Mulchand Mangu Rathod And Another vs The State Of Maharashtra And ...
2016 Latest Caselaw 4493 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD


                            WRIT PETITION NO. 3269 OF 2016




                                                                          
    1.     Mulchand s/o Mangu Rathod,




                                                 
           Age : 57 years, Occu. Service,
           R/o "Swapna", 1, State Bank Colony,
           Old Malegaon Road, Chalisgaon,
           Tq. Chalisgaon, Dist. Jalgaon




                                                
    2.     Nisha w/o Dilip Mundada,
           Age : 60 years, Occu. Srvice,
           R/o Plot No. 8, Ganesh Colony,
           Pachora, Taluka Pachora, 




                                         
           District Jalgaon                                 PETITIONERS

           VERSUS
                                  
    1.     The State of Maharashtra,
                                 
           through its Principal Secretary,
           Higher and Technical Education
           Department, Mantralaya Annex,
           Mumbai
      


    2.     The Director of Higher Education,
   



           Maharashtra State,
           Central Building,
           Pune





    3.     The Joint Director of Higher Education,
           1st Floor, Maharashtra Jeevan 
           Pradhikaran Building, Jalgaon,
           District Jalgaon





    4.     S.S.M.M. Arts, Science and Commerce
           College, Pachora, Tal. Pachora,
           District Jalgaon                                          RESPONDENTS

                                ----
            Mr. P.A. Pisal, Advocate for the petitioners
         Mr. V.S. Badakh, A.G.P. for respondent Nos. 1 to 3
           None for respondent No. 4, though duly served
                                ----




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                                        CORAM :  S.S. SHINDE AND
                                                 SANGITRAO S. PATIL, JJ.

                                        DATE  :  5th AUGUST, 2016 




                                                                                
                                                       
    JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

Rule. Rule made returnable forthwith. With

consent of the learned counsel for the petitioners and

the learned A.G.P., heard finally.

2. Petitioner Nos. 1 and 2 are presently working

with respondent No. 4 College as Professor and Associate

Professor, respectively. Both the petitioners have

claimed benefit of Note 6, Appendix I of the Government

Resolution dated 12th August, 2009, which reads as

under :-

"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 1 st day of January, 2006, the pay in 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 higher 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

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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."

3. The learned counsel for the petitioners submits

that the provisions of Note No. 6 are squarely

applicable to the cases of the petitioners. The juniors

of the petitioners are getting more pay than that of the

petitioners only because the juniors obtained Ph.D.

degrees after 1st January, 2006. This anomaly has to be

removed by stepping up the pay of the petitioners to

make them equivalent to the pay of their juniors and the

petitioners should be paid arrears of pay with interest

at the rate of Rs. 18% per annum. The learned counsel

for the petitioners further submits that the similar

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issue has been decided by the Division Bench of this

Court in the case of Sudamrao Keshawrao Aher & others

Vs. The State of Maharashtra & others, 2014 (1) ALL MR

697 and the persons similarly situated with the present

petitioners have been given benefit of Note 6 of the

Government Resolution dated 12th August, 2009, for

stepping up of their pay with their juniors. The said

judgment has been confirmed by the Hon'ble Supreme Court

in Petitions for Special Leave to Appeal (C) Nos. 15053-

15056/2015 vide order dated 17.11.2015. As such, the

said issue is no more res integra. Therefore, he claims

that the petitioners should be granted the same relief

by allowing the present writ petition.

4. Respondent No. 3 filed affidavit-in-reply for

himself and on behalf of respondent Nos. 1 and 2 to

oppose the claims of the petitioners.

5. The learned Assistant Government Pleader

appearing for respondent Nos. 1 to 3 could not

controvert the contentions of the petitioners that

consequent upon implementation of the Sixth Pay

Commission recommendations, the persons who are junior

to the petitioners are getting more pay than that of the

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petitioners and that the petitioners are entitled to get

their respective pay stepped up. He further could not

show that the judgment in the case of Sudamrao Keshawrao

Aher (supra) is not applicable to the facts of the

present petition.

6. We have considered the facts of the present

petition, arguments of the learned counsel for the

petitioners and that of the learned Assistant Government

Pleader, the documents produced on record and the

judgment in the case of Sudamrao Keshawrao Aher (supra).

We are satisfied that the ratio laid down in the case of

Sudamrao Keshawrao Aher (supra) is fully applicable to

the facts of the present petition.

7. In the above circumstances, we do not find any

impediment in accepting the claim of the petitioners for

stepping up of their respective pay to bring them at par

with the pay of their juniors fixed as per the

recommendations of the Sixth Pay Commission with effect

from 1st January, 2006.

8. In the result, we pass the following order :-

    (i)              The writ petition is allowed.





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    (ii)          We direct the respondents to step up the pay of

the petitioners to bring it at par with the pay

of their juniors, compute the amount payable to

the petitioners towards pay/pension in

accordance with the judgment and order passed

by this Court in the case of Sudamrao Keshawrao

Aher & others Vs. The State of Maharashtra &

others (supra) and release the said amount to

them, as expeditiously as possible and

preferably within a period of six months from

today.

(iii) Rule is made absolute in the aforesaid terms.

(iv) The parties are left to bear their own costs.

           [SANGITRAO S. PATIL]                     [S.S. SHINDE]
                   JUDGE                                JUDGE





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