Bombay High Court
Sitku Lataru Faye And Others vs The Additional Commissioner ... on 15 June, 2017
Bench: I.K. Jain
WP 4779.16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4779 OF 2016
1] Sitku Lataru Faye,
Aged : Major,
Occupation-Retired Teacher,
R/o. Goregaon, District-Gondia.
2] Murari Dharma Pise,
Aged : Major,
Occupation - Retired,
R/o. Gondia,
Tahsil & District-Gondia.
3] Bhaiyalal Lataru Bokade,
Aged : Major,
Occupation-Retired,
R/o. At & Post- Gankhera,
Tahsil-Goregaon, Distt. Gondia.
4] Hirdilal Dashrath Katre,
Aged : Major,
Occupation-Retired,
R/o. At & Post - Goregaon,
District-Gondia.
5] Chindu Mangaru Bawane,
Aged 63 years, Occ : Retired,
R/o. At & Post : Dawniwada,
Tahsil and District - Gondia.
6] Deepak Garba Choudhary,
Aged 60 years, Occ : Retired,
R/o. At & Post- Nagpura Murri,
Tahsil and District-Gondia.
7] Bhaurao Anantrao Nagpure,
Aged 64 years, Occu : Retired,
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R/o. At & Post-Dawaniwada,
Tahsil and District-Gondia.
8] Upasrao Paikuji Pochalwar,
Aged 69 years, Occu : Retired,
R/o. At & Post : Amgaon,
Tahsil-Amgaon, District-Gondia.
9] Sukhlal Hiralal Patle (Dead),
through Smt. Sevanbai Hiralal,
Patle (widow), R/o. Sonpuri,
Post-Navegaon, Tahsil-Gondia,
District-Gondia.
10] Babulal Domaji Patle,
Aged 65 years, Occu : Retired,
R/o. Goregaon, Tah. Goregaon,
District-Gondia.
11] Nilkantha Devaji Funde,
Aged 65 years, Occu : Retired,
R/o. Goregaon, Tahsil-Goregaon,
District-Gondia.
12] Bharatlal Tulsiram Chouhan,
Aged 65 years, Occu : Retired,
R/o. Goregaon, Tahsil-Goregaon,
District-Gondia.
13] Shyamrao Daulat Choudhary,
Aged 65 years, Occu : Retired,
R/o. Dawdipar, Tah. Goregaon,
District-Gondia.
14] Dhanlal Pooranlal Rahangdale,
Aged 65 years, Occu : Retired,
R/o. Suryatola, Tahsil and District-
Gondia.
15] Nilaram Rajaram Bawankar,
Aged 65 years, Occu : Retired,
R/o. & Post : Dasgaon,
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Tahsil and District-Gondia.
16] Kanhaiyalal Udelal Thakre,
Aged 66 years, Occu : Retired,
R/o. Sonpuri, Post-Navegaon,
Tahsil and District-Gondia.
17] Kanhaiyalal Tanbaji Patle,
Aged 66 years, Occu : Retired,
R/o. At & Post - Dasgaon,
Post : Goregaon, Distt.Gondia.
18] Bhuran Mohanlal Rahangdale,
Aged 66 years, Occu : Retired,
R/o. Ganeshnagar, Gondia,
Tahsil and District - Gondia.
19] Ganpat Zhagaduji Sahare,
Aged 66 years, Occu : Retired,
R/o. Khadipar, Tah. Goregaon,
District-Gondia. .. PETITIONERS
.. VERSUS ..
1] The Additional Commissioner,
Nagpur Division, Nagpur.
2] The Chief Executive Officer,
Zilla Parishad, Gondia. .. RESPONDENTS
..........
Smt. Neeta Jog, Advocate for petitioners,
Mrs. A.R. Taiwade, AGP for respondent no.1-State,
Shri A.Y. Kapgate, Advocate for respondent no.2.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JUNE 15, 2017.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard
finally with the consent of learned counsel for the parties.
2] The challenge in petition is to the order of
Additional Commissioner, dated 31.3.2016 under the
Maharashtra Zilla Parishads District Services (Discipline and
Appeal) Act, 1964, wherein second time the matter has been
remanded to the Chief Executive Officer without giving any
decision on appeal of petitioners.
3] The facts giving rise to the petition may be stated,
in brief, as under :
(a) Petitioners retired as Primary Teachers on
attaining the age of superannuation. Since 2012,
they were asserting their rights for fixation of pay-
scale. Petitioners were recruited prior to 1968.
(b) On 14.11.1979, Government issued a
resolution and took a policy decision to encourage
primary teachers in service to improve
qualification. By a resolution dated 2.9.1989,
State Government granted 3-tier pay-scale to
primary teachers as well as graduate primary
teachers with effect from 1.1.1986. Petitioners
were claiming the pay-scale as per resolution
dated 2.9.1989. According to them, they were
even entitled for selection grade pay-scale as
graduate primary teachers. The Director of
Education informed the Education Officer that
qualification held by the teachers at their initial
appointment shall be taken into consideration.
Petitioners were not granted benefit of higher pay-
scale and so they filed Writ Petition No.4298/2012.
The petition was withdrawn with liberty to file
appeal before the Commissioner.
(c) In 2014, petitioners preferred an appeal
before the Divisional Commissioner. On 23.5.2014,
appeal was remanded to the Chief Executive
Officer, Zilla Parishad for fresh enquiry.
Respondent no.2 rejected the contention of
petitioners against which an appeal came to be
filed by petitioners. On 31.3.2015, Additional
Commissioner remanded the matter to the Chief
Executive Officer. This second time remand by the
appellate authority is the subject matter of the
present writ petition.
4] Heard Smt. Neeta Jog, learned counsel for
petitioners, Mrs. A.R. Taiwade, learned A.G.P. for respondent
no.1-State and Shri A.Y. Kapgate, learned counsel for
respondent no.2.
5] The challenge to the claim of higher pay-scale is
based on government resolution placed on record. At the
time of remand, appellate authority asked respondent no.2
to seek guidance from the government and take decision
regarding grievances of the petitioners for higher pay-scale.
On perusal it is clear that entire material came to be placed
on record and it was available to the appellate authority.
In this situation, asking respondent no.2 to seek guidance
from the government is nothing but failure to exercise its
own jurisdiction. Even otherwise, remanding the matter in
the given facts and circumstances of the case would be a
futile exercise and it was open to the appellate court to
decide the grievance of petitioners on merit based on the
material placed on record. Since the appellate authority has
failed to exercise its jurisdiction and committed an error of
law, interference is warranted in the writ jurisdiction.
Hence, the following order :
(i) Writ Petition No.4779/2016 is allowed.
(ii) Impugned order dated 31.3.2016 passed by
Additional Commissioner, Nagpur Division, Nagpur in
Departmental Appeal No.62/2014-15 to the extent of
remanding the matter to respondent no.2 is quashed and
set aside.
(iii) Matter is remanded to the appellate authority to
take decision on merits preferably within six weeks after
giving opportunity of hearing to the parties concerned.
(iv) Parties to appear before the Additional
Commissioner, Nagpur Division, Nagpur on 22.6.2017.
(v) Rule is made absolute in above terms.
(vi) No costs.
(vii) Steno copy is allowed.
(Kum. Indira Jain, J.)
Gulande, PA
