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2017 DIGILAW 2674 (BOM)

Surekha Rajeev Darwhekar v. State Of Maharashtra

2017-12-22

M.G.GIRATKAR, R.K.DESHPANDE

body2017
JUDGMENT : M.G. Giratkar, J. 1. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the respective parties. 2. All the petitioners have prayed to quash and set aside the Judgment and Order dt.7.11.2016 passed by Member (J), Maharashtra Administrative Tribunal, Mumbai, Bench at Nagpur in O.A. No.132 of 2016. They have also prayed to allow O.A. No.132 of 2016 in its entirety and direct the respondents to grant promotional pay scale to the petitioners on completion of 24 years as per Government Resolution dt.1.4.2010 and accordingly make the pay fixation of the petitioners and release the arrears on account of difference of salary and also revise the retiral benefits and pension accordingly. 3. It is submitted that the petitioners have retired as staff Nurse from the service of respondent no.3 except petitioner no.7, who is going to retire on 31.10.2017. The petitioners, after having passed their Nursing Course, were appointed as Staff Nurse under respondent no.3. Petitioners have rendered unblemished satisfactory service and at no point of time, they were served with any adverse communication during entire span of their service. 4. It is submitted that, on 8.6.1995, the Government of Maharashtra adopted a policy giving benefits to their employees who have not received promotion after a period of twelve years. Petitioners received the benefit of promotional pay scale in the year 1995, which is w.e.f. 1.10.1994 given to those who have completed service of 12 years. 5. It is submitted that, in the year 2007-08, promotional posts became available. Hence, the respondents issued order of promotion to the petitioners. However, those postings were not suitable. Therefore, the petitioners requested for promotional posting on their original place of posting. Subsequently, their request was considered by the Authority and the petitioners were posted to their choice posting on promotional post. The respondent/Authority denied second time bound promotion to the petitioners on the ground that they refused promotion. But, in fact, the petitioners did not refuse promotion. They requested for choice posting due to some family difficulties. Their request was later on considered. Therefore, it cannot be said that the petitioners refused promotional postings. 6. It is submitted that the similarly situated employees who were transferred but who had not joined on the promotional post at transferred place were again given their choice posting. All those were given benefit of second time bound pay scale. 7. Their request was later on considered. Therefore, it cannot be said that the petitioners refused promotional postings. 6. It is submitted that the similarly situated employees who were transferred but who had not joined on the promotional post at transferred place were again given their choice posting. All those were given benefit of second time bound pay scale. 7. All the petitioners requested respondent/Authority to grant second time bound promotional pay scale after completion of 24 years as per Government Resolution dt.1.4.2010. But, the respondent/Authority has wrongly rejected their claim. It is submitted that granting second time bound promotional pay scale as per order dt.18.12.2015 of the similarly situated employees like the petitioners, who approached the Maharashtra Administrative Tribunal, Bench at Mumbai in O.A. No.569 of 2014, is allowed. The case of petitioners is similar to the case in O.A. No.569 of 2014, decided by the Maharashtra Administrative Tribunal, Bench at Mumbai. However. O.A. No.132 of 2016 filed by the petitioners before the MAT, Bench at Nagpur, wrongly rejected vide Judgment and Order dt.7.11.2016. Therefore, the petitioners have prayed to grant second time bound promotional pay scale as per Government Resolution No.1.4.2010. 8. Submission of respondent/Authority is that the petitioners refused their promotional posting and therefore, they are not entitled for second time bound promotional pay scale as per Government Resolution dt.1.4.2010. 9. Heard Mr.P.D.Meghe, learned Counsel for the petitioners. He has pointed out material documents. Learned Counsel has pointed out the Judgment and Order in O.A. No.569 of 2014, decided by MAT, Bench at Mumbai. Learned Counsel has submitted that there is no dispute that all the petitioners had completed 24 years of their respective services on their original post before the date of promotional posting. Hence, they are entitled for the second time bound promotional pay scale as per Government Resolution dt.1.4.2010. At last, it is prayed to allow the petition and to direct the respondent/Authority, as prayed for. 10. Heard Mr.S.S.Doifode, learned A.P.P. for Respondents. He has submitted that all the petitioners were promoted, but they refused to join their respective postings. Therefore, they are not entitled for second time bound promotional pay scale as per Government Resolution dt.1.4.2010. 11. There is no dispute that all the petitioners have completed 24 years of their respective services on their original post. There is no dispute that they were granted first time bound promotional pay scale. Therefore, they are not entitled for second time bound promotional pay scale as per Government Resolution dt.1.4.2010. 11. There is no dispute that all the petitioners have completed 24 years of their respective services on their original post. There is no dispute that they were granted first time bound promotional pay scale. There is no dispute that they are entitled for second time bound promotional pay scale as per Government Resolution dt.1.4.2010. It is the defence of respondent/Authority that the petitioners were promoted and transfer order was issued. The petitioners have not joined their respective transferred postings and therefore, they are not entitled for second time bound promotion as per condition in Government Resolution dt.1.4.2010. 12. There is no dispute that all the petitioners were promoted and they were transferred from their original place of posting. There is no dispute that the petitioners did not join their transferred posting. All they had requested to give promotional posting at their respective place of choice. All the petitioners submitted their difficulties to join their new posting of the promotional post. There is no dispute that, later on, the respondent/Authority considered the difficulties of petitioner and granted them promotional posting of their choice. 13. Once the difficulties of the petitioners are considered and they are given their choice posting, this itself shows that the respondent/Authority has not considered that the petitioners refused their transferred posting. In such circumstances, the respondent/Authority cannot say that the petitioners refused to join their promotional post and therefore, they are not entitled for second time bound promotional pay scale. 14. Learned Counsel for the petitioner pointed out that some of the employees similarly situated as like the petitioners namely one Smt.Autkar was also transferred on promotional post. She was again given posting of her choice. The said employee was given benefit of second time bound promotional pay scale as per Government Resolution dt.1.4.2010. 15. The facts in the present petition and the facts in the case before the MAT, Bench at Mumbai in O.A. No.569 of 2014 are near about the same. The MAT, Bench at Mumbai has given directions to the respondent/Authority to grant second time bound promotional pay scale to the petitioners after completion of 24 years of their respective service. 16. The facts in the present petition and the facts in the case before the MAT, Bench at Mumbai in O.A. No.569 of 2014 are near about the same. The MAT, Bench at Mumbai has given directions to the respondent/Authority to grant second time bound promotional pay scale to the petitioners after completion of 24 years of their respective service. 16. There is no dispute that all the petitioners have completed continuous 24 years of service on their original post before joining on the promotional post. Therefore, they are entitled for second time bound promotional pay scale as per Government Resolution dt.1.4.2010. Learned Member (J), Maharashtra Administrative Tribunal, Bench at Nagpur has not considered the case of petitioners properly and has wrongly rejected O.A. No.132 of 2016. In view of above discussion, we are inclined to allow the petition. Hence, we pass the following order. // ORDER // (i) The petition is allowed. (ii) We quash and set aside the Judgment and Order dt.7.11.2016 passed by Member (J), Maharashtra Administrative Tribinal, Mumbai, Bench at Nagpur in O.A. No.132 of 2016. (iii) We allow O.A. No.132 of 2016 in its entirety and direct the respondents/Authorities to grant promotional pay scale to the petitioners on completion of 24 years of service as per Government Resolution dt.1.4.2010. (iv) The respondents/Authorities are directed to make fixation of all the petitioners within a period of two months and release the arrears on account of difference of salary and also revise the retiral benefits and pension of petitioners accordingly. No order as to costs.