Allowed

Arvind N. Phadte., Junior Engineer, Sub-Division - I. v. the Principal Chief Engineer, Govt. of Goa and Anr.

Bombay HC23 Mar 2021WP/31/2015

Case brief

AI extract

What is this about?

The court upheld three writ petitions challenging the withdrawal of financial upgradation benefits. It quashed an order depriving petitioners of benefits due to lack of audi alteram partem and directed the department to reconsider their claims. Proceedings for recovery of excess payments were stayed temporarily.

What did the court decide?

The orders dated 25.7.2012 and 27.8.2014 were suspended and quashed; petitioners to be heard; recovery proceedings stayed for three weeks.

Arvind N. Phadte., Junior Engineer… — Pension and Retirement Benefits | Bombay HC (2021)

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1 WP 31,32, 33-15-corrected.odt

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IN THE HIGH COURT OF BOMBAY AT GOA.
WRIT PETITION NOS.31, 32 and 33 OF 2015.

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WRIT PETITION NO. 31 OF 2015

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1) Shri Arvind N. Phadte
Junior Engineer,
Sub-Division I,
Works Division XVIII,
Public Works Department,
Ponda-Goa (Major Age)

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….Petitioner.

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 VERSUS

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1) THE PRINCIPAL CHIEF ENGINEER,
Government of Goa, Public Works
Department, having Office at Altinho,
Panaji,Goa.

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2) STATE OF GOA, through its
Chief Secretary, having Office at
Secretariat, Porvorim, Bardez-Goa.

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... Respondents

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Mr. P. Sawant, Advocate for the petitioner.

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Mr. M. Salkar, Govt. Advocate for the respondents.

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WITH

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WRIT PETITION NO. 32 OF 2015

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1) SHRI PREMAKANT D. RANE,
son of Shri D. S. Rane, of major age,
Indian National, resident of F-S-6,
Agali Estate, Agali, Fatorda,

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2 WP 31,32, 33-15-corrected.odt

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Margao-Goa-403 602.

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2) SHRI DEEPAK R. METRI,
son of Shri R. K. Metri,
of major age, Indian National,
resident of D-10-E, Government
Quarters, Altinho, Panaji, Goa.

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... Petitioners

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VERSUS

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1) THE PRINCIPAL CHIEF ENGINEER,
Government of Goa, Public Works
Department, having Office at Altinho,
Panaji,Goa.

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2) STATE OF GOA, through its
Chief Secretary, having Office at
Secretariat, Porvorim, Bardez-Goa.

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... Respondents

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Mr. P. Sawant, Advocate for the petitioner.
Mr. M. Salkar, Govt. Advocate for the respondents.

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WITH

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WRIT PETITION NO. 33 OF 2015

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1) SHRI SHRIPAD B. NAIK,
of major age, Indian National,
presently working as Junior Engineer,
Sub-Division III, Works Division
V (B-N), Public Works Department,
Mapusa, Bardez-Goa and resident of
H.No.-1274/4, Auchitwada, Tivim,

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3 WP 31,32, 33-15-corrected.odt

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Bardez, Goa.

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2) SHRI KRISHNANATH S. SALGAONKAR,
of major age, Indian National, present
working as Junior Engineer, resident of
H.No. 1468/107, Faj Housing Colony,
Madel, Thivim, Bardez, Goa.

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... Petitioners

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VERSUS

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1) THE PRINCIPAL CHIEF ENGINEER,
Government of Goa, Public Works
Department, having Office at Altinho,
Panaji,Goa.

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2) STATE OF GOA, through its
Chief Secretary, having Office at
Secretariat, Porvorim, Bardez-Goa.

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... Respondents

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Mr. P. Sawant, Advocate for the petitioner.

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Mr. D Shirodkar, Addl. Govt. Advocate for the respondents.

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Coram:- DIPANKAR DATTA, CJ., &
 M. S. SONAK ,J.

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Date:- 23rd March, 2021.

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ORAL JUDGMENT (PER DIPANKAR DATTA, CJ.)

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Having regard to the commonality of issues involved in these three

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writ petitions, the same shall stand disposed of by this common order.

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4 WP 31,32, 33-15-corrected.odt

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2. W.P. No.31 of 2015 is at the instance of a petitioner, whereas W.P.

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Nos.32 and 33 of 2015 are at the instance of two petitioners each. All the
five petitioners were appointed as Junior Engineer (Civil) in the Public
Works Department, vide order dated 31.7.1984.

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3.The petitioners were not promoted despite having discharged service
as Junior Engineer for nearly 24 years. As such, they were granted benefits
under the Assured Career Progression Scheme (hereinafter “the ACPS”, for
short) twice, i.e., benefits of the 1st financial upgradation on completion of
12 years’ service and of the 2nd financial upgradation on completion of 24
years’ service. The latter benefits, at the end of 24 years, were granted to the
petitioners on 1.9.2008.

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4.By an Office Memorandum dated 19.5.2009, the Modified Assured
Career Progression Scheme (hereinafter “the MACPS”, for short) was
introduced w.e.f. 1.9.2008 in supersession of the previous ACPS by the
Government of India, Ministry of Personnel, Public Grievances and
Pensions for the Central Government Civilian Employees. Consequently, as
on 1.9.2008, the ACPS ceased to operate having been superseded by the

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WP 31,32, 33-15-corrected.odt

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MACPS, which contemplated three financial upgradations at intervals of
10, 20 and 30 years of continuous regular service. The Under Secretary to
the Government of Goa, Department of Personnel by a circular dated
6.8.2009 forwarded a copy of Office Memorandum dated 19.5.2009 to all
the Heads of Department/Offices and all Departments in the Secretariat for
information and necessary action.

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5.Nearly four years after the benefits under the ACPS were granted to
the petitioners, it was in 2012 that the respondents detected erroneous
conferment of the 2nd financial upgradation benefits of the ACPS in favour
of the petitioners on 1.9.2008. As such, by an order dated 25.7.2012, it was
conveyed to the petitioners that they were not entitled to the benefits of the
2nd financial upgradation under the ACPS but entitled to the benefits of the

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2nd financial upgradation under the MACPS, leading to an order of
withdrawal of benefits under the ACPS which were granted to them on
1.9.2008. This was followed by an order dated 27.8.2014 whereby the
petitioners, except the first petitioner in W.P. No.32 of 2015, were granted
the benefits of the 2nd financial upgradation under the MACPS.

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6 WP 31,32, 33-15-corrected.odt

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6. Such grant of benefits of 2^nd financial upgradation under the MACPS

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was less than the benefits that the petitioner received under the 2nd financial
upgradation under the ACPS. Aggrieved thereby, the petitioners
approached this Court challenging the orders dated 25.7.2012 and
27.8.2014, whereupon a coordinate Bench by its order dated 23.6.2015
issued Rule and expedited hearing. No interim order was passed but liberty
was granted to the petitioners to apply for interim relief.

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7. All these three writ petitions have now been placed before us for final disposal.

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8.The contention urged by Mr. P. Sawant, learned Counsel for the
petitioners is that withdrawal of benefits of the 2nd financial upgradation
under the ACPS was effected without granting any opportunity of hearing.
Further, introduction of the MACPS with retrospective effect from
1.9.2008 by circular dated 6.8.2009 is impermissible and improper and not
binding on the petitioners, as held by a coordinate Bench of this Court in
its decision dated 26.4.2017in Writ Petition No.668 of 2014 (Ashok
Kashinath Naik and others Vs State of Goa and others).

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7 WP 31,32, 33-15-corrected.odt

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9.It is, accordingly, prayed by Mr. Sawant that the respondents be

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directed to restore the benefits of the 2nd financial upgradation under the
ACPS in favour of the petitioners and not to proceed for recovery of any
sum allegedly paid in excess.

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10.Mr. Shirodkar, learned Addl. Govt. Advocate for the respondents has
not disputed that withdrawal of the 2nd financial upgradation under the
ACPS was effected without granting opportunity of hearing to the
petitioners. He has, however, disputed the contention of Mr. Sawant that
the decision in Ashok Kashinath Naik (supra) is applicable in the present
case. According to him, the petitioners there had been granted the benefits
of the 2nd financial upgradation under the ACPS prior to 1.9.2008 and,
thus, such decision would have no relevance here. He has placed reliance on
the decision of the Supreme Court reported in (2020) 5 SCC 421 (Union

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of India and others Vs M. V. Mohanan Nair) in support of his
contention that the respondents did not commit any irregularity, far less
illegality, in withdrawing the benefits of the 2nd financial upgradation under
the ACPS on the ground as indicated in the order dated 25.7.2012.

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8 WP 31,32, 33-15-corrected.odt

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11. We have heard the learned counsel for the parties.

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12.At the outset, we record that the decision in M. V Mohanan Nair
(supra) dealt with issues which are totally dissimilar to the issue that we are

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required to decide; hence, reliance placed thereon by Mr. D. Shirodkar is
not quite apt.

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13.The decision in Ashok Kashinath Naik (supra) has been perused.
The petitioners there were Upper Division Clerks and not Junior Engineers
(Civil) like the petitioners. Nothing turns on the posts that the two set of
petitioners hold. Also, from the factual narration of events, it does appear
that such Upper Division Clerks and the Junior Engineers (Civil), who are
before us, were given the financial benefits under the ACPS at/or about the
same time. Indeed, the coordinate Bench, relying upon the decision dated

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14.2.2017 of the Madras High Court in Writ Petition Nos.33946, 34602
and 27798 of 2014 (Union of India and others Vs. S. Ranjit Samuel

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and others) overruled the contentions of the learned Advocate General that

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as the MACPS came into force with retrospective effect from 1.9.2008, the
petitioners would not be entitled to the benefits of the ACPS any further.

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9 WP 31,32, 33-15-corrected.odt

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14.So far so good. However, we find from a decision of the Supreme
Court reported in (2018) 11 SCC 99 (Union of India vs. Balbir Singh

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Turn) that the Court was required to decide whether the MACPS for
armed forces personnel would be applicable from 1.1.2006 or 1.9.2008.
The Court, for the reasons assigned in the decision, held that benefits under
the MACPS would be available from 1.1.2006 and accordingly, dismissed
the appeal. It is interesting to note the following two observations made in
paragraph 2 of the decision:

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“ The 6th Central Pay Commission was set up by the Government

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of India to make recommendations in matters relating to emoluments, allowances and conditions of service amongst other things”;

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“On 30.8.2008, the Central Government resolved by a resolution of that date to accept the recommendation of the 6th Central Pay Commission.”

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15.We are inclined to believe that Office Memorandum dated 19.5.2009

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on the subject of the MACPS for the Central Government Civilian
Employees was issued consequent thereto, and the Government of Goa

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WP 31,32, 33-15-corrected.odt

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circulated such office memorandum by circular dated 6.8.2009 for

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necessary action thereafter.

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16.This aspect of the matter, i.e., the resolution of the Government of
India dated 30.8.3008 accepting the recommendation of the 6th Central Pay
Commission does not appear to have been brought to the notice of the
coordinate Bench that decided Ashok Kashinath Naik (supra). The date of
reckoning of applicability of the MACPS assumes relevance, having regard
to the fact that once a decision is taken by the Government it takes some
time for notifying such decision. Therefore, on facts and in the
circumstances, a question would obviously arise as to whether the MACPS

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is being sought to be given retrospective effect for depriving a class of
Government employees. We are not inclined, rather disabled, to answer this
question for lack of relevant pleadings and particulars. At this stage, we also
do not wish to either agree or disagree with the conclusions recorded by the
coordinate Bench in Ashok Kashinath Naik (supra) in the absence of the
necessary data before us. It would, therefore, be open to the petitioners to
persuade the respondents to hold in their favour upon placing all materials

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11 WP 31,32, 33-15-corrected.odt

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relevant and material in this regard once they are called for hearing in terms

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of this order, for the reason that follows.

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17.That withdrawal of the benefits of the 2nd financial upgradation under
the ACPS granted with effect from 1.9.2008 by the order dated 25.7.2012
was effected without granting opportunity of hearing to the petitioners not
being disputed, there has indeed beenan infirmity in the decision making
process. This has resulted in reduction in the pay scale of the petitioners as
well as terminal benefits in respect of a couple of them who have since
retired, amounting to civil consequences. Having regard to the decision of
the Supreme Court reported in AIR 1994 SC 2480 (Bhagwan Shukla Vs

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Union of India and others), the pay ought not to have been reduced
without granting opportunity of hearing. It is only on this short ground

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that we are inclined to interfere by suspending the order dated 25.7.2012
and the consequential order dated 27.8.2014, and order such suspension till

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the time as indicated hereafter. The Principal Chief Engineer of the Public

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Works Department is directed to hear the petitioners and pass an
appropriate reasoned decision on their claims. If the order dated 25.7.2012

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12 WP 31,32, 33-15-corrected.odt

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is sought to be maintained, reasons shall be recorded in support thereof

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upon considering the contentions of the petitioners. If the Principal Chief
Engineer accepts the contentions of the petitioners, he shall revoke the order
dated 25.7.2012 and also the order dated 27.8.2014, and pass a fresh order.
All contentions are expressly kept open, subject to observations as made
above.

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18.The writ petitions are disposed of accordingly. There shall be no order
as to costs.

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19.Proceedings, if any, initiated to recover any sum from any or all the
petitioners shall not be given any further effect for a period of three weeks
until the decision of the Principal Chief Engineer, in terms of this order, is
communicated to the petitioners. Needless to observe, receipt of benefits by
the petitioners under the MACPS shall be subject to and abide by the
decision of the Principal Chief Engineer.

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M. S. SONAK, J. CHIEF JUSTICE

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vn*

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VINITA VIKAS NAIK Digitally signed by VINITA VIKAS NAIK Date: 2021.03.25 15:33:09 +05'30'

Arvind N. Phadte., Junior Engineer, Sub-Division - I. v. the Principal Chief Engineer, Govt. of Goa and Anr.

Case brief

What is this about?

What did the court decide?

Arvind N. Phadte., Junior Engineer, Sub-Division - I. v. the Principal Chief Engineer, Govt. of Goa and Anr.

Case brief

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What did the court decide?

What the court decided

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