JUDGMENT
M.S. Shah, J.
1. Heard Mr. K.S. Acharya for the Mr. S.N. Shelat, learned Advocate for the petitioner and Mr. S.N. Mazgonkar, learned Advocate for the respondent-Municipal Corporation.
2. The petitioner was employed as a Junior Clerk by the respondent-Municipal Corporation. On 1st January, 1975, the petitioner was given “acting appointment” to the post of Senior Clerk in the pay-scale of Rs. 330-560 in the Valuation Department by way of stop-gap-arrangement and on the basis of seniority of clerks in the Valuation Department. The petitioner was thereafter reverted to the lower post of Clerk on 1st April, 1976. Again Acting promotion was given to the petitioner on 1st June, 1976 and the petitioner was thereafter reverted to the lower post on 30th November, 1976. The petitioner was similarly given such ad hoc promotions on two subsequent occasions for a few months on each occasion. The petitioner was ultimately regularly promoted to the post of Senior Clerk on the basis of general seniority of clerks under the respondent -Municipal Corporation from 3rd February, 1978.
3. The petitioner’s case in the present petition is that immediately prior of 1st January, 1976, the pay-scale of senior clerks was Rs. 145-245 which came to be revised to Rs.330-560 with effect from 1st January, 1976. The petitioner’s grievance is that since the petitioner was already working as Senior Clerk on 1st January, 1976, the petitioner was entitled to exercise the option for continuing to get his salary in the old pay scale of senior clerks Rs. 145-245 as the same was more beneficial to the petitioner. The petitioner has stated in the petition that such options were invited by the Accounts Office as per the circular at Annexure “A” and that the petitioner has accordingly submitted his option within the prescribed time limit. The copy of the application submitted by the petitioner for exercise of the said option is produced at Annexure “C” to the petition. As per the said option, the petitioner wanted his pay to be fixed in the scale of Rs. 145-245 till he reached the stage of Rs. 215/-. The petitioner has approached this Court against the decision of the respondent-Municipal Corporation not accepting the said application on the ground that the petitioner was not regularly promoted to the post of Senior Clerk on 1st January, 1976.
4. Mr. K.S. Acharya, Learned Counsel for the petitioner has contended that once the petitioner was working as Senior Clerk on 1st January, 1976, the petitioner was entitled to exercise the option and was entitled to retain the old pay-scale as per his application Annexure “C”. Mr. Acharya has contended that denial of the right to exercise the option was arbitrary and discriminatory as such denial was not based on any rule. He further contended that such denial was also discriminatory in as much as Miss Indiraben I. Vyas was given the benefit of exercising option although Miss Indiraben I. Vyas was also promoted to the higher post after 1st January, 1976.
5. Mr. S.M. Mazgonkar, Learned Counsel for the respondent-Municipal Corporation has on the other hand contended that as per Rule 44(a) of the Bombay Civil Services Rules, when the pay-scale of a post is revised the Government (Municipal) servant holding the scale is eligible to draw pay only in the revised scale and that the right to exercise the option to retain the old scale is not available to an employee who is working on a higher post on stop gap basis. The Learned Counsel submitted that it was on account of the stop-gap nature of the arrangement that the petitioner was given an ad hoc promotion to the post of Senior Clerk on 1st January, 1976 on the basis of his seniority amongst the clerks in the Valuation Department. In the normal course regular promotions are given on the basis of common seniority of clerks under the respondent-Municipal Corporation. It was therefore submitted that such promotion in the normal course was given to the petitioner only from 3rd February, 1978.
6. In rejoinder to the above argument of Mr. Mazgonkar, Mr. Acharya, Learned Counsel for the petitioner contended that Clause (c) of Rule 44 contemplates such an option being made available even to a temporary or officiating Government (Municipal) servant. This argument is prima facie attractive, but it is not available to the petitioner in the instant case because the petitioner’s promotion to the post of Senior Clerk on 1st January, 1976 was admittedly not in a temporary or officiating capacity because the said promotion was not given on the basis of common seniority of clerks under the respondent-Municipal Corporation, but it was given only by way of a stop-gap-arrangement on the basis of the petitioner’s seniority as a clerk in the Valuation Department which is only one of the several departments under the respondent-Municipal Corporation. Moreover, the said stop-gap-arrangement was intermittent as is clear from the relevant dates given in paragraph (2.2) of the affidavit-in-reply on behalf of the respondent-Municipal Corporation some of which are reproduced in the second paragraph of this judgment. In view of the above, it is clear that the petitioner was not entitled to exercise the option to retain the old pay-scale.
7. Mr. Acharya, then contended that in any view of the matter, the respondent-Municipal Corporation had given the benefit of exercise of the option to retain the old pay-scale to Miss Indiraben I. Vyas who was also similarly situated as the petitioner. Now, there is nothing on record of the petition to show whether the promotion to Miss Indiraben I. Vyas was by way of stop-gap-arrangement or was by way of temporary or officiating promotion. In any case, Miss Indiraben I. Vyas was regularly promoted as a Senior Clerk with effect from 1st February, 1976; whereas the petitioner was regularly promoted as a Senior Clerk with effect from 3rd February, 1978.
8. In any view of the matter, the Deputy Chief Accountant of the respondent-Municipal Corporation has stated in paragraph (3) of the reply affidavit that steps are being taken to correct the mistake in case of Miss Indiraben I. Vyas. Assuming that the petitioner is similary situate as Miss Indiraben I. Vyas, if any benefit is illegally given to one employee, another employee is not entitled to a writ of this Court for directing the Municipal Corporation to commit such illegality in his case also. In this view of the matter, the petitioner is not entitled to the relief prayed for.
9. No other contentions were urged. In view of the above discussion, the petition deserves to be dismissed.
10. At the stage, Mr. Acharya contends that while exercising the option, the petitioner had deposited an amount of Rs. 2,408.81 Ps. with the Treasury on 23rd September, 1981 as stated in Annexure “H” to the petition. Mr. Mazgonkar states that he has no instructions on this particular aspect because the petitioner might have withdrawn the said amount when his application for exercise of the option was rejected by the respondent-Municipal Corporation. Be that as it may, in case the aforesaid amount is still lying with the respondent-Municipal Corporation, the same shall be refunded to the petitioner in accordance with the rules, within a period of four weeks from the date of receipt of a certified copy of this order.
11. In the result, the petition is dismissed subject to the aforesaid direction. Rule is discharged, with no order as to costs.