Govind R. Mashelkar., v. The State of Goa, Thr. the Chief Secretary and Anr.,

Jose IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.965 OF 2016 Govind R. Mashelkar, Major of age, Indian National, Resident of H. no. 1169, Ward no. 2, Near Government Primary School, Pontemol, Curchorem – Goa. … Petitioner Versus 1) The State of Goa, Through the Chief Secretary, Having O+ce at Secretariat, Porvorim, Bardez, Goa. 2) The Department of Forest, Through the Principal Chief Conservator, Government of Goa, Panaji, Goa. ... Respondents Mr H.D. Naik with Mr A.D. Naik, Advocates for the Petitioner. Ms Amira Razaq, Government Advocate for Respondent No.1. CORAM: M.S. SONAK & BHARAT P. DESHPANDE, JJ. DATED: ORAL JUDGEMENT: (

Per Bharat P. Deshpande, J.

)

¶1By this petition, refusal to grant 3rd Financial Upgradation under the Modi6ed Assured Career Progression Scheme (MACPS), is challenged.

¶2Heard learned Counsel Mr H.D. Naik appearing with Mr A.D. Naik for the Petitioner and Ms Amira Razaq, Government Advocate for Respondent No.1.

¶3It is the main contention of the Petitioner that inspite of completion of 30 years of service, he was granted only one promotion and that Respondent denied his legitimate right for grant of 3rd Financial Upgradation as per MACPS, which is completely illegal, arbitrary, and therefore, needs to be recti6ed.

¶4The Petitioner was initially appointed in the post of Round Forester on 02.12.1974 in the Forest Department of Government of Goa. He was promoted to the post of Range Forest O+cer on ad-hoc basis on

22.05.1985, which was the next promotional post at the relevant time. Vide order dated 14.12.1994, ad-hoc promotion of the Petitioner was regularized with retrospective eAect from the date of his ad-hoc promotion.

¶5In the meantime, somewhere in the year 1998, the Government of Goa through Personnel Department issued an O+ce Memorandum dated

05.07.1989 thereby introducing Time Bound Promotional Scheme

(TBPS) with eAect from 01.06.1989 for the State Government Employees and more speci6cally who have stagnated in the same post for more than 12 years. As per the said scheme (TBPS), Petitioner having been found eligible upon completion of the required period of 12 years in the post of Range Forest O+cer, was granted bene6t vide order dated 24.04.1998 in the scale of Rs.6500-200-10500 that is the next higher post scale of Assistant Conservator of Forest, with eAect from 29.05.1997.

¶6The Central Government, somewhere in the year 2009, recommended in its 6th Central Pay Commission Modi6ed Assured Career Progression Scheme (MACPS) with further modi6cation to grant three Financial Upgradations at the interval of 10, 20 and 30 years of continuous regular service.

¶7The Petitioner contends that on 13.05.2013, he was promoted to the post of Assistant Conservator of Forest in the Pay Band of Rs.9300-34800 + Grade Pay of Rs.4600. As on 20.06.2014, the Petitioner had put in required number of years in service for grant of 3rd Financial Upgradation as per MACPS. He submitted a detailed representation dated 23.06.2014 and it was forwarded to the o+ce of Deputy Conservator of Forest. The representation of the Petitioner was then forwarded to Department of Forest thereby recommending the case of the Petitioner for 3rd Financial Upgradation. However, there was no response from the higher authorities.

¶8Accordingly, the Petitioner had to approach this Court by 6ling Writ Petition No.18/2016 seeking direction to the Respondents to consider his case for grant of 3rd Financial Upgradation. On issuing notice in the said Writ Petition No.18/2016, the Respondents vide their letter dated 24.05.2016, informed the Petitioner that Government has rejected his representation. Since the said petition was only for direction to consider his representation and later on it was informed that such representation was rejected, the Petitioner sought leave to withdraw the Writ Petition No.18/2016 with liberty to 6le fresh petition challenging the rejection.

¶9Accordingly, the present petition was 6led wherein it has been categorically claimed by the Petitioner that the contention raised by the Respondents of granting two promotions to the Petitioner or double promotion to the Petitioner, is incorrect, and therefore, he is entitled for the 3rd Financial Upgradation after completion of 30 years of regular service.

¶10In support of the contention raised by the Petitioner, he has placed on record his order of appointment dated 22.05.1985 at Annexure 'A' wherein his name appears at Sr. No.3 for the post of Round Forester. Similarly, vide order dated 17.11.1994 (Annexure 'B'), Petitioner has placed on record the order recommending the Petitioner to promote on regular basis to the post of Range Forest O+cer with eAect from 29.05.1985. Vide Exhibit 'C', Petitioner has placed on record the order dated 27.04.1998 by which he was considered for the time-bound promotional scale with eAect from 29.05.1997. Finally, vide Exhibit 'D', vide order dated 13.05.2013, the Petitioner was promoted to the post of Assistant Conservator of Forest, Group 'B' Gazetted on ad-hoc basis in the Pay Scale of 9300-34800 + ₹ Grade Pay 4600. ₹

¶11Vide communication dated 24.05.2016, the Deputy Conservator of Forest informed the Petitioner that his representation dated 03.03.2015 is rejected by the Government since the Petitioner has already availed three Financial Upgradations (2 promotions and 1 time-bound promotional scale). On this ground, the Respondents rejected contention of Petitioner of further Financial Upgradation under MACPS.

¶12Reply a+davit has been 6led on behalf of Respondents wherein apart from admitting the posts held by the Petitioner from time to time, it has been speci6cally claimed in para 12 that the Petitioner got double promotion from the post of Range Forester to directly Range Forest O+cer, as in between, the post of Deputy Range Forester exists. Thus, according to the Respondents, in view of double promotion granted to the Petitioner and thereafter grant of time-bound promotional scale, he is not entitled for any further Financial Upgradation.

¶13We have heard the learned Counsel Mr Hanumant Naik appearing for the Petitioner and learned Counsel Ms Amira Razaq for the Respondents at length.

¶14Mr Naik appearing for the Petitioner forcefully submitted that when the Petitioner was promoted to the post of Range Forester, in the year 1985, there was no post of the Deputy Range Forester existing. In this respect, he placed reliance on the Noti6cation dated 02.06.1966 issued by the Government of Goa in exercise of the powers conferred by proviso to Article 309 of the Constitution by which the Rules relating to recruitment to non-gazetted, non-ministerial post in the o+ce of Conservator of Forest under the Government of Goa were enacted and called as Recruitment Rules 1966. The Schedule appended to the said Rules reads thus:- Name of Post No. of posts Classificati on Scale of Pay Whether Selection Post or non-Selection Post Age limit for direct recruits Educational and other qualifications required for direct recruits Whether age and education al qualificati ons prescribe d for the direct recruits will apply in the case of promotee s Period of probati on, if any Method of recruitment whether by direct recruitment or by promotion or by deputation/tr ansfer and percentage of the vacancies to be filled by various methods In case of recruitment by promotion/ deputation/t ransfer, grades from which promotion/ deputation/t ransfer to be made If a DPC exists, what is its compositio n Circumstan ces in which U.P.S.C. is to be consulted in making recruitment

¶1Forest Guards Class IV Non-ministerial Rs.70-1-80--EB-1-85. N.A. 16-23 years. Should have passed III class from a recognised school N.A. Two years Direct recruitment - - As required under the rules.

¶2Round Foresters Class III Non-ministerial Rs.110--- 131-4-143-EIB-4-155. Non-Selection. 18-25 years 1) Matriculate or equivalent. 2) Successful completion of training as Forester from a recognised Institute. 3) Physical standard Chest: 31"-33" Height-5"-4" Age-No Qls-Yes Two years By promotion, failing wh ich by direct recruitment. Promotion-Forest guards with one year standing in the grade. Class III D.P.C. Do

¶3Forest Surveyors Do Rs.170-10-290-15-380. N.A. Do 1) Matriculate or equivalent. 2) Training in Surveying from any recognised Polytechnic, or other Institute of standing. N.A. Two years Direct recruitment - - Do

¶4Range Forest Officers Do Do Selection Do 1) Intermediate or equivalent. 2) Diploma of Forest Ranger from a recognised Forest Training College or 5 years experience as Round Foresters. Age-No Qls-Yes Two years Promotion-50% Direct recruitment-50% Promotion – Round Foresters with five years standing in the grade. Do Do

5.

Sub-divisional Forest Officer Do Rs.250-20-350-25-500 Do Do 1) Graduate with Science Subjects. 2) Associateship in the Indian Forest

College,

Forest Research Institute, Dehradun or equivalent. or Degree or diploma in Forestry from

any

recognised University/Institute. 3) Physical standard Chest: 31"-33". Height-5"-4" Age-No Qls-Yes Two years Promotion-33-1/ 3% Direct recruitment-66-2/3% Promotion – Range Forest Officers with

years standing in the grade. Do Do

¶15Perusal of above Rules and the Schedule clearly show that the post of Range Forester was considered as class 3, non-ministerial, non-gazetted and non-selection basis. At Serial No.3, the post of Forest Supervisor is shown as non-ministerial, non-gazetted with a higher scale than that of Round Forester, but the method of recruitment in Column No.10 is shown as by direct recruitment. Thus, the post of Round Forester was not coming within the feeder cadre for the post of Forest Supervisor.

¶16Serial No.4 of the Schedule refers to Range Forest O+cer which is again having the same Pay Scale as that of Forest Supervisor but the mode of recruitment in Column No.10 is shown as Promotion-50% and Direct Recruitment-50%. The feeder cadre in Column No.11 is shown as promotion from Round Forester with 5 years standing in the grade. Thus, the post of Forest Supervisor at Serial No.3 and the post of Range Forest O+cer were of the same level, having diAerent educational quali6cations and also diAerent mode of recruitment. Therefore, at the time of promotion of the Petitioner, in the year 1985, he was not eligible to be promoted to the post of Forest Supervisor, which post was only to be recruited through direct employment. However, he was clearly entitled/eligible for the post of Range Forest O+cer, which was having equal pay as that of Forest Supervisor, and 50% of such posts could be 6lled in by promotion from Round Foresters with 5 years standing in the grade.

¶17It is not the case of the Respondents that since Petitioner was directly promoted to Range Forest O+cer instead of promoting him to Forest Supervisor, though having same Pay Scale, the Petitioner got double promotion. At this stage, it is necessary to note that in the Rules of 1966 or in any other document, the post of Deputy Range Forester was not created. Therefore, the Petitioner's promotion as a Range forest o+cer, which was the only promotional post then available to the Petitioner, can hardly be styled as some double promotion to deny the 3rd 6nancial upgradation to the Petitioner.

¶18Learned Counsel Mr Naik then pointed out the Noti6cation dated

04.12.1985 issued by Department of Personnel and Administrative Reforms (Exhibit R-6) by which the Government of Goa noti6ed the Rules relating to recruitment to Group 'C' non-gazetted, non-ministerial post in the o+ce of Conservator of Forest and were called as Recruitment Rules 1985. Rule 2 of these Rules 1985 specify that the number of posts, classi6cation of the said post and the scales of pay attached thereto shall be as speci6ed in Column Nos.2 and 4 of the Schedule.

¶19The schedule appended to the Rules 1985 reads thus:- Name of Post No. of posts Classifi cation Scale of Pay Whether Selection Post or non-Selection Post Age limit for direct recruits Educational and other qualifications required for direct recruits Whether age and education al qualificati ons prescribe d for the direct recruits will apply in the case of promotee s Period of probati on, if any Method of recruitment whether by direct recruitment or by promotion or by deputation/tran sfer and percentage of the vacancies to be filled by various methods In case of recruitment by promotion/dep utation/transfer , grades from which promotion/dep utation/transfer to be made If a DPC exists, what is its compositi on Circum stances in which U.P.S.C . is to be consult ed in making recruit ment

¶1Range Forest Officer

(1985) Subject to variation depende nt on work-load Rs.425-15-500-EB-15-560-20-Group 'C' Non-Ministeri al, Non-Gazetted. Selection 18-24 years (Relaxa ble for Govt. servant s). Essential:

i) Std. XII with the subjects Mathematics,

Physics, Chemistry, Botany, Zoology.

ii) Good physique with sound hearing and fitness for rough outdoor work, Minimum height 163 cms. And chest 79 cms. With minimum expansion of at least 5 cms. Iii) Candidate must pass a physical test consisting of a walk of 25 kms. To be completed in 4 hours. Note: Selected candidates will be sent for training in the Forest

Training College/Institute for Diploma of Ranger immediately after selection. Failure in the aforesaid training will debar them to claim retention in service as Range Forest Officer. Desireable: Knowledge of Konkani and/or Marathi/Gujarathi. Age: No. Qls: Yes Two years 50%

by promotion failing which by

direct recruitment and 50% by direct recruitment Promotion: Dy. Range Forest Officer with 5 years of service in the grade failing which with 8 years in the grade of Dy. Range Forest Officer and Round Forester combined together, failing both with 8 years in the grade of Round Forester. Group 'C' D.P.C. N.A.

2.

Dy. Range Forest Officer

(1985) Subject to variation depende nt on work-load --do--Rs.330-10-380-EB-12-500-EB-15-560 --do--N.A. N.A. N.A. --do--By promotion Promotion: Round Foresters with 3 years regular service in the grade. --do----do--

¶20According to Mr Naik, the post of Deputy Range Forester was 6rst time introduced in the Department of Forest in December 1985, whereas by that time Petitioner was already promoted though on ad-hoc basis to the post of Range Forest O+cer. Thus, according to Mr Naik, there was no post of Deputy Range Forest O+cer and hence, contention of the Respondents in their reply that the Petitioner got double promotion is incorrect.

¶21At this stage, it is necessary to note the contentions raised in the a+davit 6led by Respondent and more speci6cally para 12 which reads thus:- "12. With reference to Paragraph 9 of the Petition, contents are denied. I further say that the next promotion for Round Forester is the post of Deputy Range Forest O"cer and further promotional post is Range Forest O"cer. The petitioner has in fact got the promotion from Round Forester to Range Forest O"cer directly which clearly indicates that there is a double promotion. The petitioner subsequently in the year 1998 received the bene*ts of Time Bound Promotional Scale vide order No. 1-V-C-51-98/359 dated 27/04/1998. I say that this clearly indicates that the petitioner has already gained/earned an upgradation of 3 scales of 4000-100-6000(5200-20200+2400 of Deputy Range Forest O"cer) and promotion scale of 4500-125-7000(5200-20200+2800 of Range Forest O"cer) and on the grant of Time Bound Promotional Scale 6500-175-10000(9300-34800+4600 of Assistant Conservator of Forests), therefore submit that the petition deserves no consideration. Exhibit R-5"

¶22It is the contention of Respondent that the post of Deputy Range Forest O+cer was created in the year 1980 and noti6ed in the year 1985. In this respect, Respondent has placed on record order dated 02.08.1980 (Exhibit R3) which shows the sanction accorded for creation of the post in the Forest Department for the period ending upto 28.02.1981 in the 6rst instance. At Sr. No.2, the post of Deputy Range Forest O+cer is shown. However, Respondent clearly admitted that though the post of Deputy Range Forest O+cer was sanctioned in the year 1980, it was noti6ed in the year 1985. Thus, from the reply, it is clear that till the year 1985, no eAect was given to the creation of such post since such order was not noti6ed in the Government Gazette.

¶23Precisely for this reason, when the Petitioner was considered eligible for the promotion to the next grade, the Department as well as the Government considered promoting the Petitioner on ad-hoc basis to the post of Range Forest O+cer. The order dated 22.05.1985 clearly shows that other o+cers were also considered for diAerent post. Thereafter, vide order dated 14.12.1994 (Exhibit B), the DPC recommended to regularize the Petitioner in the post of Range Forest O+cer and that too with eAect from 29.05.1985. Thus, even on 29.05.1985, the post of Deputy Range Forest O+cer was not noti6ed though sanction to create such post was granted in the year 1980.

¶24The Respondents in their reply are clearly silent as to whether after sanctioning of the post of Deputy Range Forest O+cer on 02.08.1980 (Exhibit R3), such post was 6lled in either by promotion or otherwise. The entire a+davit is silent on this aspect and rightly so as these posts were not noti6ed in the Government Gazette till December 1985. Thus, contention of the Respondent that Petitioner got double promotion in the year 1985 itself, is factually incorrect for the simple reason that when the Petitioner was promoted vide order dated 22.05.1985 to the post of Range Forest O+cer, there was no post in existence as that of Deputy Range Forest O+cer in the Department.

¶25The contention raised by the Respondents in para 33 of their reply a+davit claiming that Petitioner enjoyed three Financial Upgradations in 30 years is factually incorrect as he was never appointed as Deputy Range Forest O+cer as tried to be claimed in the chart in para 33 of the reply. The record clearly goes to show that Petitioner was working as Range Forester and was promoted to the post of Range Forest O+cer on

22.05.1985. This was the 6rst promotion of the Petitioner and 6rst Financial Upgradation. Only because by that time the post of Deputy Range Forest O+cer was sanctioned but not noti6ed, the Department cannot take advantage of such sanctioning of post claiming thereby double promotion to the Petitioner. When the post of Deputy Range Forest O+cer was not in existence in the Department being not noti6ed and that Respondents are totally silent about carrying out any such promotions to the post of Deputy Range Forest O+cer from the year 1980 till granting promotion to the Petitioner on 22.05.1985, the Respondents cannot claim that it was a double promotion.

¶26Thus, it is clear that the 6rst promotion which the Petitioner got is in the post of Range Forest O+cer and thereafter, he was promoted to the post of Assistant Conservator of Forest with eAect from 13.05.2013. Accordingly, the Petitioner got two Financial Upgradations.

¶27Vide Annexure 'E', the Petitioner has placed on record O+ce Memorandum issued by the Government of India, Ministry of Personnel dated 19.05.2009 which deals with Modi6ed Assured Career Progression Scheme (MACPS) for the Central Government civilian employees. Admittedly, this scheme was adopted by the State Government. This scheme was applicable to all regularly appointed Group A, B and C Government employees. Annexure I (page 31) of the said scheme gives the details as to how the scheme operates. It speci6cally mentions in para 1 that there shall be three Financial Upgradations under MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. Financial Upgradation under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay. It envisaged placement in the immediate next higher grade pay in the hierarchy in the recommended revised pay bands and grade pay as given in Section 1, para 'A' of the 6rst scheme of CCS (Revised Pay) Rules 2008. The grade pay at the time of Financial Upgradation under MACPS can, in certain cases where regular promotion is not between two successive grades, be diAerent than what is available at the time of regular promotion. In such cases, higher grade pay attached to the next promotional post in the hierarchy of the concerned cadre/organization, will be given only at the time of regular promotion. Illustrations were given in the scheme which clearly depicts as to how the scheme should operate and the DPC has to consider upgradation at the regular intervals of 10, 20 and 30 years of service respectively.

¶28By way of illustration in para 28, the scheme provides as under:- "(i) If a Government Servant (LDC) in PB-I in the Grade Pay of Rs.1900 gets his *rst regular promotion (UDC) in the PB-I in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd *nancial upgradation under the MACPS in the PB-I in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).

(ii) In case he does not get any promotion thereafter, then he would get 3rd *nancial upgradation in the PB-II in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10)."

¶29There is no dispute with regard to the above scheme (MACPS) and the fact that the Petitioner got one promotion to the post of Range Forest O+cer on 22.05.1985. However, he continued in the said post till

12.05.2013 when he was promoted to the post of Assistant Conservator of Forest. Considering the above example, the Petitioner was appointed on

02.12.1974 and was promoted to the post of Range Forest O+cer on

22.05.1985, that is within a period of nine and a half years. Thereafter, the Petitioner continued in the post of Range Forest O+cer till 12.05.2013 which means for a period of around 28 years without any Financial Upgradation. Thus, the contention raised by the Respondents in their reply a+davit that the Petitioner received three Financial Upgradations, is factually incorrect. The claim of the Respondents that Petitioner got double promotion is also factually incorrect as by that time, the post of Deputy Range Forest O+cer was not noti6ed and thus, the next post available for the Petitioner was that of Range Forest O+cer. There is no explanation coming forward in the reply as to how and on what basis, Petitioner was directly promoted to the post of Range Forest O+cer without considering his case for the post of Deputy Range Forest O+cer. The only answer to it is obvious that at the relevant time, the post of Deputy Range Forest O+cer was not noti6ed though sanctioned and therefore, the Department was unable to 6ll up such post.

¶30Having said so, contention of the Petitioner regarding his entitlement for the 3rd Financial Upgradation needs to be accepted. Accordingly, the decision of the Respondent dated 24.05.2016 (Exhibit K, page 49) needs to be quashed and set aside.

¶31The petition therefore needs to be allowed as per prayer clauses (A) and (B). Accordingly, the Rule is made absolute in terms of prayer clauses

(A) and (B), which read as follows: "A. That this Hon'ble Court be pleased to issue aWrit in the nature of Certiorari or Writ of Certiorari or any other appropriate Writ calling for the records from the Respondents in respect of decision taken by the Respondents to reject the claim of the Petitioner for grant of 3rd Financial Upgradation and upon examining the legality, reasonability and propriety of the same be pleased to quash and set aside the decision of the Respondents as conveyed to the Petitioner vide letter dated 24/05/2016. B. That this Hon'ble Court be please to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, order or direction commanding the Respondents to grant 3rd *nancial upgradation to the Petitioner with all bene*ts."

¶32The 6nancial bene6ts in terms of this judgement and order must be paid to the Petitioner within a maximum of two months from today with interest @six per cent per annum. No costs.

BHARAT P. DESHPANDE, J.

M.S. SONAK, J. JOSE FRANCISCO DSOUZA Date: 2023.06.16 10:56:31 +05'30'