Suparao Gulabrao Deshmukh And 4 ... vs The Zilla Parishad Buldhana ...
2017 Latest Caselaw 9057 Bom

                                    1                  jg.w.p.6788.13 & 4002.16.odt


               THE HIGH COURT OF JUDICATURE AT BOMBAY
                      : NAGPUR BENCH : NAGPUR.

                        WRIT PETITION NO. 6788 OF 2013


(1) Suparao Gulabrao Deshmukh,
      aged 65 years, occ. Retired, 
      r/o Ward No. 16, Pundlik Nagar, 
      Chikhli, District Buldhana. 

(2) Ramzan Khan s/o Faiz Alam Khan
      Pathan, aged about 64 yrs., Occ. -
      Retired, R/o Anandi Building, 
      D. J. Nagar, Bhoisar, Tah. Palghar, 
      Dist. - Thane. 

(3) Ramdas S/o Daulat Barde, aged
      about 65 years, occupation retired, 
      R/o Barde Kirana Store, Kela Nagar, 
      Near Ram Mandir, Khamgaon, 
      Dist. Buldhana. 

(4) Dinkar Namdeo Nafde
      Aged about 68 Yrs., Occ. - Retired, 
      R/o Bawanbir, Tah. - Jalgaon (J), 
      Dist. - Buldhana. 

(5) Sadashiv s/o Shgenfad Satbhakre
      Aged about 64 yrs., Occ.-Retired, 
      R/o Ward No. 9, Civil Colony, 
      Deaulgaon Raja, Dist. - Buldhana.                                ... Petitioners

             VERSUS

(1) The Zilla Parishad, Buldhana,
      through its Chief Executive Officer, 
      Tq. District Buldhana. 

(2) The Executive Engineer, Zilla
      Parishad, Construction Division, 
      Buldhana




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                                     2                   jg.w.p.6788.13 & 4002.16.odt


(3) The Divisional Commissioner,
      Amravati Division, Amravati. 

(4) The State of Maharashtra, through
      Secretary, Department of Rural 
      Development and Water Conservation, 
      Mantralaya, Mumbai 400 032.                                    ... Respondents

                                       WITH

                        WRIT PETITION NO. 4002 OF 2016


(1) Mukund S/o Ashru Sawale,
      Aged about 72 years, Occ. Retired, 
      R/o At Post Deulghat, Tq. Chikhali, 
      Dist : Buldhana. 

(2) Rambhau S/o Saoji Bharambe,
      aged about 69 years, occ. : retired, 
      R/o Ward No. 1, Karhale Layout, 
      Malkapur Road, Buldhana,
      Tah. & Dist. Buldhana.                                             ... Petitioners

             VERSUS

(1) The Zilla Parishad, Buldhana,
      through its Chief Executive Officer. 

(2) The Executive Engineer, Zilla
      Parishad, Construction Division, 
      Buldhana.

(3) The Divisional Commissioner,
      Amraoti, Division, Amraoti. 

(4) The State of Maharashtra, through
      Secretary, Department of Rural 
      Development and Water Conservation, 
      Mantralaya, Mumbai - 400 032.                                  ... Respondents




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                                                    3                          jg.w.p.6788.13 & 4002.16.odt


--------------------------------------------------------------------------------------------------
Shri P. D. Meghe, Advocate for the petitioners
Mrs. S. S. Jachak, Advocate for the respondent nos. 1 and 2 
Shri M. K. Pathan, Assistant Government Pleader for the respondent 
nos. 3 and 4 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM : R. K. DESHPANDE AND
                                                                M. G. GIRATKAR, JJ.

                                                   DATE    : 27/11/2017.

Oral Judgment                  (Per : R. K. Deshpande, J.)

All the petitioners in these two petitions were working in

the Grade of Mistri in the service of Zilla Parishad, Buldhana and

they were placed in the pay scale of Rs. 4000-6000 with effect from

1-1-1996. All of them have retired from service during the period from

2002 to 2006 from the post of Civil Engineering Assistant on which post,

they were absorbed by order dated 21-1-2012 with effect from

20-5-1999.

2. The Department of Rural Development, made applicable

the time bound promotion scheme to the employees working under the

Zilla Parishad with effect from 1-10-1994, by adopting a scheme

framed on 18-6-1998, by the Irrigation Department of the State

Government. Under the said scheme, the employees working in the post

4 jg.w.p.6788.13 & 4002.16.odt

of Civil Engineering Assistant in the service of Zilla Parishad were

entitled to be placed in the pay scale of Rs. 5500-9000 available to the

promotional post of Junior Engineer with effect from date of completion

of their 12 years of continuous service in the grade in which they were

working, including that of Mistri or Civil Engineering Assistant. This

scheme was introduced as an incentive to the employees who remained

stagnated till the date of their superannuation for want of promotional

benefit.

3. It is an undisputed position that the employees in the

respondent Zilla Parishad, working in the grade of Mistri or Civil

Engineering Assistant were entitled to be placed in the higher scale of

Rs. 5500-9000 to the promotional post of Junior Engineer, upon passing

of the departmental examination or upon exempted from passing it, on

account of their completion of 45 years of age. It is not in dispute that

all the petitioners had completed their 45 years of age and accordingly

were exempted from appearing in the departmental examination.

4. In the light of the aforesaid undisputed factual position, the

only question which is required to be adjudicated in the present petition

is whether the denial of such placement in the higher scale to the

5 jg.w.p.6788.13 & 4002.16.odt

petitioners on the ground that they stood retired prior to adoption of

scheme on 22-6-2007 was justified ?

5. We have perused the scheme in respect of this adopted by

Irrigation Department which is accepted in respect of Zilla Parishad

also. We do not find any such condition of being in actual service on

the date of 22-6-2007, incorporated in such a scheme, to be entitled to

benefit of placement in the higher scale. However, in the letter dated

22-6-2007, the Under Secretary, Rural Development Department adds

that only those persons working on the post of Civil Engineering

Assistants and have completed 12 years of continuous service shall be

entitled to the placement in the scale of Rs. 5500-9000 of the Junior

Engineer. We do not find any support to this addition or requirement

in the scheme of Irrigation Department, which is adopted. Apart from

this, the matter was referred to the Divisional Commissioner, Amravati

who has clarified by his communication dated 30-6-2010 that the

scheme shall also be applicable to the persons who have retired from

service. Such a decision taken by the Divisional Commissioner was

required to be implemented. However, for the reasons best known to

the respondents, the decision was not implemented. In our view, the

applicability of scheme was not restricted to the employees in service as

6 jg.w.p.6788.13 & 4002.16.odt

on 22-6-2007, but it extends to all those who retired, but were in service

as on 1-10-1994 i.e. the date from which the scheme was implemented.

The respondents were not justified in rejecting the claim.

6. It is the objection raised by the learned counsel for the

respondent - Zilla Parishad that grant of benefit to the petitioners would

create financial burden upon the establishment of Zilla Parishad and

keeping in view the delay in approaching this Court to seek such a relief,

this Court should refuse to interfere the action of the respondent which

is impugned in the petition. Reliance is placed upon the decision of the

Apex Court in the case of Municipal Council, Ahmednagar Vs. Shah

Hyder Beig reported in 1999 LawSuit (SC) 1357 and the decisions of

this Court in Maharashtra Shikshan Samiti, Amravati and anr. Vs.

State of Maharashtra and ors. reported in 2010 LawSuit (Bom) 426

and unreported decision of the Division Bench delivered in the case of

Gajanan S/o Haribhau Thakre Vs. State of Maharashtra and ors. in

Writ Petition No. 3967/2014 decided on 15-6-2015.

7. Though, the basic decision of providing time bound

promotion scheme was taken on 8-6-1995 which was implemented from

1-10-1994, it was made applicable to the Department of Irrigation by

7 jg.w.p.6788.13 & 4002.16.odt

communication dated 18-6-1998. The said scheme was made applicable

for the first time by the Zilla Parishads for its employees as per the

communication dated 22-6-2007 issued by the Rural Development

Department. In spite of this position, the petitioners were not given the

benefit and, therefore, they preferred Writ Petition No. 320/2011 and

other connected 11 matters for seeking benefit of higher pay scale. This

Court by an order dated 14-7-2011 directed the respondent no. 1

therein i.e. Zilla Parishad to finalize the cases of the petitioners within a

period of six weeks. The direction was issued for the reason that a

statement was made before this Court on behalf of the Zilla Parishad

that a decision given by the Divisional Commissioner on 30-6-2010 is

being implemented. In spite of such direction, the decision was not

implemented. Hence these petitions were filed, one in the year 2013

and another in 2016.

8. We therefore, do not find any reason to reject the claim of

the petitioners on the ground of delay and latches. We are satisfied that

similarly situated persons have been granted benefit whereas the

petitioners have been denied the same. The decisions relied upon by

the learned counsel for the respondent - Zilla Parishad are of no

assistance for the reason that the delay in the said cases was

8 jg.w.p.6788.13 & 4002.16.odt

unexplained.

9. In view of the above, we pass the following order.

(i) The writ petitions are allowed.

(ii) The respondent - Zilla Parishad, Buldhana is directed to

place all the petitioners in the pay scale of Rs. 5500-9000 of

Junior Engineer either with effect from 1-10-1994 or from the

date of their completion of 45 years of age whichever event

occurs later and to pay all the monetary benefits to them arising

out of it, including the arrears of difference and ultimately, the

revision in the pension.

(iii) The entire exercise be carried out by the respondent - Zilla

Parishad, Buldhana within a period of three months from the date

of receipt of copy of the judgment of this Court.

10. Rule is made absolute in aforesaid terms with no order as to

costs.

                         JUDGE                                       JUDGE

wasnik