Bombay High Court
Sudamrao Keshawrao Aher vs The State Of Maharashtra on 21 November, 2013
Bench: R.M. Borde, A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10283 OF 2012
1) Sudamrao Keshawrao Aher,
Age-63 years, Occu:Retired,
R/o-Sai Colony, Savedi Road,
Ahmednagar, Dist-Ahmednagar,
2) Sahebrao Sukhdeorao Rindhe,
Age-63 years, Occu:Retired,
R/o-Sai Colony, Savedi Road,
Ahmednagar, Dist-Ahmednagar,
3) Ashok Sahebrao Jadhav,
Age-63 years, Occu:Retired,
R/o-'Tanmay' 55, Samata Nagar,
Near T.V. Centre, Ahmednagar,
Dist-Ahmednagar.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through it's Principal Secretary,
Higher & Technical Education
Department, Mantralaya Annex,
Mumbai - 431 032,
2) The Director of Higher Education,
Maharashtra State, Central Building,
Pune, Dist-Pune,
3) The Joint Director of Higher Education,
Department of Higher Education,
17, Dr. Ambedkar Road, Pune,
Dist-Pune.
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4) The University of Pune,
Ganesh Khind, Pune,
Through its Registrar,
5) New Arts, Commerce & Science College,
Ahmednagar, Dist-Ahmednagar.
...RESPONDENTS
WITH
WRIT PETITION NO.888 OF 2013
1) Tukaram s/o Manikrao Varat,
Age-59 years, Occu:Service,
R/o-Aikya Nagar, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
2) Sandhya w/o Ashok Jadhav,
Age-56 years, Occu:Service,
R/o-'Tanmay' 55, Samata Nagar,
Near T.V. Centre, Savedi,
Ahmednagar, Dist-Ahmednagar.
3) Shridhar s/o Shankar Jadhav,
Age-55 years, Occu:Service,
R/o-284, 'Gangai', Vidhya Colony,
Nagar Kalyan Road, Ahmednagar,
Dist-Ahmednagar,
4) Shankarrao s/o Balaji Thube,
Age-60 years, Occu:Service,
R/o-Jagruti Colony, Gulmohar Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
5) Bapusaheb s/o Appasaheb Patil,
Age-53 years, Occu:Service,
R/o-Yashashri Apartments,
Rasane Nagar, Near Dizainers Colony,
Savedi, Ahmednagar, Dist-Ahmednagar,
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6) Suresh s/o Janardhan Babar,
Age-56 years, Occu:Service,
R/o-'Yashodeep', Madhuban Colony,
Kapileswar Nagar, Behind Market Yard,
Ahmednagar, Dist-Ahmednagar,
7) Machhindra s/o Vishwanath Gite,
Age-53 years, Occu:Service,
R/o-42, Sambhaji Nagar, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
8) Bhaskar s/o Hari Zaware,
Age-54 years, Occu:Service,
R/o-'Niranjan', Jagruti Colony,
Gulmohar Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
9) Madhukar s/o Rakhamaji Karale,
Age-52 years, Occu:Service,
R/o-Vidhya Colony, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
10) Vijay s/o Savleram Kale,
Age-51 years, Occu:Service,
R/o-'Sidhakala', 5-B, Navnath Nagar,
Near Kohinoor Mangal Karyalaya,
Gulmohar Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
11) Sudhakar s/o Murlidhar Kurhade,
Age-52 years, Occu:Service,
R/o-'Riddhi-Siddhi', Vidhya Colony,
Pipe Line Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
12) Lalita w/o Uttam Kunjir,
Age-50 years, Occu:Service,
R/o-Plot No.45, 'Rudhraksh',
Near Z.P. Colony, Agarkar Mala,
Station Road, Ahmednagar,
Dist-Ahmednagar,
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13) Arun s/o Kashinath Pandharkar,
Age-52 years, Occu:Service,
R/o-01, 'Pranav Residency',
Rasane Nagar, Savedi, Ahmednagar,
Dist-Ahmednagar,
14) Dilip s/o Keru Mote,
Age-51 years, Occu:Service,
R/o-'Atharv' Madhuban Colony,
Kapileswar Nagar, Behind Market Yard,
Ahmednagar, Dist-Ahmednagar,
15) Suresh s/o Tukaram Kharat,
Age-58 years, Occu:Service,
R/o-54/A, Modern Colony,
Near Gulmohar Road Police Station,
Ahmednagar, Dist-Ahmednagar,
16) Mohan s/o Vishvasrao Deshmukh,
Age-60 years, Occu:Service,
R/o-'Antariksha' Kedgaon Devi Road,
Amitnagar, Ahmednagar,
Dist-Ahmednagar.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through it's Principal Secretary,
Higher & Technical Education
Department, Mantralaya Annex,
Mumbai - 431 032,
2) The Director of Higher Education,
Maharashtra State, Central Building,
Pune, Dist-Pune,
3) The Joint Director of Higher Education,
Department of Higher Education,
17, Dr. Ambedkar Road, Pune,
Dist-Pune.
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4) The University of Pune,
Ganesh Khind, Pune,
Through its Registrar,
5) New Arts, Commerce & Science College,
Ahmednagar, Dist-Ahmednagar.
...RESPONDENTS
...
Shri. P.R. Patil Advocate for Petitioners
in both Writ Petitions.
Shri. S.S. Tope, A.G.P. for Respondent Nos.
1 to 3.
None present for Respondent No.4 though
served.
Shri. V.D. Hon Advocate for Respondent No.5.
...
CORAM: R.M.BORDE AND
A.I.S. CHEEMA, JJ.
DATE : 21ST NOVEMBER, 2013
JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the parties.
2. These Writ Petitions relate to step up of
pay of the Petitioners to the level of employees
junior in service as employees junior are drawing
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higher pay.
3. Learned counsel for both sides agree that
both the Petitions raise similar dispute. As such
for details, we are referring to the facts and
material as brought before us in Writ Petition
No.10283 of 2012, although both Petitions are
heard and are being disposed together.
4. The Petitioners were working as Associate
Professors in the Respondent No.5 College. Now
Petitioners (as in Writ Petition No.10283 of 2012)
have retired. Petitioners had obtained their Ph.D.
Degrees in respective faculties. There are other
Associate Professors who are juniors to the
Petitioners and obtained their Ph.D. Degrees
subsequent to the Petitioners. In the
implementation of the 6th Pay Commission, they are
getting higher salaries. Their names are:-
1) Mr.V.B. Gadkar,
2) Mr.S.S. Nighut,
3) Mr.M.S. Nimse,
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4) Mr.S.C. Karle,
5) Mr.B.D. Todkar,
6) Mr.H.D. Jagtap.
. The appointment orders of these persons
are subsequent to the Petitioners. The Petitioners
have filed copies of various appointment orders
and pay fixation. Chart Exhibit F has been filed
to show how Petitioners although senior and were
earlier getting higher pay-scale, now juniors are
getting higher pay-scale than them. The chart is
as under:-
PAY FIXATION OF THE TEACHERS
Sr. Name Date of Length Ph.D. IVth Pay Vth Pay VIth Basic
No. Appoint- of awar- Basic Basic Pay Salary as
ment ser- ded 01.01. 01.01. Basic on 1.6.
vice 1986 1996 01.01. 2012
(Yrs) 2006
1. S.K. 01.07. 35 Jan. 12420 43390 51750
Aher 1995 2005 Retd. on
Sept.
2. S.S. 01.07. 33 Oct. 3000 14940 43390 Retd.
Rindhe 1977 1983 on
July
3. A.S. 07.08. 32 May 2900 12420 43390 51730
Jadhav 1978 2003 Retd. on
July
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To be Compared With
Sr. Name Date of Length Ph.D. IVth Vth Pay VIth Basic
No. Appoint- of awar- Pay Basic Pay Salary
ment servi- ded Basic 01.06. Basic as on
ce 01.06. 1996 01.06. 1.6.
(Yrs.) 1986 2006 2012
1. V.B. 20.07 35 June 3000 12420 43390 59220
Gadkar 1977 2008
2. S.S. 02.07 33 Sept. 2900 12000 42120 59220
Nighut 1979 2008
3. M.S. 09.07
ig 31 March 2650 10975 39690 54400
Nimse 1981 2011
4. S.C. 11.09 26 June 2200 10000 38530 52890
Karle 1986 2009
5. Petitioners have referred to Note 6 of
Government Resolution dated 12th August 2009 filed
with the Petition, to claim that where a senior
teacher promoted before 1st day of January 2006 is
drawing less pay in the revised pay structure than
his junior who is promoted to higher post on or
after 1st day of January 2006, the pay in the pay
band of such senior teacher is required to be
stepped up to an amount equal to the amount in the
pay band as fixed of the junior teacher in that
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higher post. Relying on the Note 6, the
Petitioners claim that anomaly is required to be
corrected as the same violates Article 14, 19(1)
(g) and 21 of the Constitution of India.
Petitioners want their pay to be stepped up to be
equivalent to the junior Associate Professors with
effect from the date of promotion of junior
Associate Professors till respective date of
retirement of the Petitioners and the difference
to be paid with interest. They also want
pensionary benefit to be re-fixed accordingly.
6. Respondent Nos. 1 to 3 have filed
affidavit in reply. It is the defence that
Government of Maharashtra has implemented the
revision of pay-scales of teachers and equivalent
cadres in higher education as per the U.G.C.
Scheme under 6th Pay Commission of Universities,
Affiliated Colleges, Government Colleges/
Institutes of Science etc. The Joint Director,
Higher Education, Pune has determined and fixed
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the pay of the Petitioners as per Government
Resolutions passed from time to time. Monetary
benefits as laid down in 4th, 5th and 6th Pay
Commission have been given to the lecturers who
acquired Ph.D. Degree before 1st January 1986 and
thereafter. Referring to the Note No.6 of
Government Resolution ("G.R." for short) dated
12th August 2009, it is claimed that the same
relates to promotion and not about incentives of
the Ph.D. qualification and so the said Note does
not apply to the Petitioners. Ph.D. benefit is an
incentive. In the 5th Pay Commission at entry
level, four increments were provided if person
already had Ph.D. Degree and two increments were
provided if the Ph.D. Degree was acquired while in
service. Under the 6th Pay Commission, increments
for Ph.D. at entry level were five and three
increments if Ph.D. is acquired while in service.
It is claimed that the difference in salary is
because of this. There is no provision of stepping
up of pay in respect of incentives granted for
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acquiring of Ph.D. It is claimed that the anomaly
of juniors drawing more pay than that of seniors
is because they have acquired Ph.D. Degrees on
different dates and its incentives in terms of
increments, as per different Pay Commissions.
7. The Petitioners have responded to the
above defence of Respondents by way of affidavit
by way of rejoinder. Petitioners are relying on
Note No.5 of the G.R. dated 12th August 2009 also
and have given details as to how the
implementation of the 6th Pay Commission has
caused inequality.
8. On behalf of the Respondents additional
affidavit has been filed and referring to Note
No.5 of the G.R. dated 12th August 2009, a
comparative chart has been brought on record to
show as to how and why the disparity arises. The
comparison has been made between Petitioner No.1
S.K. Aher with one Shri. S.S. Nighut. The chart is
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as under:
Sr Name Aher S.K. Nighut S.S. Remarks
.
No
.
01 Date of 01.07.1975 02.07.1979
Appointment
02 Qualification M.Sc. M.A.
at the time of
joining
03 Ph.D. Awarded January 2005 Sept. 2008
date
04 5th pay basic 12,420 12000
01.01.1996
05 t5th Pay Basic 18300 17460
as on
31.12.2005
07 6th pay basic 43,390 + 42,120 +
01.01.2006 9000 9000
08 01.07.2006 44970 + 43,660+9000
09 01.07.2007 46590+9000 45240+ 9000
10 01.07.2008 48260+9000 46870+5030+ 55870X3%=
9000 1680.10X3
=5028.30 i.e.
5030 (3 Ph.D
Advance
increment
11 01.07.2009 49980+9000 53730+9000
12 01.07.2010 51750+9000 55620+9000
(Retired on
Sept. 2010)
13 01.07.2011 57560+9000
14 01.07.2012 59560+9000
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. According to the Respondents, Petitioner
Aher was drawing more pay in the 5th Pay
Commission and even on 1st January 2006 when the
6th Pay Commission was implemented. The disparity
arose when S.S. Nighut acquired Ph.D. subsequent
to 1st January 2006 and got increments as provided
in the 6th Pay Commission Report. Thus, these
Respondents claim that there is no question of
stepping up even as per Note No.5 of the G.R.
referred to above.
9. We have heard learned counsel for both
sides on the above lines. Learned counsel for
Respondent Nos. 1 to 3 referred to Government of
Maharashtra Resolution No.NGC2009/(243/09)-UNI-1
dated 12th August 2009, with reference to the
Revision of pay-scales of teachers and equivalent
cadres in Higher Education as per UGC Scheme ( 6th
Pay Commission). Reference was made to Para 7
which has title - "Incentives for Ph.D./M.Phil.
And Other Higher Qualifications." Sub Para (i) and
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(v) are referred at the time of arguments and the
same need to be reproduced:-
"(i) Five non-compounded advance
increments shall be admissible at the
entry level of recruitment as Assistant
Professor to persons possessing the degree
of Ph.D. awarded in the relevant
discipline by the University following the
process of admission, registration, course
work and external evaluation as prescribed
by the UGC in its Regulation.
......... ............ ..............
(v) However, teachers in service who have
been awarded Ph.D. at the time of coming
into force of this Scheme or having been
enrolled for Ph.D. have already undergone
course-work, if any, as well as
evaluation, and only notification in
regard to the award of Ph.D. is awaited,
shall also be entitled to the award of
three non-compounded increments even if
the university awarding such Ph.D. has not
yet been notified by the UGC as having
complied with the process prescribed by
the Commission."
. Based on this, it is claimed that under
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the 6th Pay Commission, at entry level five
increments have been provided for teachers having
Ph.D. and three increments are provided for
teachers who acquire Ph.D. while in service.
10. In this regard Note Nos.5 and 6 of
Appendix-I to the Government Resolution which have
been referred in the pleadings, need to be
reproduced for convenience, which read as under:
"Note 5 - Where in the fixation of pay
under sub rule 2(A) the pay of a teacher,
who, in the existing scale was drawing
immediately before the 1st January, 2006
more pay than the other teacher junior to
him in the same cadre, gets fixed in the
revised pay band at a stage lower than that
of such junior, his pay shall be stepped up
to the same stage in the revised pay band
as that of the junior.
Note 6 - In case where a senior teacher
promoted to a higher post before the 1st
day of January, 2006 draws less pay in the
revised pay structure than his junior who
is promoted to the higher post on or after
the 1st day of January, 2006, the pay in
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the pay band of such senior teacher should
be stepped up to an amount equal to the pay
in pay band as fixed for his junior in that
highest post. The stepping up should be
done with effect from the date of promotion
of the junior teacher subject to the
fulfillment of the following conditions:
(i) both the junior and the senior teacher
should belong to the same cadre and the
posts in which they have been promoted
should be identical in the same cadre.
(ii) the pre-revised scale of pay and
revised Pay Band and Academic Grade Pay of
the lower and higher posts in which they
are entitled to draw pay should be
identical,
(iii) the senior teacher at the time of
promotion should have been drawing equal or
more pay than the junior,
(iv) the anomaly should be directly as a
result of the application of the provision
of these rules or any other rules or order
regulating pay fixation on such promotion
in the revised pay structure."
11. Relying on above Para 7 of the Government
Resolution, it has been argued by learned counsel
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for Respondent Nos. 1 to 3 by referring to the
comparative chart of Petitioner S.K. Aher and S.S.
Nighut (reproduced above), that on 1st January
2006 when 6th Pay Commission was implemented,
Petitioner had higher salary but the salary of
S.S. Nighut increased as he acquired Ph.D. Degree
in September 2008 which was subsequent to coming
into force of 6th Pay Commission. Thus, according
to the counsel the difference is not because of
pay fixation but because the increments have been
given to the junior.
12. No dispute has been raised regarding the
claim of the Petitioners that they were seniors to
the persons mentioned in the Petition, who,
according to the Petitioners are getting more
salaries than them. If the comparative chart of
Petitioner Aher and S.S. Nighut is perused and
details compared, it can be very well appreciated
that date of appointment of Petitioner is earlier
to S.S. Nighut. Both of them were Post Graduates.
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Petitioner Aher acquired Ph.D. Degree in January
2005 while S.S. Nighut acquired the same only
subsequently in September 2008. At the beginning
and end period of 5th Pay Commission, Petitioner
Aher was getting more salary. Even on 1st January
2006 when 6th Pay Commission basic was applied,
basic of Petitioner Aher was more. The position
changed after 1st July 2008 as it appears that in
September 2008 S.S. Nighut acquired Ph.D. and was
granted three advance increments.
. Question before us is, whether this is
appropriate or the position is required to be
corrected by stepping up the pay of the
Petitioners so as to be equivalent to the junior.
The Petitioners have pointed out in Para 7 of the
Petition that the anomaly exists because teachers
junior to Petitioners who have been awarded Ph.D.
Degrees after 1st January 2006 are entitled to
three non compoundable increments. When
Petitioners completed their Ph.D. Degrees before
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1st January 2006, they were entitled to get only
two increments of Rs.420/- each, totalling to
Rs.840/-, while teachers who got their Ph.D.
Degrees subsequently, got their salary increased
by almost Rs.9000/- per month, inclusive of three
additional increments and other allowances.
13. Comparative chart of Petitioner S.K. Aher
and S.S. Nighut makes it clear that while
everything was equal between the senior and junior
to the extent that both of them had acquired Ph.D.
Degrees, due to the only difference that the
junior had acquired Ph.D. Degree recently, he has
been given incentive under implementation of 6th
Pay Commission in such a manner that he marches
over the senior to get much more in salary by what
has been stated to be an incentive for acquiring
Ph.D. Degree. No doubt incentives are required to
be given but all things given to be the same, if
while implementing the incentive to the junior
disparity arises in the pay, it would be necessary
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to step up the pay of the senior so as to be at
par with junior. If this is not accepted, it would
create serious disparities as is appearing from
the present record. After all giving of the
incentive under the Pay Commission is also part of
the implementation of Pay Commission and there is
no reason why disparity arising due to
implementation should not be corrected and pay of
the senior should not be stepped up.
14. Learned counsel for the Petitioners
relied on the case of Gurcharan Singh Grewal and
another vs. Punjab State Electricity Board and
others, reported in (2009) 3 Supreme Court Cases
94. That was also the matter where anomaly arose
due to difference of incremental benefits. The
learned counsel for Respondents, Mr. Chhabra, in
that matter, tried to justify the disparity before
the Hon'ble Supreme Court by claiming that the
disparity between the pay of Shri. Shori (in that
matter) and Appellant 1 before the Hon'ble Supreme
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Court was because the Appellant 1 had been granted
promotional scale with effect from 1st January
1996, where the benefits of increments in the
scale were lower and on the other hand Shri. Shori
who joined the services of the Board in 1974 was
granted promotional scale on 17th May 2006 with
effect from 1st September 2011 when the increments
in the pay-scale were higher. The Hon'ble Supreme
Court observed in Para 17 and 18 of the Judgment
as under:-
"17. Something may be said with regard to
Mr Chhabra's submissions about the
difference in increment in the scales in
which Appellant 1 and Shri Shori are
placed, but the same is still contrary to
the settled principle of law that a senior
cannot be paid a lesser salary than his
junior. In such circumstances, even if
there was a difference in the incremental
benefits in the scale given to Appellant 1
and the scale given to Shri Shori, such
anomaly should not have been allowed to
continue and ought to have been rectified
so that the pay of Appellant 1 was also
stepped up to that of Shri Shori, as
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appears to have been done in the case of
Appellant 2.
18. We are unable to accept the reasoning
of the High Court in this regard or the
submissions made in support thereof by Mr.
Chhabra, since the very object to be
achieved is to bring the pay scale of
Appellant 1 on a par with that of his
junior. We are clearly of the opinion that
the reasoning of the High Court was
erroneous and Appellant 1 was also entitled
to the same benefits of pay parity with
Shri Shori as has been granted to Appellant
2."
. Thus, the Hon'ble Supreme Court rectified
the situation when incremental benefits given at
different times were different so that the settled
principle of law that "senior cannot be paid a
lesser salary than his junior" is maintained.
15. In present matter, according to us, the
incentives while implementing 6th Pay Commission
for Ph.D. cannot be so given so as to give a
junior teacher more pay than the senior who is
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otherwise equally qualified. Rather he has more
experience and is senior even in the acquisition
of the Ph.D. Degree. All things given to be the
same at a given point of time, junior teacher
could not be getting more salary than the senior
only because the junior has just acquired the
Ph.D. Degree. The Constitution has goal under
Article 39(d) that there should be equal pay for
equal work. If the arguments as raised on behalf
of the Respondents are accepted, the same would
amount to discriminating to teachers only on the
basis of junior teacher having acquired Ph.D.
Degree recently under new Pay Commission. This
would be violative of the principles as enunciated
in Article 16 of the Constitution and such
position cannot be allowed to be maintained. It is
different when one person is having higher
qualifications. However, it would be
discriminatory when both are having similar
qualifications and a person not only senior in
service but also equally qualified is so
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discriminated so as to be put in disadvantageous
position as if it was a fault to have acquired
Ph.D. Degree earlier. It is not a case of keeping
the incentive separate and not part of pay. If pay
fixation of Petitioner No.1 (as at Page 60-61 in
Paper Book) is seen, on 1st July 2008, his basic
pay is shown as Rs.57260/- while that of Shri.S.S.
Nighut (See Page 107) was Rs.55870/-. Then in the
proforma of Pay Fixation, entry on 22nd September
2008 for Shri. S.S. Nighut shows his basic pay as
"55870+5030=60900". Thus the increments were
merged in the basic. This would be discriminative
between Senior Teacher and Junior Teacher. Note 5
below Appendix I of the G.R. needs to be so
applied that such discrimination is removed.
16. For the above reasons both the Petitions
need to be allowed with directions that
Respondents shall take necessary action to step up
the pay of the Petitioners in both the Petitions
so as to be at par with juniors where all the
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things given are same and shall not discriminate
only because the junior teacher has acquired Ph.D.
Degree in the course of 6th Pay Commission. The
salaries of the Petitioners in both the Petitions
may be re-fixed and arrears be paid within a
period of THREE MONTHS. For Petitioners who have
already retired, the pension shall be re-fixed
accordingly.
17. Both the Writ Petitions are allowed as
above.
18. Rule made absolute accordingly. No order
as to costs.
[A.I.S. CHEEMA,J.] [R.M. BORDE,J.]
asb/NOV13
