Read Judgment: State of Maharashtra And Another V. Madhukar Antu Patil And Another

Pankaj Bajpai

New Delhi, March 24, 2022: While considering a case of down-grading of pay scale and pension on the ground of absorption in service, the Supreme Court has held that merely because the benefit of the first Time Bound Promotion (TBP) was granted after the approval of the Department it cannot be a ground to continue the same, if ultimately it is found that the contesting employee wasentitled to the first TBP on completion of twelve years of service.

A Division Bench of Justice M.R Shah and Justice B.V Nagarathna therefore observed that both the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension of the employee, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant.

The background of the case was that Madhukar Patil (first respondent) was initially appointed in 1982 as a Technical Assistant on work charge basis and continued on the said post till absorption. Later, by G.R. dated Sep 26, 1989, 25 posts of Civil Engineering Assistants were created and first respondent was absorbed on one of the said posts and was granted the benefit of first TBPconsidering his initial period of appointment of 1982 on completion of twelve years of service and thereafter he was also granted the benefit of second TBP on completion of 24years of service. 

After retirement of first respondent from the service, pension proposal was forwarded to the Office of the Accountant General for grant of pension on the basis of the last pay drawn at the time of retirement. The Office of the Accountant General raised an objection for grant of benefit of first TBP to first respondent considering his initial period of appointment of 1982 and it was found that he was entitled to the benefit from the date of his absorption in the year 1989 only. Accordingly, pay scale was down-graded and consequently pension was also re-fixed.

The Maharashtra Administrative Tribunal however directed the appellants to release the pension of first respondent as per his pay scale on the date of his retirement. While passing the said order, the Tribunal observed that first respondent was granted the first TBP considering his initial period of appointment of 1982 pursuant to the approval granted by the Government and the subsequent approval of the Finance Department, and therefore, it cannot be said that the benefit of the first TBP was granted mistakenly. The Tribunal also observed that the services rendered by first respondent on the post of Technical Assistant cannot be wiped out from consideration while granting the benefit of first TBP. This order of the Tribunal was confirmed by the High Court. Hence, the present appeal.

After considering the submissions, the Top Court found that initial appointment of first respondent in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale.

Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant, added the Court. 

Therefore, speaking for the Bench, Justice Shah highlighted that both the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn.

However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent,Justice Shah opined that there shall not be any recovery on re-fixation of the pay scale. 

However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant, clarified the Apex Court.

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