Maharashtra Association Of ... vs The State Of Maha., Thr. ...
2017 Latest Caselaw 9281 Bom

                                 1
                                                    wp4048.13.odt



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO.4048 OF 2013


  Maharashtra Association of Social Work
  Educators, Sai Sukh Apratim Colony,
  Jail Road, Camp, Amravati, through
  its Vice President Dilip Barahate.           ... Petitioner


        Versus


  1.    The State of Maharashtra,
        through Secretary,
        Department of Social Justice
        and Special Assistance,
        Mantralaya,
        Mumbai 400 032.

  2.    The State of Maharashtra,
        through Secretary,
        Department of Finance,
        Mantralaya,
        Mumbai 400 032.

  3.    Commissioner, Social Welfare,
        State of Maharashtra,
        having its office at 3,
        Church Road,
        Pune-1.                                ... Respondents


  Shri P.D. Meghe, Advocate for Petitioner.
  Shri N.S. Rao, Assistant Government Pleader for Respondents.




::: Uploaded on - 05/12/2017                 ::: Downloaded on - 06/12/2017 02:20:16 :::
                                    2
                                                             wp4048.13.odt



   CORAM : R.K. DESHPANDE & M.G. GIRATKAR, JJ.

   DATE OF RESERVING THE JUDGMENT       :    30-11-2017

   DATE OF PRONOUNCING THE JUDGMENT :      5-12-2017


   JUDGMENT (Per : R.K. DESHPANDE, J.) :

1. This petition is filed by the Association of teachers and

non-teaching employees working in the aided Colleges of Social

Work in the State of Maharashtra claiming a relief of declaration

that the Government Resolution dated 8-3-2011 be declared as

illegal to the extent it denies the arrears of pay-scales of the Sixth

Pay Commission to the non-teaching employees in the aided

Colleges of Social Work for the period from 1-1-2006 to 31-3-2010.

It further claims a direction to the respondents to release the

arrears arising out of the revision as per the Sixth Pay Commission

for the period from 1-1-2006 to 31-3-2010.

2. The pay scales of teachers and non-teaching employees

working in the aided Colleges affiliated to Non-Agricultural

wp4048.13.odt

Universities were revised as per the recommendations of the Sixth

Pay Commission with effect from 1-1-2006. Accordingly, a

notification was issued by the Higher and Technical Education

Department of the State Government on 7-10-2009 publishing the

Maharashtra Non-Agricultural Universities Standard Code

(Revision of Pay of Non-Teaching Employees) Rules, 2009, brought

into force with effect from 1-1-2006. Rule 16 under the said Rules

deals with the entitlement of the non-teaching employees in the

aided non-Government Colleges affiliated to Non-Agricultural

Universities to the arrears of the difference in their pay from

1-1-2006 to 31-3-2009 arising out of revision in the scale of pay

with effect from 1-1-2006. The non-teaching employees working in

the aided non-Government Colleges of Social Work in the State of

Maharashtra also expected that they would be getting the arrears

arising out of the revision of pay scales with effect from 1-1-2006

till 31-3-2009.

3. The Department of Social Justice and Special Assistance

in the Government of Maharashtra issued a resolution

dated 8-3-2011 making the revision in the scale of pay as

wp4048.13.odt

recommended by the Sixth Pay Commission applicable to the

non-teaching employees working in the non-Government aided

Colleges of Social Work in the State of Maharashtra subject to two

conditions - (i) that their pay in the revised scale shall be fixed

notionally with effect from 1-1-2006, i.e. the date from which the

pay scales recommended by the Sixth Pay Commission were

implemented, and (ii) that they would not be entitled to arrears of

difference arising out of the revised pay scales for the period from

1-1-2006 to 31-3-2010. It is clarified in the said Government

Resolution that the revised pay would be actually payable to the

non-teaching employees with effect from 1-4-2010.

4. The challenge is to the denial of arrears of difference

arising out of revised pay scales for the period from 1-1-2006 to

31-3-2010. The case of the petitioner is that this amounts to

providing discriminatory treatment to deprive the non-teaching

employees in aided Colleges of Social Work, their legitimate claim

for arrears of difference arising out of the revision of pay scales,

and it violates the guarantee of such employees contained in

Article 14 of the Constitution of India. It is specifically averred in

wp4048.13.odt

the petition that the non-teaching employees in Matru Sewa Sangh

Institute of Social Work at Nagpur, which is also an aided College

affiliated to Non-Agricultural University, were paid the arrears of

difference arising out of the revision of pay scales from 1-1-2006.

However, the non-teaching employees in other Colleges of Social

Work run on grant-in-aid basis are denied the equal treatment.

5. The claim made in the petition is denied by the

respondents by filing their common affidavit dated 21-6-2014. The

stand taken in the affidavit in paras 3, 4, 5, 7 and 8 is reproduced

below :

"3. It is submitted that by Government Notification High Education Department dated 7.10.2009 thereby making 6th Pay Commission applicable to all non teaching employees of Government aided college under the Higher Education Department. It is submitted that the Respondent no.1 issued resolution dated 8-3-2011 to grant revised Pay scale as per 6th Pay Commission to the non teaching employees of Social work colleges which are run on grant in aid basis. It is submitted in respect of the financial matters Social Justice and Special Assistance Department and

wp4048.13.odt

Higher Education Department have their independent policies."

"4. It is submitted that, the proposal for extending benefit of 6th pay commission to teaching and non teaching employees of Social Welfare College running under Social Justice and Special Assistance Department was submitted before Finance Department, Mantralaya, Mumbai for approval by Respondent no.1. After perusing the proposal, Finance Department comes to the conclusion that, for payment of arrears as per 6th pay commission Rs.610.00 lakhs approximately only are required. By ascertaining the revised pay scale prescribed in Government Resolution, Finance Department has given remark that 6th pay commission is applicable from 1-1-2006 to non teaching employees of Social Welfare colleges and only to give notional fixation of pay benefit of pay scale is to be given from 1-4-2010. It is also made it clear by Finance Department that arrears will not be admissible for the period 1.1.2006 to 31.3.2010."

"5. It is submitted that as per G.R. Dated 8.3.2011 actual benefit of pay scale as per 6th pay is to be given from 1.4.2010 and arrears from 1.1.2006 to 31.3.2010 are not made admissible hence extending benefit of 6th pay commission to the employees who have retired during

wp4048.13.odt

1.1.2006 to 31.1.2010 does not arise at all."

"7. ...

It is mentioned in Government Resolution dated 8.3.2011 that, the said G.R. is issued with the consent of the Finance Department."

"8. It is submitted that Matru Seva Sangh Institute of Social Work, Nagpur is under Higher Education Department. As stated in earlier para in the respect of financial matters Social Justice and Special Assistance Department and Higher Education Department have their independent policies."

6. It is a fact that there are several aided Colleges affiliated

to twelve Non-Agricultural Universities in the entire State of

Maharashtra, including the Universities incorporated under

Section 3 of the Maharashtra Universities Act ("the said Act"). All

such Colleges are getting grant-in-aid from different Departments

of the State Government, like Education and Employment, Higher

and Technical Education, Social Justice, Cultural and Sports, Social

Justice and Special Assistance, etc. Sub-section (3) of Section 8 of

the said Act being relevant, is reproduced below :

wp4048.13.odt

"8. Control of State Government and universities.

(3) The State Government may in accordance with the provisions contained in this Act, for the purpose of securing and maintaining uniform standards, by notification in the Official Gazette, prescribe a Standard Code providing for the classification, manner and mode of selection and appointment, absorption of teachers and employees rendered surplus, reservation of posts in favour of members of the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes, duties, workload, pay, allowances, post-retirement benefits, other benefits, conduct and disciplinary matters and other conditions of service of the officers, teachers and other employees of the universities and the teachers and other employees in the affiliated colleges and recognised institutions (other than those managed and maintained by the State Government, Central Government and the local authorities). When such Code is prescribed, the provisions made in the Code shall prevail, and the provisions made in the Statutes, Ordinances, Regulations and Rules made under this Act, for matters included in the Code shall, to the extent to which they are inconsistent with the provisions of the Code, be invalid."

wp4048.13.odt

The aforesaid provision confers power upon the State

Government to prescribe a 'Standard Code' by notification in the

Official Gazette for the purpose of securing and maintaining

uniform standards and providing for several matters stipulated

therein, including pay, allowances and other terms and conditions

of the teachers and other employees in the affiliated Colleges. It is

made clear that upon issuance of such notification, the provisions

made in the Code shall prevail and the other provisions made in

the Statutes, Ordinances, Regulations and Rules made under the

said Act, for matters included in the Code shall, to the extent to

which they are inconsistent with the provisions of the Code, be

invalid.

7. The provision of sub-section (3) of Section 8 of the said

Act, reproduced above, does not make any distinction between the

Colleges functioning under the control and getting grants from the

different Departments of the State Government. The provision

does not contemplate framing of multiple 'Standard Codes' by

different Departments of the State Government to make separate

provisions for the teaching and non-teaching employees working in

wp4048.13.odt

the Colleges to which they provide the grant-in-aid. The power to

frame a 'Standard Code' by issuing notification under

sub-section (3) of Section 8 of the said Act is exercised and

completely exhausted by the Higher and Technical Education

Department of the State Government thereby issuing notification

dated 7-10-2009, leaving no scope for the other Departments, like

Social Justice, Cultural and Sports or Social Justice and Special

Assistance, to encroach upon the subject covered by such

notification and to make any provision inconsistent with it in

respect of the aided Colleges under their control.

8. Rule 2(1) of the 'Standard Code' stipulates that those

Rules apply to the full-time non-teaching employees of twelve

specified Non-Agricultural Universities and Affiliated

Non-Government Aided Colleges. Rule 16 of the 'Standard Code'

deals with the payment of arrears arising out of revision of pay

scales with effect from 1-1-2006 to all the employees eligible in

terms of the provisions of the 'Standard Code'. Rule 17 deals with

the overriding effect of the Rules and it states - "Barring unless

otherwise providing for in these Rules in cases where pay has been

wp4048.13.odt

regulated as per the Rules, the provisions in the Maharashtra

Non-Agricultural Universities and Affiliated Colleges Standard

Code (Service and Conditions of the Non-Teaching Employees)

Rules, 1984 if inconsistent with these Rules, then would not apply

up to that limit." The rules under the 'Standard Code' nowhere

provide for framing of different policies by the Departments in

respect of the employees working in the Colleges getting

grant-in-aid from them.

9. Neither the provision of sub-section (3) of Section 8 of

the said Act nor the 'Standard Code' brought into force with effect

from 1-1-2006 by issuing notification dated 7-10-2009 makes any

distinction or reflects different policies in respect of the Colleges

getting grant-in-aid from different Departments of the State

Government. The object and purpose of these provisions is to

secure and maintain uniform standards and to provide for several

matters stipulated therein, including pay, allowances and other

terms and conditions of the teachers and other employees in the

Colleges affiliated to twelve Non-Agricultural Universities, as is

stipulated in the 'Standard Code'. Thus, the object and purpose

wp4048.13.odt

prohibits applying the different standards and different pay scales

and terms and conditions of service of the teachers and other

employees working in several aided Colleges affiliated to twelve

Non-Agricultural Universities in the State of Maharashtra. The

provisions make it clear that anything inconsistent with the

provisions of the 'Standard Code' shall be invalid.

10. The provision of Rule 16 in the 'Standard Code' makes all

non-teaching employees working in the aided Colleges affiliated to

Non-Agricultural Universities in the State of Maharashtra to get the

arrears arising out of revision of pay scales with effect from

1-1-2006. This confers a legal right upon the petitioner-

non-teaching employees to receive such arrears with effect from 1-

1-2006 arising out of implementation of the revised pay scales as

per the recommendations of the Sixth Pay Commission, irrespective

of the fact of the source of their grant-in-aid. There cannot be a

different policy of the Department of Social Justice and Special

Assistance, in deviation of the policy published by way of 'Standard

Code' in the notification dated 7-10-2009 by the Higher and

Technical Education Department of the State Government. We,

wp4048.13.odt

therefore, cannot sustain such a reasoning adopted by the State

Government in the reply filed in response to the present petition.

11. Even otherwise, the non-teaching employees working in

all the aided Colleges affiliated to the Non-Agricultural Universities

are governed by the same terms and conditions, as are prescribed

in the 'Standard Code', their duties and responsibilities are the

same, they form a single class and, therefore, no discriminatory

treatment can be provided to them, as contemplated by the

Government Resolution dated 8-3-2011 denying the benefit of

arrears for the period from 1-1-2006 to 31-3-2010 to the

non-teaching employees working in the aided Colleges of Social

Work. The source of grant-in-aid to create classification for

providing discrimination becomes artificial having no nexus with

the object of securing and maintaining uniform standard of

education. It, therefore, violates the guarantee of the non-teaching

employees working in the aided Colleges of Social Work affiliated

to the Non-Agricultural Universities contained in Article 14 of the

Constitution of India. The same cannot, therefore, be sustained.

wp4048.13.odt

12. It is not in dispute that non-teaching employees in Matru

Sewa Sangh Institute of Social Works, Nagpur, conducting the

courses in social work, like any other Colleges of Social Works and

affiliated to Non-Agricultural University, are getting arrears as per

Rule 16 of the 'Standard Code' merely because it is getting

grant-in-aid from the Department of Higher and Technical

Education, but the non-teaching employees in other Colleges of

Social Works are deprived of it on the ground that they are getting

grant-in-aid from the Department of Social Works. This is a micro

classification not based upon any valid criteria having any nexus

with the object sought to be achieved. It is unreasonable and

arbitrary, violating fundamental right under Article 14 of the

Constitution of India of the non-teaching employees in the Colleges

of Social Works getting grant-in-aid from the Social Works

Department. It cannot be sustained.

13. We may point out at this stage that similar question arose

before the Apex Court in Civil Appeal Nos.115-116 of 2017

[Secretary, Mahatma Gandhi Mission and another v. Bhartiya

Kamgar Sena] decided on 5-1-2017. Para 74 of the said decision

wp4048.13.odt

being relevant, is reproduced below :

"74. At the outset, it must be remembered that the 1999 Rules, which extended the 5th pay commission recommendations to the non-teaching staff of the affiliated colleges, did not make any distinction between the aided and un-aided colleges. For the first time, that classification is sought to be made under the 2009 Rules. No doubt aided and un-aided colleges ostensibly fall under two separte categories. But for the purpose of Article 14, every classification does not automatically become permissible. Second requirement of the doctrine of reasonable classification is that such classification must bear a nexus to the objects sought to be achieved. Therefore, the object sought to be achieved by the 2009 Rules is required to be identified and that it is required to be examined whether the classification made bears any reasonable nexus to such object."

Further in the last portion of para 84, the Apex Court has

observed as under :

wp4048.13.odt

"84. ...

It did deal with the subject under Section 8(3) of he Maharashtra Universities Act. Section 8(3) clearly authorises the State Government to frame rules dealing with the service conditions of the employees (both teaching and non-teaching) of various educational institutions. The power is duly exercised. While exercising such power is that State of Maharashtra drew an artificial distinction between aided and unaided educational institutions."

14. In view of the aforesaid position, this petition needs to be

allowed with a direction to the respondents to pay to the petitioner

all the arrears arising out of revision in the pay of scale for the

period from 1-1-2006 to 31-3-2010.

15. In the result, the petition is allowed in the following

terms :

(i) The Government Resolution dated 8-3-2011 to the

extent it denies to the non-teaching employees working in

the aided Colleges of Social Work affiliated to

the Non-Agricultural Universities the arrears of pay

arising out of difference upon implementation of the

wp4048.13.odt

Sixth Pay Commission recommendations, for the period

from 1-1-2006 to 31-3-2010, is held to be illegal and

invalid.

(ii) The respondents are directed to pay the arrears of

pay arising out of revision of pay scale as per the

notification dated 7-10-2009 to the non-teaching

employees working in the aided Colleges of Social Work

affiliated to the Non-Agricultural Universities, including

those incorporated under Section 3 of the Maharashtra

Universities Act, 1994.

(iii) The direction be complied with within a period of

three months from today, failing which, the employees

shall be entitled to interest at the rate of 12% per annum

on the amount of arrears with effect from 31-3-2010 till

the date of payment.

wp4048.13.odt

16. Rule is made absolute in the aforesaid terms. No order as

to costs.

(M.G. Giratkar, J.) (R.K. Deshpande, J.)

17. After pronouncement of this judgment, Shri N.S. Rao, the

learned Assistant Government Pleader for the respondents, submits

that after hearing was concluded, he was granted time to take

instructions from the respondents as to the cut-off date prescribed

in the Government Resolution impugned in this petition, for

payment of arrears.

18. No doubt, we had granted time to take instructions up to

7-12-2017. However, the hearing was concluded and the case was

closed for judgment. Keeping in view the law which we have

enunciated, we do not think that more time is required to be

granted or any consent of the respondents is required for that

purpose.

                  (M.G. Giratkar, J.)                   (R.K. Deshpande, J.)

   Lanjewar, PS