Bombay High Court
Amanulla Khan Amir Khan Pathan vs The State Of Maharashtra And ... on 13 August, 2015
Bench: S.V. Gangapurwala
1 W.P.No.429/15
REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.429 OF 2015.
Amanulla Khan S/o Amir
Khan Pathan, Age 57 years,
Occ.Assistant Superintendent
Civil Court, Junior Division,
Deoni, R/o At present
Civil Court Deoni and Arbaz
Manzil beside Police
quarter Ed-gah road,
Ahmedpur, Tq. Ahmedpur,
Dist.Latur. ... Petitioner.
Versus
1. State of Maharashtra,
Department of Law and
Judiciary, Mantralaya,
Mumbai.
2. Accountant General,
through its Account Officer,
Pay Verification unit
Department, Aurangabad.
3. Accounts Department,
Civil Court, Junior Division,
Deoni, Tq. Deoni, Dist.Latur.
4. The Principal Secretary,
Law and Judiciary Department,
Mantralaya,Mumbai.
5. Civil Judge (Junior Divison),
Civil Court (Junior Division),
::: Uploaded on - 24/08/2015 ::: Downloaded on - 10/09/2015 20:02:43 :::
2 W.P.No.429/15
Deoni, Tq. Deoni, Dist.Latur. ... Respondents.
...
Mr.G.L.Deshpande, advocate for the Petitioner.
Mr.K.G.Patil, Addl. Govt. Pleader for the State.
Mr.C.K.Shinde, advocate for the Respondent Nos.3
and 5.
...
CORAM : S.V.GANGAPURWALA &
V.K.JADHAV,JJ.
Reserved on : 23.06.2015.
Pronounced on : 13.08.2015.
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. Rule. Rule made returnable forthwith.
With the consent of the parties, the petition is
taken up for final hearing.
3. The petitioner assails the letter dated
30.10.2014, so also Government Resolution dated
8.3.2013, to the extent it excludes the employee
i.e. Assistant Superintendent of Civil Court
(S.D.) from benefits of recommendation of Justice
Shetty Commission, so also the order directing
refixation of the pay of the petitioner and the
recovery claimed.
4. Mr.Deshpande, learned counsel for the
petitioner submits that petitioner was earlier
working as Senior Clerk, thereafter he was
promoted to the post of Assistant Superintendent
with effect from 10.2.2001. On 1.6.2003, the
petitioner was transferred to Civil Judge (J.D.),
Ahmedpur. Thereafter on 1.8.2003, the petitioner
was transferred as Assistant Superintendent to
the Civil Judge (S.D.), Ahmedpur. The benefits
of Justice Shetty Commission were extended to the
petitioner and the petitioner was paid his salary
in the pay band of Rs.13,210/- with subsequent
increments. The learned counsel submits that
vide the impugned order refixation was done and
recovery is claimed. Refixation is done on the
sole ground that post of Assistant
Superintendent, Civil Judge (S.D.) is not
contemplated as per Justice Shetty Commission
report and it only contemplates the post of
Assistant Superintendent, Civil Judge (J.D.).
According to the learned counsel, the
clarification given vide Government Resolution
dated 18.6.1984 is clear. As per said GR
dt.18.6.1984, all Assistant Superintendents
working at District Courts, Taluka Courts and/or
Civil Judge (S.D.) are to be considered as one
cadre. The Government Resolution dated 8.3.2013
to that extent is contrary to the Government
Resolution dated 18.6.1984. The learned counsel
submits that a person working as Assistant
Superintendent ig (J.D.) and Assistant
Superintendent (S.D.) has to be considered as
belonging to the same cadre and the same pay-
scale is to be made applicable. The learned
counsel relies on the judgment of the Division
Bench of this Court in a case of "Pralhad Bhaurao
Ghule and others Vs. Government of Maharashtra"
in W.P.No.6297/2014. Learned Counsel also relies
on the judgment of the Apex Court in the case of
"V.Markendeya Vs. State of A.P." reported in
1989(3) SCC 191. According to the learned
counsel, if the Government Resolution dated
8.3.2013 is accepted then anomalous situation
would arise, wherein Assistant Superintendent of
the Court Civil Judge (J.D.) would draw more pay
than Assistant Superintendent working with Civil
Judge (S.D.).
5. We have heard Mr.Shinde, learned
counsel for Respondent Nos.3 and 5, who states
that pay fixation at the relevant time has been
done by the Accounts Officer (Pay Unit).
6. Mr.Patil, learned Addl. Govt. Pleader
submits that as per Government Resolution dated
20th October, 2011 and Government Resolution dated
8.3.2013, benefits of Shetty Commission were
sanctioned and extended to the non-judicial
employees of the Court with effect from 1.4.2003.
As per para 2 of the Government Resolution dated
20th October, 2011, benefits of Shetty Commission
are applicable to the post of Assistant
Superintendent, Civil Court (J.D.). The said
fact is also clarified by para No.4 of Government
Resolution dated 8.3.2013. When the Pay
Verification was done as on 1.1.2006,the
petitioner was working as Assistant
Superintendent with Civil Judge (S.D.) The Pay
Verification Unit has therefore, rightly raised
objection regarding the Pay Fixation of the
petitioner in view of the said Government
Resolution. The petitioner is entitled for
higher pay only so long as he works as Assistant
Superintendent with Civil Judge (J.D.). According
to the learned Addl. Govt. Pleader, refixation of
pay vide impugned order has been correctly done
and the same is in consonance with the relevant
Government Resolutions. No error is committed by
the Officer while refixing the pay-scale.
7. We have considered the submissions
canvassed by the learned counsel for respective
parties.
8. The undisputed factual matrix can be
culled out as under :-
The petitioner was working as Assistant
Superintendent since 10.2.2001. On 1.6.2003, the
petitioner was transferred to the Court of Civil
Judge (J.D.), Ahmedpur. On 1.8.2003, the
petitioner was transferred as Assistant
Superintendent to the Court of Civil Judge
(S.D.), Ahmedpur. The benefits of Justice Shetty
Commission were extended to the petitioner vide
impugned letter dated 30.10.2014, refixation of
his pay-scale was done and recovery claimed. The
petitioner was again transferred as Assistant
Superintendent to the court of Civil Judge (J.D.)
Devni on 8.5.2008 and since then the petitioner
is working as Assistant Superintendent,Civil
Court (J.D.).
9.
The benefits of recommendation of
Justice Shetty Commission were extended to the
employees of all District Courts, Civil and
Criminal and Small Cause Court employees working
under all District Courts in the State of
Maharashtra by Government Resolution dated
20.10.2011. These benefits were given with
effect from 1.4.2003.
10. In subsequent Government Circular dated
8.3.2013, clarifications were issued by the State
Government pursuant to various issues raised by
the organisation of Court employees in the State.
The Government Resolution dated 20th October, 2011
lays down the revised pay-scale applicable to the
various posts as referred in the said Resolution.
For the post of Assistant Superintendent of the
Court of Civil Judge (J.D.), revised pay-scale of
Rs.6500-10500 was made applicable. However, the
revised pay-scale was not prescribed in the said
Resolution for a person working as Assistant
Superintendent to the Court of Civil Judge
(S.D.). The petitioner was working as Assistant
Superintendent to the Court of Civil Judge (J.D.)
on 1.4.2003. The petitioner was given the
benefit of the revised pay-scale as per
Resolution dated 20.10.2011, however, the
petitioner was transferred on 1.8.2003 as
Assistant Superintendent to the Court of Civil
Judge (S.D.). On the premise that in the
Government Resolution dated 20.10.2011, revised
pay-scale is not provided for the post of
Assistant Superintendent, Civil Judge (S.D.) and
it only provides for the revised pay-scale of
Assistant Superintendent of the Court of Civil
Judge (J.D.), refixation is done and recovery is
claimed.
11. It is not the case of Respondents that
there is qualitative difference in functions and
responsibilities of a person working as Assistant
Superintendent, Civil Judge (J.D.) and Assistant
Superintendent, Civil Judge (S.D.). It is also
not the case of Respondents that there are
distinguishing features like educational
qualification, mode of recruitment, status etc.
There is substantial similarity in the duties and
responsibilitiesig and the posts are inter-
changeable. The persons working as Assistant
Superintendent of the court of Civil Judge
(J.D.), are transferred as Assistant
Superintendent to the Court of Civil Judge (S.D.)
and vice versa. The responsibilities and the
quality of work of the Assistant Superintendent
of Civil Judge (J.D.) and Civil Judge (S.D.) are
same. Even the Government Resolution dated
3.4.1984 item No.21 of Annexure 'A' makes it
abundantly clear that the Government has accepted
the recommendation that the Assistant
Superintendent of District Court, the Court of
Civil Judge (J.D.) or the Court of Civil Judge
(S.D.) would constitute one cadre. When the
Government has accepted this recommendation and
have treated all persons working as Assistant
Superintendent in the District Court, Court of
Civil Judge (J.D.) and Court of Civil Judge
(S.D.) as belonging to one cadre. It would be
utter discrimination and arbitrary to have a
revised pay-scale only for Assistant
Superintendent working in the Court of Civil
Judge (J.D.) and to deny the same to Assistant
Superintendent working with the Court of Civil
Judge (S.D.). Even Article 39(d) of the
Constitution of India, ordains the implementation
of the concept of equal pay for equal work. It
is no doubt true that the Courts would be slow in
interfering with the State action prescribing
different scales of pay. However, where two
classes of employees perform identical or similar
duties and carry out same functions with the same
responsibilities and having same academic
qualification, they would be entitled for equal
pay. The reference can be had to the judgment of
the Apex Court in the case of "V.Markendeya Vs.
State of A.P." referred supra.
12. Non-inclusion of the post of Assistant
Superintendent Civil Judge (S.D.) in the said
Government Resolution appears to be that of an
inadvertent omission. The Courts can not apply
the principle of casus omissus and fill the gap
by adding certain words. But where a defect
appears, the Court can not simply fold his hands.
If the disparity in the revised pay-scale of
Assistant Superintendent of Civil Judge (J.D.)
and that of a Civil Judge (S.D.) is allowed to
stand, it would result in irrational
classification, absurdity and egregious
injustice. The Courts in such situation have to
step in to eradicate disparity on the touch stone
of the principle of equal pay for equal work.
13. There is another facet of the matter.
The benefit of refixation was given to the
petitioner. It was not at the behest of the
petitioner or on account of fraud or
misrepresentation on the part of the petitioner.
According to the Respondents, it was mistake at
their behest. Even recovery can not be claimed in
such a case. The petitioner is a class III
employee. The principle laid down by the Apex
Court in a case of "State of Punjab and others
Vs. Rafiq Masih (Whitewasher)" reported in (2014)
8 Supreme Court Cases 883, would squarely apply,
wherein the Apex Court has held that recovery
from the employees would be impermissible in law
who are due to retire within one year or have
retired or from the employees belonging to class
III and class IV service. The petitioner would
belong to class III service.
ig On this count also
recovery can not be claimed.
14. In light of the above, the impugned
communication dated 30.10.2014 is quashed and set
aside. The Assistant Superintendent of Civil
Judge (S.D.) is held entitled to the benefit of
recommendation of Justice Shetty Commission and
G.R. Dated 20.10.2011 of revised pay-scale as is
applicable to the Assistant Superintendent of the
Civil Court (J.D.). The petitioner inter alia
is also held entitled to the same revised pay-
scale while working as Assistant Superintendent
Civil Judge (S.D.) as is made applicable to
Assistant Superintendent of Civil Judge (J.D.).
Rule made absolute in above terms. No costs.
Sd/- Sd/-
(V.K.JADHAV,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp429.15
Motion is made for extension of time to
deposit the amount as directed by this Court
while granting ad-interim stay to the execution
of the award. Mr.Sangle, learned counsel submits
that within the stipulated period the amount
could not be deposited, however, the amount is
ready. The cheques of the amount is also ready
and the said amount can be deposited immediately.
In light
ig of that, time to deposit the
amount as directed by this Court while granting
ad-interim stay to the execution of the impugned
award is extended by two weeks.
