Bombay High Court
Vijay Charandas Humane vs Nagpur Municipal Corporation, ... on 15 June, 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.4344/2011
PETITIONER : Vijay Charandas Humane
Aged about 43 years, Occupation Service
r/o MHADA, Ashoka Sammruddhi Sankul,
Amravati Road, Nagpur - 1.
...VERSUS...
RESPONDENTS : 1. Nagpur Municipal Corporation, through its
Commissioner, Civil Lines, Nagpur - 1.
2. State of Maharashtra through Secretary
to Government, Urban Development Department,
Mantralaya, Mumbai - 32.
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Shri R.V. Gaikwad, Advocate for petitioner
Shri J.B. Kasat, Advocate for respondent no.1
Shri H.R. Dhumale, AGP for respondent no.2
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 15.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioner seeks a declaration that he
would be entitled to the protection of his last pay drawn in the services of
the State Government after joining the services of the Nagpur Municipal
Corporation.
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The petitioner was working as a Deputy Director of
Industries with the Government of Maharashtra till 5.6.2009, when he
tendered his resignation in view of his appointment as Assistant Municipal
Commissioner in the respondent - Nagpur Municipal Corporation on
6.6.2009. In pursuance of an advertisement published by the respondent
- Corporation inviting applications for appointment to three different
posts, one of which was the post of Assistant Commissioner/Ward Officer,
the petitioner applied for the said post. Since the petitioner was not
appointed by the Municipal Corporation he filed a writ petition along
with several others. In view of the directions issued by this Court, the
respondent - Municipal Corporation permitted the petitioner to join his
duties on 6.6.2009. The appointment of the petitioner, for the purpose of
seniority and increments was deemed to have been made from the date
on which certain appointments were made by the Municipal Corporation
in pursuance of the said advertisement. After the petitioner joined his
duties, he was paid in the pay scale of Rs.8,000-13,500/- as per the pay
scale mentioned in the advertisement. Some time after joining his duties
the petitioner made a representation to the respondent - Corporation for
protecting his last pay drawn in the services of the State Government as
he was receiving a lesser pay after his appointment in the Municipal
Corporation as an Assistant Municipal Commissioner. Since the
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representation of the petitioner was not favourably considered and his
pay was not protected for a period of about eighteen months after the
date of his joining, the petitioner has filed the instant petition seeking the
arrears of difference of pay to which he would be entitled.
Shri Gaikwad, the learned Counsel for the petitioner
submitted that it was necessary for the Municipal Corporation to protect
the pay of the petitioner that was last drawn in the services of the State
Government. It is submitted that the Municipal Corporation had decided
by its order dated 30.11.2004 that the pay of the employees that are
appointed in the Municipal Corporation while they are serving in the
State Government and the Semi-Government Organizations need to be
protected. It is submitted that the Municipal Corporation has taken a
decision pertaining to the protection of pay scale but the same is not
implemented. It is submitted that though the petitioner started receiving
the pay scale as desired by him w.e.f. 1.1.2010, for the first eighteen
months of his services he was paid in the scale that was lesser than the
pay scale that he was receiving when he had last worked with the State
Government. It is submitted by placing reliance on the judgment of the
Hon'ble Supreme Court, reported in 2009 (123) FLR page 747 that the
pay of an employee who is inducted into other employment needs to be
protected.
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On the other hand, it is submitted on behalf of the
Municipal Corporation that the petitioner had applied for appointment on
the post of Assistant Commissioner/Ward Officer by nomination, on the
basis of an advertisement published by the Municipal Corporation. It is
submitted that in the said advertisement, the pay scale to which the
appointee would have been entitled, was clearly mentioned as
Rs.8,000-13,500/-. It is submitted that the petitioner applied for
appointment on the said post without challenging the advertisement and
without making a representation to the Corporation that the last pay
drawn by him in the services of the State Government should be
protected. It is submitted that in the previous petition filed by the
petitioner, he had clearly mentioned the pay scale of Rs.8,000-13,500/-.
It is submitted that though the state Government had implemented the
recommendations of the 6th Pay Commission to its employees in the year
2009, the Municipal Corporation had not implemented the said
recommendations and hence, all the Assistant Commissioners/Ward
Officers in the Municipal Corporation were receiving the pay in the scale,
as was fixed by the 5th Pay Commission Recommendations. It is submitted
that when the Corporation decided to grant the benefits of the 6 th Pay
Commission Recommendations to its employees, the petitioner was also
paid in the scale that was fixed as per the recommendations of the 6 th Pay
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Commission. It is submitted that if the pay scale of the petitioner is
protected, grave injustice would be caused to the other Assistant
Commissioners/Ward Officers who were receiving similar pay scale
during those eighteen months for which the petitioner is seeking higher
pay scale in terms of the principle of pay protection. It is stated that the
Municipal Corporation is independent of the State Government and since
it is not an appointment from one department of the State Government to
another department of the same, there would be no question of pay
protection. The learned Counsel sought for the dismissal of the writ
petition.
It appears on hearing the learned Counsel for the parties
that the petitioner has not made out any case for the protection of the last
pay drawn by him in the services of the State Government after his
appointment in the Municipal Corporation as an Assistant
Commissioner/Ward Officer. The Municipal Corporation decided to fill up
the posts of Assistant Commissioner/Ward Officer and others and hence,
issued the advertisement in that regard on 7.11.2003. The advertisement
provided that the appointment of the Assistant Commissioner/Ward
Officer would be made in the pay scale of Rs.8,000-13,500/-. The
petitioner applied in pursuance of the said advertisement for appointment
on the post of Assistant Commissioner/Ward Officer with open eyes. He
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did not raise any challenge to the said advertisement and/or did not make
any representation to the Municipal Corporation that he may be
permitted to apply by protecting the last pay which he had drawn in the
services of the State Government. In the circumstances of the case, when
the petitioner had applied in pursuance of the advertisement which
clearly mentioned the pay scale that would be applicable to the
appointee, the petitioner would not be permitted to turn around and state
that the pay last drawn by him in the services of the State Government
needs to be protected. The petitioner would be estopped from claiming
the pay scale that he had last drawn in the services of the State
Government when he had applied in pursuance of the advertisement,
which mentioned a particular pay scale for the appointee, without any
demur. After joining the services of the Municipal Corporation, the
petitioner has made an attempt to seek the protection of the last pay
drawn by him in the services of the State Government. The representation
of the petitioner was considered and it was observed in the decision of the
Committee which considered the representation that since the benefits of
the 6th Pay Commission were not granted to any other employees, the
petitioner would also be entitled to the benefits of the 6 th Pay Commission
as and when the other employees of the Corporation would start receiving
them.
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We do not find any fault in the decision of the Corporation
refusing to protect the pay of the petitioner, as was last drawn by him in
the services of the State Government. It appears that the State
Government had implemented the recommendations of the 6 th Pay
Commission for its employees in the year 2006 and the petitioner was
therefore receiving a higher pay while working with the State
Government. The Corporation started implementing the
recommendations of the 6th Pay Commission since December 2010 though
the notional benefits were granted to the petitioner as per the
recommendations. When the Municipal Corporation had not implemented
the 6th Pay Commission Recommendations for its employees, the
petitioner could not have in effect, claimed the implementation of the 6 th
Pay Commission Recommendations only for himself. There is some merit
in the submission made on behalf of the respondent - Corporation that
the pay scale of the petitioner cannot be protected for an additional
reason that if the pay scale of the petitioner is protected as was last drawn
in the services of the State Government, the other Assistant
Commissioners/Ward Officers would be receiving a lesser pay, whereas a
larger pay would be payable to the petitioner. Though it was canvassed
on behalf of the petitioner that the last pay drawn by the other employees
of the State Government was protected by the Corporation while refusing
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to protect the pay of the petitioner, the said submission is not
substantiated. In view of the aforesaid reasons and mainly because the
petitioner had applied in pursuance of the advertisement that provided
that the pay scale of the appointee would be Rs.8,000-13,500/- and the
petitioner had not raised a grievance about the same before applying in
pursuance of the advertisement, he cannot be permitted at a subsequent
stage to turn around and seek the protection of the last pay drawn by him
in the services of the State Government. The judgment, reported in 2009
(123) FLR page 747 and relied on by the Counsel for the petitioner
cannot be made applicable to the facts of this case. In that case, the
respondent no.1 was a member of the State Police Services and he was
inducted into Indian Police Services. The respondent in that case was
inducted from one department of the Government to another department
of the Government and in that background, the Hon'ble Supreme Court
upheld the judgment of the Tribunal that his last pay should have been
protected. Such is not the case here. In the present case, the petitioner
was earlier working in the State Government which is distinct from the
Nagpur Municipal Corporation where the petitioner was appointed in
pursuance of an advertisement, by nomination. This is not a case where
the petitioner was permitted to be absorbed by the State Government in
the services of the Nagpur Municipal Corporation as an Assistant
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Commissioner/Ward Officer. If that had been the case, probably the
petitioner would have had a better case.
Since we do not find any fault in the action on the part of
the respondent - Corporation in not paying the arrears of difference of
salary to the petitioner for eighteen months as claimed, the writ petition
is dismissed with no order as to costs. Rule stands discharged.
JUDGE JUDGE
Wadkar
