Bombay High Court
Radhesham S/O Pilaji Choudhari & 8 ... vs State Of Mah. Thr. Secty., & 8 Otrs on 27 June, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.106 of 2009,
Writ Petition No.540 of 2009
And
Writ Petition No.2829 of 2013
Writ Petition No.106 of 2009
1. Radhesham s/o Pilaji Choudhari,
Aged about 41 years,
Occupation - Lecturer,
R/o Pandharkawada,
Tahsil Kelapur,
District Yavatmal.
2. Pradeep s/o Babarao Zilpilwar,
Aged about 36 years,
Occupation - Lecturer,
R/o Pandharkawada,
Tahsil Kelapur,
District Yavatmal.
3. Dr. Sandeep s/o Manohar Tundurwar,
Aged about 36 years,
Occupation - Lecturer,
R/o Wani, Tahsil Wani,
District Yavatmal.
4. Narendra s/o Pandurang Dhobe,
Aged about 45 years,
Occupation - Laboratory Assistant,
R/o Wani, Tahsil Wani,
District Yavatmal.
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5. Ajay s/o Vyankatrao Rele,
Aged about 36 years,
Occupation - Lecturer,
R/o Pandharkawada,
Tahsil Pandharkawada,
District Yavatmal.
6. Vijay s/o Shridharrao Jagtap,
Aged about 35 years,
Occupation - Lecturer,
R/o Ghatanji, Tahsil Ghatanji,
District Yavatmal.
7. Pradeep s/o Ramkrushna Raut,
Aged about 40 years,
Occupation - Lecturer,
R/o Istarinagar, Ghatanji,
Tahsil Ghatanji, District Yavatmal.
8. Sidram s/o Kisanrao Munde,
Aged about 35 years,
Occupation - Lecturer,
R/o Mukutban, Tahsil Zari,
District Yavatmal.
9. Anil s/o Madhukarrao Pillewar,
Aged about 42 years,
Occupation - Service,
R/o Arni, Tahsil Arni,
District Yavatmal. ... Petitioners
Versus
1. State of Maharashtra,
through its Secretary,
Higher & Technical Education
Department, Mantralaya Extension
Bhawan, Mumbai - 400 032.
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2. Director of Higher Education,
Maharashtra State,
Pune-1.
3. Joint Director of Higher Education,
Amravati Division, Amravati.
4. The Principal,
Shivaramji Moghe Mahavidyalaya,
Pandharkawada, Taluka Kelapur,
District Yavatmal.
5. The Principal,
Lokmanya Tilak Mahavidyalaya,
Wani, Taluka Wani,
District Yavatmal.
6. The Principal,
Shri Babasaheb Deshmukh Parvekar
College, Pandharkawada,
Tahsil Pandharkawada,
District Yavatmal.
7. The Principal,
S.P.M. Science and Gilani Arts &
Commerce College, Ghatanji,
Taluka Ghatanji, District Yavatmal.
8. The Principal,
Shri Gajanan Maharaj Mahavidyalaya,
Mukutban, Taluka Zari,
District Yavatmal.
9. The Principal,
Shri Mahant Dattaram Bharati Arts
Commerce College, Arni, Taluka Arni,
District Yavatmal. ... Respondents
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Smt. R.D. Raskar, Advocate for Petitioners.
Shri S.M. Ukey, Additional Government Pleader for Respondent
Nos.1 to 3.
Shri R.S. Suryawanshi, Advocate, holding for Shri S.W. Sambre,
Advocate for Respondent No.7.
Writ Petition No.540 of 2009
1. Prof. Balkrushna s/o Narayanrao Mahajan,
Aged about 40 years.
2. Prashant s/o Sheshrao Tayde,
Aged about 44 years.
3. Dr. Nilima s/o Yashwantrao Bhoge,
Aged about 36 years.
4. Ku. U.S. Wasnik,
Aged about 35 years.
5. Anant s/o Vasantrao Dudul,
Aged about 36 years.
6. Dr. Sangita Nandkumar Jagtap,
Aged about 38 years.
7. Dr. Wasudeo s/o Rajaram Patil,
Aged about 38 years.
8. Dr. Ujwala Ramesh Kokate,
Aged about 33 years.
9. Prof. Gajanan Dasarao Muratkar,
Aged about 40 years.
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10.Gajendra s/o Bhaurao Dhawale,
Aged about 37 years.
11.Dr. Shantaram Purushottam Chauhan,
Aged about 40 years.
12.Anil s/o Fuldas Bobade,
Aged about 40 years.
13.Mr. Kshitij s/o Navinprasad Shah,
Aged about 39 years.
14.Prof. Vivek Dalpatrao Kapse,
Aged about 37 years.
15.Prof. Mukesh s/o Bhaurao Sardar,
Aged about 39 years.
16.Prof. Haridas Ubdhawrao Petkar,
Aged about 38 years.
17.Prof. Narendra s/o Sahebrao Bayaskar,
Aged about 38 years.
18.Mr. Anand s/o Ghanshyam Dhage,
Aged about 34 years.
19.Prof. Gopal s/o Rameshwarrao Dhokane,
Aged about 38 years.
20.Shri Girish s/o Motilal Sahu,
Aged about 33 years.
21.Rajeev s/o Haribhau Panurkar,
Aged about 43 years.
22.Ramkishan s/o Ringuji Darshimbe,
Aged about 36 years.
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23.Prashant s/o Govindrao Gawande,
Aged about 42 years.
24.Premdas s/o Arjunji Khobragade,
Aged about 45 years.
25.Vijay s/o Sadashiv Mangle,
Aged about 41 years.
26.Nandkishore s/o Jijabrao Suryawanshi,
Aged about 34 years.
27.Dnyandra s/o Shyamrao Hedao,
Aged about 42 years.
28.Vitthal s/o Manoharrao Lakde,
Aged about 40 years.
29.Amol s/o Kashinath Joshi,
Aged about 36 years.
30.Gajanan s/o Shankarrao Ingle,
Aged about 38 years.
31.Sanjay s/o Vitthalrao Gumble,
Aged about 43 years.
32.Prof. Rajesh s/o Sharadchandra Jaipurkar,
Aged about 39 years.
33.Prof. Umesh s/o Gunwantrao Tayade,
Aged about 36 years.
34.Pravin s/o Namdeorao Bhartiya,
Aged about 36 years.
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35.Sanjay so Babanrao Ingole,
Aged about 37 years.
36.Deepak s/o Ramrao Sambhare,
Aged about 38 years.
All are by Occupation - Service,
R/o C/o Arts, Science and Commerce
College, Chikhaldara,
Distt. Amravati. ... Petitioners
Versus
1. State of Maharashtra,
through its Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai-32.
2. Director of Higher Education,
Maharashtra State, Pune-1.
3. Joint Director of Higher Education,
Amravati Division, Amravati.
4. The Principal,
Arts, Science and Commerce College,
Chikhaldara, Tahsil Chikhaldara,
Distt. Amravati. ... Respondents
Shri Rugved Dhore, Advocate for Petitioners.
Shri S.M. Ukey, Additional Government Pleader for Respondent
Nos.1 to 3.
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Writ Petition No.2829 of 2013
1. Pramod s/o Bhumanna Pungurwar,
Aged about 38 years,
Occupation - Teacher,
R/o Pandharkawda,
Tah. Kelapur, Dist. Yavatmal.
2. Chandrakant Damodar Petewar,
Aged Major, Occupation - Teacher,
R/o 62, Shamnagari, Pandharkawada,
Tah. Kelapur, Dist. Yavatmal.
3. Ku. Usha Babarao Telkhede,
Aged about 50 years,
Occupation - Teacher,
R/o 62, Shamnagar, Pandharkawada,
Tah. Kelapur, Dist. Yavatmal.
4. Ramesh s/o Adelu Tudamwar,
Aged about 47 years,
Occupation - Teacher,
R/o Mahadevnagar, Pandharkawada,
Tah. Kelapur, Dist. Yavatmal.
5. Abdul Aquil s/o Abdul Jalil,
Aged about 42 years,
Occupation - Teacher,
R/o Mangalwari Layout,
Pandharkawada, Tah. Kelapur,
Dist. Yavatmal.
6. Ambadas Bapurao Kumare,
Aged about 44 years,
Occupation - Teacher,
R/o Weekly Bazar, Pandharkawada,
Tah. Kelapur, Dist. Yavatmal. ... Petitioners
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Versus
1. The State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya Extension Bhavan,
Mumbai-32.
2. Director of Education (Primary),
Maharashtra State, Pune-01.
3. The Dy. Director of Education (Primary),
Amravati Division, Amravati.
4. The Chief Officer Municipal Council,
Pandharkawada, Tah. Kelapur,
Dist. Yavatmal. ... Respondents
Shri R.L. Khapre, Advocate for Petitioners.
Shri S.M. Ukey, Additional Government Pleader for Respondent
Nos.1 to 3.
Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.
Dated : 27 nd June, 2017
Oral Judgment (Per R.K. Deshpande, J.) :
1. In all these petitions, a common question involved is
whether the petitioners, who are the employees in the Private
Aided Colleges, affiliated to the University, and doing the job of
teaching and non-teaching, are entitled to the benefit of
encouragement allowance and placement in higher pay scale
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available in the promotional post as per the Government
Resolution dated 6-8-2002.
2. The petitioners in Writ Petition No.106 of 2009 are
teaching and non-teaching employees, working in the respondent
Nos.4 to 9-Colleges, which are located in naxalite areas of the
State of Maharashtra. The petitioner Nos.1 to 3 and 5 to 8 were
appointed as Lecturers and working in the pay scale of
Rs.10000-15200, whereas the petitioner No.4 was initially
appointed on 1-10-1983 as Laboratory Attendant and
subsequently promoted as Laboratory Assistant and working in
the pay scale of Rs.4500-7000. The petitioner No.9 was
appointed and working as Peon in the pay scale of Rs.3050-4590.
3. The petitioner Nos.1 to 3 and 5 to 8/Lecturers were
granted benefit of pay scale of Rs.12000-18300 by way of an
encouragement allowance as per the Government Resolution
dated 6-8-2002. Similarly, the petitioner Nos.4 and 9 working on
the post of Laboratory Assistant and Peon respectively were also
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granted such benefit of pay available in the higher/promotional
post. Subsequently, by a communication dated 17-11-2008
issued by the Joint Director, Higher Education, Amravati, the
encouragement allowance in the higher pay scale, which was
made available, was cancelled and the recovery of the difference
was directed to be effected from the monthly salary payable to
the petitioners.
4. In Writ Petition No.540 of 2009, the petitioners are
teaching and non-teaching employees working in the respondent
No.4-College. They were also made available similar benefit as
per the Government Resolution dated 6-8-2002, as was made
available to the aforesaid petitioners, and subsequently the
recovery was also ordered as per the communication
dated 17-11-2008 from the Joint Director, Higher Education,
Amravati.
5. In Writ Petition No.2829 of 2013, the petitioners are the
Teachers working in the School run by the Municipal Council,
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Pandharkawada, and they also received the benefit of placement
in higher pay scale as per the Government Resolution
dated 6-8-2002, and on the basis of the communication
dated 28-9-2011 issued by the Deputy Director of Education
(Primary), Amravati Division, Amravati, the difference in the
amount so paid was directed to be recovered.
6. It is an undisputed position that the petitioners in all
these petitions are working in the Colleges/School located in
naxalite/adivasi areas. It is not the case of the petitioners that
their services are transferable from naxalite/adivasi areas to
non-naxalite/non-adivasi areas. In fact, their services are not at
all transferable and they are working on the post on which they
were initially appointed. The encouragement allowance of
placement in the higher pay scale was paid to them for working
in naxalite/adivasi areas and it is cancelled on the ground that
their services are non-transferable. Of course, it is not the
question before us that the benefits of higher pay scale available
to them otherwise in service in regular course have been taken
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away.
7. The orders impugned in these petitions state that the
integrated scheme under the said Government Resolution
dated 6-8-2002 is applicable to those employees of Colleges in
naxalite/adivasi areas who are eligible to be transferred and not
applicable to those employees who are not transferred from the
said area, and this was informed as per the letter dated 6-7-2006
issued by the Under Secretary, Department of Higher & Technical
Education, Mantralaya, Mumbai and the further clarification
issued by the Deputy Director, Higher Education, Maharashtra
State, Pune, on 20-10-2008. The orders impugned further state
that taking into consideration the said Government Resolution
and the clarification, the benefit of integrated scheme given to
the employees in the Colleges in naxalite areas is being cancelled
and the recovery of excess salary from those employees be
carried out at the earliest.
8. Writ Petitions No.106 of 2009 and 540 of 2009 were
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admitted in the year 2009, whereas Writ Petition No.2829 of
2013 was admitted on 6-5-2014. This Court has also stayed the
coercive recovery as per the impugned orders.
9. We have heard the learned counsels appearing for the
respective parties in these petitions.
10. The basic contention involved in all these petitions is
whether the Government Resolution dated 6-8-2002 as also the
clarification dated 6-7-2006 are applicable to the petitioners,
whose services are non-transferable?
11. The learned counsels appearing for the petitioners
submits that after considering the said Government Resolution,
the petitioners were granted benefit of higher pay scale
applicable and they have been actually paid the said amount,
whereas the contention of the learned Assistant Government
Pleader for the respondent-State is that the encouragement
allowance as per the said Government Resolution and the
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clarification is applicable only to those employees, whose services
are transferable from naxalite areas to non-naxalite areas. It is
the stand taken by the respondent-State Government that the
petitioners are entitled for encouragement allowance as per the
pay scale of the concerned employee, which may not be in excess
of 15% of the basic pay. It is the further submission that the
petitioners are, therefore, entitled for grant of encouragement
allowance from Rs.200/- to Rs.1,500/- as per their pay scale, and
this is made available to them because they are permanently
working in naxalite affected areas, though their services are not
transferable.
12. With the assistance of the learned counsels for the
parties, we have gone through the Government Resolution
dated 6-8-2002, which lays down the guidelines for appointment
of sincere, sensitive and efficient employees in naxalite/adivasi
areas of the State of Maharashtra. It is applicable only to those
persons, who are in All India Administrative, Police and Forest
Services. As per this Government Resolution, the persons can be
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appointed in naxalite/adivasi areas for a minimum period of
three years, and they should not be transferred under any
circumstances before expiry of the period of three months to
non-tribal area. It further states that if the persons appointed in
naxalite/adivasi areas try to avoid working, then the disciplinary
action should be initiated against them.
13. No doubt, that by the communication dated 23-8-2005,
the said Government Resolution is made applicable to
non-agriculture Universities and the employees working in the
affiliated Colleges. As per the clarification dated 6-7-2006, as we
read clause 3, it is made clear that if a concerned employee
working in naxalite/adivasi areas is not to be transferred or if his
services are not transferable, then such employee shall be
entitled to higher pay scale under the three-tier pay scale as per
his entitlement in regular course.
14. Reading together the Government Resolution
dated 6-8-2002, communication dated 23-8-2005 and
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clarification dated 6-7-2006, there is no doubt in our mind that
placement in higher scale of pay is applicable only to those
employees whose services are transferable from naxalite/adivasi
areas to non-naxalite/non-adivasi areas. The said Government
Resolution makes the petitioners, who are permanently working
in naxalite/adivasi areas, eligible for only allowance not in excess
of 15% per month of their basic pay which shall not exceed
Rs.1,500/- per month and it shall be paid to them, this is the
assurance given in these petitions. We, therefore, accept such a
stand taken by the respondent-State.
15. The learned counsels appearing for the petitioners have
invited our attention to clause 7, said to be contained in the
Government Resolution dated 6-8-2002, (to our mind, it is not
the part of the said Government Resolution), in which it is stated
that the persons in Group A to D working in naxalite/adivasi
areas are entitled to the benefit of pay scale in immediately
higher post as long as they are in service in those areas. In our
view, the said clause, instead of supporting the petitioners,
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implies that the benefit of encouragement allowance and
placement in higher pay scale is available only to those persons
whose services are transferred from non-naxalite/non-adivasi
areas to non-naxalite/adivasi areas. We, therefore, hold that the
petitioners were wrongly given the benefit of placement in the
higher scale while working in the lower scale or post. The
impugned action of cancellation of such benefit cannot be faulted
with.
16. Group A to D, mentioned in clause 7, include Group B,
which provides for encouragement allowance not in excess of
15% of the basic pay and the maximum ceiling prescribed is of
Rs.1,500/-, depending upon the pay scale. It is not in dispute
that such encouragement allowance is to be made available to
the petitioners, who are stable and working in naxalite/adivasi
areas. The stand of the respondent-State Government that the
petitioners are entitled for grant of encouragement allowance
from Rs.200/- to Rs.1,500/- depending upon their basic pay,
encourages them for permanently working in naxalite/adivasi
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areas.
17. It is also the grievance made before us that some of the
petitioners in these petitions have completed their minimum
tenure of service for being placed in higher pay scale, as it was
the policy of the State Government. One of such Government
Resolutions in respect of the employees working in the Primary
Schools issued on 20-7-2004 by the Under Secretary, School
Education Department, Mantralaya, Mumbai, is brought to our
notice, prescribing the criterion of 12 years' completion of service
for placement in higher scale. This aspect is required to be
considered by the authorities concerned on case-to-case basis and
there cannot be any common order in respect of it.
18. The petitioners shall, therefore, be at liberty to point out
to the authorities concerned that even otherwise they are
entitled to placement in higher pay scale in accordance with the
policy of the State Government, and even if the benefit granted
by the Government Resolution dated 6-8-2002 as well as the
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clarification dated 20-10-2008 is withdrawn or cancelled, there
cannot be any recovery from their salary. The petitions will
have, therefore, to be partly allowed with certain directions.
19. In the result, the petitions are partly allowed. The
challenge to the cancellation of benefit granted to the petitioners
as per the Government Resolution dated 6-8-2002 and the
clarification dated 20-10-2008, is rejected. However, the
recovery from the salary of the petitioners, which has been
directed to be made, shall not be given effect to unless and until
the case of every individual is examined by giving the petitioners
an opportunity of being heard in the matter. All questions
regarding retrospective recovery from the petitioners without any
fault on their part are left open to be considered by the
competent authority.
20. The petitioners shall approach the Joint Director, Higher
Education and/or Deputy Director of Education on 8-8-2017 and
the authorities concerned shall, after hearing the petitioners and
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the Management, pass an appropriate order within a period of
eight months thereafter. Any dispute arising therefrom is kept
open to be agitated further.
21. Rule is made absolute in above terms. No order as to
costs.
JUDGE. JUDGE.
Lanjewar
