Vatsala Narayan Maske And Ors. vs State Of Maharashtra And Ors.
2004 Latest Caselaw 1138 Bom

JUDGMENT

Joshi A.H., J.

1. This is a petition filed by Narayan s/o Sitaram Maske, who is no more and the petition is prosecuted further by his Legal Heirs since the claim involved in this petition is a pecuniary claim. Original petitioner is referred to herein after for brevity and convenience as "The Petitioner".

2. As pleaded by the petitioner, he entered the employment of a Primary School at Katol on 16-6-1948 and had changed the employment from time to time. He was in the employment of Nava Pratibha High School, where he entered his service on 1-7-1964 and served in Kurves New Model High School till 30-12-1985 when he was superannuated, when he completed 58 years of age.

3. The petitioners has challenged his superannuation on completing 58 years of age. It is seen that he was required to litigate up to Supreme Court, and after remand to the School Tribunal, he ultimately succeeded where his plea that for him age of retirement was to be 60, was accepted. The said order of the School Tribunal is subject-matter of challenge at the behest of the management in Writ Petition No. 812/92.

4. The petitioner has represented his grievance in the present petition mainly for the purpose of fixation of pay and by amendment of petition he has demanded interest on delayed payment of arrears of pay and pensionary dues. According to the petitioner, his pay was liable to be fixed after the Government accepted the policy of granting pay scale of Rs. 70-150 for the trained teachers of which the qualification is held by the petitioner. It is seen that the pay fixation giving effect from 1-4-1966 was delayed up to 1988 when the Senior Auditor did fixation of pay of the petitioner right from 1-7-1961 giving him the basic pay as of that date of Rs. 70/- and fixing his basic pay of Rs. 82/- as of 7-7-1966. In view of the revisions of pay scale, the petitioner's pay was required to be revised in retrospection with effect from 1-4-1966 which was accordingly fixed and by giving necessary credit of the qualification of the petitioner having served in Primary School after acquiring diploma in teaching. The pay was, therefore, fixed as of 1-4-1966 in the pay scale of Rs. 120-220 at Rs. 138/- and by giving him the benefit of fixation, his pay was ultimately fixed w.e.f. 1-7-1966 at Rs. 142/-.

5. It is seen that the petitioner was dissatisfied with the said fixation at Rs. 142/- as on 1-7-1966. His ground of dissatisfaction was based on the plea that the pay to be fixed as of 1-7-1958 itself. He, therefore, claims that as of 10-7-1958, his basic pay was to be considered to be Rs. 79/- and his pay as of 1-7-1966 was liable to be considered to be Rs. 91/- instead of Rs. 82/- which was fixed by the Department. He, therefore, claim consequential increment in his basic pay and, therefore, expected his basic pay as of 1-7-1966 to be Rs. 166/- as against Rs. 142/- which was fixed by the Department.

He, therefore, submitted a representation dated 18-1-1988 aforesaid pleas. This representation has been answered by the Dy. Director of Education by his letter dated 11-9-89. The substance of the reply by the Dy. Director of Education can be narrated as follows :-

"That the petitioner's pay while he was working in Primary School between 1948 to 1961 was in the scale of Rs. 50 to 90. After he resigned the said job and entered the services of Hadas High School, Nagpur, on 10-7-1961, he was appointed in the pay scale of Rs. 70 to 150. The petitioner's pay was not liable to be fixed as on 1-11-1959 following recommendation of the integration committee, because he was working in Primary School and therefore, there was no occasion to fix Petitioner's pay again. Actual pay drawn by the petitioner in the Primary School, Katol was less than the pay represented by the petitioner, while the pay in Hadas High School was higher, therefore, there was no question of granting any protection to the basic pay as the petitioner was drawing more basic salary than his earlier employment. Any notional fixation was, therefore, not possible . His representation was, therefore, rejected."

6. After receipt of this letter of rejection of representation dated 1-9-1989, the petitioner has filed the present writ petition.

7. During pendency of this writ petition, certain development occurred namely a communication was received by the Officer of the Education Officer, Nagpur from the Director of Education, Maharashtra State Pune, which is a fax message dated 15-2-1999. The Education Officer was called to explain as to why the fixation of pay of the petitioner effective from 1-4-1966 was delayed up to 5-5-1988 and also whether any interest was payable on delayed payment of arrears. It seems that the said fax message is sent by the Director of Education in response to some of the complaints submitted by the petitioner. It is seen that the petitioner claiming interest on delayed payment placing his reliance on Government Resolution dated 24-4-1995 which is placed on record as Annexure 5-B, page 27 by amending petition along with some other documents. This Government Resolution pertains to delay caused on account of Government in effecting payment of retirement gratuity/death gratuity, pension, family pension etc. and provides that the person who has been denied his payments shall be entitled to receive interest at the rate of 12% per annum compounded every year. In the present petitioner, the petitioner's claim is for the relief of fixation of pay in terms of petitioners's claim incorporated in Annexure-3 i.e. his representation dated 5-1-1988 and payment of interest on the delayed payment of arrears.

8. Heard learned Counsel for the petitioner and learned A.G.P. for the respondent No. 2.

9. The petitioner claim for accepting pay as of 10-7-1966 at Rs. 79/- is the crux of the matter because if the said claim is accepted then subsequent fixation can vary. In order to substantiate this claim, the petitioner has tried to assail the finding and reasons assigned by the Dy. Director of Education in his letter dated 11-9-1988 Annexure-2 to the petition. Petitioners' claim contained in ground No. 2 that as he has passed S.S.C. and diploma in teaching, his pay was liable to be fixed on 1-4-1959 in the pay scale of Rs. 7 to 150 relying upon G.R. dated 14-5-1970 is not substantiated. The G.R. which is placed on record as Annexure-4 does not revel or prescribe that the pay of the trained teacher in the scale of Rs. 70 to 150 was liable to be given retrospectively from 1-4-1959. The petitioner has failed to bring on record any other Government Resolution or decision on record to substantiate his claim. Even in the representation Annexure-3, the petitioner has not asserted any basis or foundation on which, he could claim that the pay scale Rs. 70 to 150 was liable to be applied while the petitioner was serving in the Primary School at Katol.

The petition does not contain a statement as to on what basis of right he claims that as of 1-11-1959, the petitioner was entitled to be placed in the pay scale Rs. 70-150. In absence of any such statement and supporting document, it cannot be tested as to whether the petitioner's demand was erroneously declined. Affidavit filed by the Government reveals that the petitioner was working as a Primary Junior Teacher and the pay scale applicable thereto is Rs. 50 to 90. He entered secondary school having teaching facility for 5th to 7th standard when he got employment with Kurvey's New Model High School, Nagpur and automatically became eligible for scale 70-150. The petitioner's claim for fixation of pay with effect from 1-7-1961 and consequential revision is thus not established by him.

10. Second question that remains is as to the amended prayer, prayer 2-A, for grant of interest on delayed payment of arrears of difference of pay and pensionary benefits. Admittedly, the petitioner's pay fixation was delayed by about 18 years and no explanation what so ever has come forward from the respondent No. 2. The petitioner has retired in the year 1986 while the fixation was done in the year 1988 and arrears have been paid much later thereafter. Due to delay in fixation, the petitioner's fixation of pension and consequentially other payment of retrial benefit have also been delayed. It is true that the G.R. dated 24-4-1995 does not apply to liability of the Government to make the payment of interest on delayed payment accrued due to fixation of pay. However, looking to the fact delayed fixation has also resulted in delay in payment of retiral benefits to the petitioner, the petitioner would be entitled to receive interest claimed by him by way of amendment in para 9-B of the petition. The averment contained in para 9-B and prayer 2-A have not been answered by the State seemingly, because it involves fixation of the responsibility as to at whose behest and due to whom the delay has occurred in fixation of pay. The petitioner's claim for interest is duly established, has thus gone un-traversed. The arrears to which the petitioner was entitled as per the fixation done by the respondents is a matter of admitted position. The fact that correct fixation of pension was delayed is also admitted fact.

The petitioner is, therefore, entitled to interest at the rate of 12% per annum and the entire amount of arrears treating that the entire arrears were due and payable to the petitioner at least on the date of his retirement i.e. 30-12-1987 till the date of actual payment.

11. The respondents Nos. 1 to 3 shall calculate the amount of interest at the rate of 12% per annum annually compounded treating that the entire amount paid to the petitioner i.e. Rs. 1,74,725/- from time to time being due and payable on the date of his actual date of retirement till the date of actual payment of different amounts, paid to him from time to time. The work of calculation should be completed within three months from the date of receipt of this order and make the payment of the amount of interest so calculated to any one amongst the heirs who may be authorized by them within one month thereafter along with quantified costs of Rs. 5000/-.

12. Authenticated copy of this judgment and order be supplied to the learned Asstt. Government Pleader, on which learned AGP shall communicate this order to the respondents Nos. 1 and 3.