1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6821 OF 1998 Dhansing Dagdusing Rajput, 10, Sai Apartments, Shivaji Nagar, Naupada, Thane. ...Petitioner Versus State of Maharashtra, through the Secretary to the Govt. in the Finance Department (Accounts), Mantralaya, Mumbai. ...Respondents ...... Mr.K.K.Malpathak for Petitioner. Mr.C.R.Sonawane, A.G.P. for Respondents. ...... CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ. DATED:- MARCH 18, 2010. PER COURT : 1. Heard Counsel for the parties. 2. This Petition under Article 226 of the Constitution of India takes exception to the Judgment and Order passed by the Maharashtra Administrative Tribunal dated July 22, 1998 in Original Application No.609 of 1997. 3. Briefly stated, the Petitioner joined service in Maharashtra Finance and Accounts Services as Class-III employee on 17th November 1965. He was promoted as Class-II Officer on 7th July 1970. However, on September 1975, his junior Shri Sahare was 2 promoted as Class-I (Junior) Cadre in preference to the Petitioner. The Petitioner was promoted to that post only on 14th September 1979. Later on, on 17th August 1987, Shri Sahare was promoted as Class-I (Senior) post ignoring the claim of the Petitioner. The Petitioner was promoted to the said post of Class-I (Senior) only on 1st November 1989. The Petitioner attained age of superannuation on 1st April 1990. The revised select list seniority of Class-I (Junior) was prepared and published by the Government on 24th November 1994. Since the said Sahare who was Junior to Petitioner was promoted as Class-II Officer, although the Petitioner was admittedly senior to him, the Petitioner filed original Application bearing No.88/1996 challenging his superannuation and also praying for a consequential relief. The said original application was decided in favour of the Petitioner in the following terms: “In view of the aforesaid admitted position, however, we direct that the petitioner as well as Shri Sahare should be given the same deemed date of promotion for their regular promotion or, to put it in other words, if Sahare is given a regular promotion on a particular date, the petitioner should be given that date as a deemed date of his promotion. This should apply to the petitioner’s promotion in Class-I (Junior) as well as Class-I (Senior) cadre. 8. The petitioner’s grievance that he had retired in 1990 and even in 1997, his rights to pension and pensionary benefits are not finalised and whatever is being given to the petitioner is being given on the basis of the 3 salary last drawn by him. We, therefore, direct the respondents first to determine the petitioner’s deemed dates of promotion on the basis of the observations made above. The next step would be to fix the pay of the petitioner in the Class-I (Junior) cadre on that basis from year to year till he was promoted in CLASS-I (Senior) cadre. The 3 rd stage would be to fix the pay of the petitioner in Class-I (Senior) cadre as on the deemed date of his promotion in that cadre. The next stage would be to work out the pay of the petitioner from year to year till the date of his superannuation and determine the amount of his last drawn salary as on the date of superannuation. It is on that basis that the amount of pension and family pension and other usual pensionary benefits should be given to the petitioner. All this should be done before 31.10.1997 and the petitioner should be paid arrears of his dues as determined according to law by that date. In case of failure to pay before this date, the respondents shall pay to the petitioner costs of Rs.5000/- of this petition, which shall be paid initially by the State Government but which the State Government shall be at liberty to recover the same personally from the Officer/s responsible for the delay in finalisation of the case and making the payment. Rule made absolute accordingly.” (emphasis supplied). 4. In view of the said decision, the Respondents were obliged to treat the Petitioner as having been promoted to Class-I (Junior) Cadre with effect from 23rd September 1975 and as Class-I (Senior) with effect from 17th August 1987. The Respondent accordingly issued Government Resolution declaring that the deemed date of promotion was granted to the Petitioner on the above basis. However, the arrears of salary for the relevant period i.e. 23rd September 1975 to 14th September 1979 in the post of Class-I (Junior) Cadre and for the period 17th August 1987 till 1st November 1989 in the post of Class-I (Senior) Cadre was not paid to the Petitioner. As a result, the 4 Petitioner was forced to file another original application before the Maharashtra Administrative Tribunal bearing No.609 of 1997 for direction to the Respondents to pay the arrears of salary and other benefits to the Petitioner for the said period. This original application has been rejected by the Tribunal firstly on the ground that the claim of the Petitioner was barred by limitation, as the Petitioner claimed back wages for a period more than three years earlier to the filing of the Application. Secondly, the Court noted that the Authorities had rightly invoked Circular dated 10th March 1960 to deny benefit of arrears of salary to the Petitioner. 5. After having considered the rival submissions, in our opinion, both these points on the basis of which the Tribunal rejected the original Application of the Petitioner are devoid of merits. Insofar as the ground regarding claim being barred by limitation, the same was unavailable to the Respondents; nor the Tribunal was justified in non- suiting the Petitioner on that count. That is so because the earlier decision of the Tribunal dated 24th July 1997 directs the Respondents to pay the arrears of salary for the relevant period. That decision would bind the Respondents as also the Tribunal. The Co-ordinate 5 Bench of the Tribunal could not have ignored the said direction given in order dated 24th April 1997. In our opinion, it was unnecessary for the Petitioner to institute fresh original application, as the relief claimed in the subsequent application was already granted to the Petitioner in terms of order dated 24th April 1997 relevant portion whereof is reproduced hitherto. 6. Insofar as reliance placed on Circular dated 10th March 1960 by the Respondents to justify its action of refusing to offer the arrears for the relevant period to the Petitioner is concerned, even the same is devoid of merits. For the sake of convenience, we think it apposite to advert to the said circular of the Government which reads thus: “Fixation of Seniority and pay on promotion according to Final gradation list. GOVERNMENT OF BOMBAY Political and Services Department Circular No.SR-INT-1059-VI. Sachivalaya, Bombay. Date: 10th March, 1960. CIRCULAR OF GOVERNMENT Promotion made on and after the 1st November 1955, have been treated as provisional pending absorption of the personnel and finalisation of gradation lists in accordance with the Allocated Government Servants’ (Absorption, Seniority Pa and Allowances) Rules, 1957. They are 6 also subject to review in the light of the changes that may be made in the gradation lists as a result of the de4cision on the representations submitted by the Government Servants concerned. A question has been raised as to how seniority and pay in the promotion post should be fixed in the case of a Government Servants who in the light of the final gradation list, is promoted later than the date on which he was due for promotion Government is pleased to direct that Seniority and initial pay on promotion according to the final gradation list should be fixed as if the Government Servant had been promoted on the date on which he would have been promoted had the gradation list been finalised on the 1st November, 1956. The date on which he would have been promoted should be admitted on the basis of a certificate given by the appointing authority specifying the date. No arrears of pay should, however, be paid for the period prior to the date of actual promotion. To illustrate, seniority of the following clerks was provisionally fixed as under pending finalisation of the gradation lists :- 1. B 2. M 3. H 4. S 5. K A post of Senior Clerk on the scale of Rs.100-8-140, fell vacant on 1st March 1957 and Shri B was promoted to it on that date, being considered the senior most according to the provisional seniority then existing. Seniority of the 5 clerks was finally fixed in November 1958, and it was found that M was the senior most in the cadre of clerks and n o B. B was, therefore, reverted with effect from 1st December 1958 and M was promoted as senior clerk vice B. Another vacancy of senior clerk arose with effect from 15th December 1958 and Shri B was also promoted thereto being second in the seniority list. Under these orders, M will count the period from 1st March 1957, for purposes of seniority, in the cadre of senior clerks, while B will count the period from 15th December 1958, only. Assuming that M’s pay as clerk was Rs.85 on 1st March 1957, his pay as senior clerk on 1st December 1958, will be fixed at Rs.108/- (Had he been promoted on 1st March 1957, his pay on that date would have been fixed at Rs.100/- and on 1st December 1958, it would have been Rs.108/-). He will be allowed to draw the next increment carrying is pay to Rs.116/- with effect from 1-12-1959 unless this date is postponed by period of leave taken on and after 1st March 1957. Though the pay be fixed at Rs.108/- with effect from 1st December 1958, he will not draw any arrears of pay in the scale of Rs. 7 100-8-140 for the period from 1st March 1957 to 30th November 1958. By order and in the name of the Governor of Bombay. Sd/- J.C.AGARWAL, Deputy Secretary to the Government of Bombay, Political and Services Department” 7. This Circular has no application to the fact situation of the present case. The Respondents have committed error in assuming that the case of the Petitioner was not of wrongful supersession. Whereas, the Petitioner’s claim would be covered by the subsequent circular of the Government dated 25th February 1965 which reads thus: “Retrospective promotions of those who had been superseded earlier. Government of Maharashtra General Administration Department Circular Memo.No.SRV/1064/D Sachivalaya, Bombay-32. (BR). Date: 25th February 1965, Phalguna 6, 1886 Circular Memorandum of Government A question has been raised whether in cases in which Government Servants who are superseded for promotion to higher post are later promoted on the orders of higher authorities who consider the supersession unjustified and who having powers to set aside the orders of supersession do so, their promotion should be effective from the date on which they are actually promoted or from the date they would have been promoted had they not been wrongly superseded 8 Government has considered this question and decided that in such cases the Government Servants concerned should be deemed to have been promoted to higher post from the date from which they would have been promoted but for their wongful supersession i.e. from the date from which their Juniors who were promoted by superseding them started to officiate in such posts as if they were promoted on the dates on which their Juniors were promoted and also paid arrears of pay ad allowances from such dates. 2. Orders in paragraph 1 above apply also to the cases of persons who are superseded for promotion to gazetted posts within the purview of the public service Commission ordered by Government but later promoted when their earlier supersession is considered in consultation with the commission unjustified. 3. Pending cases should be regulated in accordance with these orders in paragraphs 1 and 2 above and arrears of pay and allowances should be paid to the persons concerned provided that where arrears relate to any period prior to the 1st May 1960 the payment is restricted to the period after that date i.e. after the 1st May 1960 (vide Government Letter GAD/No.SRV/1064 dated 23.3.1965). 4. This circular memorandum issues with the concurrence of the Finance Department vide that Department Un-Official Reference No.581/V dated the 2nd Feb.1965. Sd/- K.P.NADKARNI, DEPUTY SECRETARY TO THE GOVT.” 8. The argument of the Respondents which found favour with the Tribunal that the Petitioner’s case was not of wrongful supersession, deserves to be stated to be rejected. As a matter of fact, that defence of the Respondent has been rejected by the Tribunal in the former application decided on 24th April 1997 itself. It is on that premiss the Tribunal issued directions to the Respondents to give deemed date of 9 promotion to the Petitioner commensurate with the date on which his junior came to be promoted. 9. In our opinion, the approach of the Respondents as also that of the Tribunal is inappropriate. The Petitioner in terms of the earlier decision dated 24th March 1997 passed by the Tribunal became entitled for arrears of salary for the relevant period referred to above. 10. In the circumstances, we have no hesitation in setting aside the impugned decision and instead, to direct the Respondents to forthwith compute the amount towards arrears of salary payable to the Petitioner for the period between 23rd September 1975 till 14th September 1979 on assumption that he worked on that post as Class- I (Junior) cadre and for the subsequent period between 17th August 1987 till 1st November 1989 on the assumption that the Petitioner worked in that post as Class-I (Senior) cadre. That exercise be done not later than four weeks from today and the amount as payable to the Petitioner be made over within four weeks therefrom. 10 11. Rule made absolute on the above terms with costs. Petition disposed of accordingly. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)