Bombay High Court
Rojaram S/O Timaji Hukare vs The Zilla Parishad Bhandara Thr. ... on 13 July, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1174/2013
PETITIONER: Rojaram s/o Timaji Hukare
aged 60 years, Occupation - retired,
r/o Shendurwafa, Taluka Sakoli, District Bhandara.
...VERSUS...
RESPONDENTS: 1. The Zilla Parishad, Bhandara,
through its Chief Executive Officer,
Tq. District Bhandara.
2. The Executive Engineer, Minor Irrigation Division,
Zilla Parishad, Bhandara.
3. The Divisional Commissioner, Nagpur Division,
Nagpur.
4. The State of Maharashtra, through Secretary,
Department of Rural Development and Water
Resources, Mantralaya, Mumbai 400 032.
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Shri P.D. Meghe, Counsel for the petitioner
Shri H.N. Verma, Counsel for the respondent nos.1 and 2
Mrs. H.N. Prabhu, AGP for respondent nos.3 and 4
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 12/13.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this writ petition, the petitioner seeks a direction against
the respondents to grant higher pay scale to the petitioner after granting
the benefit of second time bound promotion to him with effect from
01/10/1996. The petitioner seeks a declaration that the action on the
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part of the respondents in reducing the grade pay of the petitioner from
Rs.2400/- to Rs.2100/- from the date of his retirement is illegal. The
petitioner accordingly seeks the modification of his pension.
2. The petitioner claims to have been appointed as a junior
assistant by the respondent-zilla parishad on 01/04/1982. The petitioner
was granted the first time bound promotion with effect from 01/10/1994
vide order dated 09/09/1998. After the State of Maharashtra issued the
government resolution dated 01/04/2010, providing the second time
bound promotion to the employees, the petitioner sought for the second
time bound promotion with effect from 01/10/2006. Before the
representation of the petitioner could be decided, the petitioner retired on
attaining the age of superannuation, in the year 2011. According to the
petitioner, on his retirement his grade pay was wrongly reduced from
Rs.2400/- to Rs.2100/-. The petitioner has filed the instant petition
seeking the benefit of the second time bound promotion with effect from
01/10/2006 as per the government resolution dated 01/04/2010. The
petitioner has also challenged the action on the part of the zilla parishad
of reducing the grade pay from Rs.2400/- to Rs.2100/-.
3. Shri Meghe, the learned counsel for the petitioner,
submitted that as per the government resolution dated 01/04/2010, the
petitioner was entitled to the second time bound promotion with effect
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from 01/10/2006. It is submitted that as per the said government
resolution, when a promotional post is not available, an employee is
entitled to the benefit of the second time bound promotion. It is
submitted that the grade pay of the petitioner was fixed at Rs.2400/- in
the year 2009 and the same was wrongfully reduced to Rs.2100/- when
the petitioner retired from service. It is submitted that certain other
employees working on the post of junior assistant in the zilla parishad are
receiving much higher pay scale than the petitioner and the second time
bound promotion is granted to them. Since according to the petitioner, he
is entitled to the second time bound promotion with effect from
01/10/2006, the writ petition is filed on the basis of the government
resolution dated 01/04/2010.
4. Shri Verma, the learned counsel for the respondent Nos.1
and 2, has opposed the prayers made by the petitioner. It is submitted
that the government resolution dated 01/04/2010 would not be
applicable to the case of the petitioner. It is submitted that the
government resolution dated 05/07/2010 provides that the employees
holding a solitary post or the employees to whom the opportunity of
promotion is not available would not be entitled to the second time bound
promotion but instead would be entitled to the promotional benefits as
provided in the annexure appended as per government resolution. It is
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submitted that as per government resolution dated 06/09/2014, the
petitioner would be entitled to enhanced monetary benefits to the extent
of Rs.550/- in lieu of the second time bound promotion. It is stated that
in view of the government resolution dated 06/09/2014, the total grade
pay of an employee like the petitioner would be Rs.2750/-. It is stated
that the petitioner was not working as a junior assistant on the regular
establishment of the zilla parishad and the petitioner was working on
converted regular temporary establishment. It is submitted that though it
is sought to be canvassed on behalf of the petitioner in this writ petition
that the petitioner was not brought on converted regular temporary
establishment but was brought on regular establishment, the
communications that are annexed to the writ petition, specially the
communication dated 06/09/2011 which is an application made by the
petitioner to the zilla parishad show that the petitioner was working on
converted regular temporary establishment. It is stated that converted
regular temporary establishment post is a solitary post and an employee
working on converted regular temporary establishment would be entitled
to hold the post as if it is a solitary post. It is submitted that since the
petitioner is working on converted regular temporary establishment, the
post on which the petitioner is working would cease to exist on the
retirement of the petitioner and a vacancy in that post would not be
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available to the zilla parishad on the retirement of the petitioner. It is
submitted that an employee like the petitioner, working on converted
regular temporary establishment would be considered to be working on a
solitary post and the government resolution dated 05/07/2010 would be
applicable to him. It is submitted that when an employee is brought on
converted regular temporary establishment, he does not have any
promotional avenues. It is stated that in this background, the zilla
parishad considered the government resolutions dated 05/07/2010,
01/07/2011 and 06/09/2014 to grant the grade pay of Rs.2750/- to the
petitioner after considering that the benefit of the second time bound
promotion is granted to him. It is submitted that since a higher pay scale
is not available to the employees working on the solitary posts and the
posts to which an opportunity of promotion is not available, like the
C.R.T.E. posts, the said employees are entitled to higher monetary
benefits of Rs.300/- and Rs.550/- as provided in the government
resolution dated 06/09/2014. It is submitted that since the petitioner had
filed the writ petition and the same was pending, the pay scale was not
appropriately fixed. It is submitted that it is apparent from a reading of
the provisions of the Maharashtra Civil Services (Revised Pay) Rules,
2009, specially Rule 14 thereof, that the pay scale of the petitioner was
rightly fixed and the grade pay of the petitioner was rightly brought down
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from Rs.2400/- to Rs.2100/- as per the government resolution dated
05/07/2010 and rule 14(3) of the Maharashtra Civil Services (Revised
Pay) Rules, 2009. It is submitted that since the fixation of the grade pay of
the petitioner was wrongly made in the year 2009, the modification in the
grade pay was rightly made after the mistake was realised. It is stated
that all the other similarly placed employees that are working on
converted regular temporary establishment would be receiving the grade
pay of Rs.2750/- as per the government resolution dated 06/09/2014 and
rule 14(3) of the Rules. The learned counsel referred to a chart depicting
that all the other employees working on the post of junior assistants like
the petitioner on converted regular temporary establishment are receiving
the pay in the same scale as that of the petitioner. It is submitted that the
employees working as junior assistants on regular establishment are
receiving a higher pay scale but the petitioner would not be entitled to
that pay scale as the petitioner is working on converted regular temporary
establishment.
5. On hearing the learned counsel for the parties and on a
perusal of the government resolutions as also the Rules and the
documents annexed to the petition and the affidavit-in-reply, it appears
that the petitioner was brought on converted regular temporary
establishment and retired from service in the year 2011 while he was
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working on the said establishment. It is pointed out on behalf of the zilla
parishad that converted regular temporary establishment posts are not the
sanctioned posts in the zilla parishad. As soon as an employee working on
converted regular temporary establishment retires or expires while in
service, the said post ceases to exist. It is stated that the post in converted
regular temporary establishment is a solitary post and promotional
avenues are not available to the employees working on converted regular
temporary establishment. It appears that the first time bound promotion
was granted to the petitioner on 01/10/1994 by an order dated
09/09/1998. When the government issued the resolution dated
01/04/2010, the petitioner thought that the petitioner would be entitled
to the second time bound promotion. The government, however, issued
the resolution dated 05/07/2010 which was somewhat clarificatory in
nature and which provided for the benefits of the second time bound
promotion to the employees working on solitary posts or the posts to
which an opportunity of promotion was not available. The petitioner was
working on converted regular temporary establishment and admittedly
the petitioner was never promoted during his service period as an
employee working on converted regular temporary establishment is not
entitled to be promoted. The petitioner sought the higher pay scale on the
basis of the government resolution dated 01/04/2010 but higher pay
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scale was not granted to the petitioner as the case of the petitioner was
covered by the government resolution dated 05/07/2010. Since the
Government Resolution dated 1/4/2010 clearly provided that the
employees working on solitary posts or the employees for whom an
opportunity of promotion was not available would not receive the higher
pay scale but would be entitled to the monetary benefits as were provided
in the said Government Resolution and the two subsequent Government
Resolutions issued on 1/7/2011 and 6/9/2014, the petitioner could not
have claimed the pay scale that was admissible to the next higher post. It
appears on a reading of the Government Resolution dated 5/7/2000 that
the employees working on the solitary posts and the employees to whom
an opportunity of promotion was not available would not be entitled to
the pay scale admissible to the higher post but would be entitled to
certain other monetary benefits that are mentioned in the Government
Resolutions dated 5/10/2010, 1/7/2011 and 6/9/2014. As per the last
Government Resolution dated 6/9/2014, the Grade Pay to which the
petitioner would be entitled in pursuance of the benefits granted by the
Government Resolutions, dated 5/7/2010, 1/7/2011 and 6/9/2014 is
Rs.2,750/- and the respondent - Zilla Parishad was willing to fix the
Grade Pay of the petitioner at Rs.2,750/-. It appears that the Grade Pay of
the petitioner could not be fixed appropriately as this petition was
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pending and the issue whether the petitioner was entitled to the higher
pay scale or to the other monetary benefits as provided by the aforesaid
Government Resolutions was not decided. We find that the Zilla Parishad
had wrongly fixed the Grade Pay of the petitioner at Rs.2,400/- in the
year 2009. The said mistake was discovered by the Zilla Parishad at the
time of the retirement of the petitioner and hence, appropriate corrections
were made in the service book of the petitioner fixing the Grade Pay at
Rs.2,100/-. The fixation of the Grade Pay at Rs.2,100/- appears to be in
consonance with Rule 14 (3) of the Maharashtra Civil Services (Revised
Pay) Rules, 2009. Nothing is pointed out on behalf of the petitioner to
show that the said rules would not be applicable and any other rules
would apply and the petitioner would be entitled to the Grade Pay of
Rs.2,400/- only. In fact, in one of the communications addressed by the
petitioner to the respondent - Zilla Parishad, the petitioner has clearly
mentioned that his pay was fixed as per Rule 14 of the Maharashtra Civil
Services (Revised Pay) Rules, 2009. We also find from the documents
tendered by the learned Counsel for the Zilla Parishad that all the Junior
Assistants that were working on C.R.T.E. are receiving the pay in the pay
scale drawn by the petitioner and no Junior Assistants working on
C.R.T.E. is receiving the higher pay scale, as claimed by the petitioner.
The higher pay scale is no doubt paid to the employees that are working
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on regular establishment. We do not find that the petitioner would have
been entitled to the pay scale, i.e. applicable to the employees working on
regular establishment as the petitioner was working on C.R.T.E. as could
be noticed from the documents annexed to the writ petition.
6. Since we do not find that the respondent - Zilla Parishad
had faulted in reducing the Grade Pay of the petitioner and not granting
the benefit of the higher pay scale to him, the petition is liable to be
disposed of. In the circumstances of the case, the Zilla Parishad would
however not be entitled to recover the excess amount, if paid to the
petitioner by wrongly fixing his Grade Pay at Rs.2,400/- in the year 2009.
It is needless to mention that the Zilla Parishad should fix the pay scale
and Grade Pay of the petitioner within three months and release the
arrears of difference of salary and pensionary benefits to the petitioner
within six months, as the matter pertaining to the fixation of the Grade
Pay of the petitioner as per the Government Resolutions, has lingered due
to the pendency of the writ petition.
With the aforesaid observations, the writ petition is disposed
of with no order as to costs. Rule stands discharged.
JUDGE JUDGE
Khunte &
Wadkar
