Case Note & Summary
The Writ Petition challenged the order of the District Judge, Dhule, directing recovery of Rs.210670 paid to the petitioner under the Assured Career Progression Scheme (ACPS) and stopping further benefits on the ground that she failed to secure 40% marks in the written examination for promotion to Senior Clerk. The petitioner was appointed as a Junior Clerk on 01.09.1985 and granted ACPS benefits with effect from 01.09.2001 under Government Resolution dated 20.07.2001, as she was stagnated without promotion. She appeared for the department test under Rule 580(b) of the Civil Manual but did not achieve the benchmark of 40 marks. Consequently, the employer issued recovery and stoppage orders. The petitioner contended that mere non-selection due to availability of better candidates did not render her ineligible or disqualified under Clause 3 of GR dated 01.04.2010, and that recovery was prohibited by GR dated 23.12.2015. Earlier Division Bench judgments in Shrirang Atmaram Nikam v. District & Sessions Judge, Thane and Ramesh Samhari More v. Registrar, District Court, Solapur were relied upon. A Division Bench of this Court on 29.06.2017 referred the question of law to the Larger Bench, observing that the purpose of the ACPS was to encourage employees and withdrawal may be justified where an eligible candidate refuses promotion or is found ineligible/disqualified, but mere non-selection because a better candidate exists may not amount to ineligibility. The matter was then placed before this Full Bench. The State of Maharashtra was added as a party respondent, and an affidavit in reply was filed on 26.09.2023. The Court heard the matter on 25.01.2024 and 08.02.2024 and reserved orders. The final operative decision is not included in the provided text.
Headnote
A) Service Law - Assured Career Progression Scheme - Withdrawal of Benefits - Government of Maharashtra Resolutions dated 20.07.2001, 01.04.2010, 23.12.2015 - The petitioner was granted ACPS benefits with effect from 01.09.2001 after completing 12 years of service without promotion; subsequently, on failing to secure 40% marks in the written test for promotion to Senior Clerk, the District Judge ordered recovery of Rs.210670 and stoppage of benefits. The Division Bench referred the question to the Larger Bench, observing that the scheme was introduced to encourage employees, and withdrawal may be justified where an eligible candidate refuses promotion or is found ineligible/disqualified, but mere non-selection because a better candidate exists may not amount to ineligibility. Held that the matter required authoritative determination as earlier judgments did not consider the purpose of the scheme (Paras 1-5).
B) Service Law - Promotion Test - Eligibility vs Non-Selection - Rule 580(b) of Civil Manual - The petitioner appeared for the test conducted under Rule 580(b) but failed to obtain the benchmark of 40 marks; the department treated this as ineligibility and directed refund. The reference question asks whether such failure constitutes ineligibility or disqualification under the GRs of 2001 or 2010. Held that the issue of whether failure to secure 40% marks renders an employee ineligible or merely not selected among eligible candidates was to be examined (Paras 1-5).
C) Service Law - Recovery of Amount - Prohibition on Recovery - Government Resolution dated 23.12.2015 - The petitioner contended that recovery was prohibited by the 2015 GR, while the impugned order directed recovery of Rs.210670. The reference included whether recovery could be made if benefits were withdrawn. Held that this aspect was part of the reference for determination (Paras 1-5).
Issue of Consideration
Under what circumstances, in terms of the Government Resolution, either of the year 2001 or 2010, could the benefits under the Assured Progress Scheme be withdrawn on the ground of ineligibility or disqualification?
Final Decision
Not mentioned in the provided judgment text. The matter was heard and reserved for orders on 08.02.2024; the final operative decision is not included.
Law Points
- Assured Career Progression Scheme benefits are an encouragement to employees stagnated without promotion
- withdrawal may be permitted if employee refuses promotion or is ineligible/disqualified
- mere non-selection due to better candidate does not necessarily render candidate ineligible
- Government Resolutions of 2001 and 2010 govern withdrawal
- recovery prohibited by GR dated 23.12.2015
- Rule 580(b) Civil Manual test requirement
Case Details
2024 LawText (BOM) (04) 12
WRIT PETITION NO.2394 OF 2015
Ravindra V. Ghuge, J., R.G. Avachat, J., Sandipkumar C. More, J.
Shri Subodh P. Shah, Shri N.B. Khandare, Shri A.D. Sonar, Shri P.S. Patil
Smt. Sunanda Ashok Sonawane
1. The District Judge, District Court, Dhule; 2. Sau. Asha Kishor Kale; 3. Shri Sudhakar Zipru Warude; 4. Shri Suhas Raghunath Sanap; 5. Shri Pandit S. Patole; 6. Shri Pravin Bhalchandra Sonar; 7. The State of Maharashtra Through Secretary, General Administration Department; 8. The State of Maharashtra Through Secretary, Finance Department, Mantralaya, Mumbai
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Nature of Litigation
Writ petition challenging recovery of Assured Career Progression Scheme benefits and stoppage of benefits on the ground of failure to secure 40% marks in the promotion test.
Remedy Sought
Petitioner sought protection from recovery of Rs.210670 and restoration of ACPS benefits; challenged the District Judge's order dated 05.12.2014.
Filing Reason
Petitioner failed to obtain 40% benchmark in the written exam for promotion to Senior Clerk, and the department directed refund of APS/ACPS amount and stopped benefits.
Previous Decisions
Division Bench order dated 29.06.2017 referred the question of law to the Larger Bench. Court order dated 27.02.2015 protected the petitioner against recovery. Larger Bench order dated 25.07.2019 added State as a party respondent. No final decision is included in the provided text.
Issues
Under what circumstances can benefits under the Assured Progress Scheme be withdrawn under GR 2001 or GR 2010 on the ground of ineligibility or disqualification?
Whether failure to secure 40% marks in the written examination for promotion to Senior Clerk amounts to ineligibility or disqualification under Clause 3 of GR 2010?
Whether recovery of Rs.210670 already paid under ACPS is permissible after GR dated 23.12.2015 prohibited recovery?
Submissions/Arguments
Petitioner argued that the 2001 GR alone applied because benefits were granted under it and the 2010 GR could not retrospectively withdraw benefits; that mere non-selection due to availability of a better candidate did not render her 'अपात्र' (ineligible/disqualified); that written tests held in November/December 2014 were contrary to Bombay High Court administrative directions; that she was senior-most and eligible; that recovery was prohibited by GR dated 23.12.2015.
Petitioner relied on Shrirang Atmaram Nikam and Ramesh Samhari More to contend that a candidate cannot be treated as disqualified merely for failing to score the benchmark.
Ratio Decidendi
The reference order underscored that ACPS benefits are an encouragement to employees who are not promoted for no fault of theirs; withdrawal may be justified where an eligible candidate refuses promotion or is found ineligible/disqualified in the test. However, mere non-selection because a better candidate is available does not necessarily render a candidate ineligible. The final ratio decidendi of the Full Bench is not contained in the provided text.
Judgment Excerpts
The petitioner entered the Department as a Junior Clerk and it is also not in dispute that she was given the benefit of Assured Progress Scheme (APS) benefit after completion of 12 years of service when she did not have the opportunity of getting promoted.
Under what circumstances, in terms of the Government resolution, either of the year 2001 or 2010, could the benefits under the Assured Progress Scheme be withdrawn on the ground of ineligibility or disqualification ?
If such eligible candidates lose the benefit of APS on the ground of refusing to accept the promotion, we fail to understand why such benefit should be continued to those candidates who are not promoted on account of their ineligibility or disqualification in the test on the ground that till their retirement, they are entitled to appear for the selection process in the absence of any impediment.
Procedural History
Petitioner appointed as Junior Clerk on 01.09.1985. Granted ACPS benefits w.e.f. 01.09.2001 under GR dated 20.07.2001. Called for promotion tests on 17.09.2013, 16.08.2014, 14.10.2014, 17.11.2014; written tests held in November/December 2014. District Judge passed impugned order on 05.12.2014 directing recovery of Rs.210670 and stoppage of benefits. Representation dated 16.01.2015 rejected on 27.01.2015, communicated by letter dated 29.01.2015. Court order dated 27.02.2015 protected petitioner against recovery. Writ Petition No.2394 of 2015 filed before Bombay High Court. Division Bench order dated 29.06.2017 referred question to Larger Bench. Larger Bench order dated 25.07.2019 added State of Maharashtra as respondent; Finance Department added on 20.10.2022. State affidavit in reply filed on 26.09.2023. Matter heard on 25.01.2024 and 08.02.2024; reserved for orders on 08.02.2024; pronounced on 12.04.2024.
Acts & Sections
- Civil Manual: Rule 580(b)
- Government of Maharashtra Resolutions: GR dated 20.07.2001, GR dated 01.04.2010, GR dated 23.12.2015
