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IN THE HIGH COURT OF BOMBAY
M.S. Sonak, Bharat P. Deshpande, JJ.
Mahesh B. Kaliwal - Appellant
Versus
State of Goa - Respondent
Writ Petition No. 521 of 2019
Decided On : 14-06-2023
FINANCIAL UPGRADATION - ASSURED CAREER PROGRESSION SCHEME - ACT SECTION LIST: Office Memorandum dtd. 9/8/1999, Office Memorandum dtd. 10/2/2000 - The court discussed the Assured Career Progression Scheme (ACPS) and the Modified Assured Career Progression Scheme (MACPS), emphasizing that employees in isolated posts without promotional avenues are entitled to financial upgradations. The court interpreted the relevant office memoranda to conclude that the petitioner was entitled to higher pay scales for his financial upgradations, as similar posts received better treatment. The denial of the third financial upgradation under MACPS was also deemed unjustified, leading to a ruling in favor of the petitioner.
Fact of the Case:
The petitioner, a State Entomologist, sought financial upgradations under the ACPS and MACPS after serving for 34 years without promotions. He was granted the first two upgradations post-retirement but contested the scales awarded, claiming entitlement to higher scales based on similar posts.
Finding of the Court:
The court found that the petitioner was discriminated against in the awarding of financial upgradations, as similar posts received higher scales. The court also noted that the third financial upgradation under MACPS was due but had not been granted, despite acknowledgment of eligibility.
Issues: Whether the petitioner was entitled to higher financial upgradations under the ACPS and MACPS, and whether the denial of these benefits constituted discrimination and a violation of constitutional rights.
Ratio Decidendi: The court held that the provisions of the ACPS and MACPS must be applied fairly and consistently, particularly for isolated posts. The interpretation of the office memoranda indicated that the petitioner was entitled to the same financial upgradations as similar posts, and the failure to grant the third upgradation was unjustified.
Final Decision: The petition was allowed, directing the respondents to grant the petitioner the appropriate financial upgradations and to pay the arrears within two months, with interest at 6% per annum.
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. 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 departme
The court affirmed applicants' entitlement to financial upgradation under the Assured Career Progression Scheme, emphasizing eligibility due to completion of service years despite the introduction of....
The Court clarified the difference between the replacement scale and upgradation in pay scale under the Assured Career Progression Scheme, emphasizing that the revision in pay scale is distinct from ....
Financial upgradation under the Revised Assured Career Progression Scheme is warranted upon completion of 30 years of service, irrespective of subsequent promotions.
ACP upgradation to Rs.6500-10500/- not ignored under MACP Clause 5 as post-6th CPC, feeder post carries GP Rs.4200/- while upgraded post carries GP Rs.4600/- per O.M. 13.11.2009, maintaining hierarch....
The main legal point established in the judgment is that pay scale rationalization should be ignored for the purpose of the first financial upgradation under the ACP Scheme, based on the application ....
Non-functional replacement pay scale granted pre-MACP cannot be counted as financial upgradation against MACP benefits, per binding judicial precedent overriding administrative advice; ensures equali....
The applicant is entitled to ACP and MACP benefits despite prior promotions since non-beneficial promotions do not negate financial upgradation under the schemes.
The MACP scheme prohibits additional financial upgradation if prior upgradations under ACP have been granted, emphasizing strict adherence to policy provisions.
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