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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.506/2000
PETITIONER : Ashok s/o Atmaram Dudhani,
aged about 34 years, Occupation : Service
as Junior Engineer in Achalpur Municipal
Council, resident of Court Road, Sindhi
Colony, Paratwada, Taluka Achalpur,
District Amravati.
...V E R S U S...
RESPONDENTS :- 1. The Director of Municipal
Administration, New Administrative
Building, 15th Floor, Opposite
Mantralaya, Fort, Mumbai - 400032.
2. The State of Maharashtra, through the
Secretary, Department of Urban Development,
Mantralaya, Fort, Mumbai - 400032.
3. The Collector, Amravati,
District Amravati.
4. Achalpur Municipal Council,
Achalpur, Taluka Achalpur, District Amravati,
through its Chief Officer.
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Mrs. R.D. Raskar, Advocate for petitioner
Shri T.A. Mirza, AGP for respondent nos.1 to 3
Shri N.S. Khandewale, Advocate for respondent no.4
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 02.11.2017
ORAL JUDGMENT (PER : PRASANNA B. VARALE, J.)
1. Heard.
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2. The petitioner is before this Court with a prayer to the respondent no.1 - Director of Municipal Administration to grant approval for giving pay scale of Rs.1640-60-2600-EB-75-2900 to the petitioner as Junior Engineer in the service of respondent no.4 - Achalpur Municipal Council, Achalpur as per proposal submitted by the respondent no.4- Achalpur Municipal Council.
3. Learned Counsel for the petitioner by inviting our attention to the documents placed on record submitted that the petitioner was possessing a diploma in civil engineering. In view of the academic qualification of the petitioner, the petitioner was appointed as a Junior Engineer in the establishment of the respondent no.4 - Achalpur Municipal Council. The learned Counsel invited our attention to the copy of Resolution passed by the Municipal Council in the meeting dated 11/2/1988. She submitted that the petitioner was appointed as a Junior Engineer on the pay scale of Rs.395-15-500-20-700-25-900. She fairly submitted that though initially the appointment was temporary subsequently by way of post facto sanction, the petitioner's appointment was made permanent. Learned Counsel invited our attention to the communication/order placed on record at Annexure - II. She submitted that by way of Resolution dated 11/2/1988, the Municipal Council held that the petitioner was entitled for the benefits as of a Municipal ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:21:28 ::: wp506.00.odt 3 employee and was subjected to the Rules and provisions which are applicable to the Municipal Council employees. It was the submission of the learned Counsel that a demand was raised before the State Government to place the Junior Engineers of Municipal Council at par with the Junior Engineers working in the State Government Department and consequently grant of similar benefits such as of pay revision in view of the 4th Pay Commission. By inviting our attention to the Resolution dated 23/7/1996 the learned Counsel submitted that the Municipal Council was also favourable for grant of the revised pay scale to the Junior Engineers working with Municipal Council and treating them at par with the Junior Engineers with State Government. Learned Counsel then submitted that the Chief Officer of the Municipal Council, Achalpur forwarded the proposal to the Director of Municipal Administration for grant of sanction with his favourable opinion to the proposal. She submitted that even the District Collector of Amravati found that the proposal of the Municipal Council was just and proper and he also recommended the proposal. The said communication dated 27/2/1997 is on record at Annexure - IX. The learned Counsel then submitted that the Deputy Director of the Municipal Administration by way of communication dated 4/9/1991 sought for certain information along with query in view of the proposal received for grant of the pay scale. The ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:21:28 ::: wp506.00.odt 4 learned Counsel then invited our attention to the communication dated 15/11/1997 forwarded by the Chief Officer of the Municipal Council along with the statement. Learned Counsel vehemently submitted that the statement submitted by the Chief Officer clearly shows that the percentage of expenditure on establishment of the Achalpur Municipal Council was less than 42%. It was 39.77% for the year 1994-95, 36.67% for the year 1995-96 and 36.59% for the year 1996-97. It was the submission of the learned Counsel that for all these three years the expenditure on establishment was less than 42%. It was the submission of the learned Counsel that this data shows that the respondent - Municipal Council, Achalpur was having a viable financial position to bear burden of wage rise to the petitioner and other similarly situated employees. Learned Counsel submitted that though the petition was pending before this Court for a considerable long period no replies were filed by the respondents and by order dated 16/5/2016 this Court while considering the claim raised by the petitioner and considering the fact that there was a favourable recommendation of the Municipal Council and the office of Collector directed the respondent nos.1 and 2 to consider the proposal within a stipulated period and the matter was then posted on the next date for further consideration. Learned Counsel then submitted that in the mean time Writ Petition No.3107/1999 filed by another employee of the ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:21:28 ::: wp506.00.odt 5 Municipal Council who is similarly situated with the present petitioner is decided by this Court by way of judgment and order dated 27/8/2015. She submitted that the facts are identical in both these petitions. She then submitted that the ground of opposition of the respondents and more particularly the State Government which was of a cascading effect by way of financial burden on the Government is also considered by the Division Bench of this Court. She then submitted that the Division Bench of this Court was of a clear view that when the proposal was submitted by the Municipal Council with its positive recommendations and also by the District Collector with his positive recommendations it was only the failure or omission on the part of Urban Development Department which kept the proposal pending for years together and for the fault of the agency of the concerned Department, the petitioner may not be subjected to depriving his rightful claim.
4. On the contrary, the learned Assistant Government Pleader opposes the petition. The learned Assistant Government Pleader submitted that the proposal of the Municipal Council was churned down by the State Government. The petitioner by way of amendment had placed on record the communication dated 6/12/2016, wherein the Chief Officer of the Municipal Council informed the petitioner the decision of the State Government.
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5. The learned Counsel for the petitioner vehemently submitted that the said communication of the year 2016 is nothing but an eyewash. She submitted that the said communication, i.e., the letter of the Chief Officer, Municipal Council, Achalpur dated 6/12/2016 reads that the so called rejection of the State Government by way of order dated 20/10/2000 was received by the office of the Municipal Council on 6/12/2016. She submitted that there is no explanation for such an inordinate delay. She then submitted that the petition is filed in the year 2000 and though this Court opposed the order dated 16/5/2016 till that period neither the Municipal Council nor the State Government brought to the notice of this Court that there was a rejection of the proposal. Thus, it was submitted by the learned Counsel for the petitioner that by raising such belated and specious plea the State Government cannot oppose the claim of the petitioner who is otherwise entitled on merits as well as in view of the judgment of this Court in Writ Petition No.3107/1999 decided on 27/8/2015.
6. We have gone through the judgment of this Court placed on record. We find merit in the submissions of the learned Counsel for the petitioner. She was also justified in submitting that the petitioner is similarly situated with the petitioner Vijaykumar Sharma and the facts in the writ petition of Vijaykumar Sharma, i.e., Writ Petition No.3107/1999 ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:21:28 ::: wp506.00.odt 7 are identical. This Court referred to those relevant facts in paragraph nos.3 and 6. This Court also found that the omissions of the State Government or omissions of some Department of State Government should not come in the way of the rightful claim of the petitioner. This Court also took into consideration the opposition raised by the learned Assistant Government Pleader and dealt it at paragraph no.12 of the judgment and order.
7. Considering all the above referred facts, in our opinion, the learned Counsel for the petitioner has made out a case. The petition is partly allowed. The petitioner would be entitled to the benefits of the wage rise granted to the Junior Engineers working in the State Government, i.e., 4th Pay Commission wage rise for the period from 1/1/1986 to 1/1/1996.
8. Though the learned Counsel for the petitioner submitted that during the pendency of the petition there was also rise in view of the 5th Pay Commission and 6th Pay Commission and the petitioner had amended the petition and also added prayer clause (b-i) for grant of pay scale as per 5th Pay Commission w.e.f. 1/1/1996 to 1/1/2006, we are unable to consider this prayer made by the petitioner. Though the petitioner has also placed on record the pay rise as per 5 th Pay Commission, there is no material on record, such as, economical viability ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:21:28 ::: wp506.00.odt 8 of the Municipal Council to bear the burden. It will not be out of place to mention that the petitioner while claiming the benefit of pay rise as per 4th Pay Commission placed on record the material of the economical viability of the Municipal Council by way of statement submitted by the Counsel to show that for the period of three years, i.e., 1994-95, 1995-96 and 1996-97 the percentage of expenditure on establishment was less than 42%. As there is no material before us to say that the Municipal Council would be in a position to bear the burden of the petitioner for further wage rise of 5th Pay Commission, we are unable to grant the prayer of the petitioner to that effect. The learned Counsel then submitted that the petitioner be permitted to submit representation before the State Government for such pay rise. If the petitioner submits such representation, seeking further pay wage rise to the State Government, needless to state that the State Government would consider the same on its own merits, even considering the aspect of the period, that is, ground of delay if any raised, considering that the petitioner was before this Court for a considerable period.
9. Rule is made absolute in the aforesaid terms. No order as to costs.
JUDGE JUDGE
Wadkar
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