Bombay High Court
Ku. Tamanna D/O Indrakumar ... vs State Of Mah. Ministry Of Social ... on 28 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2405 OF 2005
PETITIONERS :- 1. Saraswati Mandir, Tulshibag Road,
Reshimbagh, Nagpur. Through its Secretary,
Smt. Lalita Patankar.
2. Kalyan Muk Badhir Vidyalaya, Tulshibag
Road, Reshimbagh, Nagpur, through
Headmistress.
...VERSUS...
RESPONDENTS :-
ig 1) State of Maharashtra, Ministry of Social
Welfare, Mantralaya, Mumbai.
2) District Social Welfare Officer, Block-A, Zilla
Parishad, Nagpur.
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Mr.V. S. Kukday, counsel for the petitioners.
Mr. P.S.Tembhare, Asstt.Govt.Pleader for the respondents.
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AND
WRIT PETITION NO. 6390 OF 2005
PETITIONER :- Ku.Tamanna d/o Indrakumar Balwaik, Aged
about 29 years, R/o C/o Mirabai Balwaik,
Near Mata Mandir, Ganjipeth, Gandhi
Chowk, Nagpur-440018.
...VERSUS...
RESPONDENTS :- 1) State of Maharashtra, Ministry of Social
Welfare, Mantralaya, Mumbai.
2) The District Social Welfare Officer, Block-A,
Zilla Parishad, Nagpur.
3) Saraswati Mandir through its Secretary,
Tulsibag Road, Reshimbagh, Nagpur.
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4) Kalyan Muk Badhir Vidyalaya, through its
Headmaster, Tulsibag Road, Reshimbagh,
Nagpur.
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Mr. A.D.Mohgaonkar, counsel for the petitioner.
Mr. P.S.Tembhare, Asstt.Govt.Pleader for the respondent Nos.1 and 2.
Mr.V. S. Kukday, counsel for the respondent Nos.3 and 4.
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CORAM : SMT. VASANTI A NAIK &
ig KUM. INDIRA JAIN, JJ.
DATED : 28.09.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
Since the issue involved in these writ petitions is identical
and as by the said writ petitions, the petitioners have challenged the
orders of the Social Welfare Officer, Zilla Parishad, Nagpur, dated
22/09/2005 and 12/01/2015 holding that the post of Part Time Social
Worker in a school for Deaf and Dumb would carry only honorarium
and not the pay scale and directing the recovery of excess amount from
the petitioner in Writ Petition No.6390 of 2005, they are heard together
and are decided by this common judgment.
2. Petitioner in Writ Petition No.6390 of 2005 Ku.Tamanna
was employed by petitioner-Saraswati Mandir, Reshimbag, Nagpur in
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Writ Petition No.2405 of 2005 on the post of Social Worker (part time)
in the Deaf and Dumb School run by Saraswati Mandir by an order,
dated 23/03/1999. The appointment of Tamanna was made after
securing the necessary sanction from the Director of Social Welfare,
Pune. An advertisement was issued by Saraswati Mandir before
appointing Tamanna on the post of Social Worker (part time) in the
Deaf and Dumb School by the order, dated 23/03/1999. The
appointment of Tamanna was made in the pay scale of Rs.700-1300,
that was fifty per cent or half of the regular pay scale of Rs.1400-2600
as Tamanna was appointed on part time basis. Since Tamanna was
appointed on a clear and vacant post of Social Worker (part time),
approval was granted to her appointment in the aforesaid pay scale.
The services of Tamanna on the post of Social Worker (part time) were
confirmed by the order of the Management of Saraswati Mandir, on
31/03/2001. As per the recommendations of the Fifth Pay Commission,
the pay scale of Tamanna as part time Social Worker was fixed at
Rs.2750-88-4500. Suddenly, by the impugned communications, dated
22/09/2005 and 12/01/2005, the Social Welfare Officer of the Zilla
Parishad, Nagpur directed the Management to cancel the order of fixing
the pay scale of Tamanna and sought the recovery of the amount that
was paid to Tamanna in the pay scale so fixed from the Management-
Saraswati Mandir. According to the Social Welfare officer, Tamanna
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was entitled only to honorarium of Rs.450/- and her appointment as
Social Worker (part time) could not have been made in a pay scale. The
orders of the Social Welfare Officer, dated 12/01/2005 and
22/09/2005 are impugned in these petitions.
3. Shri Mohgaonkar, the learned counsel for Tamanna,
submitted that the Social Welfare Officer was not justified in holding
that the appointment of Tamanna could have been made only on
honorarium. It is submitted that it is apparent from the order of the
Director, Social Welfare, Maharashtra State Pune, dated 31/01/1995
that one post of Social Worker (part time) was sanctioned and though
the post of Medical Officer and a Helper carried honorarium, the post of
Social Worker (part time) did not carry honorarium. It is stated that
after the appointment of Tamanna was made, the Social Welfare Officer
had approved the services of Tamanna as a Social Worker (part time) in
the pay scale of Rs.700-1300, that is, half of the regular pay scale of
Rs.1400-2600 and the approval to her services was not on honorarium.
It is submitted that it is apparent from the Government Resolution,
dated 17/07/2000, by which the recommendations of the Fifth Pay
Commission were applied to the teachers of the special schools that the
pay scale of a social worker, whose services were approved in a school
for the physically challenged, would be Rs.5500-9000. It is stated that
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since Tamanna was appointed as part time Social Worker in a school for
physically challenged, her pay scale would be half of the pay scale
prescribed for the full time Social Worker by the Fifth Pay Commission
recommendations, i.e. Rs.2750-4500/-. It is stated that it is clear from
the annexures appended to the Government Resolution, dated
17/07/2000 that honorarium is payable only to the Social Workers, that
are appointed in the workshops for specially abled and a Social Worker
appointed in a school for specially abled would be entitled to a pay
scale of Rs.5500-9000 as per the Fifth Pay Commission
recommendations. It is submitted that the Social Welfare Officer
committed a serious error in passing the impugned orders and holding
that Tamanna was entitled to honorarium and not the salary in the pay
scale.
4. Shri Kukday, the learned counsel for Saraswati Mandir,
i.e. the petitioner in Writ Petition No.2405 of 2005, challenged the
impugned orders on similar lines. It is stated that it is apparent from
the Government Resolution, dated 17/07/2000 as also the order of the
Director, Social Welfare granting permission to Saraswati Mandir to fill
the vacant post of Social Worker (part time) that the appointment of the
Social Worker in a school for specially abled was not on honorarium,
but was on a pay scale.
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5. Shri Tembhare, the learned Assistant Government Pleader
appearing on behalf of the State Government and the Social Welfare
Officer, has supported the impugned orders. The learned Assistant
Government Pleader relied on the Government Resolution, dated
11/09/2000 and specially clause No.7 thereof to submit that Social
Workers and Placement Officers were entitled to honorarium of
Rs.450/- from May, 2000 instead of the lesser honorarium, that was
paid earlier. It is submitted that on the basis of the Government
Resolution, dated 11/09/2000, the Social Welfare Officer has passed
the impugned orders.
6. On hearing the learned counsel for the parties and on a
perusal of the Government Resolutions, dated 17/07/2000 and
11/09/2000, it appears that the petitioners are entitled to the relief
claimed. There are two types of institutions, that are administered for
the welfare and upliftment of specially abled, i.e., the workshop for
specially abled and the school for specially abled. It appears from the
aforesaid Government Resolutions and also the other documents, that
are annexed to the writ petitions that honorarium is liable to be paid to
the Social Worker appointed in a workshop for physically disabled
whereas, a social worker appointed in a school for physically disabled is
entitled to salary in a pay scale, that is fixed by the Government from
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time to time as per the recommendations of the Pay Commissions.
Admittedly, Tamanna was appointed as a Social Worker (part time) in
the school for physically disabled and her appointment was not in a
workshop. The pay scale of Tamanna was, therefore, rightly fixed at
the time of her appointment at Rs.700-1300 and as per the
recommendations of the Fifth Pay Commission, her pay scale was
modified to Rs.5500-9000/-. The said pay scale was payable to a Social
Worker, who is appointed on a full time basis, but since Tamanna was
appointed as a Social Worker on part time basis, her pay was rightly
fixed by the Social Welfare officer in the scale of Rs.2750-4500. By a
wrongful reading of the Government Resolution, dated 11/09/2000,
the Social Welfare Officer erroneously held that Tamanna was entitled
to honorarium and not the salary in a pay scale. Clause No.7 of the
Government Resolution, dated 11/09/2000 merely speaks of the
enhancement of the honorarium at Rs.450/-, as lesser honorarium was
payable to Social Workers before May, 2000. Clause No.7 of the said
Government Resolution only speaks about the enhancement of the
honorarium and the Government Resolution does not refer to the
category of Social Worker, to which honorarium is liable to be paid.
Much light is thrown on the controversy, by the Government
Resolution, dated 17/07/2000, which speaks of the application of the
recommendations of the Fifth Pay Commission to the teachers working
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in special schools. As per the annexures to the said Government
Resolution, a Social Worker in a school for physically disabled, who was
receiving the pay scale of Rs.1400-2600, was entitled to a pay scale of
Rs.5500-9000. The Government Resolution further stipulates that to a
Social Worker, appointed in a workshop for physically disabled, the
honorarium of Rs.450/- would be payable instead of the honorarium of
Rs.250/-. We find that Clause No.7 in the Government Resolution,
dated 11/09/2000 appears to have been inserted in view of the
applicability of the Fifth Pay Commission recommendations to the
teachers in the workshops for specially abled by the Government
Resolution, dated 17/07/2000. The Social Welfare Officer committed a
serious error in misreading the Government Resolution, dated
11/09/2000 and holding that Tamanna would be entitled to
honorarium and not the salary in a pay scale, as was granted to her
from 1998 till 2005. The impugned orders are clearly illegal and are
liable to be set aside.
7. Hence, for the reasons aforesaid, the writ petitions are
allowed. The impugned orders are quashed and set aside. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 03/10/2016
P.A.to Hon'ble Judge
