1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.895 of 2008 //UNREPORTED// Date of decision:7/9/2010 For approval and signature HON'BLE MR. JUSTICE S.B.DESHMUKH HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/895-08wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.895 OF 2008 Nandkishor s/o Madhav Wani, Age: 52 years, Occu.Service, r/o Deep Nagar, Tq. Bhusawal, District Jalgaon. ...PETITIONER VERSUS 1. The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai 32. 2. The Maharashtra State Power Generation Company Ltd., Home Research, Estrela Batteries, Expansion Building, Ground Floor, Plot No.2, Dharam Road, Matunga, Mumbai 400 012. 3. The Chief General Manager, Bhusawal Thermal Power Station, Deep Nagar, Bhusawal, Distrct Jalgaon. ...RESPONDENTS ... Mr. S.P.Brahme, Adv., for the petitioner. Mr.D.V.Tele, A.G.P., for respondent no.1. Mr.V.Y.Patil, Adv., for respondent nos. 2 and 3. ... CORAM: S.B.DESHMUKH AND K.U.CHANDIWAL, JJ. DATE :7/9/2010 *** 3 Date of reserving the judgment:31.8.2010 Date of pronouncing the judgment:7/9/2010 *** JUDGMENT: (Per K.U.Chandiwal, J.) 1. Heard. Rule, made returnable forthwith. By consent of the parties, the petition is finally heard. 2. The petitioner, Radar Mechanic in Indian Air Force, was discharged from Indian Air Force on his request on 6.11.1984. He rendered services for 8 years and 180 days. He was selected for the post of Junior Engineer in M.S.E.B. The grievance of the petitioner is, his service with Air Force of 8 years and 180 days entitles him to seek benefit of notional increments, which would be 8 in number. The contract of service was for 15 years. 3. The petitioner is equipped with a certificate dt.17th Dec.,1999, issued by MWO Station Assistant ADJI 11 BRD A.P. Shri J.N.Billade, certifying that petitioner was enrolled in Union Air Force on 19.5.1976 and released on 14.11.1984. He has completed 8 years 180 days colourful service in Red/Fit Trade. The circular by M.S.E.B., dated 30.10.1999 (Exh.F) and the clarification letter dated 4 23.3.2000 (Exh.G) supports the contention of the petitioner. 4. It is more than clear, the petitioner has rendered colourful service, as referred above and, in the light of the circular dt.23.3.2000 (Exh.G), the eligibility for such notional increments can be bestowed to him. 5. By clarification regarding eligibility to ex-servicemen, dt.3rd Jan.,2005 (Exh.J) it is informed as under in paragraph No.2: " Eligibility to ex-Servicemen status is determined as per the Govt. of India Notification/Definition in vogue at the time of the release/discharge of the individual. As per the documents forwarded vide your letter under reference, it is apparent that No.620555, ex Cpl N.M.Wani was enrolled in IAF on 19th May 76 and released/discharged on compassionate grounds on 13th Nov. 84 after completing 08 years and 180 days service. In this case, Govt.of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms Notification No.39016/10/79-Estt(c) dated 15 Dec. 1979 is applicable. As per Para 2(c)(iii) of this Notification, No.620555, ex CPL.N.M.Wani is eligible to ex- Servicemen status and all the resultant benefits ( Photocopy of the Notification attached for ready reference)." Thus, the Armed Force accepts that petitioner is eligible to ex-serviceman's status and the 5 resultant benefits in the light of the Government notification. 6. In the affidavit in reply of Dinkar s/o Ramji Jadhav, representing respondent nos. 2 and 3, it is informed that the discharge from Air Force of the petitioner was at his request, before fulfilling condition of enrollment. The administrative circular dt.30.11.1999, clause 'Kh' specify that, the person who has completed fixed tenure, is only eligible and entitled for the said benefit. The benefit given to other employee, namely, C.B.Jadhav, was erroneously rendered and the mistake is rectified by the Department. In similarly placed situation, some benefits were to be given at Paras Thermal Power Station, which are also turned down. The affiant reiterates, petitioner is not eligible and entitled for the benefit for notional increments. 7. The circular, to which reference is given by affiant, in all humility, shall not override the effects of Government decision illustrated vide communication dt.23.3.2001 and 30.10.1999. The service of petitioner with AIR FORCE was in a fixed tunure, he has retired after 8 years and 180 days. However, in the light of the policy and since the Armed Force has also accepted that his status to be treated as ex- 6 serviceman, it is obvious, the petitioner shall be eligible and entitled to claim benefit of one increment per year for the service he has rendered, with AIR FORCE. 8. The slackness in taking the decision by the authorities and applying its circular erroneously has abridged the petitioner's genuine claim. We hold, after considering the service rendered by the petitioner in the Indian Air Force that, the petitioner is eligible for eight notional increments and for fixation of his pay scale with respondent. Rule made absolute to the extent indicated above. (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE ... AGP/895-08wp