Bombay High Court
Sudhakar Chindhusa Sawalakhe vs State Of Mah. Department Of Social ... on 20 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3240 of 2011
Sudhakar Chindhusa Savvalakhe,
Aged 57 years, Occupation - Accountant,
Resident of Gurukunj, Mozri,
Taluka Tiwsa, District Amravati. ... Petitioner
Versus
1. The State of Maharashtra,
Department of Social Justice,
Cultural and Sports Division,
through its Secretary,
Mantralaya, Mumbai 400 032.
2. The State of Maharashtra,
through its Secretary,
Department of Finance,
Mantralaya, Mumbai 400 032.
3. The Director of Sports and Youth
Services, Maharashtra State,
Central Building, Pune-1.
4. Principal, Shivaji College of
Physical Education,
through its Principal,
Shivaji Nagar,
Amravati. ... Respondents
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Shri R.S. Parsodkar, Advocate for Petitioner.
Shri S.S. Doifode, Assistant Government Pleader for Respondent
Nos.1 to 3.
CORAM : R.K. DESHPANDE & M.G. GIRATKAR, JJ.
DATE OF RESERVING THE JUDGMENT : 10-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 20-11-2017
JUDGMENT (Per : R.K. DESHPANDE, J.) :
1. The petitioner was working as Accountant with effect from
1-4-1997 in the respondent No.4-Shivaji College of Physical
Education, Amravati, in the pay scale of Rs.1640-2900, as was
revised as per the recommendations of the Fifth Pay Commission.
The respondent No.4-College is affiliated to Amravati University,
which is a statutory body constituted under the provisions of the
Maharashtra Universities Act, 1994. The petitioner being a
non-teaching employee, his service conditions are governed by the
Maharashtra Non-Agricultural Universities and Affiliated Colleges
Rules, 1999, called as "the Standard Code", framed by the State
Government in exercise of the statutory power conferred upon it
under Section 8(3) of the Maharashtra Universities Act.
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2. The Department of Higher and Technical Education, State
of Maharashtra, in exercise of its power conferred by Section 8 of
the Maharashtra Universities Act, issued a notification
dated 4-2-1999, revising the pay scales of non-teaching employees
(including officers) working in the Non-Agricultural Universities
and Affiliated Colleges, excluding the Colleges run by the
Government of Maharashtra, and the local bodies. The rules are
called as "The Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Revised Pay of Non-Teaching
Employees) Rules, 1999, which were brought into force with effect
from 1-1-1996. The pay scale of Rs.1640-2900 available to the
post of Accountant in the non-government colleges attached to
Non-Agricultural Universities was revised to Rs.5500-9000. The
petitioner being working on the post of Accountant in the
non-government college attached to the Non-Agricultural
University expected that his revision would be in the scale of
Rs.5500-9000, as he was getting unrevised scale of Rs.1640-2900.
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3. The Department of Social Justice, Cultural and Sports of
the State Government, by its resolution dated 17-3-2001, made the
recommendations of the Fifth Pay Commission applicable to
non-teaching employees working in the aided non-government
Physical Education Colleges all over the State with effect from
1-1-1996. However, the pay scale of Rs.1640-2900 available to the
post of Accountant was revised to Rs.4000-100-6000. The
respondent No.4-College, in which the petitioner was working,
requested the Department of Social Justice, Cultural and Sports to
correct the revision of pay scale in respect of the post of Accountant
working in the Physical Education College, to Rs.5500-175-9000,
as was revised by the notification dated 4-2-1999. The Secretary,
Director, Deputy Director, and Assistant Director under the
Department of Social Justice, Cultural and Sports also
recommended that the revision in the pay scale of Rs.1640-2900
available to the post of Accountant should be in the higher scale of
Rs.5500-9000 as per the notification dated 4-2-1999 and not in the
lower scale of Rs.4000-6000. All these documents are placed on
record.
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4. It seems that the Finance Department of the State
Government has refused to accept such recommendation, and this
was communicated to the respondent No.4-College on 16-3-2011
by the Assistant Director of Sports and Youth Welfare, Pune.
Hence, the present petition challenges this communication
dated 16-3-2011 and the Government Resolution dated 17-3-2001.
The petition further claims placement in the pay scale of
Rs.5500-9000 with effect from 1-4-1997, i.e. the date on which the
petitioner was promoted to the post of Accountant, and arrears
arising therefrom.
5. Shri Parsodkar, the learned counsel appearing for the
petitioner, has urged that all the authorities under the Department
of Social Justice, Cultural and Sports, under which the aided
Physical Education Colleges affiliated to the University are
functioning, have recommended that the petitioner should be
placed in the revised scale of Rs.5500-9000 with effect from
1-4-1997 as per the Government Resolution dated 4-2-1999. He
submits that the Government Resolution dated 17-3-2001 is not
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only contrary to the statutory notification dated 4-2-1999, but also
it is violative of the fundamental right of the petitioner contained in
Article 14 of the Constitution of India.
6. From various documents placed on record and the stand
taken by the Department of Social Justice, Cultural and Sports, it is
clear that the objection is of the Finance Department of the State
Government for placement of the Accountant in the scale of
Rs.5500-9000. The recommendations at various levels in the
Department of Social Justice, Cultural and Sports for placement of
the petitioner in the scale of Rs.5500-9000 are not accepted. From
the communication dated 21-10-2011 by this Department to the
Director of Sports, it seems that the Finance Department is of the
view that the Accountants working in the Department of State
Government were getting unrevised scale of Rs.1200-2040, which
is revised to Rs.4000-6000. Hence, the proposal for placement of
Accountants in Physical Education Colleges in the same revised pay
was placed before the meeting of the State Cabinet held on
30-8-2000, which has approved it.
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7. The stand taken by the respondent Nos.1 to 3 in the
affidavit filed in response to the petition in terms is reproduced
below :
"1. ...It is submitted that the State Cabinet has
consciously taken upon report submitted by the Finance
Department to give revised pay scale of Rs.4000-6000 to the
Accountants in the Government Aided Physical Education
Colleges and accordingly necessary orders have been issued
vide Government Resolution dated 17th March, 2001. The
finance Department opined that the post of Accountant in
the Government Aided Non-Agricultural Universities exists
not only in the Pay-Scale of Rs.5500-9000 but also in the
Pay-Scale of Rs.4000-6000 and if this is taken into
consideration it is not necessary to make any change in the
Pay-Scale of Rs.4000-6000 applicable to the post of
Accountant. ..."
8. The respondent No.3-Physical Education College is
affiliated to Amravati University, which is a Non-Agricultural
University incorporated under Section 3 of the Maharashtra
Universities Act, 1994. Sub-section (3) of Section 8 of the said Act
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being relevant, is reproduced below :
"8. Control of State Government and universities.
(3) The State Government may in accordance with the
provisions contained in this Act, for the purpose of
securing and maintaining uniform standards, by
notification in the Official Gazette, prescribe a Standard
Code providing for the classification, manner and mode
of selection and appointment, absorption of teachers and
employees rendered surplus, reservation of posts in
favour of members of the Scheduled Castes, Scheduled
Tribes, Denotified Tribes (Vimukta Jatis), Nomadic
Tribes and Other Backward Classes, duties, workload,
pay, allowances, post-retirement benefits, other benefits,
conduct and disciplinary matters and other conditions of
service of the officers, teachers and other employees of the
universities and the teachers and other employees in the
affiliated colleges and recognised institutions (other than
those managed and maintained by the State
Government, Central Government and the local
authorities). When such Code is prescribed, the
provisions made in the Code shall prevail, and the
provisions made in the Statutes, Ordinances, Regulations
and Rules made under this Act, for matters included in
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the Code shall, to the extent to which they are
inconsistent with the provisions of the Code, be invalid."
The aforesaid provision confers power upon the State
Government to prescribe a Standard Code by notification in the
Official Gazette for the purpose of securing and maintaining
uniform standards and providing for several matters stipulated
therein, including pay, allowances and other terms and conditions
of service of the teachers and other employees in the affiliated
Colleges. It is made clear that upon issuance of such notification,
the provisions made in the Code shall prevail and the other
provisions made in the Statutes, Ordinances, Regulations and Rules
made under the said Act, for matters included in the Code shall, to
the extent to which they are inconsistent with the provisions of the
Code, be invalid.
9. The power to frame a Standard Code by issuing
notification under Section 8(3) of the said Act is exercised by the
Education and Employment Department of the State Government,
including the Department of Higher and Technical Education. As
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per the notification dated 27-7-1989 issued under Section 8(3) of
the said Act, the pay scale of Rs.1640-2900 was made available to
the post of Accountant existing in all the Colleges affiliated to
Amravati University with effect from 1-1-1986. By issuing
notification dated 4-2-1999, revision was provided to the pay scales
with effect from 1-1-1996. The Accountants working in all the
affiliated Colleges in the unrevised scale of Rs.1640-2900 were
placed in the scale of Rs.5500-9000. In our view, consequently, the
petitioner working as Accountant in the affiliated College of
Physical Education acquired a statutory right for placement in the
pay scale of Rs.5500-9000 with effect from 1-1-1996, which could
not have been denied to him.
10. The Department of Social Justice, Cultural and Sports
under the State Government by its resolution dated 17-3-2001
made the recommendations of the Fifth Pay Commission applicable
to non-teaching employees working in the non-government
Physical Education Colleges all over the State with effect from
1-1-1996. The pay scale of Accountant was revised to
Rs.4000-100-6000, which is inconsistent with the pay scale of
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Rs.5500-9000 prescribed under the notification dated 4-2-1999
issued in exercise of statutory power under Section 8(3) of the
Maharashtra Universities Act. In our view, merely because the
College of Physical Education is under the control of the
Department of Social Justice, Cultural and Sports, the Government
Resolution dated 17-3-2001 cannot be made enforceable and in
terms of the mandatory provision of Section 8(3) of the
Maharashtra Universities Act, it has to be declared as invalid being
ultra vires the said statutory provision.
11. Even otherwise, the Accountants working in all the
Colleges affiliated to the University are governed by the same terms
and conditions as are prescribed in the Standard Code. Their
duties and responsibilities are the same, they form a single class
and, therefore, no discriminatory treatment can be provided, as
contemplated by the Government Resolution
dated 17-3-2001, which is less beneficial to the Accountants
working in the Colleges of Physical Education affiliated to the
University. This amounts to creating a classification amongst
equals, having no nexus with the object of revision of pay sought to
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be achieved. It, therefore, violates the guarantee of the petitioner
contained in Article 14 of the Constitution of India. The same
cannot, therefore, be sustained.
12. It is the stand taken by the Department of Finance under
the State Government that the pay scale of Accountants working in
the Department of Social Justice, Cultural and Sports was revised
from Rs.1200-2040 to Rs.4000-6000 and, therefore, the petitioner,
who was working as Accountant in the Physical Education College
under the control of this Department has also to be placed in the
same scale. Article 14 of the Constitution of India deals with the
positive discrimination as well as negative. The equals cannot be
treated as unequals and the unequals cannot also be treated as
equals. The Accountants in the Department of the State
Government were working in the unrevised scale of
Rs.1200-2040, whereas the petitioner was working in the unrevised
scale of Rs.1640-2900, which was much higher. Apart from this,
the conditions of service of the Accountants working in the
Government Department are governed by the provisions of the
Maharashtra Civil Services Rules, whereas the conditions of service
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of the Accountants in the Physical Education Colleges affiliated to
the Non-Agricultural Universities are governed by the provisions of
the Standard Code framed under Section 8 of the Maharashtra
Universities Act. The job of all the Accountants working in the
private aided and unaided Colleges affiliated to the University
cannot be compared with the job of Accountants in the actual
Department of the State Government. In our view, treating the
petitioner on par with the Accountants working in the State
Government amounts to treating unequals as equals, which cannot
be sustained.
13. It is the stand taken by the respondents that the Colleges
of Physical Education affiliated to the University were under the
control of the Department of Social Justice, Cultural and Sports till
13-4-2013, when they were brought under the control of Higher
and Technical Education Department of the State Government.
There is no declaration of equivalence in respect of the post of
Accountant in Physical Education College and the other Colleges
affiliated to the University. In our view, the question of declaration
of equivalence, in the facts and circumstances of this case, does not
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at all arise. The Accountants working in the Physical Education
Colleges and the other Colleges affiliated to the University are
governed by the same terms and conditions, performing the same
jobs, and carrying on the same responsibilities. The equality
amongst them is inherent and it does not require any order from
the Equivalence Committee. This artificial and hypothetical
distinction to separate a class of Accountants working in the
Colleges of Physical Education, is unreasonable and arbitrary
having no basis. In our view, the respondents were totally
unjustified in taking such stand.
14. The Department of Finance under the State Government
approves the revision in the scale of pay of employees working in
all the Departments of the State Government as well as those
working in the aided Colleges affiliated to the University. The
Department was well aware of the Government Resolution
dated 4-2-1999 refusing the scale of pay of Accountants working in
the affiliated Colleges from Rs.1640-2900 to Rs.5500-175-9000.
In fact, the Secretary, Director, Deputy Director and Assistant
Director working at different levels in the Department of Social
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Justice, Cultural and Sports recommended providing revision in the
scale of Rs.5500-9000 to the Accountants working in the Colleges
of Physical Education working under their control. These are the
communications dated 3-5-2006, 13-5-2006, 22-3-2007, 31-8-2007
and 3-4-2008. We, however, fail to understand the rigidity and
adamance on the part of the Finance Department of the State
Government in rejecting the recommendations from all the levels
and the claim of the petitioner on the ground that the pay scale of
Rs.4000-6000 is approved in the meeting of the State Cabinet held
on 30-8-2000. In our view, the basic proposal put up by the
Finance Department before the meeting of the State Cabinet itself
was not only contrary to the provision of Section 8(3) of the
Maharashtra Universities Act, but also it was unreasonable and
treats unequals as equals, violating the fundamental right of the
petitioner contained in Article 14 of the Constitution of India. Even
if such a proposal was approved by the State Cabinet, it cannot
withstand the test of fundamental right of the petitioner contained
in Article 14 of the Constitution of India, and we have, therefore,
no hesitation to set it aside.
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15. In view of the aforesaid position, the petition will have to
be allowed by granting a declaration that the Government
Resolution dated 17-3-2001 revising the pay scale of the petitioner
from Rs.1640-2900 to Rs.4000-6000 with effect from 1-1-1996 as
inoperative and holding that the petitioner is entitled to revision in
the scale of Rs.5500-9000 with effect from 1-1-1996.
16. In the result, the petition is allowed. The Government
Resolution dated 17-3-2001 is held to be inoperative and invalid to
the extent it revises the pay scale of the petitioner to Rs.4000-6000.
The respondents are directed to place the petitioner in the scale of
Rs.5500-9000 with effect from 1-4-1997, i.e. the date from which
he was working as Accountant in the respondent No.4-Physical
Education College, and to pay him all the arrears arising out of
such difference within a period of eight weeks from the date of
receipt of copy of this judgment; failing which, an interest at the
rate of of 18% per annum from 1-4-1997 till realization of the
amount shall be paid to the petitioner.
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17. The Department of Finance has violated the fundamental
right of the petitioner contained in Article 14 of the Constitution of
India. We fail to understand the propriety and justification on the
part of the Department of Higher and Technical Education to
oppose the claim of the petitioner, particularly in the light of the
recommendations in favour of the petitioner at different levels, in
the Department of Social Justice, Cultural and Sports. We,
therefore, direct the Department of Finance as well as the
Department of Higher and Technical Education of the State
Government to pay the costs of Rs.5,000/- (Rupees Five Thousand)
each to the petitioner at the time of release of the amount of
arrears within a stipulated period; failing which, it shall also carry
an interest at the rate of 18% per annum from the date of expiry of
the stipulated period.
18. Rule is made absolute in above terms.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
