1 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1156 OF 2009 Deepak B. Patil, Indian Inhabitant, ) residing at A-106, Satyam CHS Ltd., ) Opp. M.H.B. Post Office, New Link Road, ) Opp. L.T.R. Road, Borivali West, ) Mumbai-400 091. )..PETITIONER Versus 1.State of Maharashtra through its ) Principal Secretary, served through the ) Govt. Pleader, Original Side, High Court, ) Mumbai. ) 2.Director, Accounts and Treasurers, ) New Adminisrative Building, Plot No.176, ) Free press Journal, Mumbai-400 021. ) 3.Secretary, Finance Department, through ) its Registrar having office at Mantralaya, ) Mumbai. ) 4.Maharashtra Administrative Tribunal, ) 2 Free Press Journal, Opp. Mantrayala, ) Mumbai-400 021. )..RESPONDENTS Mr. Rui Rodrigues with Mr. Sagar G. Talekar, for the Petitioner. Mr. A.K. Jalisatgi, AGP for respondent Nos. 1 to 4. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : 9TH MARCH, 2010 JUDGMENT (PER FERDINO I. REBELLO, J.) Rule. Considering the limited controversy by consent heard forthwith. 2. The petitioner retired from the post of Assistant Registrar in the office of the Maharasthra Administrative Tribunal, respondent No.4. The petitioner insead of being paid pension of the said post is being paid pension in the post of Accounts Officer, which post the petitioner never held. Hence the present petition. 3. The petitioner was initially holding a post in the Maharashtra Finance and Accounts Service (MFAS), as Superintendent (Accounts) from 9th July, 1987. The petitioner initially was posted a t Motor Accident Claims Tribunal. From 9th June, 1992 the petitioner was posted on the establishment of Maharashtra Administrative Tribunal (MAT) as Superintendent (Accounts) which was a Class III Non-gazetted post. The appointment of the petitioner to the post in MAT was by transfer (on Deputation). 4. Whilst holding the post of Superintendent (Accounts) the Chairman of the 3 Respondent No.4 promoted the petitioner to the post of Assistant Registrar, which was a gazetted Class I Post in the pay scale of Rs.3,000/- - 4500/- vide order dated 21st October, 1992 purely on temporary basis and subject to final approval of Recruitment Rules of Maharashtra Administrative Tribunal. The appointment was made by power vested in the Chairman of Respondent No.4 vide Section 12 of the Administrative Tribunal Act, 1985. 5. On 15th March, 2001 the Maharashtra Administrative Tribunal Registrar, Deputy Registrar, Assistant Registrar/Research Officer, Librarian (Recruitment) Rules, 2001, were finalised. The Rules provide for appointment to the post of Assistant Registrar by promotion of a suitable person on the basis of seniority subject to fitness from amongst the persons holding the post of Sheristedar/Superintendent having not less than three years regular service on that post. The Chairman of respondent No.4 by communication of 7th December, 2000 informed the Director of Accounts that promotion was given amongst others to the petitioner to the post of Assistant Registrar in the pay scale of Rs.10,000/- - 325 – 15,200/-. The petitioner thereafter superannuated on 31st August, 2006. The Chairman of Respondent No.4 granted provisional pension of 12 months from September, 2006 to August, 2007 as per his post of Assistant Registrar. 6. Subsequent to the petitioner’s retirement a communication was received from the Assistant Director (Administration), Directorate, Accounts & Treasuries, Mumbai addressed to the Registrar, MAT. In the said communication it was informed that the appointment of Accountant in the office of the Tribunal was in the 4 pay scale of Rs.1,400-2,200/-. Thereafter it was communicated that the pay scale of Accountant in the Directorate was Rs.1,640-2,900/-. The communication notes that a proposal was received on 8th November, 1994 for being accommodated in the post in MAT. The proposal along with the recommendation was submitted to the Finance Department. The Finance Department intimated that the post in Maharashtra Finance & Accounts Service is of Class III Cadre and as no such post on the establishment of Maharashtra Administrative Tribunal was not created or on that post provisional extension was not declared by their Administrative Department. As such the permanent absorption was rejected. Subsequently by communication dated 20th September, 1997 promotion was given to Shri Patil on the post of Accounts Officer in Maharashtra Administrative Tribunal. It may be made clear that there is no post of Accounts Officer in MAT. The petitioner never held that post. The petitioner continued to hold the post of Assistant Registrar and draw salary of that post. A proposal was sent for permanent inclusion of Shri D.B. Patil in MAT. By communication dated 24th April, 2008 the Finance Department of Government of Maharashtra informed the Director of Accounts that it was improper on the part of MAT to give promotion to the petitioner without taking the consent of the Government in terms of the Rule quoted in the communication and as such the entire exercise was not correct and as the petitioner has retired there was no need to think about his permanent inclusion on the promotion as an Accounts Officer in Maharashtra Finance & Accounts Service and that he would not be entitled to pension benefits on promotion given by Tribunal. 7. The petitioner addressed a communication to the Registrar of Respondent 5 No.4 by his communication dated 23rd December, 2008 pointing out that no post of Accounts Officer was created in MAT. It was further pointed out that instead of sending the petitioner on deputation he was transferred and the same was accepted by MAT and the various objections now raised after retirement amounts to gross injustice, unfair treatment and violates his rights under Article 14 of the Constitution of India. He had drawn the salary in the post of Assistant Registrar for the required period to entitle him to pension on that post may be a higher post. He intimated that he is accepting Pension on lower post without waiving his right to pension on the higher post of Assistant Registrar. 8. On behalf of respondent No.1 the State of Maharashtra reply has been filed by Madhuri P. Kulkarni Deputy Secretary. The substance of the reply is that the order promoting the petitioner to the post of Assistant Registrar was against A.T. Act and the Service Rules. Reference is made to Section 12 of the Act and to the Maharashtra Administrative Tribunals (Finance and Administrative Power ) Rules, 1991 notified by Notification dated 8th July, 1991 which set out that the Chairman shall have the same power as are conferred on the Head of the Department of the State Government under the various existing financial and service rules of the State Government. . It is pointed out that the promotion to the gazetted post will only be issued by the Government i.e. Minister in charge of the concerned department after obtaining concurrence/opinion of the General Administrative Department and that procedure had not been followed. As such the order dated 21st October, 1992 was not valid. It is then pointed out that Recruitment Rules were notified on 15th June, 2001, which provides for promotion from the post of Superintendent to Assistant Registrar 6 from amongst persons holding the post of Shreistedar/Superintendent having not less than three years regular service in the post. It is also pointed out that the Gazetted post on the establishment of MAT which includes Assistant Registrar comes under the purview of Maharashtra Public Service Commission and that MAT had not taken permission, prior or post facto of M.P.S.C. for promotion of the petitioner. Reliance is placed on Government Circular dated 11th December, 1947 which requires consultation with the Commission and that Circular, it is set out, is still in force. In sum and substance it is reiterated that whilst promoting the petitioner the Rules had not been followed and in these circumstances the petitioner is not entitled to draw pension in the post of Assistant Registrar. 9. Reply has been filed also on behalf of respondent Nos. 2 and 3, wherein same or similar stand as respondent No.1 has been set out. Except that it is pointed out that the petitioner was promoted by order dated 28th September, 1997 to MFAS Group B Class II in the post of Accounts Officer. That transfer was cancelled in view of the letter by MAT to retain the petitioner on their establishment. The earlier promotion and transfer was cancelled and the petitioner was posted as Accounts Officer, MAT. 10. On behalf of Respondent No.4 reply has been filed by Incharge Registrar. It is set out that there was no post of Accounts Officer (Class II) in MAT and the petitioner continued to work as Assistant Registrar which is a Class I post and that the MAT had absorbed the petitioner on 5th October, 2001. The other facts are repetition of what is set out earlier either by the petitioner or by the contesting 7 respondents. 11. One additional aspect which we may note is that one employee Shri Jaibharat Nivrutti Kamble had filed a Writ Petition before this Court being Writ Petition No. 6956 of 2005 where the State along with the Tribunal were parties. This was in respect of a challenge by the said Kamble to the promotion of Respondent No.3 one Shri Joshi, who had been promoted to the post of Deputy Registrar. The contention of Shri Kamble was that the respondent No.3 Shri Joshi could not have been appointed to the post of Deputy Registrar as his appointment with respondent No.1 had not been regularised. In an order passed by this Court, this Court had directed that the petitioner be regularised. It was also noted that the Respondent No.3’s appointment had not been challenged from 1991 till date and that challenge was made after 14 years. This Court observed as under:- “Apart from the petitioner, there are several other employees whose names are set out in the affidavit-in-reply filed on behalf of Respondent No.1, whose appointments it appears, the State Government ha snot regularised though they are continuing in office from 1991/1992/1993. These recruitments were not disputed nor were any objections raised by the State Government to such appointments. The fact that the salary of these employees was being paid would by itself be an indication that their appointments were approved by the State Government. In these circumstances, in our opinion, it will be impermissible to permit the petitioner to challenge the appointment of Respondent No.3 before this Court after the lapse of nearly 14 years on the ground that his appointment suffers from some irregularities.” 8 This Court also noted that there also the Chairman had issued an order or regularisation in favour of respondent No.3. Taking note of the non-consultation with M.P.S.C., and noting the fact that several other employees were similarly placed as respondent No.3 in that petition this Court observed as under:- “7. Our attention however, has been invited by the affidavit filed by the Registrar, that various employees have been appointed and their names have not been forwarded to the M.P.S.C. In our opinion, at the highest, the State Government should take steps to get the services of such employees regularised, if the employees are otherwise qualified on the date of the appointments, if still, the State of Maharashtra is of the opinion that further orders of regularisation are required. That exercise to be completed within six months from today.” 12. As may be noted the State represented by the Advocate General did not oppose the stand in the matter of action taken by the Chairman in regularising the services of respondent No.3. The petitioner preferred a Special Leave Petition before the Supreme Court which came to be withdrawn on 31st July, 2006. The Review Petition filed was dismissed on September 12, 2006. 13. From the above what emerges is that in a case of a person similarly situated like the petitioner and holding the post of Deputy Registrar, this Court upheld the regularisation. The same is the case of the petitioner herein. This Court further directed the State Government considering other employees who were not before it 9 to refer their cases to the M.P.S.C., if the State was of the opinion that further orders of regularisation are required and the exercise to be completed within six months. 14. At the hearing it is pointed out that neither was the extension of time sought nor did the State forward the cases of other employees to the M.P.S.C. For regularisation. In other words considering the long lapse of time the State thought it fit not to disturb the regularisation already done by the Chairman. Once that be the case it is post-facto approval and not open to the respondent Nos. 1 to 3 to contend that the appointment of the petitioner is not regular for non-compliance with the provisions of the Rules, Circulars, O.Ms., relied upon. It may also be mentioned that the Recruitment Rules were finally notified on 15th March, 2001 and the petitioner absorbed on 5th October, 2001. In terms of Rule 5 the petitioner was eligible to be promoted. 15. In this background the question before us is whether the respondent Nos. 1 to 3 were right in denying to the petitioner the pension in the promotional post of Assistant Registrar. The petitioner was working with MAT right from 1992. The Chairman of the MAT promoted the petitioner to the post of Assistant Registrar though on temporary basis in 1992. The petitioner since then has been drawing salary in the post of Assistant Registrar. Though the respondent Nos. 2 and 3 sought to promote the petitioner in 1997 to the post of Accounts Officer in MAT, factually there was no post in MAT of Accounts Officer and the petitioner continued to hold the post of Assistant Registrar. It is true that there has been some procedural lapses in the matter of regularisation of the petitioner. Can the petitioner who has served 10 with the Respondent No.4 and who has been drawing salary in the post of Assistant Registrar without any objections from Respondent Nos. 1 to 3 since 1992 till his superannuation in 2006 be denied pension merely on the ground of lapses on the part of respondent Nos. 1to 4 in taking steps to absorb and/or regularise the petitioner in the Maharashtra Administrative Tribunal according to Rules and Circulars. 16. In our opinion both on equity and principles of fairness such failure ought ought not to deny the petitioner the pension in the post of Assistant Registrar. As noted earlier this Court took judicial notice of the fact that non-regularisation of employees who have been transferred to MAT on constitution of MAT in Writ Petition No.6956 of 2005. The learned Advocate General had appeared for the State. This Court had issued directions to the State to forward their cases to M.P.S.C. The State still thought it fit no to do so. The order of this Court was not challenged by the State before the Hon’ble Supreme Court. On the contrary the petitioner there had approached the Hon’ble Supreme Court withdrew the S.L.P. As stated earlier. In these circumstances, in our opinion, denying to the petitioner the pension in the post of Assistant Registrar would be arbitrary. 17. In the light of that the following order:- Rule made absolute in terms of prayer clause (a). Considering that we have held that the appointment of the petitioner is regular Rule further made absolute in terms of prayer clause (d) which reads as follows:- “(d) This Hon’ble Court be pleased to issue writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction 11 directing the Respondents to fix the pension scale of the Petitioner as per post of Asst. Registrar; on the establishment Respondent No.4 MAT and pay the pension with interest including the differential amount w.e.f. 1st October 2006 and other pensionary benefits.” 18. In the circumstances of the case there shall be no order as to costs. (J.H. BHATIA, J.) (FERDINO I. REBELLO, J.)