Bombay High Court
Shridhar Sambhaji Dhale vs The State Of Mah And Ors on 9 March, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5269 OF 2012
Shridhar s/o. Sambhaji Dhale,
Age 57 years, Occu: Service as
Branch Manager, STFD Corp.Ltd.
Kinwat Branch Kinwat,
R/o. C/o. B.N.Khamkar, Rajendra Nagar,
Kinwat, Tq.Kinwat, Dist. Nanded PETITIONER
1]
VERSUS
The State of Maharashtra,
Through Principle Secretary,
Tribal Development, Mantralaya
Mumbai-32.
2] The Managing Director,
Shabari Tribal Financial Development
Corporation Ltd. Adivasi Vikas Bhawan,
Second Floor, Ramganesh Gadkari Chowk,
Old Agra Road, Nashik
3] The Regional Manager,
Maharashtra State Co-operative Tribal
Development Corporation Ltd.
Patrakar Colony, Yavatmal. RESPONDENTS
WITH
CIVIL APPLICATION NO.16225 OF 2015
IN WRIT PETITION NO. 5269 OF 2012
Shridhar s/o. Sambhaji Dhale,
Age 57 years, occupation retired
as Branch Manager, STFD Corp.Ltd.
Kinwat Branch Kinwat,
R/o. C/o. B.N.Khamkar, Rajendra Nagar,
Kinwat, Tq.Kinwat, Dist. Nanded PETITIONER
VERSUS
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1] The State of Maharashtra,
Through Principal Secretary,
Tribal Development, Mantralaya
Mumbai-32.
2] The Managing Director,
Shabari Tribal Financial Development
Corporation Ltd. Adivasi Vikas Bhawan,
2nd Floor, Ramganesh Gadkari Chowk,
Old Agra Road, Nashik
3] The Regional Manager,
Maharashtra State Co-operative Tribal
Development Corporation Ltd.
Patrakar Colony, Yavatmal. RESPONDENTS
...
Mrs.U.T.Pathan & Mr.T.W.Pathan,
Advocates for the
Petitioner
Mr. D.R.Kale, AGP for Respondent No.1 / State
Mr. S.S.Kulkarni, Advocate for the Respondent Nos.2 & 3
...
CORAM: S.S.SHINDE &
P.R.BORA, JJ.
Reserved on : 11.02.2016
Pronounced on: 09.03.2016
JUDGMENT: [Per S.S.Shinde, J.]:
Brief facts giving rise for filing the Petition, are
as under:
1] The petitioner possesses Master Degree in the
stream of Commerce, and joined as Junior Assistant in the
Year 1979 with the Maharashtra State Co-operative Tribal
Development Corporation Ltd., and in the Year 2000
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worked as Accountant. The Government of Maharashtra
decided to establish a separate Financial and Development
Corporation for the welfare of tribals, and as such by the
Government Resolution No.2396/45/Pra.Kra.-39/Ka-3, dated
9th December, 1998, the Shabari Tribal Financial and
Development Corporation Ltd. came into existence.
Accordingly, the staff for STFD Corporation Ltd. came to be
Development
filled in from the Maharashtra State Co-operative Tribal
Corporation Ltd., and other similar
Organizations vide Government Resolution Tribal
Development Section G.R. No.TDC/1099/Pra.Kra.-7/Ka-3
Mantralaya Extension, Mumbai-32, dated 13th December,
1999. Thus, the vacancies of STFD Corporation Ltd. came
to be filled in and the petitioner came to be appointed as
Branch Manager at Yawatmal. [The copy of Government
Resolution is placed on record by the petitioner at Exhibit-A
along with memo of Petition.]
2] It is further the case of the petitioner that, the
petitioner came to be appointed as Branch Manager on the
scale of Rs.2000-60-2300-Eff.Bar.-75-3200 -100-3500/- by
the order of Managing Director, Maharashtra State Co-
operative Tribal Development Corporation Ltd., Nashik-2,
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O.W. No.TDC/Adm./EST-1/2213/2000 Nashik-2, dated 27th
January, 2000. The petitioner has placed on record copy of
appointment letter along with memo of Petition.
It is further the case of the petitioner that, the
petitioner since then i.e. since 27th January, 2000, till filing
the present petition, is serving as Branch Manager in STFD
Corporation Ltd. with utmost dedication and sincerity with
hardworking with unblemished record. At present, he is
working at Kinwat, District Nanded.
3] It is further the case of the petitioner that, the
Government of Maharashtra by order O.W.No.
TDC/Adm./EST-2/1844/2006 Nashik-2, dated 8th February,
2006, introduced 50% increment in basic salary, [minimum
200 maximum 1500] incentive etc. in the naxlite affected
area for the employees of Maharashtra State Co-operative
Tribal Development Corporation Ltd. Copy of said order is
placed on record along with memo of Petition.
4] It is further the case of the petitioner that, the
scheme of one stage promotion, incentive and increment in
the basic scale was extended for the employees of STFD
Corporation Ltd. as it is the sister Organization and service
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Rules of both are one and the same, as such, by
communication O.W.No. STFD Corp.Ltd./Adm./EST/
674 /2006 Nashik-2, dated 22.02.2006, same was
communicated to the petitioner. [The petitioner has placed
on record copy of said communication along with memo of
Petition.]
5] According to the petitioner, there are various
Government Resolutions and Government Decisions by
which the Government of Maharashtra has introduced and
granted certain incentives and special packages to its
employees working in the tribal areas, naxlite affected
areas or extra sensitive areas. The petitioner has placed on
record of such Government Resolutions along with memo of
Petition.
6] It is the further case of the petitioner that, the
Managing Director of STFD Corporation Ltd. was pleased to
grant incentive and one stage promotion etc. benefits to
the petitioner, and other Branch Managers by order
O.W.No.STFD Corp.Ltd./Adm./527/10/Nashik-2, dated 11th
January, 2010. The said order is placed on record by the
petitioner along with memo of Petition.
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7] It is further the case of the petitioner that, he
got a jolt of unpleasant surprise when he came to know
that, he is dis-entitled for the benefits which he has already
availed by virtue of special package for the naxlite affected
and extra sensitive tribal area, by order of Managing
Director of STFD Corporation Ltd, Nashik-2, bearing O.W.No.
STFD Corp.Ltd. / Admn. /EST/AW/854 /2011 Nashik-1, dated
17th September, 2011. Copies of said letter and orders are
placed on record along with memo of Petition. Hence this
Petition.
8] The learned counsel appearing for the
petitioner submits that, the petitioner has rendered
services in naxlite affected area and the extra sensitive
areas and is eligible for the benefits given by the
Government of Maharashtra. The impugned order of
recovery from the petitioner came to be passed without
hearing the petitioner. It is submitted that, no enquiry was
caused before passing the impugned order of recovery or
till filing of this Petition. The petitioner rendered services in
Naxlite area. It is submitted that, the petitioner started
discharging his duties as Branch Manager from January,
2000, and therefore, absolutely there is no question of
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availing periodical promotions in respondent Corporation.
Since beginning till the date he is working as Branch
Manager. It is submitted that, another Branch Manager
rendering service at Chandrapur was availing all benefits.
9] During the pendency of this Writ Petition, the
petitioner has filed Civil Application No.16225/2015, praying
therein for withdrawal of the amount deposited by the
respondent Corporation. Relying upon the averments in the
Civil Application, the learned counsel appearing for the
petitioner submits that, the Government of Maharashtra
vide order dated 8th February, 2006, introduced 15%
increment in basic salary [minimum 200 maximum 1500]
incentive in the naxlite affected area for the employees of
the respondent - Corporation. The scheme of one stage
promotion, incentive and increment in the basic scale was
extended to the petitioner. It is submitted that, abruptly
even without giving opportunity to the petitioner to offer his
explanation, the impugned order directing recovery has
been passed. During pendency of this Petition, the
petitioner, on attaining age of superannuation stood retired.
Therefore, in view of the judgment of the Supreme Court in
the case of State of Punjab and others Vs. Rafiq Masih
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[White Washer] & others1, amount already paid cannot be
recovered.
10] It is further submitted that, after filing this Writ
Petition, the Government of Maharashtra, Finance
Department, issued a Circular No.Pension-2013/PK-46/Ser-4
dated 17th December, 2013, thereby issuing directions as
per para 3 of the said Government Resolution that, the
Officers / employees, those who retired from the Nakshal
affected and tribal area on or after 01.01.2006 shall be
given benefit of pay in the pay band plus grade pay as on
the date of retirement and in case if they received more
pensionary benefit then the admissible pension, the same
shall be recovered under Rule 134 of the Maharashtra Civil
Services [Pension] Rules, 1982. However, subsequently,
the Government issued another Government Circular
bearing No.Pension/2013/PK-46/Ser-4, dated 15th February,
2014, thereby stayed the said instructions contained in the
Government Circular dated 17th December, 2013. The
learned counsel appearing for the petitioner invited our
attention to the contents of both Circulars. It is further
submitted that, the recovery of excess amount disbursed
1 [2015] 4 SCC 334
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due to wrong fixation of pay is stayed by the respondent
State Government by issuing Circular dated 17.12.2014. It
is further submitted that, keeping in view the financial
liabilities of the petitioner, the impugned order deserves to
be quashed and set aside. Therefore, relying upon the
pleadings in the Petition, averments in the Civil Application
and annexure thereto, the learned counsel appearing for
the petitioner prays that, the Petition may be allowed.
11] The learned counsel appearing for the
petitioner during the course of hearing tendered across the
bar the decision in the case of Shabari Adiwasi Vitta Va
Vikas Mahamandal Maryadit Vs. Assistant Labour
Commissioner and another in Appeal [PGA] No.1/2012, and
also the order passed by the Bombay High Court Bench at
Nagpur in the case of Shabari Adiwasi Vitta Va Vikas
Mahamandal Maryadit Vs. Assistant Labour Commissioner
& Controlling Authority & others in Writ Petition No.
5009/2012, decided on 4th February, 2013.
12] The respondent nos. 2 and 3 have filed
affidavit-in-reply and additional affidavit in reply in Writ
Petition, as well as in reply to the Civil Application filed by
the petitioner. The learned counsel appearing for the
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respondent Nos. 2 and 3 relying upon the averments in the
affidavit in replies submits that, the present petitioner had
already taken / availed higher pay scale after completion of
12 years of service under time bound promotion scheme,
therefore, the petitioner is not entitled for higher pay scale
from the respondent nos. 2 and 3 on the ground that, he
has worked in tribal and Naxlite area. In view of order
bearing No.SAFD Corp.Ltd./ account/1278/2012, Nashik-2,
dated 13.04.2012, order No.TDC/RMY/adm/EST/160/2012
Yawatmal, dated 17/18.05.2012 and order O.W. No.SFTD
Corp. Ltd./adm /EST/1349/2012 dated 29.05.2012, by which
recovery of amount of wrongful availment of additional
higher pay scale by petitioner @ Rs.3000/- p.m. from
monthly salary of the present petitioner is legal and proper.
Hence, he submits that, the Writ Petition is devoid of merit.
The petitioner has no prima facie case on merit for granting
any relief, hence, Petition is liable to be dismissed in limine.
13] It is further submitted that, the petitioner has
availed wrongfully additional higher pay scale on the
ground that, he has worked in tribal / Naxlite area, for
which he is not legally entitled at all, as he has taken higher
pay scale under time bound promotion scheme upon
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completion of 12 years of service. However, this wrongful
benefits availed by the petitioner needs to be recovered. It
is further submitted that, in the beginning of the service
career, the present petitioner was working with the tribal
development Corporation. In the Year 1998, Shabari Tribal
Financial Development Corporation came into existence [in
short 'STFDC']. Accordingly, staff of SFTDC has been filled
in from Maharashtra State Tribal Development Corporation.
At the time of appointment with the Tribal Development
Corporation, the petitioner was drawing scale of Rs.
1640-2900/- as Accountant. As the present petitioner has
completed 12 years of service, higher pay scale of Rs.
2000-3500/- has been granted to the petitioner by order
dated 19.07.1999, under time bound promotion scheme.
The learned counsel appearing for the respondent Nos. 2
and 3 invited our attention to the order dated 19th July,
1999, which is placed on record with the affidavit in reply.
14] It is further submitted that, the order dated 8th
February, 2006, which is placed on record at Exhibit-C of
the Petition, is self-explanatory. In the said order, it is
clearly stated that, additional pay scale and benefits
thereunder shall not be applicable to the employees /
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officers who have availed the higher pay scale and benefits
under time bound promotion scheme. it is further
submitted that, on 6th August, 2002, Deputy Secretary of
GAD, Mantralaya, Mumbai, has issued Government
Resolution prescribing directive principles for appointment
of officers in Naxlite area and granting different benefits. In
the said Government Resolution, it is specifically stated
that, the employees who have already availed benefits
under time bound promotion scheme, are not entitled for
additional pay scale and benefits. The benefits of
additional pay scale availed by the petitioner are required
to be recovered as he has availed the said benefits contrary
to the Government policy. Therefore, there is no other
alternative for the respondents but to recover the same
from the monthly wages or from the pensionary benefits of
the present petitioner. The learned counsel appearing for
the respondent nos. 2 and 3 invited our attention to the
contents of the Government Resolution dated 06.08.2002,
which is placed at Exhibit-R2 of the reply.
15] It is submitted that, when the office of
respondents found that, the present petitioner has availed
the benefits of additional higher pay scale wrongly, the
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respondent i.e. Managing Director of STFDC on 17.09.2011,
has issued order of recovery against the present petitioner
along with other five employees. Amongst those six
employees, three employees have been retired from
services, employee at serial no. 3 Mr. N.B.Tumpalliwar has
filed proceeding under Payment of Gratuity Act before the
appropriate Authority, which has been allowed. Therefore,
5009/2002.
the present respondent no. 2 has filed Writ Petition No.
On 04.02.2013, said Writ Petition has been
disposed off by the Bombay High Court, Bench at Nagpur.
Apart from it, the order dated 17.09.2011, has been
accepted by other employee namely Mr. D.L.Gaikwad, who
is working as Branch Manager at Jawhar Branch office. In
support of aforesaid contention, the learned counsel invited
our attention to the copy of monthly pay-sheet for the
month of August, 2012, which is annexed along with reply.
It is submitted that, the petitioner has not
challenged the order dated 17.09.2011. Therefore, the
order passed by the respondent no. 2 is just, proper and
legal, and no interference is warranted by this Court and
the same deserves to be confirmed. The impugned orders
under challenge in the Writ Petition are not contrary and
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well within the four corners of law. That, the present
petitioner has wrongly interpreted the Government
Resolution dated 06.08.2002.
16] It is submitted that, the recovery initiated
against the present petitioner is not by way of punishment,
but for wrongly availing the benefits of additional higher
pay scale by the petitioner, when higher pay scale has
already been granted to him under time bound promotion
scheme. Hence, the question of conducting departmental
enquiry does not arise. Further the contention raised by
the petitioner in ground VI that, in identical case Branch
Manager at Chandrapur has availed all the same benefits
are not correct. It is submitted that, Branch Manager at
Chandrapur is already retired from the service and has filed
proceeding before the appropriate authority under Payment
of Gratuity Act. The order passed by the appropriate
authority as well as appellate authority under Payment of
Gratuity Act is / was under challenge in Writ Petition No.
5009/2012 before the Bombay High Court, Bench at
Nagpur. Recently, the said Writ Petition has been disposed
of observing that, findings recorded by the appellate
authority on point nos. 2 and 3 in the impugned order
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would not operate against the petitioner [i.e. respondent
no.2 herein], if the petitioner raises the said question before
a court or an appropriate authority. It is further submitted
that, the present petitioner has wrongly availed the benefits
of additional higher pay scale under the pretext that, he is
working in Nexlite area. In fact, benefits of higher pay scale
has already been granted to him under time bound
promotion scheme upon completion of 12 years of service.
Therefore, as per the Government Resolution he is not
entitled.
17] The learned counsel appearing for the
respondent nos. 2 and 3 disputed the entitlement of the
petitioner for the amount, which is mentioned in the Civil
Application. He further invited our attention to the
averments in the additional affidavit in reply filed on behalf
of the respondent nos. 2 and 3. He further invited our
attention to the averments in para 1 of the affidavit in reply
and submits that, total recoverable amount from the
petitioner is Rs.5,69,142/-, and the petitioner is entitled for
balance amount of Rs.6,85,908/-. It is submitted that, the
petitioner was working as Accountant in the pay scale of Rs.
1640-60-2600-75-2900/-. The petitioner has rendered the
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services on the same post for 12 years, and therefore, was
entitled for promotion to the higher post. But, the higher
post was not available / vacant; therefore, pay scale of
senior post of Manager Accounts has been awarded to him
in the pay scale of Rs.2000-60-2300-75-3200-100-3500/-.
18] It is further submitted that, while working with
the respondent on the post of account higher pay scale
under time bound promotion scheme has already been
granted and the petitioner has availed the same. While
transferring the services from Maharashtra State Co-
operative Tribal Development Corporation Ltd. - Shabri
Adiwasi Vitta Va Vikas Mahamandal Maryadit, the present
petitioner has lien over his services with the respondent no.
2. That, the petitioner has been posted as Branch Manager
in the same pay scale which he has already been awarded
vide order dated 27.01.2000. It is further submitted that,
the Managing Director came to know that, the present
petitioner and other five similarly situated employees have
wrongly availed higher pay scale for which they are not
legally entitled. Therefore, by order bearing No.854/2011,
dated 17.09.2011, the Managing Director passed the order
and withdrew the additional pay scale, and directed to
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recover the same from the concerned. This order is not
challenged under this Petition, therefore, the petitioner is
not entitled for seeking any relief against the respondent
nos. 2 and 3, therefore, the present Writ Petition is devoid
of its merits and deserves to be dismissed in limine.
19] It is further submitted that, in view of the order
dated 17.09.2011, the respondent no.2 has issued letter to
the petitioner on 13.04.2012. This letter has been issued to
him in the capacity and officiating the post of Branch
Manager at Branch office Kinwat. In the said letter, the
petitioner was directed to submit report about the recovery
of amount to the office of respondent no. 2 but instead of
submitting compliance report, the present petitioner has
approached this Court challenging letter dated 13.04.2012
bearing Outward No.1278/2012. It is to be noted here that,
the present petitioner has challenged the said order dated
13.04.2012 and order dated 29.05.2011 by which the
respondent no.2 has decided to recover the amount of
Rs.3000/- per month from the monthly salary w.e.f. March
2012. The implementation and execution of this order is
stayed by this Court during pendency of the Writ Petition.
Therefore, the amount could not be recovered from the
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present petitioner. Meantime, the petitioner has retired
from the services on 31.07.2013 due to superannuation. It
is submitted that, if the petition is allowed then
respondents will not be able to recover the amount which
the petitioner has wrongfully availed.
20] We have heard the learned counsel appearing
for the parties at length.
ig With their able assistance,
perused the pleadings in the Petition, annexure thereto,
affidavit-in-reply / additional affidavit in reply filed by the
respondents, the relevant Government Resolutions, and the
Judgments cited across the Bar by the learned counsel
appearing for the parties. It appears that, the Government
of Maharashtra, Tribal Development Department, issued the
Government Resolution dated 13th December, 1999, so as
to create various posts to start functioning of Shabari Tribal
Financial & Development Corporation within 100 days from
issuance of such Government Resolution. Out of the
requirement of 150 posts for the said Corporation, in first
stage, the Government has granted permission to create 72
posts. However, it is observed in the said Government
Resolution that, newly created posts should be filled in from
the employees of the Maharashtra State Co-operative Tribal
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Development Corporation Ltd. It is observed in the said
Government Resolution that, the service conditions of the
said employees who will be appointed on 72 posts in
Shabari Tribal Financial & Development Corporation would
be same like the employees of respondent no. 3
Corporation, meaning thereby that the service conditions
would be governed by the same set of procedure / rules
applicable to the Maharashtra State Co-operative Tribal
Development Corporation Ltd. It is also mentioned in the
said Government Resolution that, the Managing Director of
the respondent no. 3 Corporation should look after the
affairs of the respondent no. 2 Corporation until further
orders. It appears that, on 27th January, 2000, the order
was issued by the respondent no. 2 whereby the petitioner
was appointed as Accountant in the pay scale of Rs.
2000-60-2300-EB-75-3200-100-3500/-. It is mentioned in
the said order that, by protecting the pay of the petitioner,
he is being transferred to the Shabari Tribal Financial &
Development Corporation Ltd. The said office order reads
thus:
okpk %& ¼ 1 ½ 'kklu fu.kZ; ¼ vk-fo-fo-½ dz-vkfoe @1099 @ [email protected]&3
fnukad 13-12-1999
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tk-dz-vkfoe @iz'[email protected]&[email protected] @2000
ukf'kd&2- fnukad 27 tkusokjh] 2000
vkns ' k
'kklukP;k lanHkkZfa dr fu.kZ;kUo;s izkIr vf/kdkjkuqlkj [kkyhy vf/kdkjh
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n'kZfoysY;k inkoj o osruJs.khe/;s R;kaps l/;kps osru lqjf{kr Bsowu 'kcjh
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27-1-2000 iklwu oxZ dj.;kr ;sr vkgsr-
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lsok oxZ dj.ks laca/khP;k 'krhZ [kkyhy izek.ks vkgsr-
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¼ 2 ½ egkjk"Vª jkT; lgdkjh vkfnoklh fodkl egkeaMGkdMhy lsok
lyx /kj.;kr ;sbZy-
¼ 3 ½ e-jk-lg-vkfnoklh fodkl egkeaMGkdMhy l/;kP;k inkojhy :tq
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inkoj lsok oxZ gks.kk&;k deZpk&;kiqjrhp e;kZfnr jkghy-
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izdkjP;k f'kYyd jtk rlsp minkukph o Hkfo"; fuokZg fu/khph jDde 'kklukps
fu.kZ;kuqlkj 'kcjh vkfnoklh foRr o fodkl egkeaMGkdMs oxZ dj.;kr ;sbZy-
¼ 5 ½ lsok oxZpk vkns'k fLodkjY;kuarj 'kcjh egkeaMGkdMwu fnY;k
tk.kk&;k fu;qDrh vkns'kkizek.ks fu;qDrhP;k fBdk.kh :tq Ogkos ykxsy-
¼ 6 ½ lsok oxZPkk vkns'k fLodkjY;kuarj rks ekxs ?ksryk tk.kkj ukgh-
lacaf/kr izknsf'kd O;[email protected];oLFkkid ;kauh ojhy vf/kdkjh
@deZpkjh ;kaps dMhy izHkkj brj vf/[email protected] ;kapsdMs ns.;kph O;oLFkk
d:u R;kauk fnukad 27-01-2000 iklwu dk;ZeqDr djkos- rlsp R;kaph lsok iqLrds
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` O;oLFkkidh; lapkyd
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5269.2012 WP+.odt
22
izr
1½ Jh-,l-,l-<kys] ys[kkiky] mi-izk-dk-ika<jdoMk
2½ egkO;oLFkkid ¼ foRr @xksaMou ½ ukf'kd @ukxiwj
3½ izknsf'kd O;oLFkkid] izknsf'kd dk;kZy;] ;orekG
4½ mi izknsf'kd O;oLFkkid] mi izknsf'kd dk;kZy;] ika<jdoMk
5½ oS;fDrd uLrh- Jh-<kys
[email protected]&
1½ O;oLFkkidh; lapkyd]
'kcjh vkfnoklh foRr o fodkl egkeaMG e;kZ-] ukf'kd
R;kauk fouarh dh] lsok oxZ dsysY;k vf/kdkjh @ deZpkjh ;kapk :tq
vgoky egkeaMGkdMs ikBokok-
izr ekfgrhlkBh lfou; lknj %&
ek-iz/kku lfpo]
vkfnoklh fodkl foHkkx]
ea=ky;] eqacbZ&32-
[The true translation of the office order dated
27th January, 2000, reads thus:
READ:(1) Government Resolution (TDF) No. TDFC/1099/
C.N.No. 7/O-3/dated 13-12-1999.
O.No.TDFC/Admn./Estt.-1/2213/2000
Nashik-2, Dated : 27th January 2000.
ORDER
5269.2012 WP+.odt
In exercise of the powers derived from the
Government Resolution under reference the service of the
following employee / officer is being transferred w.e.f. dated
27-01-2000 as per the written option given by him against the
post mentioned before his name to the office of Shabri Tribal
Development and Finance Corporation Ltd. Nashik by
protecting his present pay scale mentioned against his post.
Name Present
ig Present pay- Post Pay-Scale.
post and scale prevailing at
place of Shabri
working Corporation.
Shri.S. Accounta Rs. Manager Rs.2000-60-
S.Dhale nt 2000-3500 2300-
Sub- EB-75-
Divisiona 3200-100-
l office 3500
Pandhark
a--wada
Conditions for transferring service are as under :
1. This order is not related with any other service
unless the independent Service Rules of Shabri Tribal Finance
Development Corporation are not framed till then the Service
Rules of the Maharashtra State Co-operative Tribal
Development Corporation shall be applicable. Till the final
decision from the Government is received the lien shall be
deemed to be continued on the post pertaining to the
Maharashtra State Co-operative Tribal Development
5269.2012 WP+.odt
Corporation. Only for the reason of transfer made under the
Shabri Corporation the lien shall not be continued.
2. Service rendered in the Maharashtra State Co-
operative Tribal Development Corporation shall deemed to be
continued.
3. The prevailing date of joining on the post held at
the Maharashtra State Co-operative Tribal Development
Corporation shall be deemed to be the date of joining for the
services to be rendered with the Shabri Corporation for
seniority purpose. However, this condition shall be confined to
the employee who have transferred and joined in the month of
January and February 2000 at Shabri Corporation on the post
of Manager.
4. All kinds of balance leave, gratuity as well as
amount of Provident Fund etc. shall be transferred as per
Government Resolution to the Shabri Tribal Finance and
Development Corporation.
5. After having accepted the service transfer order
from Shabri Corporation, applicant shall have to join his
services as per appointment order on such transferred place.
6. Once service transfer order is accepted it shall not
be taken back.
The concerned Regional Manager / General
5269.2012 WP+.odt
Manager should make arrangement for relieving the aforesaid
employee / Officer by handing over their charge to the other
employee/ Officer from dated 27-01-2000. Similarly by
updating their service books they should be submitted to the
head office of the Shabri Corporation immediately. Similarly
the account relating to the amount to be paid or to be recovered
from the employee should also be get completed.
Sd/-
ig Managerial Director,
M.S.Co-Op.Tribal Development
Corporation Ltd. Nashik-2.
Copy to :-
1) Shri.S.S.Dhale, Accountant, Sub Divisional Office,
Pandharkawada.
2) General Manager(Finance/Gondwan) Nashik/Nagpur.
3) Regional Manager, Regional Office, Yevatmal.
4) Sub Regional Manager, Sub Divisional Office,
Pandharkawada.
5) Personal file of Shri.Dhale.
Copy to :
1) Managerial Director,
Shabari Tribal Finance and Development Corporation
Ltd.Nashik.
With a request to submit the joining report of transferred
Officer/employee to the Corporation.
Copy submitted for information with respect to :-
Hon.Principal Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.]
5269.2012 WP+.odt
21] It further appears that, the Managing Director
of Shabari Tribal Financial & Development Corporation Ltd.
has further issued the office order on 28th January, 2000,
mentioning therein that, the petitioner is appointed as
Manager in the pay scale of Rs.2000-60-2300-
EB-75-3200-100-3500/- Branch at Yevatmal and the
petitioner should join at the said place on 28th January,
2000.
22] It appears that, the Government of
Maharashtra, Department of General Administration issued
Government Resolution bearing No.TRF-2000/Pra.Kra.
3/Twelve, dated 6th August, 2002, thereby issuing guide
lines for appointment of the efficient Officers / employees in
the Naxlite area so as to make administration in the naxlite
area more sensitive, functional and the said administration
should be made aware about the difficulties faced by the
people residing in the said area. In the said Government
Resolution, guide lines are laid down for appointment of the
officers / employees in the naxlite area. In clause 2 of the
said Government Resolution, the provision is made for the
officers / employees, who are already working in the tribal /
naxlite affected area so as to give them more facilities. In
5269.2012 WP+.odt
the said clause, there is provision in respect of paying
incentive allowance to the officers / employees working in
naxlite affected area, and the area declared as extra
sensitive in tribal area. The said officers / employees would
receive 15% of the basic pay towards incentive, however,
same should not exceed Rs.1500 per month. There is no
incentive provided for unaffected tribal area. The clause 2
(b) of the Government Resolution dated 6th August, 2002,
reads thus:
2- jkT;krhy vkfnoklh @u{kyxzLr Hkkxkr dk;Zjr vlysY;k vf/kdkjh
@deZpk&;kauk l|fLFkrhr vuqKs; vlysY;k fofo/k loyrh [kkyhy fooj.kkrhy
LraHk 2 izek.ks lq/kkfjr dj.;kpk fu.kZ; 'kklukus ?ksryk vkgs %&
¼ c ½ izksRlkgu HkRrk %& 1½ 'kklu fu.kZ;] vkfnoklh fodkl foHkkx
'kklu fu.kZ; vkfnoklh fodkl foHkkx] fn-5 Qsczqokjh 1999 uqlkj vuqKs; vlysyk
[email protected]@dk-15 fn-5 izksRlkgu HkRrk u{kyxzLr rlsp
Qsczqokjh 1999 vuqlkj vkfnoklh {ks=kr vfrlaosnu'khy Eg.kwu ?kksf"kr dsysY;k
dk;Zjr vlysY;k % vkfnoklh Hkkxkr eq[;ky; vlysY;k
¼v½ 'kkldh; lsosrhy vf/kdkjh o vf/[email protected]&;kaP;k ckcrhr R;kaP;k
deZpkjh ewG osrukP;k 15 % brdk fdeku :i;s
200 o deky :i;s 1500 njegk ;k
¼c½ ftYgk ifj"knkaps vf/kdkjh o deZpkjh
e;kZnsr vuqKs; jkghy-
¼d½ vuqnku izkIr 'kS{kf.kd laLFkkaP;k
2½ loZlk/kkj.k vkfnoklh {ks=kr dke
izkFkfed] ek/;fed o mPp ek/;fed
dj.kk&;k deZpk&;kauk l/;k
5269.2012 WP+.odt
'kkGkae/khy iw.kZdkyhu f'k{kd o f'k{kdsrj ns.;kr ;s.kk&;k izksRlkgu HkR;kP;k jdesr
deZpkjh ek= dks.kR;kgh izdkjph ok< dj.;kr
vkysyh ukgh-
¼M½ d`f+"k o] ine o d`f"krj fo|kihBs o
R;kyk layXu vlysY;k egkfo|ky;krhy 3½ [email protected]@1999 P;k 'kklu fu.kZ;krhy
f'k{kd @f'k{kdsrj deZpkjh ;kauk ifjPNsn 5 ¼7½ e/khy "vkfnoklh
[kkyhyizek.ks izksRlkgu HkRrk vUkqKs; mi;kstuk {ks=krhy lekfo"V
vkgs%&
egkuxjikfydk @uxj ifj"knsP;k {ks=kr
osruJs.kh ig izksRlkgukps nj
dk;Zjr vl.kk&;k deZpk&;kauk ek=
:i;s 3][email protected]&is{kk deh :i;s 100 @& mijksDr ok<ho izksRlkgu HkRrk vuqKs;
:i;s 3]050 rs 4][email protected]& :i;s 200 @& jkg.kkj ukgh" gh vV ;k iz;kstukFkZ jnn
:i;s 4]590 rs 6][email protected]& :i;s 300 @& dj.;kr ;sr vkgs-
:i;s 6][email protected]&rs 9][email protected]& :i;s 400 @&
:i;s 10][email protected]&P;k iq<s :i;s 500 @&
[The true translation of the above mentioned
clause 2 (b) reads thus:
2. Government has decided to revise the
various facilities presently admissible to the
Officers / Employees working in the Tribal /
Nakshal affected area in the State in the following
statement as mentioned in column No.2.
(B) Incentive Allowance : 1] As per Govt. Resolution
As per Government issued by the Tribal
Resolution Tribal Development Department
5269.2012 WP+.odt
Development Department dated 05th February 1999 the
No.Estt-1097/CN-18-O-15, incentive allowance up to 15
dtd.05th February 1999 % i.e. minimum from Rs.200/-
working in Tribal Area : to maximum upto Rs.1500/-
per month shall be admissible
(a) Employees / Officers to the Officers / Employees
serving in Government serving in the Nakshal
Department. affected area as well as in the
highly sensitive Tribal area
(b) Employees and Officers where their Head Office is
of Zilla Parishad. situated.
(c)
Full time teaching and
non-teaching employees of
2] However, there is no
any kind of increase made in
Govt granted Educational the prevailing incentive
Institutions such as Primary, allowance being paid to the
Secondary & Higher employees serving in the
Secondary School. general Tribal area.
3] However, as per the
(d) Agricultural and Non- provision made under para
agricultural Universities and 5(7) of the Govt. Resolution
the colleges affiliated thereto
dated 05/02/1999 the
and the teaching / non- "incentive allowance shall not
teaching employees to whom be admissible to the
following incentive allowance employees working in the
is admissible. (Aadiwasi Up- -Yojana) in
the Sub Tribal Area including
Pay-scale Rate of in the Municipal
incentive. Corporation / Municipal
Council. This condition is
Less than Rs.3,000/- Rs.100/- being rejected for this
Rs.3050/- to 4589/- Rs.200/- purpose.]
Rs.4590/- to 6499/- Rs.300/-
Rs.6500/- to 9999/- Rs.400/-
Rs.10,000/- & above.Rs.500/-
5269.2012 WP+.odt
In clause 3 of the said Government Resolution,
further provision is made for granting additional facilities to
those officers / employees who are working in the tribal /
naxlite affected area, wherein some concession about
exemption from paying the house rent is granted. There
are other some additional facilities are also provided. The
clause 3
sub-clause (7)
Government Resolution reads thus:
and clause 4 of the said
3- ojhy ifjPNsn&2 e/;s uewn dsysY;k izpfyr loyrh O;frfjDr
vkfnoklh @u{kyxzLr Hkkxkrhy dk;Zjr vf/[email protected]&;kauk
[kkyhyizek.ks vfrfjDr loyrh eatwj dj.;kr ;sr vkgsr %&
¼7½ loZ inkalkBh ,dLrj inksUurh %&
vkfnoklh o Uk{kyxzLr {ks=kr dke dj.;klkBh izksRlkgu Eg.kwu
xV v rs M e/khy in/kkjdkauk lacaf/kr deZpkjh @vf/kdkjh R;k {ks=kr
dk;Zjr vlsi;ZUrP;k dkGkr R;kauh /kkj.k dsysY;k ewG inkP;k uthdph
ofj"B inksUurhph osruJs.kh o R;k vuq"kaxkus osrufu'phrhpk ykHk ns.;kr
;kok- T;k [email protected]/kdk&;kauk lsokarxZr vk'okflr izxrh ;kstuspk
ykHk ns.;kr vkysyk vkgs R;kauk vk.k[kh ofj"B inkP;k osruJs.khpk ykHk
vuqKs; ulsy- gh ,dLrj inksUurhph ;kstuk fn-1 tqyS 2002 iklwu
vaeykr ;sbZy vkf.k rh lacaf/kr deZpkjh @vf/kdkjh vkfnoklh
@u{kyxzLr {ks=kr dk;Zjr vlsi;ZUrp vuqKs; jkghy- R;k {ks=krwu
5269.2012 WP+.odt
deZpkjh @vf/kdkjh fcxj vkfnoklh {ks=kr ijr vkY;koj rks R;kP;k
ewGP;k laoxkZrhy osruJs.khr iwohZP;k osrukP;k vuq"kaxkus osru ?ksbZy-
4- ;k vkns'kk}kjs vuqKs; dj.;kr vkysY;k fofo/k lq/kkfjr o uohu
loyrh lnj vkns'k fuxZfer dsY;kP;k fnukadkiklwu vaeykr ;srhy-
rFkkfi] ifjPNsn 3 ¼7½ e/khy ,dLrj inksUurhph loyr fnukad 1
tqyS 2002 iklwu vaeykr ;sbZy-
[The true translation of the clause 3 sub-clause
(7) and clause 4 of the said Government Resolution reads
thus:
3. In addition to the prevailing facilities as
mentioned in para 2 above following additional
facilities are being granted to the employees /
Officers working in the Tribal / Nakshal affected
area:-
(7) One Rank Promotion for all posts :-
The concerned employee / officer
holding the post in the cadre "A" to "D" working
in the Tribal and Nakshal affected area shall get
the higher / nearest promotional pay scale as an
incentive on its original post till he renders his
services in the above said area and accordingly he
should be granted benefit of such pay fixation of
5269.2012 WP+.odt
such promotional post. However, the
employees/officers who have already got benefit
of In Service Assured Progressive Scheme, to
such employees benefit of Higher Pay Scale shall
not be admissible. This one rank promotional
scheme shall come into force from 1st July 2002
and it shall be confined to the employees / officers
till they shall work in the Tribal / Nakshal
affected area. After relieving from the service of
aforesaid area to the non-tribal area such officer/
employee shall get pay scale of his original cadre
as per his earlier pay of salary.
4. By this order the various revised
facilities and new facilities shall be admissible and
come into force from the date of passing of this
order. However, one rank promotional facility
made available in para 3(7) shall come into force
from the date of 1st July, 2002.]
[emphasis supplied]
23] Upon perusal of the order dated 28th January,
2000, it appears that, at the relevant time, the petitioner
was working as Accountant with the respondent no. 3
Corporation, and he was transferred as Manager in the pay
scale of Rs.2000-60-2300-EB-75-3200-100-3500/- in
5269.2012 WP+.odt
respondent no. 2 Corporation. It was mentioned in the
conditions of transfer that, the prevailing date of joining on
the post held at the Maharashtra State Co-operative Tribal
Development Corporation shall be deemed to be the date of
joining for the services to be rendered with the Shabri
Corporation for seniority purpose. However, this condition
shall be confined to the employee who have been
transferred and joined in the month of January and
February 2000 at Shabri Corporation on the post of
Manager. It is also mentioned in the condition that, till the
final decision from the Government is received the lien shall
be deemed to be continued on the post pertaining to the
Maharashtra State Co-operative Tribal Development
Corporation. The petitioner has not brought to the notice of
this Court that, as a matter of fact subsequently separate
Rules are framed governing the services of the employees
in respondent no. 2 Shabari Tribal Financial Development
Corporation Ltd. Therefore, in view of the afore-mentioned
conditions while transferring the services of the petitioner,
the promotion granted to the petitioner on completion of 12
years service in respondent no. 3 Corporation cannot be
ignored. It appears that, the petitioner completed 12 years
of service in respondent no. 3 Corporation and by order
5269.2012 WP+.odt
dated 19th July, 1999, the petitioner was granted higher pay
scale of Rs.2000-60-2300-EB-75-3200-100-3500/-.
Therefore, in view of sub-clause [7] of clause 3 of the said
Government Resolution, the employees / officers who have
already got benefit of In Service Assured Progressive
Scheme, subsequently, second time benefit of Higher Pay
Scale is not admissible. The relevant portion of the said
sub-clause (7) of clause 3 of the Government Resolution
dated 6th August, 2002, reads thus:
"However, the employees / officers who have
already got benefit of In Service Assured
Progressive Scheme, to such employees benefit
of Higher Pay Scale shall not be admissible".
24] Therefore, the respondents are justified in
withdrawing the benefit received by the petitioner by virtue
of receiving higher promotional pay scale on transfer of his
service in respondent no. 2 Corporation. Admittedly, the
impugned order of recovery of the said amount has been
passed when the petitioner was in service. Therefore,
merely because the petitioner is retired from service on
attaining the age of superannuation, during the pendency
5269.2012 WP+.odt
of this Petition, cannot be a ground to ask the respondents
to stop recovery of the amount which the petitioner has
received on account of getting higher promotional pay
scale after transfer of his services to the respondent no. 2
Corporation.
However, it appears that, the petitioner, for
working in the partially affected tribal area, has received
some benefits, excluding the amount received towards the
higher promotional pay scale, the same could not have
been recovered by the respondents. The petitioner is able
to demonstrate that, the place i.e. Yavatmal, where he
rendered the services is included in the Government
Resolution as partially affected tribal area. The respondents
have given details of dues recoverable amount, and also
payable amount to the petitioner, in additional affidavit
filed on behalf of the respondent nos. 2 and 3 on 15th
January, 2016. In pursuant to the interim orders passed by
this Court, the respondent nos. 2 and 3 have deposited the
amount of Rs.15,69,210/- in the registry of this Court. It
would be apt to reproduce herein below the chart showing
details of dues recoverable from the petitioner and the
amount payable to him:
5269.2012 WP+.odt
Sr.No. Particulars of dues Amount
1. Staff advance of Br. Office Yawatmal Rs.2,372=00
2. Other advances of Br. Office Rs.64,147=00
Yewatmal
3. Staff advance of Br.Office Kinwat Rs.22,222=00
4. Other advance of Br. office Kinwat Rs.34,890=00
5. Aadivasi
ig Vikas Mahamandal Rs.37,915=00
Karmachari Pat Sanstha M.
Yewatmal
6. Ekstar Pay recovery [1/7/2002 to Rs.1,98,625=00
31/03/2010]
7. Ekstar Pay recovery [1/4/2010 to Rs.78,738=00
31/03/2013]
8. 6th Pay difference recovery Rs.80,159=00
[1/1/2010 to 30/11/2010]
9. 6th Pay difference recovery Rs.39,714=00
[26/09/2012 to 31/07/2013]
10. Income tax deductions [TDS] as per Rs.10,360=00
old calculation of gratuity amount
11. Total Rs.5,69,142=00
12. (+) amount withdrawn by the Rs.1,50,000=00
petitioner as per order of Hon'ble
Court
13. Total recoverable amount Rs.7,19,142=00
14. Amount deposited in the office of Rs.15,69,210=00
this Hon'ble Court by the
respondents under protest
5269.2012 WP+.odt
15. Balance amount Rs.8,50,068=00
16. Difference of gratuity / earn leave Rs.1,64,160=00
amount
[a] old calculation amount
15,69,210 [less]
[b] Revise calculation
14,05,050=00
[c] Balance amount of
Rs.1,64,160=00 to be refunded to
the respondent no. 2.
Balance amount payable to the Rs.6,85,908=00
petitioner Shri S.S.Dhale
25] Upon careful perusal of the afore-mentioned
chart, there is no dispute that, the petitioner has already
withdrawn Rs.1,50,000/-, in pursuant to the order passed by
this Court. The respondent nos. 2 and 3 at serial no. 17 of
the said chart have stated that, balance amount payable to
the petitioner is Rs.6,85,908/-. Since the afore-mentioned
amount is not in dispute, we allow the petitioner to
withdraw the amount of Rs.6,85,908/-. After withdrawing
the aforesaid amount by the petitioner, remaining amount
should be given to the concerned respondent /
respondents. The concerned respondent Corporation shall
keep and maintain remaining amount separately, till the
5269.2012 WP+.odt
decision is taken afresh in the light of discussion herein
after.
26] In the light of the discussion in foregoing
paragraphs, we have reached to the conclusion that, the
petitioner was not entitled to receive the benefit of
additional / higher pay scale after his services were
transferred to the respondent no. 3 Corporation, in view of
the fact that the petitioner was granted higher pay scale of
Rs.2000-3500/- by order dated 19.07.1999, under time
bound promotion scheme. Therefore, the respondents are
entitled to recover the excess amount paid to the
petitioner, if any, since the impugned order has been
passed before the petitioner stood retired from the services
on attaining the age of superannuation. However, so far
amount towards incentives which is received by the
petitioner on account of rendering services in partially
affected tribal area is concerned, as per the provisions of
relevant Government Resolution placed on record, the
amount disbursed on said count may not be recovered by
the respondents. Upon careful perusal of the material
placed on record including the additional affidavit filed by
the respondent nos. 2 and 3, an information in respect of
5269.2012 WP+.odt
how much amount the petitioner has received towards
incentive for discharging services at Yevatmal, which is
partially affected tribal area, has not been placed on record.
Therefore, we direct respondent nos. 2 and 3 to hear the
petitioner on said aspect, and keeping in view the relevant
Government policies and the fact that, the petitioner has
rendered services in partly affected tribal area, shall
calculate amount disbursed to the petitioner, however,
excluding the amount disbursed to the petitioner on
account of payment of higher promotional pay scale,
during discharge of service by the petitioner with the
respondent no. 2 Corporation. Such exercise to be done as
expeditiously as possible, and preferably within 12 weeks
from today. We make it clear that, till such exercise is
done, and decision is taken by the respondents about
entitlement of the petitioner for receiving incentives on
account of rendering service in partly affected tribal area,
the respondent nos. 2 and 3 shall not utilize the balance
amount for any other purpose, and maintain the said
amount as indicated above. We make it clear that, in case
decision goes against the petitioner, petitioner may be at
liberty to challenge the said decision, however, restricted to
receive the incentives on account of rendering services in
5269.2012 WP+.odt
partially affected tribal area while working with the
respondent no. 2. Subject matter of enquiry and hearing to
the petitioner before the respondent nos. 2 and 3 stands
restricted only to the extent of incentives on account of
rendering services in partly affected tribal / naxlite area,
and not higher promotional pay scale, which was wrongly
granted to the petitioner contrary to the provisions in sub-
clause (7) of clause 3 of the Government Resolution dated
6th August, 2002.
27] Petition is partly allowed. Rule made absolute
in above terms. Petition stands disposed of. In view of
disposal of the Writ Petition, Civil Application is also partly
allowed and the same stands disposed of.
Sd/- Sd/-
[P.R.BORA] [S.S.SHINDE]
JUDGE JUDGE
DDC
