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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4344/2011
PETITIONER : Vijay Charandas Humane
Aged about 43 years, Occupation Service
r/o MHADA, Ashoka Sammruddhi Sankul,
Amravati Road, Nagpur - 1.
...VERSUS...
RESPONDENTS : 1. Nagpur Municipal Corporation, through its
Commissioner, Civil Lines, Nagpur - 1.
2. State of Maharashtra through Secretary
to Government, Urban Development Department,
Mantralaya, Mumbai - 32.
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Shri R.V. Gaikwad, Advocate for petitioner
Shri J.B. Kasat, Advocate for respondent no.1
Shri H.R. Dhumale, AGP for respondent no.2
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 15.06.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this petition, the petitioner seeks a declaration that he would be entitled to the protection of his last pay drawn in the services of the State Government after joining the services of the Nagpur Municipal Corporation.
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wp4344.11.odt 2 The petitioner was working as a Deputy Director of Industries with the Government of Maharashtra till 5.6.2009, when he tendered his resignation in view of his appointment as Assistant Municipal Commissioner in the respondent - Nagpur Municipal Corporation on 6.6.2009. In pursuance of an advertisement published by the respondent
- Corporation inviting applications for appointment to three different posts, one of which was the post of Assistant Commissioner/Ward Officer, the petitioner applied for the said post. Since the petitioner was not appointed by the Municipal Corporation he filed a writ petition along with several others. In view of the directions issued by this Court, the respondent - Municipal Corporation permitted the petitioner to join his duties on 6.6.2009. The appointment of the petitioner, for the purpose of seniority and increments was deemed to have been made from the date on which certain appointments were made by the Municipal Corporation in pursuance of the said advertisement. After the petitioner joined his duties, he was paid in the pay scale of Rs.8,000-13,500/- as per the pay scale mentioned in the advertisement. Some time after joining his duties the petitioner made a representation to the respondent - Corporation for protecting his last pay drawn in the services of the State Government as he was receiving a lesser pay after his appointment in the Municipal Corporation as an Assistant Municipal Commissioner. Since the ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:22:22 ::: wp4344.11.odt 3 representation of the petitioner was not favourably considered and his pay was not protected for a period of about eighteen months after the date of his joining, the petitioner has filed the instant petition seeking the arrears of difference of pay to which he would be entitled.
Shri Gaikwad, the learned Counsel for the petitioner submitted that it was necessary for the Municipal Corporation to protect the pay of the petitioner that was last drawn in the services of the State Government. It is submitted that the Municipal Corporation had decided by its order dated 30.11.2004 that the pay of the employees that are appointed in the Municipal Corporation while they are serving in the State Government and the Semi-Government Organizations need to be protected. It is submitted that the Municipal Corporation has taken a decision pertaining to the protection of pay scale but the same is not implemented. It is submitted that though the petitioner started receiving the pay scale as desired by him w.e.f. 1.1.2010, for the first eighteen months of his services he was paid in the scale that was lesser than the pay scale that he was receiving when he had last worked with the State Government. It is submitted by placing reliance on the judgment of the Hon'ble Supreme Court, reported in 2009 (123) FLR page 747 that the pay of an employee who is inducted into other employment needs to be protected.
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wp4344.11.odt 4 On the other hand, it is submitted on behalf of the Municipal Corporation that the petitioner had applied for appointment on the post of Assistant Commissioner/Ward Officer by nomination, on the basis of an advertisement published by the Municipal Corporation. It is submitted that in the said advertisement, the pay scale to which the appointee would have been entitled, was clearly mentioned as Rs.8,000-13,500/-. It is submitted that the petitioner applied for appointment on the said post without challenging the advertisement and without making a representation to the Corporation that the last pay drawn by him in the services of the State Government should be protected. It is submitted that in the previous petition filed by the petitioner, he had clearly mentioned the pay scale of Rs.8,000-13,500/-. It is submitted that though the state Government had implemented the recommendations of the 6th Pay Commission to its employees in the year 2009, the Municipal Corporation had not implemented the said recommendations and hence, all the Assistant Commissioners/Ward Officers in the Municipal Corporation were receiving the pay in the scale, as was fixed by the 5th Pay Commission Recommendations. It is submitted that when the Corporation decided to grant the benefits of the 6 th Pay Commission Recommendations to its employees, the petitioner was also paid in the scale that was fixed as per the recommendations of the 6 th Pay ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:22:22 ::: wp4344.11.odt 5 Commission. It is submitted that if the pay scale of the petitioner is protected, grave injustice would be caused to the other Assistant Commissioners/Ward Officers who were receiving similar pay scale during those eighteen months for which the petitioner is seeking higher pay scale in terms of the principle of pay protection. It is stated that the Municipal Corporation is independent of the State Government and since it is not an appointment from one department of the State Government to another department of the same, there would be no question of pay protection. The learned Counsel sought for the dismissal of the writ petition.
It appears on hearing the learned Counsel for the parties that the petitioner has not made out any case for the protection of the last pay drawn by him in the services of the State Government after his appointment in the Municipal Corporation as an Assistant Commissioner/Ward Officer. The Municipal Corporation decided to fill up the posts of Assistant Commissioner/Ward Officer and others and hence, issued the advertisement in that regard on 7.11.2003. The advertisement provided that the appointment of the Assistant Commissioner/Ward Officer would be made in the pay scale of Rs.8,000-13,500/-. The petitioner applied in pursuance of the said advertisement for appointment on the post of Assistant Commissioner/Ward Officer with open eyes. He ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:22:22 ::: wp4344.11.odt 6 did not raise any challenge to the said advertisement and/or did not make any representation to the Municipal Corporation that he may be permitted to apply by protecting the last pay which he had drawn in the services of the State Government. In the circumstances of the case, when the petitioner had applied in pursuance of the advertisement which clearly mentioned the pay scale that would be applicable to the appointee, the petitioner would not be permitted to turn around and state that the pay last drawn by him in the services of the State Government needs to be protected. The petitioner would be estopped from claiming the pay scale that he had last drawn in the services of the State Government when he had applied in pursuance of the advertisement, which mentioned a particular pay scale for the appointee, without any demur. After joining the services of the Municipal Corporation, the petitioner has made an attempt to seek the protection of the last pay drawn by him in the services of the State Government. The representation of the petitioner was considered and it was observed in the decision of the Committee which considered the representation that since the benefits of the 6th Pay Commission were not granted to any other employees, the petitioner would also be entitled to the benefits of the 6 th Pay Commission as and when the other employees of the Corporation would start receiving them.
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wp4344.11.odt 7 We do not find any fault in the decision of the Corporation refusing to protect the pay of the petitioner, as was last drawn by him in the services of the State Government. It appears that the State Government had implemented the recommendations of the 6 th Pay Commission for its employees in the year 2006 and the petitioner was therefore receiving a higher pay while working with the State Government. The Corporation started implementing the recommendations of the 6th Pay Commission since December 2010 though the notional benefits were granted to the petitioner as per the recommendations. When the Municipal Corporation had not implemented the 6th Pay Commission Recommendations for its employees, the petitioner could not have in effect, claimed the implementation of the 6 th Pay Commission Recommendations only for himself. There is some merit in the submission made on behalf of the respondent - Corporation that the pay scale of the petitioner cannot be protected for an additional reason that if the pay scale of the petitioner is protected as was last drawn in the services of the State Government, the other Assistant Commissioners/Ward Officers would be receiving a lesser pay, whereas a larger pay would be payable to the petitioner. Though it was canvassed on behalf of the petitioner that the last pay drawn by the other employees of the State Government was protected by the Corporation while refusing ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:22:23 ::: wp4344.11.odt 8 to protect the pay of the petitioner, the said submission is not substantiated. In view of the aforesaid reasons and mainly because the petitioner had applied in pursuance of the advertisement that provided that the pay scale of the appointee would be Rs.8,000-13,500/- and the petitioner had not raised a grievance about the same before applying in pursuance of the advertisement, he cannot be permitted at a subsequent stage to turn around and seek the protection of the last pay drawn by him in the services of the State Government. The judgment, reported in 2009 (123) FLR page 747 and relied on by the Counsel for the petitioner cannot be made applicable to the facts of this case. In that case, the respondent no.1 was a member of the State Police Services and he was inducted into Indian Police Services. The respondent in that case was inducted from one department of the Government to another department of the Government and in that background, the Hon'ble Supreme Court upheld the judgment of the Tribunal that his last pay should have been protected. Such is not the case here. In the present case, the petitioner was earlier working in the State Government which is distinct from the Nagpur Municipal Corporation where the petitioner was appointed in pursuance of an advertisement, by nomination. This is not a case where the petitioner was permitted to be absorbed by the State Government in the services of the Nagpur Municipal Corporation as an Assistant ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:22:23 ::: wp4344.11.odt 9 Commissioner/Ward Officer. If that had been the case, probably the petitioner would have had a better case.
Since we do not find any fault in the action on the part of the respondent - Corporation in not paying the arrears of difference of salary to the petitioner for eighteen months as claimed, the writ petition is dismissed with no order as to costs. Rule stands discharged.
JUDGE JUDGE
Wadkar
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