) Age; 58 years, Occ; Retired, R/o; Vaibhav Nagar Parbhani District; Parbhani-431401. 20. Sunil s/o Deorao Dhakne (Retired) Age; 56 years, Occ; Retired, R/o; Darga Road, Parbhani, Parbhani-431401. 21. Nandkishor s/o Baburao Tane,(Retired) Age; 54 years, Occ; Retired, R/o; NandPrit Niwas, Jagruti Colony, Basmat Road, Parbhani, Dist; Parbhani-431401. 22. Madhukar s/o Shrirangrao Dandewad, (Retired), Age; 57 years, Occ; Retired, R/o; Vithal Niwas, Near Shree Swami 4 wp8009.21 (& 3) Judgment Samarth Mandir, Sinchan Nagar, Parbhani, District; Parbhani-431401. 23. Madan s/o Piraji Dadewad (Retired) Age; 59 years, Occ; Retired, R/o; Mathura Nagar, Basmat Road, Parbhani Dist; Parbhani-431401. 24. Madhav s/o Bhanudasrao Mundhe (Retied), Age; 56 years, Occ; Retired, R/o; Manasi Nivas, Arogya Colony, Parbhani, Dist. Parbhani-431401. 25. Virbhadra s/o Gangadharappa Soundale (Died)Through Legal Heirs Smt. Manisha Virbhadra Soundale, Age; 47 years, Occ; Household, R/o; Virmani Niwas, Arogya Colony, Parbhani Dist; Parbhani-431401. 1. 2. 3. V E R S U S The State of Maharashtra (Through the Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai-400 032). The Secretary, Rural Development Department, 25, Bandhkam Bhavan, 7th Floor, Marzban Path, Fort, Mumbai-400001. The Secretary, Department of Finance, Government of Maharashtra, Mantralaya, Mumbai-400032. 4. The Chief Executive Officer, Zilla Parishad Parbhani, ...PETITIONERS 5 wp8009.21 (& 3) Judgment Dist. Parbhani. ...RESPONDENTS ... Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad (Patil) AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep V.Tapse Patil Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021) : Mr.Sambhaji S. Tope … AND WRIT PETITION NO. 9791 OF 2021 1. 2. 3. 4. Raju s/o Pralhadrao Balurkar Age; 46 years, Occ; Service, R/o; “Pralhad Smruti”, Yogeshwari Nagar, Behind Bachat Bhavan, Old Jalna Tal. and Dist. Jalna-431213. Satish s/o Narayanrao Ambhore, Age; 50 years, Occ; Service, R/o; Plot No. 11, Samarthnagar, Behind Zilla Parishad Office, Jalna Tal. & Dist. Jalna-431213. Ganesh s/o Tejrao Shinde, Age; 49 years, Occ; Service, R/o; Saraf Nagar, Old Jalna, Near Nagar Parishad Stadium, Old Jalna-431213. Sanjay s/o Ashrappa Kapse, Age; 53 years, Occ; Service, R/o; Plot No. 5, Rukmini Apartment, Railway Station Road, Old Jalna. 5. Subhash s/o Vaijanathrao Acharya Age; 57 years, Occ; Service, 6 wp8009.21 (& 3) Judgment R/o; Quarter No. 21, Vikas Nagar, Panchyat Samiti, Jalna-431203. Santosh s/o Dattatraya Sakharkar, Age; 48 years, Occ; Service, R/o; Plot No. 42B, Nisarg Garden Colony, Railway Station Road, Old Jalna-431203. ...PETITIONERS V E R S U S The State of Maharashtra, (Through the Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai-400 032). The Secretary, Rural Development Department, 25, Bandhkam Bhavan, 7th Floor, Marzban Path, Fort, Mumbai-400001. The Secretary, Department of Finance, Government of Maharashtra, Mantralaya, Mumbai-400032. The Chief Executive Officer, Zilla Parishad, Jalna, Dist. Jalna. ...RESPONDENTS 6. 1. 2. 3. 4. ... Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad (Patil) AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep V.Tapse Patil Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021) : Mr.Sambhaji S. Tope … AND 7 wp8009.21 (& 3) Judgment WRIT PETITION NO.9789 OF 2021 1. 2. 3. 4. 5. 1. 2. Suresh s/o Dagduba Sapkal, Age; 55 years, Occ. Service, R/o; Phule Chowk, Bhokardan, Tq. Bhokardan, Dist. Jalna-431114. Laxmikant s/o Shivram Raut, Age; 52 years, Occ; Service, R/o; Income Tax Colony, Jalna, Tal. & Dist. Jalna-431203. Sudhakar s/o Rangnath Danve, Age; 56 years, Occ; Service, R/o; Gajanan Mandir, MHADA Colony, Bhokardan, Tal. Bhokardan, Dist. Jalna-431114. Pramod s/o Madhukarrao Khot, Age; 59 years, Occ; Retired as Sectional Engineer, R/o; Plot No. 27, Samarthnagar, Near Civil Hospital, Jalna-431203. Sunil s/o Satwaji Kharat, Age; 56 years, Occ; Service, R/o; Ambedkar Statute, Nutan Vasahat, Ambad Road, Jalna-431203. V E R S U S The State of Maharashtra, (Through the Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai-400 032). The Secretary, Rural Development Department, 25, Bandhkam Bhavan, 7th Floor, ...PETITIONERS 8 wp8009.21 (& 3) Judgment Marzban Path, Fort, Mumbai-400001. 3. 4. The Secretary, Department of Finance, Government of Maharashtra, Mantralaya, Mumbai-400032. The Chief Executive Officer, Zilla Parishad, Jalna, Dist. Jalna. ...RESPONDENTS ... Advocate for Petitioners : Mr. U.M. Bopshetty h/f Mr.Ajit B.Gaikwad (Patil) AGP for Respondent Nos. 1 to 3 : Mr.S.B.Yawalkar Advocate for Respondent No. 3 (In WP-8009/2021) : Mr. Pradeep V.Tapse Patil Advocate for Respondent No. 4 (In WP-9791/2021 & WP-9789/2021) : Mr.Sambhaji S. Tope … AND WRIT PETITION NO.9485 OF 2021 1. Nandkishor s/o Narayansinh Thakur, Age; 67 years, Occ; Civil Engineering Assistant, PWD Colony, Plot No. 25, Mustafabad, Beed-bye-pass, Aurangabad. 2. Madhavrao w/o Nagorao Sarwadikar, Age; 68 years, Occ; Civil Engineering Assistant, Plot No. 26, Nagarjun Niwas, Rajarshee Shahu Nagar, (Back to Ashirwad Hotel),Ambad Road, Tq. and Dist. Jalna, Jalna. 3. Sarfraj Khan Pathan, Age; 71 years, Occ; Civil Engineering Assistant, 9 wp8009.21 (& 3) Judgment Eakta Bhavan Building, In raont of Bawala Hospital, Malipura, Old Jalna, Tq. & Dist. Jalna, Jalna. Trimbak s/o Chimanrao Dake, Age; 71 years, Occ; Civil Engineering Assistant, Plot No. 35, Trimbak Niwas, Near Kanchneshwar Ganpati Temple, Kanchannagar, Tq. & Dist. Jalna, Jalna. Phakira s/o Laxman Barde, Age; 68 years, Occ; Civil Engineering Assistant, At Post Phattepur, Tq. Bhokardan, Dist; Jalna. Prakash s/o Kashinath Deshpande, Through its LR’s, Saroj s/o Prakash Deshpande, Age; 69 years, Occ; Family Pensioner, Plot No. 23, G.N.99, Shilpnagar, Renuka Mandir Road, Satara Parisar, Aurangabad, Tq. & Dist. Aurangabad. Ramdhan s/o Ukhardu Deore, Age; 68 years, Occ; Civil Engineering Assistant, At Garkheda, Post Phattepur, Tq. Bhokardan, Dist. Jalna. Pundlik s/o Santukarao Sapate, Age; 68 years, Occ; Civil Engineering Assistant, At Post Rajut, Tq. Bhokardan, Dist; Jalna. Keshav s/o Digambarrao Panchbhaiye, Age; 68 years, Occ; Civil Engineering Assistant, Sahkar Bank Colony, Near Gajanan Mandir, Railway Station Road, Jalna. 4. 5. 6. 7. 8. 9. 10 wp8009.21 (& 3) Judgment Tq. & Dist. Jalna. 10. Damodhar s/o Namdeo Barde, Through its LR’s Rukhmabai Damodhar Barde, Age; 66 years, Occ; Family Pensioner, At Post Phattepur, Tq. Bhokardan, Dist; Jalna. 11. Kashinath s/o Pandurang Chaudhari, Age; 68 years, Occ; Civil Engineering Assistant, Priyadarshani Colony, Sambhaji Nagar, Lakkadkot, Jalna, Tq. & Dist. Jalna. 12. Nandkishor s/o Dajiba Deshpande, Age; 68 years, Occ; Civil Engineering Assistant, Pangarkar Nagar, Mauli U Pride Corner, Ambad Road, Jalna, Tq. & Dist. Jalna. 13. Ramdhan s/o Bhavsingh Chavan, Age; 59 years Occ; Junior Engineer, Plot No. 102-C, Wing Rishipark-05, Ambadevi, Ambad Chauphuli, Jalna, Tq. & Dist. Jalna. 14. Madhavrao s/o Maharudra Deshmukh, Age; 58 years, Occ; Junior Engineer, H. No. 23, Ramnagar Colony, Near to Aazad Ground, Jalna, Tq. & Dist. Jalna. 15. Shivajirao s/o Prahladrao Aatole, Age; 58 years, Occ; Junior Engineer, Indani Colony, Near to Pachod Chowk, Jalna Road Ambad, Dist; Jalna. Tq. & Dist. Jalna. 16. Prashant s/o Hariharrao Koleshwar, Age; 62 years, Occ. Junior Engineer, H. No. 03-12-59, Kalweshwar Lane, 11 wp8009.21 (& 3) Judgment Ganpati Lane, Old Jalna. Tq. & Dist. Jalna. ...PETITIONERS 1) 2) V E R S U S The State of Maharashtra, (Through its Principal Secretary, Rural Development Department, Bandhkaam Bhavan, 26 Marjhaban Path, Fort, Mumbai 32. The Zilla Parishad Jalna, Through its Chief Execitive Officer, Jalna. ...RESPONDENTS ... Advocate for Petitioners : Mr. V.D.Sapkal (Senior Counsel) i/by Mr.Sapkal Sandip R. AGP for Respondent No. 1: Mrs.M.D.Deshpande Advocate for Respondent No. 2 : Mr.Tope Sambhaji S. ... CORAM : MANGESH S. PATIL & SANDEEP V. MARNE, JJ. Reserved on : 25.07.2022 Pronounced on : 02.08.2022 JUDGMENT : [PER :- SANDEEP V. MARNE - J.] 1. Rule. Rule made returnable forthwith. With the consent of the learned advocates for the parties, heard finally at the stage of admission. 12 wp8009.21 (& 3) Judgment 2. The learned AGP Mr.S.B.Yawalkar, waives service of notice on behalf of respondent Nos. 1 to 3-State, in Writ Petition Nos. WP-8009/2021, WP-9791/2021 & WP-9789/2021. The learned Advocate Mr. Tapse Patil Pradeep V. waives service of notice on behalf of respondent No. 3, in WP-8009/2021. The learned Advocate Mr.Tope Sambhaji S., waives service of notice on behalf of respondent No. 4, in WP-9791/2021 & WP-9789/2021 and the learned AGP Mrs. M.A.Deshpande, waives service of notice on behalf of respondent No. 1, in Writ Petition No.9485 of 2021. The learned Advocate Mr.Tope Sambhaji S. waives service of notice on behalf of respondent No. 2, in Writ Petition No.9485 of 2021. 3. The common issue involved in the present petitions is whether the upgradation granted on the post of Sectional Engineer can be treated as a set-off against the financial upgradation to be granted under the provisions of Assured Career Progression Scheme/Modified Assured Career Progression Scheme, (Hereinafter referred to as “ACP & MACP”). 4. In Writ Petition Nos. 8009 of 2021, 9791 of 2021 and 9789 of 2021, the petitioners were appointed on the post of Junior Engineer and were subsequently granted non functional upgradation on the post of Sectional Engineer. Their grievance is that the non 13 wp8009.21 (& 3) Judgment functional upgradation granted to them on the post of Sectional Engineer cannot be counted while determining their entitlement for grant of financial upgradation under the provisions of ACP/MACP Scheme. Under the ACP Scheme, two financial upgradations were admissible, on completion of 12/24 years of service. Subsequently MACP scheme was introduced vide Government Resolution dated 2 March 2019, under which three financial upgradations are admissible on completion of 10, 20 and 30 years of service. The MACP Scheme is made effective from 1 January 2016. 5. In Writ Petition No. 9485 of 2021, the petitioners were initially recruited as Mistri Grade-I, Mistri Grade-II, Road Karkoon, Muster Clerk, Samaypal and Tracer. All these cadres were subsequently amalgamated into a single cadre as “Civil Engineering Assistant”, vide Government Resolution dated 20.05.1999. They were given status of post of Junior Engineer by way of promotion from the post of Civil Engineering Assistant. They also claim that the non functional upgradation to the post of Sectional Engineer cannot be counted while granting financial upgradation under the provisions of ACP/MACP Scheme. 6. The issue involved in the present petitions is no more res-integra, and is squarely covered by the judgment of this Court 14 wp8009.21 (& 3) Judgment dated 6 February 2019 passed in Writ Petition No. 2605 of 2017, in the case of The Association of Subordinate Service of Engineers Maharashtra State and Ors Vs. The State of Maharashtra and Ors. In