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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3240 of 2011
Sudhakar Chindhusa Savvalakhe,
Aged 57 years, Occupation - Accountant,
Resident of Gurukunj, Mozri,
Taluka Tiwsa, District Amravati. ... Petitioner
Versus
1. The State of Maharashtra,
Department of Social Justice,
Cultural and Sports Division,
through its Secretary,
Mantralaya, Mumbai 400 032.
2. The State of Maharashtra,
through its Secretary,
Department of Finance,
Mantralaya, Mumbai 400 032.
3. The Director of Sports and Youth
Services, Maharashtra State,
Central Building, Pune-1.
4. Principal, Shivaji College of
Physical Education,
through its Principal,
Shivaji Nagar,
Amravati. ... Respondents
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Shri R.S. Parsodkar, Advocate for Petitioner.
Shri S.S. Doifode, Assistant Government Pleader for Respondent
Nos.1 to 3.
CORAM : R.K. DESHPANDE & M.G. GIRATKAR, JJ.
DATE OF RESERVING THE JUDGMENT : 10-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 20-11-2017
JUDGMENT (Per : R.K. DESHPANDE, J.) :
1. The petitioner was working as Accountant with effect from 1-4-1997 in the respondent No.4-Shivaji College of Physical Education, Amravati, in the pay scale of Rs.1640-2900, as was revised as per the recommendations of the Fifth Pay Commission. The respondent No.4-College is affiliated to Amravati University, which is a statutory body constituted under the provisions of the Maharashtra Universities Act, 1994. The petitioner being a non-teaching employee, his service conditions are governed by the Maharashtra Non-Agricultural Universities and Affiliated Colleges Rules, 1999, called as "the Standard Code", framed by the State Government in exercise of the statutory power conferred upon it under Section 8(3) of the Maharashtra Universities Act. ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 3
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2. The Department of Higher and Technical Education, State of Maharashtra, in exercise of its power conferred by Section 8 of the Maharashtra Universities Act, issued a notification dated 4-2-1999, revising the pay scales of non-teaching employees (including officers) working in the Non-Agricultural Universities and Affiliated Colleges, excluding the Colleges run by the Government of Maharashtra, and the local bodies. The rules are called as "The Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Revised Pay of Non-Teaching Employees) Rules, 1999, which were brought into force with effect from 1-1-1996. The pay scale of Rs.1640-2900 available to the post of Accountant in the non-government colleges attached to Non-Agricultural Universities was revised to Rs.5500-9000. The petitioner being working on the post of Accountant in the non-government college attached to the Non-Agricultural University expected that his revision would be in the scale of Rs.5500-9000, as he was getting unrevised scale of Rs.1640-2900. ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 4
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3. The Department of Social Justice, Cultural and Sports of the State Government, by its resolution dated 17-3-2001, made the recommendations of the Fifth Pay Commission applicable to non-teaching employees working in the aided non-government Physical Education Colleges all over the State with effect from 1-1-1996. However, the pay scale of Rs.1640-2900 available to the post of Accountant was revised to Rs.4000-100-6000. The respondent No.4-College, in which the petitioner was working, requested the Department of Social Justice, Cultural and Sports to correct the revision of pay scale in respect of the post of Accountant working in the Physical Education College, to Rs.5500-175-9000, as was revised by the notification dated 4-2-1999. The Secretary, Director, Deputy Director, and Assistant Director under the Department of Social Justice, Cultural and Sports also recommended that the revision in the pay scale of Rs.1640-2900 available to the post of Accountant should be in the higher scale of Rs.5500-9000 as per the notification dated 4-2-1999 and not in the lower scale of Rs.4000-6000. All these documents are placed on record.
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4. It seems that the Finance Department of the State Government has refused to accept such recommendation, and this was communicated to the respondent No.4-College on 16-3-2011 by the Assistant Director of Sports and Youth Welfare, Pune. Hence, the present petition challenges this communication dated 16-3-2011 and the Government Resolution dated 17-3-2001. The petition further claims placement in the pay scale of Rs.5500-9000 with effect from 1-4-1997, i.e. the date on which the petitioner was promoted to the post of Accountant, and arrears arising therefrom.
5. Shri Parsodkar, the learned counsel appearing for the petitioner, has urged that all the authorities under the Department of Social Justice, Cultural and Sports, under which the aided Physical Education Colleges affiliated to the University are functioning, have recommended that the petitioner should be placed in the revised scale of Rs.5500-9000 with effect from 1-4-1997 as per the Government Resolution dated 4-2-1999. He submits that the Government Resolution dated 17-3-2001 is not ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 6 wp3240.11.odt only contrary to the statutory notification dated 4-2-1999, but also it is violative of the fundamental right of the petitioner contained in Article 14 of the Constitution of India.
6. From various documents placed on record and the stand taken by the Department of Social Justice, Cultural and Sports, it is clear that the objection is of the Finance Department of the State Government for placement of the Accountant in the scale of Rs.5500-9000. The recommendations at various levels in the Department of Social Justice, Cultural and Sports for placement of the petitioner in the scale of Rs.5500-9000 are not accepted. From the communication dated 21-10-2011 by this Department to the Director of Sports, it seems that the Finance Department is of the view that the Accountants working in the Department of State Government were getting unrevised scale of Rs.1200-2040, which is revised to Rs.4000-6000. Hence, the proposal for placement of Accountants in Physical Education Colleges in the same revised pay was placed before the meeting of the State Cabinet held on 30-8-2000, which has approved it.
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7. The stand taken by the respondent Nos.1 to 3 in the affidavit filed in response to the petition in terms is reproduced below :
"1. ...It is submitted that the State Cabinet has consciously taken upon report submitted by the Finance Department to give revised pay scale of Rs.4000-6000 to the Accountants in the Government Aided Physical Education Colleges and accordingly necessary orders have been issued vide Government Resolution dated 17th March, 2001. The finance Department opined that the post of Accountant in the Government Aided Non-Agricultural Universities exists not only in the Pay-Scale of Rs.5500-9000 but also in the Pay-Scale of Rs.4000-6000 and if this is taken into consideration it is not necessary to make any change in the Pay-Scale of Rs.4000-6000 applicable to the post of Accountant. ..."
8. The respondent No.3-Physical Education College is affiliated to Amravati University, which is a Non-Agricultural University incorporated under Section 3 of the Maharashtra Universities Act, 1994. Sub-section (3) of Section 8 of the said Act ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 8 wp3240.11.odt being relevant, is reproduced below :
"8. Control of State Government and universities.
(3) The State Government may in accordance with the provisions contained in this Act, for the purpose of securing and maintaining uniform standards, by notification in the Official Gazette, prescribe a Standard Code providing for the classification, manner and mode of selection and appointment, absorption of teachers and employees rendered surplus, reservation of posts in favour of members of the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes, duties, workload, pay, allowances, post-retirement benefits, other benefits, conduct and disciplinary matters and other conditions of service of the officers, teachers and other employees of the universities and the teachers and other employees in the affiliated colleges and recognised institutions (other than those managed and maintained by the State Government, Central Government and the local authorities). When such Code is prescribed, the provisions made in the Code shall prevail, and the provisions made in the Statutes, Ordinances, Regulations and Rules made under this Act, for matters included in ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 9 wp3240.11.odt the Code shall, to the extent to which they are inconsistent with the provisions of the Code, be invalid."
The aforesaid provision confers power upon the State Government to prescribe a Standard Code by notification in the Official Gazette for the purpose of securing and maintaining uniform standards and providing for several matters stipulated therein, including pay, allowances and other terms and conditions of service of the teachers and other employees in the affiliated Colleges. It is made clear that upon issuance of such notification, the provisions made in the Code shall prevail and the other provisions made in the Statutes, Ordinances, Regulations and Rules made under the said Act, for matters included in the Code shall, to the extent to which they are inconsistent with the provisions of the Code, be invalid.
9. The power to frame a Standard Code by issuing notification under Section 8(3) of the said Act is exercised by the Education and Employment Department of the State Government, including the Department of Higher and Technical Education. As ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 10 wp3240.11.odt per the notification dated 27-7-1989 issued under Section 8(3) of the said Act, the pay scale of Rs.1640-2900 was made available to the post of Accountant existing in all the Colleges affiliated to Amravati University with effect from 1-1-1986. By issuing notification dated 4-2-1999, revision was provided to the pay scales with effect from 1-1-1996. The Accountants working in all the affiliated Colleges in the unrevised scale of Rs.1640-2900 were placed in the scale of Rs.5500-9000. In our view, consequently, the petitioner working as Accountant in the affiliated College of Physical Education acquired a statutory right for placement in the pay scale of Rs.5500-9000 with effect from 1-1-1996, which could not have been denied to him.
10. The Department of Social Justice, Cultural and Sports under the State Government by its resolution dated 17-3-2001 made the recommendations of the Fifth Pay Commission applicable to non-teaching employees working in the non-government Physical Education Colleges all over the State with effect from 1-1-1996. The pay scale of Accountant was revised to Rs.4000-100-6000, which is inconsistent with the pay scale of ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 11 wp3240.11.odt Rs.5500-9000 prescribed under the notification dated 4-2-1999 issued in exercise of statutory power under Section 8(3) of the Maharashtra Universities Act. In our view, merely because the College of Physical Education is under the control of the Department of Social Justice, Cultural and Sports, the Government Resolution dated 17-3-2001 cannot be made enforceable and in terms of the mandatory provision of Section 8(3) of the Maharashtra Universities Act, it has to be declared as invalid being ultra vires the said statutory provision.
11. Even otherwise, the Accountants working in all the Colleges affiliated to the University are governed by the same terms and conditions as are prescribed in the Standard Code. Their duties and responsibilities are the same, they form a single class and, therefore, no discriminatory treatment can be provided, as contemplated by the Government Resolution dated 17-3-2001, which is less beneficial to the Accountants working in the Colleges of Physical Education affiliated to the University. This amounts to creating a classification amongst equals, having no nexus with the object of revision of pay sought to ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 12 wp3240.11.odt be achieved. It, therefore, violates the guarantee of the petitioner contained in Article 14 of the Constitution of India. The same cannot, therefore, be sustained.
12. It is the stand taken by the Department of Finance under the State Government that the pay scale of Accountants working in the Department of Social Justice, Cultural and Sports was revised from Rs.1200-2040 to Rs.4000-6000 and, therefore, the petitioner, who was working as Accountant in the Physical Education College under the control of this Department has also to be placed in the same scale. Article 14 of the Constitution of India deals with the positive discrimination as well as negative. The equals cannot be treated as unequals and the unequals cannot also be treated as equals. The Accountants in the Department of the State Government were working in the unrevised scale of Rs.1200-2040, whereas the petitioner was working in the unrevised scale of Rs.1640-2900, which was much higher. Apart from this, the conditions of service of the Accountants working in the Government Department are governed by the provisions of the Maharashtra Civil Services Rules, whereas the conditions of service ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 13 wp3240.11.odt of the Accountants in the Physical Education Colleges affiliated to the Non-Agricultural Universities are governed by the provisions of the Standard Code framed under Section 8 of the Maharashtra Universities Act. The job of all the Accountants working in the private aided and unaided Colleges affiliated to the University cannot be compared with the job of Accountants in the actual Department of the State Government. In our view, treating the petitioner on par with the Accountants working in the State Government amounts to treating unequals as equals, which cannot be sustained.
13. It is the stand taken by the respondents that the Colleges of Physical Education affiliated to the University were under the control of the Department of Social Justice, Cultural and Sports till 13-4-2013, when they were brought under the control of Higher and Technical Education Department of the State Government. There is no declaration of equivalence in respect of the post of Accountant in Physical Education College and the other Colleges affiliated to the University. In our view, the question of declaration of equivalence, in the facts and circumstances of this case, does not ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 14 wp3240.11.odt at all arise. The Accountants working in the Physical Education Colleges and the other Colleges affiliated to the University are governed by the same terms and conditions, performing the same jobs, and carrying on the same responsibilities. The equality amongst them is inherent and it does not require any order from the Equivalence Committee. This artificial and hypothetical distinction to separate a class of Accountants working in the Colleges of Physical Education, is unreasonable and arbitrary having no basis. In our view, the respondents were totally unjustified in taking such stand.
14. The Department of Finance under the State Government approves the revision in the scale of pay of employees working in all the Departments of the State Government as well as those working in the aided Colleges affiliated to the University. The Department was well aware of the Government Resolution dated 4-2-1999 refusing the scale of pay of Accountants working in the affiliated Colleges from Rs.1640-2900 to Rs.5500-175-9000. In fact, the Secretary, Director, Deputy Director and Assistant Director working at different levels in the Department of Social ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:00:23 ::: 15 wp3240.11.odt Justice, Cultural and Sports recommended providing revision in the scale of Rs.5500-9000 to the Accountants working in the Colleges of Physical Education working under their control. These are the communications dated 3-5-2006, 13-5-2006, 22-3-2007, 31-8-2007 and 3-4-2008. We, however, fail to understand the rigidity and adamance on the part of the Finance Department of the State Government in rejecting the recommendations from all the levels and the claim of the petitioner on the ground that the pay scale of Rs.4000-6000 is approved in the meeting of the State Cabinet held on 30-8-2000. In our view, the basic proposal put up by the Finance Department before the meeting of the State Cabinet itself was not only contrary to the provision of Section 8(3) of the Maharashtra Universities Act, but also it was unreasonable and treats unequals as equals, violating the fundamental right of the petitioner contained in Article 14 of the Constitution of India. Even if such a proposal was approved by the State Cabinet, it cannot withstand the test of fundamental right of the petitioner contained in Article 14 of the Constitution of India, and we have, therefore, no hesitation to set it aside.
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15. In view of the aforesaid position, the petition will have to be allowed by granting a declaration that the Government Resolution dated 17-3-2001 revising the pay scale of the petitioner from Rs.1640-2900 to Rs.4000-6000 with effect from 1-1-1996 as inoperative and holding that the petitioner is entitled to revision in the scale of Rs.5500-9000 with effect from 1-1-1996.
16. In the result, the petition is allowed. The Government Resolution dated 17-3-2001 is held to be inoperative and invalid to the extent it revises the pay scale of the petitioner to Rs.4000-6000. The respondents are directed to place the petitioner in the scale of Rs.5500-9000 with effect from 1-4-1997, i.e. the date from which he was working as Accountant in the respondent No.4-Physical Education College, and to pay him all the arrears arising out of such difference within a period of eight weeks from the date of receipt of copy of this judgment; failing which, an interest at the rate of of 18% per annum from 1-4-1997 till realization of the amount shall be paid to the petitioner.
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17. The Department of Finance has violated the fundamental right of the petitioner contained in Article 14 of the Constitution of India. We fail to understand the propriety and justification on the part of the Department of Higher and Technical Education to oppose the claim of the petitioner, particularly in the light of the recommendations in favour of the petitioner at different levels, in the Department of Social Justice, Cultural and Sports. We, therefore, direct the Department of Finance as well as the Department of Higher and Technical Education of the State Government to pay the costs of Rs.5,000/- (Rupees Five Thousand) each to the petitioner at the time of release of the amount of arrears within a stipulated period; failing which, it shall also carry an interest at the rate of 18% per annum from the date of expiry of the stipulated period.
18. Rule is made absolute in above terms.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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