ASHOK KASHINATH NAIK Vs. STATE OF GOA THROUGH ITS CHIEF SECRETARY
LAWS(BOM)-2017-4-271
HIGH COURT OF BOMBAY
Decided on April 26,2017

Ashok Kashinath Naik Appellant
VERSUS
STATE OF GOA THROUGH ITS CHIEF SECRETARY Respondents

JUDGEMENT

F.M. Reis, J. - (1.) Heard Mr. V. Rodrigues, learned Counsel appearing for the petitioners and Mr. Dattaprasad Lawande, learned Advocate General appearing for the respondents.
(2.) The above petition, inter alia, prays for an appropriate writ or direction, quashing and setting aside the impugned Circular dated 02/12/2010 issued by the respondent No.3 and further to quash and aside the Corrigendum Circular dated 15/04/2011 and also seeking direction to the respondents to restore to the petitioners the amounts recovered from the petitioners in view of the impugned Circular dated 02/12/2010 and the impugned Corrigendum dated 15/4/2011.
(3.) Briefly, the facts of the case are that pursuant to the recommendations of the Fifth Central Pay Commission, Government of India, introduced Assured Career Progression Scheme (ACP) for Group B , C and D employees and isolated posts in Group A , B , C and D vide Office Memorandum dated 9th August, 1999. The ACP Scheme was adopted by the respondent No.1 in toto and made it applicable to its employees w.e.f. 22/2/2001. It is further contended that under the ACP Scheme, the employees were to be given two financial upgradations after completing 12 years and 24 years of regular service, respectively and if any promotion in between is given to such an employee, the same should be counted against the upgradation under the ACP Scheme. It is further contended that as per the ACP Scheme, the financial upgradation has to be in the next promotional scale in the hierarchy of the cadre, without creating a new post for the purpose, as the upgradation granted is personal to such employee and shall not amount to functional or regular promotion. It is the further contention of the petitioners that the respondent No.1 issued clarification on 28th June, 2001 to the ACP Scheme. Upon recommendation of the Screening Committee, on various dates, the petitioners were granted second financial upgradation under the ACP Scheme in the Pay Scale of Rs.4500-7000 (pre-revised) of the post of Head Clerk , which was the pay scale of the next promotional post according to the hierarchy of the cadre. Accordingly, somewhere on 10/10/2008, the respondent No.1 allowed its employees the benefit of the pay scale as per the recommendations of the Sixth Central Pay Commission. Thereafter, according to the petitioner, on 6/8/2009, the respondent No.1 adopted the Modified Assured Career Promotion Scheme (MACPS), introduced by the Central Government to its employees with effect from 01/09/2008. As per the MACPS, three financial upgradations were permitted after completion of 10, 20 and 30 years of regular service. The said recommendations were accepted by the respondent No.1, inprinciple and by the Government Order dated 6th March, 2009 directed to examine various cases of the revised upgradations of the pay scales. It is further contended that by an Order dated 11th November, 2009, there was upgradation of the pay scale of the Head Clerks, equivalent to Senior Assistant in the Secretariat i.e. Rs.9300-34800+4200 (Grade Pay) in PB-II pay scale equivalent to Rs.5500-900 (pre-revised) to be fixed notionally w.e.f. 1st January, 2006 and actual monetary benefits to be granted w.e.f. 1st October, 2009. Under the same order dated 11/11/2009, pay scales of certain other posts were also similarly upgraded. By the order dated 11/11/2009, the petitioners were granted upgraded pay scale of the post of Head Clerk i.e. Rs.9300-34800+Rs.4200 (Grade Pay) in PB II Pay Band equivalent to Rs. 5500-9000 (pre-revised) and their pay was accordingly fixed in the upgraded pay scale. It is further contended that the pay fixation statements of the petitioners fixing their pay, in the upgraded pay scale, were duly checked and approved by the respondent No.3 and the petitioners were drawing their pay regularly based on the upgraded pay scale. It is further contended that somewhere on 11th June, 2010, the respondent No.3, after reexamination, by his letter dated 11th June, 2010, clarified to the Joint Director of Accounts, Margao that in respect of LDCs/UDCs who are holding TBPs/ACP scale of Rs.4500-7000 as on 1.1.2006 are to be given the revised grade pay of Rs.4200 in terms of Fiance Department s Order dated 11.11.2009, since these employees have been granted TBPs/ACPS of the post of Head Clerk i.e. promotional scale of the post. The respondent No.2 granted three financial upgradations under the MACPS to the petitioners who had completed 30 years of regular service. It is further contended that the respondent No.3 arbitrarily issued the Circular dated 2/12/2010 stating that the benefit under para 6.1 of the Order dated 11/11/2009 is to be extended only to the Head Clerks strictly on functional basis only and not to those who draw pay scales by virtue of non-functional upgradation. Consequently, it is contended that the LDCs/UDCs in ACP-I or ACP-II shall not be entitled to the pay band of Rs.9300-34800+ 4200 (Grade Pay) in PB-II. It is further contended that the Circular dated 2/12/2010 issued clarification to modify the ACP Scheme issued by the Central Government and consequently, the respondent No.2 issued the corrigendum dated 15/4/2011 downgrading the pay scale of the petitioners who have been already granted three financial upgradations under the MACPS for having completed more than 30 years regular service. Being aggrieved by the arbitrary action of the respondent No.1 in issuing the Circular dated 2/12/2010 by the respondent No.3 which, according to the petitioners, runs contrary to the ACP Scheme and having caused financial loss, the petitioners have approached this Court praying for the aforesaid reliefs.;


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