Bombay High Court
Vijay Anjanilal Chourasia And ... vs Govt Of Maharashtra And Others on 15 April, 2016
Bench: S.S. Shinde
1 WP NO.5073/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5073 OF 2015
1. Dr.Vijay Anjanilal Chourasia,
Age- 44 Years, Designation - Doctor,
R/at- Plot No.12, Shital Colony,
Sakri Road, Dhulia.
2. Shivaji Vithal Patil,
Age - 54 Years, Designation - Co-ordinator
R/at - At Post - Nandane,
Tal. & Dist. Dhulia.
3. Dilip Rupchand Devare
Age - 54 Years, Occ. Clerk,
R/at- Mitrakunj Housing Society,
Sakri Road, Dhulia.
4. Sunita Sonaji Gavit,
Age 43 years, Occ - ANM
R/at - Moglai Lane,
No.2, Sakri Road, Dhulia.
5. Sadhana Kisanlal Tiwari,
Age 48 years, Occ - ANM
R/at - c/o Bharat Pardeshi,
Bhavsar Colony, Plot No.30,
Dhulia.
6. Pratibha Ramesh Chavan
Age 38 years, Designation - ANM
R/at Siddharth Colony,
Plot No.38, Chitod Road,
Dhulia.
...PETITIONERS
VERSUS
1. Govt.of Maharashtra
Through the Additional Chief Secretary
Department of Health,
::: Uploaded on - 16/04/2016 ::: Downloaded on - 29/07/2016 22:27:35 :::
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Mantralaya, Mumbai 400 032
2. The Union of India
Through the Secretary
Ministry of Health & Family Welfare
Department, Nirman Bhavan,
New Delhi 110011
3. The Commissioner (Family Welfare)
And Mission Director
(National Rural Health Mission),
Government of Maharashtra
St.George Hospital Compound,
P.D.Mello Road, Bombay 400 001
4.
The Additional Director
State Family Welfare Bureau Maharashtra
Kulumb Kalyan Bhawan,
Behind Pune Rialway Station, Pune 411 001
5. Jawahar Medical Foundation, Dhule
Hutatma Shirishkumar Nagar,
Opp. Jawahar Soot Girni, Sakri Road,
Dhule.
...RESPONDENTS
...
Mr.R.N.Sanghavi, Advocate for petitioenr;
Mr.A.V.Deshmukh, AGP for Respondent No.1/ State
Mr.S.B.Deshpande, ASG for Responent No.2;
Mr. S.S.Patil, Advocate for Respondent NO.5.
CORAM: S.S.SHINDE & P.R.BORA, JJ.
***
Date of reserving the judgment:8/2/2016
Date of pronouncing judgment: 15/04/2016
***
JUDGMENT: (Per P.R.Bora, J.)
1. Heard. Rule. Rule made returnable and heard
forthwith finally with the consent of the parties.
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2. The petitioners have filed the present petition
seeking quashment of the communication dated 21st of August,
2013, issued by the Under Secretary of the State of
Maharashtra, Public Health Department, whereby the President
of the All India Family Welfare Employees Association, Pune,
has been informed that the Central Government has turned
down the proposal submitted by the State Government seeking
approval for paying the Employees of Voluntary Organizations
working under the National Family Welfare Programme, the
Dearness Allowance as applicable to the Employees of the State
Government and further to make applicable the Sixth Pay
Commission to the said employees. The petitioners have also
sought quashment of communication dated 23rd May, 2011,
and 29th of August, 2013, issued by the Ministry of Health and
Family Welfare, Government of India, thereby declaring that
the recommendations of the Sixth Pay Commission are not
applicable to the staff working in Urban Family Welfare Centers
( UFWCs) / Urban Health Posts run by the Voluntary
Organizations / NGOs under the National Family Welfare
Programme.
3. It is the case of the petitioners that they are
4 WP NO.5073/2015
employed under the aforesaid Family Welfare Scheme by
Jawahar Medical Foundation, Dhule ( respondent no.5) on
different posts. Petitioner no.1 is serving as the Medical
Officer, Petitioner No.2 as Coordinator, petitioner No.3 as Clerk
whereas petitioner nos. 4 to 6 as Auxillary Nurse Midwife
(A.N.M.). Petitioner No.1 was appointed vide order of
appointment dated 1.5.2003, petitioner no.2 vide appointment
order dated 8.6.1989, petitioner no.3 vide order dated 31st
May, 1997, petitioner no.4 vide appointment order dated 31st
March, 1993, petitioner no.5 vide appointment order dated
30.4.1993, and petitioner no.6 vide order dated 22.9.1997.
All these appointments are issued by respondent no.5 trust /
NGO which runs the Urban Family Welfare Center at Dhule.
4. The petitioners were appointed to work in the Urban
Family Welfare Center, at Dhule, being run by Jawahar Medical
Foundation, Dhule, and since the dates of their respective
appointments, they are in continuous employment of
respondent no.5. It is the case of the petitioners that the Fifth
Pay recommendations have been made applicable to all of
them, however, they have not been paid the Dearness
Allowance accordingly. It is the grievance of the petitioners
that while making applicable the recommendations of the Fifth
5 WP NO.5073/2015
Pay Commission to the State Government employees, the State
of Maharashtra has merged 50 % Dearness Allowance into the
basic pay and after merging the said dearness allowance into
the basic pay, the said employees were paid the dearness
allowance at the rate of 55 % whereas, in case of the
employees in Urban Family Welfare Centers ( UFWCs) / Urban
Health Posts run by the Voluntary Organizations / NGOs
running the said UFWCs under the National Family Welfare
Programme / Scheme, such as petitioners, the Dearness
Allowance at the rate of 55 per cent is being paid on their
original basic pay without merging the 50 per cent Dearlness
Allowance in their said basic pay. The petitioners are,
therefore, claiming the arrears of the salary on the aforesaid
count.
It is the further grievance of the petitioners that the 6th
Pay Commission recommendations have not been made
applicable to their servcies and they have, therefore, prayed for
making the said recommendations applicable to them also. It
is the contention of the petitioners that though through their
Association i.e. All India Family Welfare Employees Association,
they have consistently made and put forth their requests before
the State Government as well as before the Central
Government, their demands have not been considered and
6 WP NO.5073/2015
lastly, the demands so raised by them have been turned down
by the Central Government and, consequently, by the State
Government for the wrong reasons that the Central
Government does not owe the responsibilities in the
administrative matters pertaining to the staff of grantee
organizations and their day to day running the programmes
since it is the matter concerning the State Government and falls
within their purview. The petitioners have also objected to the
stand taken by the Central Government that the employees of
Family organizations cannot be treated at par with the
employees of the Central / State Governments and further that
the recommendations of the Sixth Pay Commission are not
applicable to the staff working in the Urban Family Welfare
Centers / Urban Health Posts run by the Vamily organizations /
NGOS under the National Family Welfare Programme.
5. It is the specific case of the petitioners that the
Central Government by a policy decision had introduced "Family
Welfare Programme" some times in 1968 and the Ministry of
Health, Government of India had approached all the State
Governments to implement the above said Family Welfare
Programme all over the country and for such implementation,
the Government of India had agreed to provide hundred per
7 WP NO.5073/2015
cent financial assistance to the State Governments. It is the
further contention of the petitioners that since beginning the
family organizations and NGOs were involved in implementing
the Family Welfare Programme effectively and successfully.
6. The petitioners have placed on record several
circulars and the decisions taken by the Ministry of Health and
Family Welfare, Government of India, as well as by the Health
Department of the State of Maharashtra, demonstrating that
the Employees of the Voluntary Organizations / NGOs working
under the Family Welfare Programme were held at par with the
State Government employees and were time to time made
applicable the pay scale and the other benefits as are available
to the Employees of the State Government. The petitioners
have alleged that, abruptly, the Health and Family Welfare
Department of the Union of India has taken a contrary stand
and has thereby arbitrarily and wrongly turned down the
request of the employees working under the National Family
Welfare Schemes like the petitioners to make them applicable
the recommendations of the Sixth Pay Commission and to pay
them the arrears of Dearness Allowance as per the
recommendations of the Fifth Pay Commission. The
petitioners have, therefore, prayed for Writ of Mandamus
against respondent nos. 1 to 4 directing them to pay the
8 WP NO.5073/2015
arrears of D.A. as per the Fifth Pay Commission to the
petitioners and to make them applicable the recommendations
of the Sixth Pay Commission.
7. Smt. Vandana Chaudhari, working as Under
Secretary, Ministry of Health and Family Welfare, New Delhi,
has filed affidavit in reply on behalf of respondent no.2. It is
the contention of respondent no.2 that the Government of
Maharashtra has the status of a grantee State in respect of the
Urban Family Welfare Center Scheme and the Government of
India does not, therefore, owe the responsibilities in the
administrative matters pertaining to the staff of the grantee
organizations or voluntary organizations engaged by the State
Governments. It is further contended that the Central
Government support for Urban Family Welfare Center Scheme
is continuing and funds are released to the State through
Treasury route. Respondent no.2 has contended that the
grievances of the petitioners have not arisen due to any action
or omission on the part of the Union Ministry of Health and
Family Welfare. Respondent no.2 has, therefore, prayed its
exoneration and / or deletion of its name from the list of
respondents.
9 WP NO.5073/2015
8. Shri Eknath Maloji Bhosale, the Chief Administrative
Officer working in the office of the Deputy Director of Health
Services, Aurangabad, has filed an affidavit in reply on behalf of
respondent no.1. It is the contention of respondent no.1 that
the Government of India vide letter dated 16th of May, 2013,
has communicated to the State that the Employees of Voluntary
organizations cannot be treated at par with the employees of
the Central / State Governments as they are on contractual
basis and hence the recommendations of the Central Pay
Commission cannot be made applicable to the employees
working under the Urban Family Welfare Center Scheme /
Urban Health Posts run by the Voluntary Organizations / NGOs.
9. Shri R.N.Sanghavi, learned Counsel appearing for
the petitioners, taking us through the various circulars and the
Government Resolutions as well as the communications inter se
the State Government and the Union Government, submitted
that the employees of the NGOs working under the Family
Welfare Scheme introduced by the Central Government were,
for all the purposes, being treated at par with the employees of
the State Government and the Maharashtra Civil Services Rules
have also been made applicable to them and as such, they are
entitled to the benefits as are available to the State
10 WP NO.5073/2015
Government employees. Learned Counsel submitted that the
Central Government has arbitrarily turned down the proposal
for making applicable the recommendations of the Sixth Pay
Commission to the employees such as petitioners for wrong
reasons and taking a stand contrary to their earlier decisions.
10. As stated in the petition, the petitioners are the
employees working in the Urban Family Welfare Center run by
Jawahar Medical Foundation. This fact has not been denied or
disputed by respondent nos. 1 to 4. Respondent no.5 has not
submitted any reply on affidavit. However, during the course
of the arguments, learned Counsel appearing for respondent
no.5 submitted that respondent no.5 has closed down the
Family Welfare Center and none of the petitioner is, at present,
their employee. However, respondent no.5 has also not denied
that the petitioners were working in the Family Welfare Center
run by respondent no.5. The petitioners have also placed on
record the copies of the appointment orders issued in their
favour by respondent no.5. Respondent no.5 has not denied
the issuance of the said appointment orders in favour of the
respective petitioners. It is undisputed that respondent no.5
is the voluntary organization approved by the Government of
Maharashtra for running Urban Family Welfare Center in
11 WP NO.5073/2015
accordance with the Scheme introduced by the Central
Government.
11. Though neither the petitioners nor any of the
respondent has placed on record the Urban Family Welfare
Scheme as a whole, introduced by the Central Government, the
petitioners have filed on record ample documents which
demonstrate the decisions time to time taken by the Ministry of
Health and Family Planning, Government of India, as regards to
the Pay and Allowances of the employees of the Voluntary
Organizations / NGOs running the Urban Family Welfare
Centers and holding Urban Health Posts. The document at
Exh.C, annexed with the petition at page No.39 of th Paper
Book, reveal that the Ministry of Health and the Family
Planning, Government of India, vide its communication dated
14th December, 1970, to all the State Governments and the
Union Territories, has emphasized that the Pay and allowances
of the various categories of the staff employed for the Family
Welfare Planning Centers under the Voluntary Organizations
and Local Bodies should be the same as are admissible to the
same categories of the Staff under the State Government in the
interest of the programme, provided the qualifications,
experience, etc. laid down by the State Governments for their
12 WP NO.5073/2015
employees are strictly adhered to by the organizations for their
employees. It is necessary to note that in the first para of the
aforesaid communication it is observed that since the staff
employed by the Voluntary Organizations and the Local Bodies
are not being paid the pay scales and allowances as are
admissible to the same categories of the staff working under
the State Government, the Voluntary Organizations and the
Local Bodies are not getting the staff of the proper caliber to
man the relevant posts.
ig In this background, the further advice
was to pay the employees of the Voluntary Organizations at par
with the employees of the State Governments.
12. There is one another communication dated 9th of
November, 1981 ( Exh.E) annexed to the petition ( Page No.41
of the Paper Book) whereby the Ministry of Health and Family
Welfare, Government of India, has advised the Health
Secretaries of all the States and the Union Territories to allow
the Voluntary Organizations / NGOs, to revise the pay scales in
respect of their employees so as to bring them at par with the
revised scales of pay of the State Government employees.
13. Document at Exh.F annexed to the petition (Page
No.44) is the communication dated 3rd of August, 1982,
whereby the Additional Secretary, Health Ministry of the
13 WP NO.5073/2015
Government of India had addressed a communication to the
Health Secretaries of the State Governments clarifying that the
employees working under the Family Welfare Schemes run by
the Voluntary Organizations / NGOs are basically and
essentially the employees of the State Government and are
entitled to get all the service benefits as are admissible to the
other employees of the State Government. In the aforesaid
letter, a concern was also expressed by the Additional Secretary
that though Health Ministry of the Central Government has
been requesting the State Governments to declare the Family
Welfare Posts as permanent in a phazed manner and to confirm
the incumbents against the said posts, the State Governments
have not taken effective steps in that regard.
14. The communication dated 23rd of December, 1983,
in between the under Secretary of the Health Ministry of the
Govenment of India and the Secretary, Medical and Family
Welfare Department, Delhi, Administration, reveals that the
Government of India had agreed to sanction the additional
Dearness Allowance to the employees of the Voluntary
Organizations as was sanctioned to the State Government/
Union Territory staff.
14 WP NO.5073/2015
15. The Government of Maharashtra vide Government
Resolution dated 22nd August, 1983, made the Full Time Family
Welfare Staff working under the Local Bodies / Voluntary
Organizations entrusted with the Family Welfare Work, entitled
to get the Dearness Allowance at the rate given by the earlier
Resolutions mentioned in the said Resolution. In the aforesaid
Government Resolution it is noted that the entire expenditure
on this account i.e. in payment of Dearness Allowance to the
Family Welfare Staff at the rates given in the Govrnment
Resolutions is re-imbursible by the Government of India.
Clause 5 of the said Government Resolution says that the said
Resolution was issued with the concurrence of the Finance
Department.
16. Government Resolution dated 4th of June, 1984, is
also placed on record by the petitioners at Exh.J (Page No.51 of
the Paper Book). The said Government Resolution dated 4th of
June, 1984, reads as under:
Family Welfare Programme
Application of Maharashtra Civil
Services (Revised Pay) Rules
1978 to the Family Welfare
Staff Working under the Local
Bodies/Voluntary Organizations
receiving grant-in-aid for the
purpose.
15 WP NO.5073/2015
GOVERNMENT OF MAHARASHTRA,
Public Health Department,
Resolution No. SFB 1481/1210/FW- (III),
Mantralaya, Bombay - 400032, Dated : 4th June, 1984.
READ :- 1) No. FW/GIA/ Revised Pay/ 1978/ G-1
dated 14th August 1980, from the Joint
Director of Health Services, Family
Welfare, Maternal Child Health & School
Health, Pune.
2) Government Resolution, Urban
Development Department and Public
Health Department, No.SFB/1478/1210/
ig PH-8-A, Dated 31st January 1981.
3) No. W.11011/1/81/PLY, dated 9th
November, 1981, from Government of
India, Ministry of Health & Family
Welfare, (Department of Family
Welfare), New Delhi.
RESOLUTION :- The Family Welfare Programme is a cent
percent centrally sponsored scheme. Local Bodies and
Voluntary Organisations are actively involved in the
implementation of the programme. Family Welfare
Centres, Urban Family Welfare Centres, Post Partum
Centres, and Training Institutions are run through these
institutions. Grants-in- aid are paid to these institutions,
which includes expenditure on pay and allowances of their
staff doing Family Welfare Work. The staff sanctioned is in
accordance with the norms laid down by the Government
of India. The expenditure are grants-in-aid is fully
reimbursable by the Government of India.
2. The question of revision of pay scales of the Family
Welfare Staff working under Local Bodies / Voluntary
Organisations which are paid grant-in-aid by making
them applicable to the Maharashtra Civil Services
(Revised Pay) Rules, 1978, was under consideration of
the Government.
3. The Government of India, has now accepted in
principle to sanction the pay and allowances, to the staff
16 WP NO.5073/2015
of the grant-in-aid bodies on par with the State
Government Servants, and accordingly, the revises pay
scales have already been made applicable to the Family
Welfare Staff working under the six institutions.
Government has now decided to sanction Revised Pay
Scales by making applicable the Maharashtra Civil
Services (Revised Pay) Rules, 1978 to the Staff
sanctioned by Government and working for Family
Welfare Programme, to the remaining Grant-in-aid
institutions under Local Bodies and Voluntary
Organisations, which fulfill the following conditions:-
a) The minimum qualifications proscribed for
these posts are the same as those proscribed for
similar categories of posts under the State
Government, and their job content is similar.
b) Their existing pay scales are the same as the
unrevised pay scales of similar categories of
employees under the State Government prior to 1st
April 1976.
4. Their pay scales sanctioned by this resolution are
applicable with effect from 1st April 1981.
5. Sanctions is accordingly accorded to the
expenditure of Rs. 1,63,30,000/- ( Rupees one crores
sixty three lakhs and thirty thousand) involved in
payment of grant-in-aid to the institutions on the
expenditure to be incurred by these institutions on
payment arrears for the year 1981-82, 1982-83 and
1983-84 and pay and allowances of the staff to the year
1984-85; the Joint Director of Health Services, Family
Welfare, M.C.H. & S.H. Pune, is authorized to sanction
grants to the individual institutions subject to their
fulfilling conditions prescribed in para 3 above.
6. The expenditure involved should be debited to the
Budget Head "281- Family Welfare and sub heads- a)
Direction and Administration ((5) Grant-in-aid to city
Family Welfare Bureaus.,
b) Rural Family Welfare Services (b) (2) Grand-in-aid
to Rural Family Welfare Centre run by Local Bodies &
Voluntary Organisations;
17 WP NO.5073/2015
c) Urban Family Welfare Services (d) (2) Grant-in-aid
to Urban Family Welfare Centres run by Local Bodies &
Voluntary Organisations; and
d) Other services and Supplies:-
(g) (5) Grant-in-aid to Post Partum Centres run by
Local Bodies and Voluntary Organisations as may be
necessary and met from the grants sanctioned
thererunder under Demand No. 186.
7. The entire expenditure involved in the proposal is
reimbursable by the Government of India. The Joint
Director of Health Services, Family Welfare, Maternal
Child Health and School Health, Pune should take
necessary action in this regard as usual.
8. This Government Resolution issues with the
concurrence of the Finiance Department vide it's un-
official reference No.CR30-EXP-12, dated 6th January
1984.
By order and in the name of the Governor of
Maharashtra.
Sd/-
( L.V. Rangnekar )
Under Secretary to Government
To,
The Director of Health Services, Bombay.
The Joint Director of Health Services, Family Welfare
M.C.H. and S. H. Pune.
The Deputy Director of Health Services of all Circles.
All Divisional Commissioners.
All Collectors.
All Chief Executive Officers of Zilla Parishad.
The Accountant General, Maharashtra, I, Bombay.
The Accountant General, Maharashtra. II, Nagpur.
The pay and Accounts Officer, Bombay.
The Finance Department (EXP 12), Mantralaya, Bombay.
The Rural Development Department, Mantralaya,
Bombay.
The Secretary to Government of India.
Ministry of Health & Family Welfare.
(Department of Family Welfare).
18 WP NO.5073/2015
New Delhi (By Letter)
The Regional Director ( Family Welfare),
Government of India, 257/11-B,
Gultekdi, Salisbury Park, Pune (By Letter)
The Budget Branch, Desk PH-1, with 2 spare copies,
In public Health Department, Mantralaya, Bombay.
Select File- III, II, I.
At Exh.L (Page No.54) one more Government Resolution
dated 31st December, 1992 is annexed to the petition. The
same also needs to be reproduced as it is, which reads thus:
ig dqVwac dY;k.k dk;ZØe &
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19 WP NO.5073/2015
2- 'kklukus ;kckcr fu.kZ; ?ksryk vlqu] vkrk 'kklu vls vkns'k nsrs dh]
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dj.;kÚ;k Lok;Rr laLFkk o Lo;alsoh laLFkkrhy deZpkÚ;kauk fnukad [email protected]@1992
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rh dk;Zokgh djkoh-
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17. The State Government vide its Resolution dated
24th of March, 2004, made applicable the revised pay scales to
20 WP NO.5073/2015
the Employees of the Voluntary Organizations / NGOs working
in the Family Welfare Programmes w.e.f. 1.4.2004, at par with
the employees of the State Government. In the aforesaid
Government Resolution, it is reiterated that the Family Welfare
Programme is hundred per cent sponsored by the Central
Government and the pay and allowances of the working under
the said programme employed by the voluntary organizations
and the NGOs are paid from the grants received in that regard
from the Central Government.
18. In the premise of the various circulars and
Resolutions time to time issued by the Central Government and
the Maharashtra Government, referred to here-in-above in
detail, if the affidavit in reply filed by respondent no.1 is
perused, it apparently reveals that the Ministry of Health and
Family Planning and Works, Government of India, has now
taken a altogether contrary stand. Respondent no.1 has not
denied that the Urban Family Welfare Centers Scheme is
hundred per cent sponsored by the Central Government and the
Central Government is paying the grants towards pay and
allowances of the employees employed by the voluntary
organizations as well as NGOs who are running the Urban
Family Welfare Centers in implementation of the Family Welfare
21 WP NO.5073/2015
Schemes introduced by the Central Government. It is also not
the case of respondent no.1 that the said Scheme has been
discontinued. On the contrary, in paragraph no.6 of its reply,
respondent no.1 has positively stated that the Central
Government support for the Urban Family Welfare Center
Scheme is continuing and funds are released to the State
through Treasury route.
19. In
paragraph No.8 of its written statement,
respondent no.1 though has taken a plea that the Government
of India is not related in any way with the matters pertaining to
recruitment, seniority, reservations, retrenchment, retirement,
adjustment / deployment, gratuity, etc., terminal or retirement
benefits and other service conditions including administrative
matters in respect of the employees of the State Governments
or voluntary organizations engaged by the State and
participating in the Family Welfare Scheme and that they are
subject to terms and conditions as mutually agreed between
them, it has not been denied that the salary and allowances to
the aforesaid employees are being paid through the grants
received in that regard from the Central Government.
20. It is further the matter of record that it was under
22 WP NO.5073/2015
the instructions of the Central Government that the Employees
of Voluntary Organizations / NGOs working in the Family
Welfare Centers being run towards implementation of the
Central Government Scheme were brought at par with the State
Government employees in so far as pay and allowances are
concerned. As mentioned here-in-before, it was the advice
from the Central Government to the State Governments that
the service conditions of the employees engaged in the Family
Welfare Programme by voluntary organizations and NGOs shall
be as same as are available for other categories of similar staff
working under the State Government particularly on the Health
side. It was the stand of the Central Government that the
Family Welfare Employees are basically and essentially the
State Government employees and are entitled to get all the
service benefits as are admissible to the other employees of the
State Government.
21. It is also not in dispute that the recommendations
of the Fifth Pay Commission were made applicable by the State
Government with to the employees such as petitioners
employed by the Voluntary Organizations / NGOs the approval
from the Central Government. As is revealing from the
Government Circulars and Resolutions referred to hereinabove,
23 WP NO.5073/2015
the revised pay scales applicable to the State Government
employees and the additional dearness allowance was also
made applicable to the employees of voluntary organizations
and NGOs working in the Family Welfare Programmes by the
State Government with the approval of the Central
Government.
22. Moreover, the stand now taken by the Ministry of
Health, Central Government, that the recommendations of the
Pay Commissions are not applicable to the staff working in the
Urban Family Health Centers / Voluntary Organizations / NGOs
appears unacceptable and unconscionable in view of the fact
that the recommendations of the Fifth Pay Commission were
made applicable to such employees with the approval of the
said Ministry. Once the employees working in the Urban
Family Welfare Centers / Urban Health Posts run by the
Voluntary Organizations / NGOs are held at par with the State
Government employees for all purposes, and when they have
also been paid the benefits of the Fifth Pay Commission, there
seems no rational in now taking a contrary stand that the
recommendations of the 6th Pay Commission are not applicable
to such employees. The plea taken on behalf of the Ministry
of Health, Government of India that the Government of India
24 WP NO.5073/2015
does not owe the responsibility in the administrative matters
pertaining to staff of the grantee organizations also cannot be
accepted since it is the Central Government who has to make
available the hundred per cent grants for pay and allowances
of the staff employed for implementation of the Family Welfare
Schemes.
23. It appears to us that the State Govrnment is fully
convinced that the employees like petitioners are entitled to
receive the benefits of the Sixth Pay Commission and merger of
50 % Dearness Allowance in the basic pay, and that is the
reason that the Additional Director of Health Services, Pune,
vide his letter dated 23.11.2009, addressed to the Under
Secretary to the Government of India, Ministry of Health, so
also the Secretary, Public Health Department of Government of
Maharashtra vide her letter dated 15th February, 2009, written
to the Joint Secretary (Policy), Ministry of Health, Government
of India, have requested the Central Government to approve
the proposal regarding payment of Dearness Allowance by
merging 50 % of it in the basic pay and to extend the benefits
of the Sixth Pay Commission to such employees.
24. It appears that the request so made by the
employees working in the Family Welfare Schemes alike the
25 WP NO.5073/2015
petitioners was not given serious consideration. The Ministry
of Health, Central Government, appears to have rejected the
request made by such employees ignoring the earlier policy
decisions.
25. After having considered the material on record, we
are convinced that there appears no reason for not making
applicable the recommendations of the Sixth Pay Commission to
the employees like petitioners working under the Family
Welfare Schemes sponsored by the Central Government. The
request of the petitioners for merger of the 50 % D.A. in basic
pay, as was done in respect of the State Government
employees, and then to pay them the dearness allowance at the
rate of 55 % also appear us to be just and proper.
26. In the above circumstances, we find it appropriate
to direct respondent nos. 1 and 2 to reconsider the proposals
forwarded i) by the State Family Welfare Bureau, Maharashtra,
dated 23.11.2009, under the signature of Additional Director of
Health Services (FW,MCH & SH), Pune, ii) by Smt. Vandana
Krishna, the then Secretary, Public Health Department of the
Government of Maharashtra on 15th February, 2009,
iii) by Shri Jayantkumar Banthiya, the Secretary and
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Commissioner, Family Welfare, Public Health Department,
Government of Maharashtra on 11th February, 2010, and
iv) the representation dated 8th of March, 2010, submitted by
the President of All India Family Welfare Employees Association
to the Ministry of Health, in the light of the earlier decisions
taken by the said Ministry, and take the appropriate decision
afresh as expeditiously as possible and preferably within three
months from the date of this order and communicate the same
to the State Government, present petitioners as well as to the
President of All India Family Welfare Association, Pune.
It would be open for the petitioners to re-submit their
earlier representations to the Ministry of Health, Government of
India.
The cost of Rs.10,000/- deposited by the respondents in
this Court be paid to the Library of Advocates Association of
Bombay High Court, Bench at Aurangabad.
Rule made absolute in aforesaid terms.
(S.S.SHINDE) (P.R.BORA)
JUDGE JUDGE
...
AGP/
