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2023 DIGILAW 1296 (BOM)

Mahesh B. Kaliwal v. State of Goa

2023-06-14

B.P.DESHPANDE, M.S.SONAK

body2023
JUDGMENT/ORDER M.S.SONAK, J. - Heard Mr Vallabh Pangam for the Petitioner and Ms Amira Razaq for the Respondents. 2. The Petitioner complains about the denial of 1st and 2nd financial up-gradations under the Assured Career Progression Scheme (ACPS) in the scales due to the Petitioner and denial of 3rd financial up-gradation under the Modified Assured Career Progression Scheme (MACPS). 3. On 28/06/1982, the Petitioner was appointed as Assistant Malaria Officer (Entomologist-Group B Gazetted) on an ad-hoc basis. His services were regularised on 26/3/1992 in the same post. By an order dtd. 31/07/1998, the Petitioner's post was redesignated as "State Entomologist" in the existing pay scale. The Petitioner served as Assistant Malaria Officer/State Entomologist for almost 34 years till his retirement on superannuation effective from 31/7/2016. 4. Unfortunately, the Assistant Malaria Officer/State Entomologist post was isolated, with no promotional avenues whatsoever. As a result, during the entire tenure of 34 years, the Petitioner served as Assistant Malaria Officer/State Entomologist, with the benefit of even a single promotion or upgradation in pay scale. 5. Precisely, to redress the stagnation issue, the Government formulated the ACP, which was later modified as MACPS. In terms of these schemes, the employees, who stagnated in a post despite having promotional avenues, or the employees like the Petitioner, who had no promotional avenue whatsoever, are awarded the 1st, 2nd, and 3rd financial up-gradations upon completion of specified years of service, respectively in the stagnated post. For reasons not attributable to the Petitioner and despite the Petitioner's representations, benefits of ACPS and MACPS were not awarded to the Petitioner during his tenure of 34 years. 6. However, soon after the Petitioner's retirement on superannuation, the Government, by orders dtd. 18/8/2016 and 26/4/2017, granted the Petitioner the 1st and the 2nd financial upgradations under the ACPS. By an order dtd. 18/8/2016, the Petitioner's scale of 6500-10500 was revised to 7450-225-11500 by way of 1st financial up-gradation and by 2nd financial upgradation, the Petitioner's scale was upgraded to 7500-250-12000. The Government made no orders towards the 3rd financial upgradation in terms of the MACPS. 7. The Petitioner protested the grant of 1st and 2nd financial upgradations in scales lesser than those due. The Petitioner, relying on the clarification contained in the Office Memorandum dtd. The Government made no orders towards the 3rd financial upgradation in terms of the MACPS. 7. The Petitioner protested the grant of 1st and 2nd financial upgradations in scales lesser than those due. The Petitioner, relying on the clarification contained in the Office Memorandum dtd. 10/2/2000, claimed that he was entitled to the 1st financial upgradation in the scale of 8000-13500 and the 2 nd financial upgradation in the scale of 10000-15200. The Petitioner, by his representation, not only prayed for the award of appropriate upgradation scales but also for the release of the 3rd financial upgradation in terms of the MACPS. The Petitioner also prayed for the award of interest on the government's delayed grant of financial benefits. 8. The Petitioner's representation was processed, and the notings have been placed on record by both the Petitioner and the Respondents, along with their returns. The notings indicated that the Health Department, in which the Petitioner was posted, and the Personnel Department, which was concerned with the service benefits of the Petitioner, supported the Petitioner's claim for the award of financial up-gradations in the scales of 8000-275-13500 and 10000-15200. However, in its notings, the Finance Department advised the two Departments to reject the Petitioner's representation and maintain the scales indicated in the orders dtd. 18/8/2016 and 26/4/2017. However, no decision rejecting the Petitioner's representation has been communicated to the Petitioner. Accordingly, on 25/2/2019, the Petitioner instituted the present Petition. 9. After a considerable delay, Dr Jose O.A. D'Sa, the Director of Health Services, filed a response to this Petition. The response mainly consists in referring to the notings of the various departments. The response, in particular, does not respond to the communication dtd. 20/1/2016, addressed by the Director (Administration), Directorate of Health Services to the Under Secretary (Health), in which the Director (Administration) has clearly stated that the claim of the Petitioner, seeking 1st financial up-gradation on a dynamic basis in the scale of 8000-13500, was justified. 10. The Petitioner filed a detailed rejoinder by enclosing several notings from the Directorate of Health Services, the Personnel Department, and the Finance Department. The Petitioner pointed out that the Finance Department's notings, without stating any reasons, rejected the Petitioner's representation. But the Health Department and the Personnel Department, by reference to various OMs and also instances of similar nature, had supported the Petitioner's claim. 11. The Petitioner pointed out that the Finance Department's notings, without stating any reasons, rejected the Petitioner's representation. But the Health Department and the Personnel Department, by reference to various OMs and also instances of similar nature, had supported the Petitioner's claim. 11. Mr Pangam, the learned Counsel for the Petitioner, submits that the Petitioner's case was required to be considered by clause 7 of Annexure-I of Office Memorandum dtd. 9/8/1999, read with Office Memorandum dtd. 10/2/2000, clarifying certain anomalies or ambiguities in the Office Memorandum dtd. 9/8/1999. He submits that a conjoint reading of the two office memoranda makes it clear that for isolated posts, the pay scale for ACPS shall be the same as those applicable to similar posts in the same Ministry/Department/Cadre. He relied on the communication date 20/1/2016, addressed by the Director (Administration) to the Under Secretary (Health), and also similar notings by various officials from the Directorate of Health Services and the Personnel Department to submit that for the isolated post of State Entomologist, the scale of pay for ACPS should be the same as those applicable to similar posts in the Public Health Department or the Directorate of Health Services. He pointed out that the incumbents' holdings posts of Drugs Inspector and Technical Officers in the Public Health Department, who were drawing the scale of pay of 6500-10500, similar to the Petitioner, were granted the 1st financial upgradation in the scale of 8000-13500 and the 2nd upgradation in the scale of 10000 - 15200. On this basis, Mr Pangam submitted that there was discrimination in denying the Petitioner such scales even though the Petitioner was made to stagnate throughout his service career due to administrative lethargy. 12. Mr Pangam submitted that in terms of the MACPS, the Petitioner is entitled to the 3rd financial up-gradation. Even the returns filed by the Respondents do not dispute this position. However, the returns merely stated that the Petitioner's case for award of 3rd financial up-gradation is under consideration and would be processed. He points out that the affidavit was filed on 23/11/2019, but to date, the 3rd financial up-gradation has not been granted to the Petitioner. Mr Pangam submitted that the denial of ACPS in the appropriate scale and the denial of the 3rd financial upgradation under the MACPS amounts to a violation of Articles 14 and 300-A of the Constitution of India. 13. Mr Pangam submitted that the denial of ACPS in the appropriate scale and the denial of the 3rd financial upgradation under the MACPS amounts to a violation of Articles 14 and 300-A of the Constitution of India. 13. Ms Razaq submits that the case of the Petitioner is covered by the Office Memorandum dtd. 9/8/1999. She submits that the Petitioner was appointed to the isolated post and has been granted the 1st and 2nd financial up-gradations in terms of the scales indicated in Annexure II of the illustration in Clause 7 of Annexure I. She submits that there can be no comparison with the scales awarded to the Drugs Inspectors and the Technical Officers in the Public Health Department. She offers that the Petitioner has not been discriminated against. If the 3rd financial up-gradation is due to the Petitioner, the same will be awarded in terms of the law. She submits that since the petition was pending, the award of the 3rd financial up-gradation under the MACPS may have yet to be processed by the Respondents. 14. Mr Razaq submits that several officers considered the Petitioner's representations, and ultimately, based upon notings of the Finance Department, it was decided that such representations should be rejected. She submits that this was not a case of violation of Articles 14 or 300-A of the Constitution of India and, therefore, this Petition may be dismissed. 15. The rival contentions now fall for our determination. 16. The Central Government, by Office Memorandum dtd. 9/8/1999, introduced the Assured Career Progression Scheme (ACPS) for the Central Government employees. By Office Memorandum dtd. 22/2/2001, the Government of Goa adopted the ACPS in toto and made it applicable to the employees of the State Government. Accordingly, there is no dispute that the ACPS, formulated in the Office Memorandum dtd. 9/8/1999, applies to Government employees, including the Petitioner. 17. Office Memorandum dtd. 9/8/1999 refers to the Fifth Central Pay Commission making certain recommendations relating to the ACPS. This memorandum states that the ACPS needs to be viewed as a "Safety Net" to deal with the problem of genuine stagnation and hardship faced by the employees due to a lack of adequate promotional avenues. Accordingly, after careful consideration, the Government decided to introduce the ACPS as recommended by the Fifth Central Pay Commission, with certain modifications as indicated in the Office Memorandum dtd. 9/8/1999. 18. The Office Memorandum dtd. Accordingly, after careful consideration, the Government decided to introduce the ACPS as recommended by the Fifth Central Pay Commission, with certain modifications as indicated in the Office Memorandum dtd. 9/8/1999. 18. The Office Memorandum dtd. 9/8/1999, at the outset, clarifies that the ACPS would apply to posts in Group 'B', 'C', and 'D' services/posts and isolated posts in Group 'A', 'B', 'C' and 'D' categories. Clause 3.1 of the O.M. provides that while in respect of these categories also, promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or an isolated post. Accordingly, keeping in view all relevant factors, it had been decided to grant two financial up-gradations under the ACP Scheme to Group 'B', 'C', and 'D' employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. 19. The O.M. dtd. 9/8/1999 further provided that isolated posts in Group 'A', 'B', 'C', and 'D' categories, which have no promotional avenues, shall also qualify for similar benefits on the abovementioned pattern. Grant of financial up-gradations under the ACPS shall, however, be subject to the conditions mentioned in Annexure-I. 20. Annexure-I to the Office Memorandum dtd. 9/8/1999 specifies conditions for the grant of benefit under the ACPS. Clause 7 of Annexure-I is relevant, and the same is transcribed below : "7. Financial upgradation under the scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in the case of isolated posts, in the absence of defined hierarchical cadres, financial upgradations shall be given by the ministries/Departments concerned in the immediately next higher (standard/common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay scales S-5 and S-6. For instance, incumbents of isolated posts in the pay scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Under financial upgradation under the scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay scale) when vacated. Posts which are part of a well defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only." 21. Annexure-II referred to in Clause 7 above, inter alia, provides the following pay scales S-12, S-13, and S-14 : 22. The Office Memorandum dtd. 9/8/1999 is required to be considered together with the Office Memorandum dtd. 10/2/2000 containing clarifications in the context of the implementation of the ACPS in terms of O.M. dtd. 9/8/1999. The clarifications relevant to the issues raised in the present Petition are at Clauses 3, 10, and 31. Accordingly, the same are transcribed below for the convenience of reference : 23. The most relevant clarification is in Clause 10 quoted above, which provides that, for isolated posts, the scales of pay for ACPS shall be the same as those applicable for similar posts in the same Ministry/Department/ Cadre except where the Pay Commission has recommended specific pay-scales for mobility under ACPS. The returns filed on behalf of the Respondents nowhere state that the pay commission has recommended specific scales in so far as the State Entomologist is concerned. Thus, even for the isolated Entomologist post, the pay scale for ACPS would have to be the same as those applicable to similar posts in the same Ministry/ Department/Cadre. 24. The Petitioner referred to similar posts of Drugs Inspector and Technical Officer in the same Department. These posts also had pay scales of 6500-10500, identical to that of the position of State Entomologist the Petitioner held. 24. The Petitioner referred to similar posts of Drugs Inspector and Technical Officer in the same Department. These posts also had pay scales of 6500-10500, identical to that of the position of State Entomologist the Petitioner held. The Drug Inspectors and Technical Officer in the same Department, having a pay scale of 6500-10500 were granted 1st financial up-gradation scale of 8000-13500, and towards 2nd financial up-gradation, the pay scale awarded was 10000-15200. These scales were denied to the Petitioner. Instead, the Petitioner was belatedly awarded the 1st financial up-gradation on the scale of 7450-11500 and the 2nd financial up-gradation on the scale of only 7500-12000. The difference in the basic pay between the two scales was only 50/-. Even the difference in the grade pay was only 200/-. 25. The Petitioner, naturally, protested and represented against the discriminatory treatment meted out to him. The Director (Administration) saw merit in the Petitioner's representation and, by communication dtd. 20/1/2016, addressed to the Under Secretary (Health), recommended grant of 1st financial up-gradation in the scale of 8000-13500 and the 2nd financial up-gradation in the scale 10000-15200. In this communication, the Director (Administration) of the Directorate of Health Services pointed out that scales S-13 and S-14 had been merged. Therefore, the ACPS's benefit to the Petitioner would stand nullified by 2006, which is being awarded the scale of 7450-11500/-. The Director (Administration) pointed out a difference of only 50/- in the basic pay scales and of only 200/- in the grade pay scales. The Director (Administration) pointed out that if the pay is fixed on the scale of 7500-12000, the basic pay will be less by 75/-, as compared to the basic of 10825/- in the pay scale of 7450-11500. The Director (Administration) concluded that the pay scale of 8000- 13500 would be the relevant pay scale for the 1st financial upgradation on a dynamic basis as recommended under Clause 7 of the Conditions for granting benefits under the ACPS. 26. The relevant extracts from the communication dtd. The Director (Administration) concluded that the pay scale of 8000- 13500 would be the relevant pay scale for the 1st financial upgradation on a dynamic basis as recommended under Clause 7 of the Conditions for granting benefits under the ACPS. 26. The relevant extracts from the communication dtd. 20/1/2016, addressed by the Director (Administration) to the Under Secretary (Health), are transcribed below for the convenience of reference : "As seen from Government Orders No. 13/12/2001-I/PHD dated 25/10/4 and No. 13/12/2001-I/PHD dated 22-10- 2008 (copies are placed in the file for ready reference), the equivalent Six Group B Gazetted posts-five Drugs Inspectors and one Technical Officer having the identical pay scale of Rs.6500.0010500/-under Public Health Department are given the scale of Rs.8000.0013500/- in the first financial upgradation under normal ACP. As per O.M. No. 1/1/82-PER (Part II) dtd. 22/02/2001 (copy enclosed), for the incumbents who have completed twelve years of regular service in the scale of 6500-10500/- are given the scale of 10000-15200/0 as per ACP under certain departments. The ACP of Dr. Kaliwal is due from February, 2001. As on January, 2001 the Basic Pay of Dr. Kaliwal has reached 10500/-in the scale of 6500-10500/-. Further, from January 2006, the pay scales of 6500-10500/- and 7450-11500/- have merged with the same Grade Pay of Rs.4600.00. As such, the ACP benefit to Dr Kaliwal will be nullified by 2006 with 7450-11500/- scale and with this scale the Basic Pay of Dr. Kaliwal will stagnate by July, 2003 i.e. in two and half year. There is a difference of only Rs.50.00 (Rupees Fifty only) between Rs.7450.0011500 and 7500-12000 pay scales. The difference of Grade Pay is also Rs.200.00 only (Rupees Two hundred only) between these two scales. If, the Pay is fixed in 7900-12000 scale, the Basic Pay (Rs.10750.00) will be less by Rs.75.00 as compared to the Basic Pay (Rs.10825.00) in 7450- 11500 scale. Hence, 8000 13500/- is the relevant pay scale on 'Dynamic Basis" as per ACP. The difference of Grade Pay is also Rs.200.00 only (Rupees Two hundred only) between these two scales. If, the Pay is fixed in 7900-12000 scale, the Basic Pay (Rs.10750.00) will be less by Rs.75.00 as compared to the Basic Pay (Rs.10825.00) in 7450- 11500 scale. Hence, 8000 13500/- is the relevant pay scale on 'Dynamic Basis" as per ACP. Since, the post of State Entomologist is also Group B Gazetted post and having the identical pay scale of Rs.6500.00 10500/- as in the case of Drugs Inspectors and Technical Officer under Public Health Department, Rs.8000.00 13500/- scale will be the Relevant pay scale for first financial upgradation on a 'Dynamic basis' to Dr.Mahesh Kaliwal under ACP on Dynamic basis as recommended under 'Clause 7' of the Conditions for the grant of benefits under ACP Scheme." 27. Despite the strong recommendations favouring the Petitioner, no action was taken. The Petitioner and the Respondents have placed on record the notings. A perusal of the notings would indicate that the Directorate of Health Services and the Personnel Department fully backed the Petitioner's claim. However, after the matter was referred to the Finance Department, by notings bereft of any reasons, it was opined that the Petitioner's claim could not be considered and the Petitioner should be informed accordingly. 28. The notings of the finance department nowhere reflect any application of mind to the O.M. dtd. 10/2/2000 and the clarifications contained therein. The notings nowhere reflect instances of at least six Group 'B' Gazetted Officers from the same department holding posts of Drugs Inspector and Technical Officer in the same pre-revised scale of 6500-10500. The notings nowhere reflect any reasons, much less cogent reasons, why the notings of the Directorate of Health Services or the Personnel Department officials were not agreed upon or warranted rejection. The notings nowhere address the issue of discrimination qua the Group 'B' Gazetted employees, i.e. the Drugs Inspectors and the Technical Officers, having identical pre-revised pay scales i.e. 6500-10500. 29. The returns filed by the Respondents also do not respond to the above issues raised by the Petitioner in the present Petition. The returns merely referred to the notings of the Finance Department and, based on the same, urged that this Petition be dismissed. There is no reference to the clarifications issued in the O.M. dtd. 10/2/2000. 29. The returns filed by the Respondents also do not respond to the above issues raised by the Petitioner in the present Petition. The returns merely referred to the notings of the Finance Department and, based on the same, urged that this Petition be dismissed. There is no reference to the clarifications issued in the O.M. dtd. 10/2/2000. The returns and the notings of the Finance Department mainly referred to the O.M. dtd. 9/8/1999. Precisely because certain clarifications were deemed necessary, O.M. dtd. 10/2/2000 was issued to clarify the issues dealt with by the O.M. dtd. 9/8/1999. Therefore, both the office memoranda were required to be construed harmoniously. Based upon such harmonious construction, the Director (Administration) had already recommended the grant of 1st and 2nd financial up-gradations to the Petitioner in the scales claimed by the Petitioner. 30. Even after the file was moved, all Directorate of Health Services officials and even the Personnel Department backed the Petitioner's claim. Only the Finance Department recommended rejecting the Petitioner's representation without discussing the import of O.M. dtd. 10/2/2000 or the Director's (Administration) communication dtd. 20/1/2016. As a result, the Petitioner has been discriminated against and condemned to suffer on the lower scales even though the two financial up-gradations were granted to the Petitioner after an inordinate delay. The Petitioner is, therefore, justified in urging that there has been a violation of Articles 14 and 300A of the Constitution of India. 31. Regarding the 3rd financial up-gradation, the returns do not even deny that the Petitioner is entitled to the same. In paragraph 9 of the Director's return dtd. 23/11/2019, it is stated that the Petitioner is now eligible for the 3rd financial up-gradation on completion of 30 years of service under the MACPS and that "The matter will be processed as the same is presently under examination." 32. Similarly, in paragraph 12 of the Director's return dtd. 23/11/2019, it is admitted that the Petitioner is now eligible for the 3rd financial up-gradation on completion of 30 years of service from 5/7/2012 under the Modified Assured Career Progression Scheme. This paragraph states, "I say that at present the matter is presently under examination and will be processed in due course." 33. Though the above return was filed on 23/11/2019, to date, the 3rd financial upgradation, due to the Petitioner, has not been granted to the Petitioner. This paragraph states, "I say that at present the matter is presently under examination and will be processed in due course." 33. Though the above return was filed on 23/11/2019, to date, the 3rd financial upgradation, due to the Petitioner, has not been granted to the Petitioner. Ms Razaq explained that this was possibly due to the pendency of the present Petition. This explanation is not acceptable. The Petition was because the Respondents were, without any good cause, delaying the release of the 3rd financial upgradation under the MACPS. Therefore, the pendency of the present Petition would not have been cited as a reason for further delaying the 3rd financial upgradation upon completion of 30 years of service from 5/7/2012 under the MACPS. The returns admit that the Petitioner is eligible for this 3rd financial upgradation. Therefore, there was no justification for denying or delaying the actual grant of such 3rd financial upgradation. 34. For all the above reasons, we allow this Petition and make the Rule absolute in terms of prayer clauses (A) and (B), with the modification that the interest payable to the Petitioner by the Respondents would be at the rate of 6% per annum and not 10% per annum. The arrears/financial benefits must be worked out and paid to the Petitioner within 2 (two) months from today. 35. The Respondents must consider that this is an unfortunate case where the Petitioner was made to stagnate throughout his service career, spanning almost 34 years, without having any promotional avenues whatsoever. Further, despite the formulation of the Assured Career Progression Scheme and the Modified Assured Career Progression Scheme, it is only after the Petitioner retired on superannuation that necessary orders were issued for payment of the 1st and 2nd financial upgradations as per ACPS. Further, for no cogent reasons, the 3rd financial upgradation, which is admitted to be payable to the Petitioner, is not paid to date. The Respondents must now not only pay the arrears within 2 (two months) from today but further consider the impact of pay revisions on the pension and other retiral benefits payable to the Petitioner and pay the same to the Petitioner accordingly. 36. The Respondents must now not only pay the arrears within 2 (two months) from today but further consider the impact of pay revisions on the pension and other retiral benefits payable to the Petitioner and pay the same to the Petitioner accordingly. 36. Prayer Clauses (A) and (B) are transcribed below for the convenience of reference : "A. For writ of Certiorari or writ in the nature of Certiorari any other appropriate writ, or Order to quash and set aside Order dt. 18/08/2016 bearing No. 25/1/2003-1/ PHD/Pt & 25/1/2003-1/PHD/Part dt. 26/04/2017 granting the 1st & 2nd financial up-gradation under Assured Career Progression Scheme (ACPS) and to further direct the Respondents to grant the 1st financial up-gradation with pay scale of Rs.8000.00 13500 and 2nd financial up-gradation with pay scale of Rs.10000.0015200 respectively under Assured Career Progression Scheme (ACPS) from 22/02/2001 and 05/07/2006 respectively and 3rd Financial Up-Gradation under the Modified Assured Career Progression Scheme (MACPS) to the Petitioner upon completion of thirty years' service with effect from 05/07/2012 with 10% interest from the date of filing of the Petition. B. For writ of Mandamus or writ in the nature of Mandamus any other appropriate writ or Order to quash and set aside Order dtd. 18/08/2016 bearing No. 25/1/2003-1/ PHD/Pt & 25/1/2003 1/ PHD/Part dt. 26/04/2017 granting the 1st & 2nd financial upgradation under Assured Career Progression Scheme (ACPS) and to further direct the Respondents to grant the 1st financial upgradation with pay scale of Rs.8000.00 13500 and 2nd financial upgradation with pay scale of Rs.10000.0015200 respectively under Assured Career Progression Scheme (ACPS) from 22/02/2001 and 05/07/2006 respectively and 3rd Financial Up-Gradation under Modified Assured Career Progression Scheme (MACPS) to the Petitioner upon completion of thirty years' service with effect from 05/07/2012 with 10% interest from the date of filing of the Petition." 37. The Petition is allowed in terms of prayer Clauses (A) and (B) with the modification that the interest payable shall be at 6% per annum and not 10% per annum. 38. In the fond hope that all arrears will be paid to the Petitioner within 2 (two) months from today, we refrain from imposing any costs upon the Respondents.