Bombay High Court
Vishnu Shrinivasrao Khalikar vs The State Of Maharashtra And ... on 28 April, 2016
Bench: S.S. Shinde
7865.2014WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7865 OF 2014
Bandopant Kishanrao Pathak,
Age: 59 years, Occu: Nil,
R/o. Behind Prasad Hospital,
Dhanubai Plot, Parbhani PETITIONER
VERSUS
1] The State of Maharashtra,
Town Planning & Municipal Administration
Department, Mantralaya, Mumbai
2] Director of Municipal Administration
Varli, Mumbai
3] Divisional Commissioner Aurangabad
Dist. Aurangabad.
4] District Collector Parbhani
Dist. Parbhani
[Copy to be served in the office of
Government Pleader High Court of Bombay
Bench at Aurangabad]
5] Chief Officer,
Municipal Council Gangakhed
Tq.Gangakhed, Dist. Parbhani RESPONDENTS
WITH
WRIT PETITION NO.7876 OF 2014
Vishnu Shrinivasrao Khalikar,
Age: 59 Years, Occu: Nil,
::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:12 :::
7865.2014WP.odt
2
R/o. Tivat Galli, Gangakhed,
Tq. Gangakhed, Dist. Parbhani PETITIONER
VERSUS
1] The State of Maharashtra,
Town Planning & Municipal Administration
Department, Mantralaya, Mumbai
2] Director of Municipal Administration
Varli, Mumbai
3] Divisional Commissioner Aurangabad
Dist. Aurangabad.
4] District Collector Parbhani
Dist. Parbhani
[Copy to be served in the office of
Government Pleader High Court of Bombay
Bench at Aurangabad]
5] Chief Officer,
Municipal Council Gangakhed
Tq.Gangakhed, Dist. Parbhani RESPONDENTS
...
Mr. P.R.Katneshwakar, Advocate holding for
Mr. Arun V. Rakh, Advocate for the
petitioners.
Mr.S.B.Yawalkar,AGP for Respondent Nos.1 to 4
Mr.S.V.Munde, Advocate for Respondent No.5
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 13.04.2016
Pronounced on : 28.04.2016
7865.2014WP.odt
JUDGMENT: [Per S.S.Shinde, J.]:
1] These Writ Petitions are filed
seeking directions to the respondents to
grant pensionary benefits i.e. gratuity and
leave encashment and amount of arrears of 6th
pay commission to the petitioners as per the
Government Resolution dated 2nd February,
2008, and further seeking directions to
respondent nos. 1 and 2 to pay the pension
from their Department i.e. Accountant
General, Nagpur as per Government Resolution
dated 2nd February, 2008.
2] It is the case of the petitioners
that in the year 1979 and 1983 respectively,
the petitioners were appointed as Clerks by
respondent no. 5 Municipal Council Gangakhed.
The petitioners have been given promotions as
well as other service benefits regularly. As
per the orders dated 30.04.2013 and
30.11.2012, the petitioners got retired from
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services from the posts of Assistant
Accountant as well as Tax Valuer and
Administrative Service, and from the post of
Labour Supervisor respectively on attaining
the age of superannuation. It is further the
case of the petitioners that the Government
of Maharashtra has passed Resolution on
02.02.2008 whereunder the employees, who were
working in the various Municipal Councils,
were treated as employees of the State
Government. It means, by the said Resolution,
the petitioners' services stood absorbed in
the cadre of Maharashtra State Nagar Parishad
Karmachari [in short 'MSNPK']. The
petitioners have placed on record the copy of
the said Government Resolution. It is further
the case of the petitioners that they have
rendered near about 35 and 29 years of
service respectively under the control and
supervision of respondent no.5 Municipal
Council Gangakhed.
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3] The learned counsel appearing for
the petitioners further submits that the
services of the petitioners have been
absorbed by the State Authority in the cadre
of Maharashtra State Nagar Parishad
Karmachari in 2008 and 2010 respectively.
However, till date, no effective steps have
been taken by the respondents to grant
pensionary benefits i.e. gratuity and leave
encashment to the petitioners, as per the
said Government Resolution. It is submitted
that the petitioners are not getting pension
from respondent no. 5 regularly, therefore,
it is necessary to direct respondent no.1 to
pay pension to the petitioners from the
office of Accountant General, Nagpur. It is
submitted that though the petitioners have
repeatedly made representations, they have
not been given pensionary benefits from the
respondents till today. It is submitted that
respondent nos. 2 and 3 have also passed the
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order dated 4th November, 2010, wherein it is
clearly mentioned that the services of the
petitioners are absorbed finally in the cadre
of MSNPK. The learned counsel appearing for
the petitioners invited our attention to the
copies of letters written by respondent no. 4
and the order dated 4th November, 2010, issued
by respondent no.2. It is submitted that
since the petitioners have been absorbed in
the cadre of the MSNPK, and also the
respondent authorities have clearly mentioned
that all these employees are treated as State
employees, they are entitled to get all the
benefits, as has been mentioned in the
Maharashtra Civil Services Rules as well as
in the Pension Rules thereunder. But till
date, the petitioners could not get such
benefits. He further invited our attention
to the provisions of the Notification dated
11th January, 2007, issued by the Urban
Development Department. By the said
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Notification, the Rules have been framed
governing the services of the employees of
the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships State
Services. The said Rules of 2006 have been
framed for absorption, recruitment and
conditions governing the services of the said
employees. The learned counsel invites our
attention to the definition of the absorbed
employees and submits that the 'absorbed
employee' means an Existing Employee in the
service of any Municipal Council absorbed in
any Grade of any Service in accordance with
these Rules. He further submits that the
Absorption Authority has already included the
names of the petitioners in the list of
absorbed employees, and therefore, the
petitioners are entitled to get pensionary
benefits from the respondent - State, having
been absorbed as State employees.
4] In pursuance of the notices issued
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to the respondents, respondent no. 2 filed
affidavit-in-reply on 05.05.2005 and
additional affidavit on 11.04.2016. Relying
upon the said reply / additional affidavit,
the learned AGP appearing for the respondent
- State submits that respondent no. 2 has
issued detailed orders on 18th October, 2014
and 27th March, 2015, clearly stating how and
when to make payment of retired employee of
the Council. It is submitted that due to
ill-financial position of the Municipal
Council, the Municipal Council was not able
to pay the pension amount to the petitioners.
It is further submitted that the petitioners
are receiving pension from the concerned
Municipal Council, and therefore, the
petitioners contention that they are not
receiving pension, is not correct.
5] One more affidavit-in-reply has been
filed on behalf of respondent nos. 2 to 4 by
one U.S. Gute. Relying upon the averments in
7865.2014WP.odt
the said reply, the learned AGP appearing for
the Respondent - State submits that the
petitioners were never given appointment in
the Government Employment. They have not
worked with the Government and therefore,
they are not entitled to receive pension from
the Government of Maharashtra. The Municipal
Council has already granted benefits of
pension to the petitioners. It is submitted
that at the relevant time there were 15
vacancies in the Parbhani District, and
therefore, only 15 employees were appointed
on the vacant posts and other employees could
not be appointed. The learned AGP invites
our attention to the provisions of Rule 5 [6]
of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships State
Services [Absorption, Recruitment and
Conditions of Service] Rules, 2006 [in short
'the said Rules, 2006'] and submits that the
said Rule provides for absorption of existing
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employees in the State services. However, in
the present case, the petitioners were never
appointed in the State Cadre on any
particular post, they never worked on any
post in the State Cadre, and therefore, they
are not entitled to get pensionary benefits
from the State Government. The pay fixation
of the employees absorbed in the State Cadre
is done as per Rules 10 and 11 of the MCS
[Pay] Rules, 1981 which clearly states that
the pay fixation of an employee will be done
only after appointment to the Government
Service / another post. In the present case,
the petitioners after getting orders of being
absorbed in the State Cadre were not actually
appointed or given the postings in the Sate
Cadre. So the question of their getting pay
in the cadre and retirement benefits does not
arise. It is true that both the petitioners
exercised options and opted for appointment
to the posts in the State Government
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employment. However, there were no vacancies
available and the petitioners retired as the
employees of the Municipal Council Gangakhed.
Both of them are getting pension from the
Municipal Council, Gangakhed. It is
submitted that if the petitioners are allowed
to draw pension in the pay scale requested by
them, there will be a chaotic situation
throughout State of Maharashtra, because
without making proper appointment against
vacant post, the petitioners would not be
entitled to become part and parcel of the
Maharashtra State Municipal Council Employees
Cadre. Therefore, the learned AGP submits
that both the Petitions being devoid of any
merits, may be rejected.
6] Respondent no. 5 filed affidavit-in-
reply. Relying upon the affidavit-in-reply,
the learned counsel appearing for respondent
no. 5 submits that respondent no. 5 has
calculated the benefits admissible to the
7865.2014WP.odt
petitioners. The petitioner in Writ Petition
No.7865/2014 is entitled for leave encashment
amount of Rs.2,76,060/- and gratuity amount
of Rs.2,64,825/-. The total amount is due
towards Municipal Council of Rs.5,80,885/-.
Municipal Council has already paid
Rs.1,73,140/-, and the balance amount due
i.e. Rs.3,67,745/-, would be paid to him as
per the availability of funds. The
petitioner in Writ Petition No.7876/2014 is
entitled for leave encashment amount of Rs.
2,36,670/-, gratuity amount of Rs.1,99,520/-
and the arrears of 6th Pay Commission of
Rs.1,37,918/-. The total amount due towards
Municipal Council is Rs.5,74,108/-. The
Municipal Council has already paid
Rs.1,39,640/-, and the balance amount due
i.e. Rs.4,34,468/-, would be paid to him as
per the availability of funds.
7] We have considered the submissions
of the learned counsel appearing for the
7865.2014WP.odt
parties at length. With their able
assistance, perused the pleadings in the
Petition, annexures thereto, replies filed by
the respondents, the Notification dated 11th
January, 2007 and the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial
Townships State Services [Absorption,
Recruitment and Conditions of Service] Rules,
2006. In the said Rules, 2006, Rule 2,
clauses (a) and (b) define 'Absorbed
Employee' and 'Absorption Authority'
respectively. Clauses (a) and (b) of Rule 2
of the said Rules, 2006, read thus:
(a) "Absorbed Employee" means an
Existing Employee in the service of
any Municipal Council absorbed in
any Grade of any Service in
accordance with these Rules;
(b) "Absorption Authority" means an
authority constituted under Rule 6;
The scheme of Rule 5 of the said
Rules, 2006, provides for absorption of
existing employees of Municipal Council.
7865.2014WP.odt
Rule 5 (1) lays down the eligibility criteria
of the existing employees of the Municipal
Council, who can be considered for absorption
in the State Services. Sub-rule (2) of Rule
5 of the said Rules, 2006, gives option to
the employee to be absorbed in the State
Services. Sub-rule (3) of Rule 5 of the
said Rules, 2006, states that, the Absorption
Authority shall examine the eligibility of
each Existing Employee as per the criteria
laid down in sub rule (1) and (2) and if such
employee is found eligible, his / her name
should be forwarded to the Director for
inclusion in the list of eligible Existing
Employees. The list of such eligible
existing employees, who have opted for
absorption shall be prepared by the Director,
in view of sub-rule (4) of Rule 5 of the said
Rules, 2006. Sub-rule (5) of Rule 5 of the
said Rules, 2006, reads thus:
(5) The inter se seniority of
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eligible Existing Employees in each
Grade of each Service in which they
are to be absorbed shall be
determined on the basis of the
period of continuous service
rendered by them in the scale of pay
equivalent to or higher than the
scale of pay of the Grade on which
they are to be absorbed.
Sub-rule (6) of Rule 5 of the said
Rules, 2006, reads thus:
(6) The vacancies in the Service,
as and when they occur, shall be
filled by appointment of an Existing
Employee whose name appear in the
list prepared as per sub rule (4)
above. The appointment shall be
strictly based on the seniority in
the above list, will continue till
the above list is exhausted.
8] Rule 6 of the said Rules, 2006,
provides for constitution of Absorption
Authority.
9] In the present case, sub-rule (6) of
Rule 5 of the said Rules, 2006, is relevant.
Admittedly, in case of the petitioners, they
7865.2014WP.odt
were not appointed on any post in the State
Services by invoking sub-rule (6) of the said
Rules, 2006. According to the learned AGP
appearing for the respondent - State, there
were no vacancies in the State Services to
appoint / absorb the petitioners. Therefore,
unless employee from the list of eligible
existing employees is absorbed by invoking
Rule 6 in the Services, he cannot seek
benefit of sub-rule (10) of the said Rules.
It is only when the employee from the
eligible existing employees is actually
appointed on any vacant post in the State
Service, he is entitled to draw pension under
Rule 10 of the said Rules, 2006. As already
observed, admittedly, the petitioners were
not appointed in the service on particular
posts for want of vacancies. Therefore, they
cannot seek the benefit of Rule 10 of the
said Rules, 2006. The petitioners are already
receiving pension from the respondent
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Municipal Council. Affidavits-in-replies
filed in both the Petitions by the Municipal
Council makes it clear that the petitioner in
Writ Petition No.7865/2014 is entitled for
leave encashment amount of Rs.2,76,060/- and
gratuity amount of Rs.2,64,825/-. The total
amount is due towards Municipal Council of
Rs.5,80,885/-. Till today, Municipal Council
has paid Rs.1,73,140/-, and the balance
amount due i.e. Rs.3,67,745/-, will be paid
as per the availability of funds. The
petitioner in Writ Petition No.7876/2014 is
entitled for leave encashment amount of Rs.
2,36,670/-, gratuity amount of Rs.1,99,520/-
and the arrears of 6th Pay Commission of Rs.
1,37,918/-. The total amount due towards
Municipal Council is Rs.5,74,108/-. Till
today, the Municipal Council has paid
Rs.1,39,640/-, and the balance amount due
i.e. Rs.4,34,468/-, will be paid as per the
availability of funds.
7865.2014WP.odt
10] In the light of discussion
hereinabove, the petitioners' prayer to
disburse them pension from the office of
Accountant General, Nagpur stands rejected.
However, if the petitioners have any
grievance about the calculation of the afore-
mentioned amounts towards Leave Encashment /
Gratuity, etc. they can agitate their
grievances before the Appropriate Forum. We
direct respondent no. 2 to ensure that the
petitioners receive the entire amount towards
Leave Encashment and Gratuity, in case the
said amount is not yet disbursed to the
petitioners as mentioned in the affidavit-in-
reply by respondent no. 5, as expeditiously
as possible, however within 8 weeks from
today. In case the funds are not available
with respondent no.5 to disburse the
aforementioned amount, respondent no.2 shall
release funds to the extent of unpaid amount
in favour of respondent no.5, and adjust the
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said amount from the admissible grant-in-aid
to respondent no.5 from the State Government.
11] With the above observations, both
the Writ Petitions stand rejected.
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE
DDC
ig JUDGE
