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2018 DIGILAW 486 (BOM)

State of Maharashtra v. Milind

2018-02-20

SUNIL K.KOTWAL, T.V.NALAWADE

body2018
JUDGMENT : T.V. NALAWADE, J. 1. The petition is filed to challenge the decision given by Maharashtra Administrative Tribunal, (hereinafter referred to as MAT for short) Aurangabad in O.A. No. 816/2006. The Tribunal has allowed the proceeding filed by present respondents and direction is given to the petitioners to confer upon respondents first the status of Gazetted Engineers, Class II and also to give them postings as Assistant Engineer, Grade II and to see that revised remuneration is paid. Both the sides are heard. 2. Original Application was filed before Tribunal by the respondents to challenge the decision given on their representation by the present petitioner. All the respondents were possessing qualification like Bachelor of Engineering (Mechanical) prior to their entry in service with the petitioner. They were given appointments as Junior Engineer under different schemes of the Government like giving appointments to Project Affected Persons, appointments on compassionate ground etc. Admittedly, at the time of entry in service, it was made clear that they were being appointed in Class III category. 3. It is the case of respondents that they were discharging duties as Junior Engineers, but they were graduates and so, as per policy of State Government, they were entitled to get Class II status and also the post of Assistant Engineer, Grade II with petitioner, Irrigation Department of the State Government. It is their contention that they are entitled to get benefit of policy decision taken by the Government, which was expressed in Government Resolution (GR for short) dated 16.4.1984. It is contended that under the said policy, only the Junior Engineers, who were not holding the degree of Engineering could have been posted as Sectional Engineers after completing service of specified number of years but it was necessary to give posting to others like respondents, the posts of Assistant Engineer, Grade II. 4. It is the case of petitioners that under different schemes, employment was given to the present respondents and they had not faced the regular process of recruitment even for the post of Junior Engineer. It is the contention of the petitioners that under the schemes, there was power with the Local Committee to give appointment at the most in Class III posts. It is the contention of the petitioners that under the schemes, there was power with the Local Committee to give appointment at the most in Class III posts. It is the contention of the petitioners that for such Class III posts, there was no necessity to have qualification like Degree in Engineering and in view of this circumstance, even undertaking was taken from the present respondents that they will not stake claim on the post of Assistant Engineer, which is Class II post. It is the contention of the petitioners that the post of Assistant Engineer, Grade II could have been filled only by regular process and through M.P.S.C. and the respondents had not faced that test. 5. The Tribunal has considered GR of 1984 and has held that as per the GR, the present respondents are entitled to get the post of Assistant Engineer, Grade II as they were holding degree. 6. This Court has carefully gone through the GR of 1984 and also the other GRs like GR dated 21.1.1980 which is made for the benefit of heirs of employees, who die during service. The GR of 21.1.1980 shows that under such schemes appointment can be given only on the posts which are not required to be filled through M.P.S.C. The respondents have not disputed that they got employment only due to those schemes. 7. If GR dated 16.4.1984 is carefully read, one can gather from it that the benefit of this GR was given to Junior Engineers who were regularly appointed and who were holding Degree of Engineering. If there were Junior Engineers, who were appointed on the basis of their Diploma or due to some other Rules, then for getting status of Gazetted Officers, Grade II, they were required to put in service of particular number of years. The Diploma holders, who had obtained Diploma of three years course were required to put in five years service for getting that status. 8. Under the aforesaid GR for benefit of graduate Junior Engineers, two classes of higher posts, Gazetted Officer, Grade II were created. The first class was created for Junior Engineers, who were holding Engineering Degree and this class was given name as Assistant Engineer, Grade II. The second class was created for other Junior Engineers (who were not holding degree of Engineering) and this class was to be called as Sectional Engineers. The first class was created for Junior Engineers, who were holding Engineering Degree and this class was given name as Assistant Engineer, Grade II. The second class was created for other Junior Engineers (who were not holding degree of Engineering) and this class was to be called as Sectional Engineers. Both Sectional Engineer and Assistant Engineer were to get same scale. Thus, there was no waiting period for Graduate Engineers and only by virtue of degree certificate they had right to get post of Grade II. Giving of this benefit to respondents amounts to giving them appointment directly in Grade II which is not permissible under scheme like scheme of giving appointment on compassionate ground. 9. The facts of the present matter show that present respondents had not faced regular process of recruitment for getting the post of Junior Engineer, they were appointed by Local Committee on the post of Junior Engineer which is Class III post. As per the scheme, the respondents could not have been appointed on Grade II post. The basic requirement for giving appointment as Junior Engineer by using the scheme was Diploma course. Thus, by presuming that the respondents were holding necessary qualification like Diploma, they were given Grade III post like Junior Engineer. Due to that, it was not open to them to say that they were degree holder Junior Engineers. If such case is accepted, that will automatically place them or make them entitle to get the post of Assistant Engineer, Grade II, which was to be given only to regularly appointed Junior Engineers who were degree holders. Thus, the Government had taken a policy decision and due to the policy decision and also due to other GRs, giving benefit to such Project Affected Persons or persons entitled to get appointment on compassionate ground, they were treated as persons eligible to the post of Junior Engineer for which the qualification was diploma and not degree. The respondents were to get Class III post and not Class II post. In accordance with this GR, appointment was given and for giving appointment undertaking was taken from the respondents that they will not be claiming the post of Assistant Engineer, Grade II. They were to put in atleast five years of service and only after that they would have got post of Sectional Engineer. In accordance with this GR, appointment was given and for giving appointment undertaking was taken from the respondents that they will not be claiming the post of Assistant Engineer, Grade II. They were to put in atleast five years of service and only after that they would have got post of Sectional Engineer. These undertakings given in the year 1997 were in accordance with the scheme prepared by the Government under GR of 1984. Thus, the respondents were treated as diploma holders and only because there was some scheme of the Government, they were given appointment directly on the post of Junior Engineer, Class III post. Due to these circumstances, it is not open to them to claim the post of Assistant Engineer, Grade II by using GR of 1984. GR of 1984 was definitely not for their benefit. 10. The learned counsel for respondents submitted that the pay scale for both Sectional Engineer and Assistant Engineer, Grade II was same, but the promotional avenues to Sectional Engineer for getting further posts like Divisional Engineer and Executive Engineer are less than the avenues available to Assistant Engineer. The relevant record is not available like Rules in that regard. Even if, it is presumed that comparatively the scope of getting higher posts to the persons holding the post of Sectional Engineer is low, that cannot make difference in the decision. The respondents entered the service due to aforesaid special schemes of the Government and without competing with the degree holders for getting the posts. As there are aforesaid circumstances and the GR of 1984 needs to be read in aforesaid way, this Court holds that the Tribunal has committed error in holding that the respondents are entitled to get the posts of Assistant Engineer, Grade II. All the subsequent GRs need to be read in the same way. 11. The learned counsel for respondents placed reliance on some observations made by this Court at Nagpur Bench in State of Maharashtra and Others vs. Kiran Omkar Kharat and Others, Writ Petition No. 1146/2016 decided on 6.4.2016. The facts of that matter were different and the matter was considered from other angle. 11. The learned counsel for respondents placed reliance on some observations made by this Court at Nagpur Bench in State of Maharashtra and Others vs. Kiran Omkar Kharat and Others, Writ Petition No. 1146/2016 decided on 6.4.2016. The facts of that matter were different and the matter was considered from other angle. It was submitted that in the past by using GR of 1984 benefit of giving appointment on the post of Assistant Engineer, Grade II was given to similarly placed Junior Engineers (in Osmanabad District) and so, the respondents are entitled to get that benefit. The learned counsel for petitioners produced on record the GR dated 3.3.2008 showing that the previous GR of 2006 issued in favour of those employees who were from Forest Department came to be cancelled. The learned counsel for respondents has produced many other GRs of other departments. As the present matter is a peculiar matter, involving the aforesaid circumstances, this Court holds that GR of 1984 only needs to be considered along with the eligibility conditions for Class III, Grade III posts to which the respondents could have been appointed under the special schemes of the Government. Thus, the decision given by MAT cannot sustain in law. 12. In the result, the petition is allowed. The decision given in O.A. No. 816/2006 dated 15.3.2007 by MAT, Aurangabad is hereby set aside. O.A. stands dismissed. Rule is made absolute in aforesaid terms.