Bombay High Court
Ashok Atmaram Dudhani vs The Director Of Municipal ... on 2 November, 2017
Bench: Prasanna B. Varale
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.506/2000
PETITIONER : Ashok s/o Atmaram Dudhani,
aged about 34 years, Occupation : Service
as Junior Engineer in Achalpur Municipal
Council, resident of Court Road, Sindhi
Colony, Paratwada, Taluka Achalpur,
District Amravati.
...V E R S U S...
RESPONDENTS :- 1. The Director of Municipal
Administration, New Administrative
Building, 15th Floor, Opposite
Mantralaya, Fort, Mumbai - 400032.
2. The State of Maharashtra, through the
Secretary, Department of Urban Development,
Mantralaya, Fort, Mumbai - 400032.
3. The Collector, Amravati,
District Amravati.
4. Achalpur Municipal Council,
Achalpur, Taluka Achalpur, District Amravati,
through its Chief Officer.
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Mrs. R.D. Raskar, Advocate for petitioner
Shri T.A. Mirza, AGP for respondent nos.1 to 3
Shri N.S. Khandewale, Advocate for respondent no.4
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 02.11.2017
ORAL JUDGMENT (PER : PRASANNA B. VARALE, J.)
1. Heard.
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2. The petitioner is before this Court with a prayer to the
respondent no.1 - Director of Municipal Administration to grant approval
for giving pay scale of Rs.1640-60-2600-EB-75-2900 to the petitioner as
Junior Engineer in the service of respondent no.4 - Achalpur Municipal
Council, Achalpur as per proposal submitted by the respondent no.4-
Achalpur Municipal Council.
3. Learned Counsel for the petitioner by inviting our attention
to the documents placed on record submitted that the petitioner was
possessing a diploma in civil engineering. In view of the academic
qualification of the petitioner, the petitioner was appointed as a Junior
Engineer in the establishment of the respondent no.4 - Achalpur
Municipal Council. The learned Counsel invited our attention to the copy
of Resolution passed by the Municipal Council in the meeting dated
11/2/1988. She submitted that the petitioner was appointed as a Junior
Engineer on the pay scale of Rs.395-15-500-20-700-25-900. She fairly
submitted that though initially the appointment was temporary
subsequently by way of post facto sanction, the petitioner's appointment
was made permanent. Learned Counsel invited our attention to the
communication/order placed on record at Annexure - II. She submitted
that by way of Resolution dated 11/2/1988, the Municipal Council held
that the petitioner was entitled for the benefits as of a Municipal
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employee and was subjected to the Rules and provisions which are
applicable to the Municipal Council employees. It was the submission of
the learned Counsel that a demand was raised before the State
Government to place the Junior Engineers of Municipal Council at par
with the Junior Engineers working in the State Government Department
and consequently grant of similar benefits such as of pay revision in view
of the 4th Pay Commission. By inviting our attention to the Resolution
dated 23/7/1996 the learned Counsel submitted that the Municipal
Council was also favourable for grant of the revised pay scale to the
Junior Engineers working with Municipal Council and treating them at
par with the Junior Engineers with State Government. Learned Counsel
then submitted that the Chief Officer of the Municipal Council, Achalpur
forwarded the proposal to the Director of Municipal Administration for
grant of sanction with his favourable opinion to the proposal. She
submitted that even the District Collector of Amravati found that the
proposal of the Municipal Council was just and proper and he also
recommended the proposal. The said communication dated 27/2/1997 is
on record at Annexure - IX. The learned Counsel then submitted that the
Deputy Director of the Municipal Administration by way of
communication dated 4/9/1991 sought for certain information along with
query in view of the proposal received for grant of the pay scale. The
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learned Counsel then invited our attention to the communication dated
15/11/1997 forwarded by the Chief Officer of the Municipal Council
along with the statement. Learned Counsel vehemently submitted that the
statement submitted by the Chief Officer clearly shows that the
percentage of expenditure on establishment of the Achalpur Municipal
Council was less than 42%. It was 39.77% for the year 1994-95, 36.67%
for the year 1995-96 and 36.59% for the year 1996-97. It was the
submission of the learned Counsel that for all these three years the
expenditure on establishment was less than 42%. It was the submission of
the learned Counsel that this data shows that the respondent - Municipal
Council, Achalpur was having a viable financial position to bear burden of
wage rise to the petitioner and other similarly situated employees.
Learned Counsel submitted that though the petition was pending before
this Court for a considerable long period no replies were filed by the
respondents and by order dated 16/5/2016 this Court while considering
the claim raised by the petitioner and considering the fact that there was
a favourable recommendation of the Municipal Council and the office of
Collector directed the respondent nos.1 and 2 to consider the proposal
within a stipulated period and the matter was then posted on the next
date for further consideration. Learned Counsel then submitted that in the
mean time Writ Petition No.3107/1999 filed by another employee of the
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Municipal Council who is similarly situated with the present petitioner is
decided by this Court by way of judgment and order dated 27/8/2015.
She submitted that the facts are identical in both these petitions. She then
submitted that the ground of opposition of the respondents and more
particularly the State Government which was of a cascading effect by way
of financial burden on the Government is also considered by the Division
Bench of this Court. She then submitted that the Division Bench of this
Court was of a clear view that when the proposal was submitted by the
Municipal Council with its positive recommendations and also by the
District Collector with his positive recommendations it was only the
failure or omission on the part of Urban Development Department which
kept the proposal pending for years together and for the fault of the
agency of the concerned Department, the petitioner may not be subjected
to depriving his rightful claim.
4. On the contrary, the learned Assistant Government Pleader
opposes the petition. The learned Assistant Government Pleader
submitted that the proposal of the Municipal Council was churned down
by the State Government. The petitioner by way of amendment had
placed on record the communication dated 6/12/2016, wherein the Chief
Officer of the Municipal Council informed the petitioner the decision of
the State Government.
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5. The learned Counsel for the petitioner vehemently
submitted that the said communication of the year 2016 is nothing but an
eyewash. She submitted that the said communication, i.e., the letter of
the Chief Officer, Municipal Council, Achalpur dated 6/12/2016 reads
that the so called rejection of the State Government by way of order dated
20/10/2000 was received by the office of the Municipal Council on
6/12/2016. She submitted that there is no explanation for such an
inordinate delay. She then submitted that the petition is filed in the year
2000 and though this Court opposed the order dated 16/5/2016 till that
period neither the Municipal Council nor the State Government brought
to the notice of this Court that there was a rejection of the proposal. Thus,
it was submitted by the learned Counsel for the petitioner that by raising
such belated and specious plea the State Government cannot oppose the
claim of the petitioner who is otherwise entitled on merits as well as in
view of the judgment of this Court in Writ Petition No.3107/1999 decided
on 27/8/2015.
6. We have gone through the judgment of this Court placed on
record. We find merit in the submissions of the learned Counsel for the
petitioner. She was also justified in submitting that the petitioner is
similarly situated with the petitioner Vijaykumar Sharma and the facts in
the writ petition of Vijaykumar Sharma, i.e., Writ Petition No.3107/1999
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are identical. This Court referred to those relevant facts in paragraph
nos.3 and 6. This Court also found that the omissions of the State
Government or omissions of some Department of State Government
should not come in the way of the rightful claim of the petitioner. This
Court also took into consideration the opposition raised by the learned
Assistant Government Pleader and dealt it at paragraph no.12 of the
judgment and order.
7. Considering all the above referred facts, in our opinion, the
learned Counsel for the petitioner has made out a case. The petition is
partly allowed. The petitioner would be entitled to the benefits of the
wage rise granted to the Junior Engineers working in the State
Government, i.e., 4th Pay Commission wage rise for the period from
1/1/1986 to 1/1/1996.
8. Though the learned Counsel for the petitioner submitted
that during the pendency of the petition there was also rise in view of the
5th Pay Commission and 6th Pay Commission and the petitioner had
amended the petition and also added prayer clause (b-i) for grant of pay
scale as per 5th Pay Commission w.e.f. 1/1/1996 to 1/1/2006, we are
unable to consider this prayer made by the petitioner. Though the
petitioner has also placed on record the pay rise as per 5 th Pay
Commission, there is no material on record, such as, economical viability
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of the Municipal Council to bear the burden. It will not be out of place to
mention that the petitioner while claiming the benefit of pay rise as per
4th Pay Commission placed on record the material of the economical
viability of the Municipal Council by way of statement submitted by the
Counsel to show that for the period of three years, i.e., 1994-95, 1995-96
and 1996-97 the percentage of expenditure on establishment was less
than 42%. As there is no material before us to say that the Municipal
Council would be in a position to bear the burden of the petitioner for
further wage rise of 5th Pay Commission, we are unable to grant the
prayer of the petitioner to that effect. The learned Counsel then submitted
that the petitioner be permitted to submit representation before the State
Government for such pay rise. If the petitioner submits such
representation, seeking further pay wage rise to the State Government,
needless to state that the State Government would consider the same on
its own merits, even considering the aspect of the period, that is, ground
of delay if any raised, considering that the petitioner was before this
Court for a considerable period.
9. Rule is made absolute in the aforesaid terms. No order as to
costs.
JUDGE JUDGE
Wadkar
