Bombay High Court
Nasir Husen Abdul Kayyum Deshmukh ... vs The State Of Maharashtra And ... on 19 October, 2016
Bench: S.V. Gangapurwala
WP 5674/15 & another
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5674/2015
1] Nasir Husen Abdul Kayyum Deshmukh
Age 45 years occ: Service,
As Pharmacist in Jalgaon Municipal
Corporations Hospital, resident of
Nasheman Colony, Plot No.1, Mehrum
Jalgaon.
2] Sou.Ushal Trimbakrao Bavaskar
Age 45 years, Occ: Service
As pharmacist in Jalgaon Municipal
Corporations Hospital, R/o gut No.35
Plot no.35, Muktainagar, Jalgaon.
3] Chandrakant S/o Gulabrao Salunke
Age 48 years Occ : Service
As pharmacist in Jalgaon Municipal
Corporations Hospital, resident of
Plot No.6, Shradha Colony
Jalgaon.
4] Dinesh S/o Sitaram Tiwari
Age 48 years Occ: Service
As pharmacist in Jalgaon Municipal
Corporations Hospital, resident of
Shradha Colony, Near Data Mandir,
Jalgaon.
5] Attarhur Raheman Khan,
Age 48 years, Occ: Service
As Lab Technician , in Jalgaon
Municipal Corporation, Hospital,
R/o Plot No.306, Sharin Apartment,
Shivaji Nagar, Jalgaon.
6] Kiram S/o Onkar Wani
Age 55 years,Occ: Service
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WP 5674/15 & another
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As Lab Technician , in Jalgaon
Municipal Corporation, Hospital,
R/o Plot No.7 Gut No.63,
Vidhut Colony, Jalgaon.
..Petitioners..
Versus
1] The State of Maharashtra
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2] The Commissioner,
Jalgaon Municipal Corporation,
Jalgaon.
3] The Deputy Commissioner,
Jalgaon Municipal Corporation
Jalgaon.
4] Establishment Office Superintendent
Jalgaon Municipal Corporation,
Jalgaon. ...Respondents..
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WRIT PETITION NO.5675/2015
1] Sanjay S/o Murlidhar Patil,
Age 47 years occ: Service,
As Pharmacist in Jalgaon Municipal
Corporations Hospital, resident of
Sharda Colony,Soham Apartment,
Jalgaon.
2] Anil S/o Ramdas Bhole,
Age 50 years, Occ: Service
As pharmacist in Jalgaon Municipal
Corporations Hospital, R/o Plot No.4
Kishor Colony, Jalgaon.
3] Nasrullah Abdullah Shah,
Age 48 years Occ : Service
As pharmacist in Jalgaon Municipal
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WP 5674/15 & another
- 3 -
Corporations Hospital, resident of
Mannat Nagar, Meharum,
Jalgaon.
4] Vishal S/o Jagannath Patil,
Age 58 years Occ: Service
As pharmacist in Jalgaon Municipal
Corporations Hospital, resident of
02, Shikshak Wadi, Ring Road,
Jalgaon.
..Petitioners..
Versus
1] The State of Maharashtra
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2] The Commissioner,
Jalgaon Municipal Corporation,
Jalgaon.
3] The Deputy Commissioner,
Jalgaon Municipal Corporation
Jalgaon.
4] Establishment Office Superintendent
Jalgaon Municipal Corporation,
Jalgaon. ...Respondents..
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.....
Shri Amol Kakade, Advocate for petitioners.
Shri V.S. Badak, AGP for respondent nos.1 & 2.
SHri V.D. Gunale, Advocate for respondent no.3.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
DATE: 19.10.2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
WP 5674/15 & another
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1] Heard learned counsel for the parties. Rule. Rule
made returnable forthwith and with the consent of learned
counsel for the parties, the petitions are taken up for
final disposal at this stage.
2] Learned counsel for the petitioners states that the
petitioners were appointed as Pharmacist in the year
1991/1992 pursuant to various appointment orders. In
fact, since 1987/1988, these petitioners were working as
Pharmacist / Laboratory Technician with the respondent
no.3 - Corporation. Only for one day, an appointment
order was shown to have been given as that of Peon /
Coolie. However, again by passing a resolution, these
petitioners were appointed as Pharmacist within a short
span of 2/3 days. According to the learned counsel,
since 1992, the petitioners are discharging their duties
as regular Pharmacist. The petitioners were given the
benefit of the Fourth, Fifth and Sixth Pay Commissions.
The learned counsel submits that even juniors to the
petitioners, who were working as Pharmacist and
Laboratory Technician, are being given the pay-scale as
was revised. However, show cause notice came to be
issued to the petitioners on the ground that by
WP 5674/15 & another
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misleading the office of the respondent - Corporation,
the petitioners have got higher pay-scale and grade pay
fixed. The learned counsel submits that the petitioners
are qualified to work as Pharmacist. The petitioners are
discharging their duties as Pharmacist continuously since
the year 1991/1992. The juniors to the petitioners are
being paid more pay-scale than what is being sought to be
paid to the petitioners pursuant to the impugned orders.
The petitioners are entitled for all the said benefits.
They are regularly appointed. They have also undergone
selection process. Even the resolution is passed by the
erstwhile Municipal Council. The petitioners cannot be
paid pay less than what is being paid to their juniors.
The institutions from which the petitioners have obtained
the qualification are duly recognized institutions.
3] Learned counsel for the respondent no.3 -
Corporation submits that the petitioners are not
appointed by following due selection process. In fact,
they were appointed as Peon and within three days were
given promotion as Pharmacist / Laboratory Technician.
The same is against the rules. The juniors to the
petitioners are appointed by following due selection
WP 5674/15 & another
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process and as such are entitled for the pay-scale as per
the Sixth Pay Commission and grade-pay of Rs.4200/-. As
the petitioners are not appointed by following due
procedure of law, they are entitled to grade pay of
Rs.3200/- only. According to the learned counsel, though
the petitioners possess the necessary qualification to be
appointed as Pharmacist / Laboratory Technician, they
have not passed the said course from duly recognized
institutions. The Auditor has raised an objection and
pursuant to the same, the show cause notice is issued and
the impugned orders have been passed. No error has been
committed.
4] We have considered the submissions canvassed by the
learned counsel for the respective parties.
5] There is no dispute that the present petitioners
atleast since 1991/1992 are discharging their duties as
Pharmacist continuously. They were granted the benefits
of Fourth and Fifth Pay Commissions. The petitioners
possess the necessary qualification for the post of
Pharmacist. The same is not disputed. The juniors to
the petitioners are being paid the same pay-scale and
grade pay as is paid to the petitioners prior to the
WP 5674/15 & another
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impugned orders. It would be too late in the day for the
respondent - Corporation after long slumber of 25 years
to contend that the petitioners were not appointed by
following due procedure of law. It is the Corporation
who had appointed the petitioners on the vacant posts.
It is not disputed that when the petitioners were
appointed as Pharmacist in the year 1991/1992, they were
appointed on sanctioned vacant posts and they were
possessing the necessary qualification. The resolution
is also passed by the erstwhile Municipal Council.
6] As such, it would not be open for the respondent -
Corporation now after lapse of 25 years to contend that
the petitioners were not appointed after following proper
procedure of law and juniors to the petitioners are also
paid proper pay-scale as per the Sixth Pay Commission.
7] The next contention raised by the respondent -
Corporation is that the institutions from where the
petitioners have acquired the qualification are not
recognized. According to the petitioners, some
institutions are Government institutions and some are
Government recognized institutions. The said aspect can
be considered by the respondent - Corporation.
WP 5674/15 & another
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8] Considering the above, the impugned orders are
quashed and set aside. The respondent no.3 - Corporation
shall consider the petitioners to be properly appointed
and pass orders afresh pursuant to the show cause notice
issued to the petitioners after hearing the petitioners
and shall not refuse the pay-scale and grade pay as
applicable to Pharmacist only on the ground that the
petitioners were not properly appointed. The said
decision shall be taken expeditiously. Rule is
accordingly made absolute in above terms. No costs.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
ndk/c1910164.doc
