Bombay High Court
Shri. Anant Namdeo Shinde vs State Of Maharashtra, Through ... on 29 November, 2017
Bench: S.C. Dharmadhikari
spb/ WP11679-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11679 OF 2013
Shri Anant Namdeo Shinde .. Appellants
Age : 42 yrs., Occ.: Service
R/ at Flat No.24, Vasant Prasad
Apartment, Vasant Vihar Colony,
Jail Road, Nashik Road,
Nashik - 422 001.
Versus
1) State of Maharashtra
through the Principal Secretary,
Medical Education and Drugs
Department, Mantralaya,
Mumbai - 400 032
2) The Principal Secretary, Finance
Department, Mantralaya, Mumbai-32
Respondent No.1 and 2 to be served
Government Pleader's Office, P.W.D.
Building, Bombay High Court, Fort,
Mumbai - 400 032.
3) Maharashtra University of Health
Sciences, Nashik, through its Vice
Chancellor and/or Registrar, having
its office at Dindori Road, Mhasarul,
Nashik - 422 004. .. Respondents
---
Mr.N.V.Bandiwadekar, Advocate, i/by Mr. J. D. Khairnar,
Advocate for the Petitioner.
Ms. Priyanka Damle, Advocate i/by Res Juris for Respondent
No.1.
Mr. R. V. Govilkar, Advocate for Respondent No. 3.
Mr. B. V. Samant, AGP for Respondent Nos. 1 and 2.
---
Borey 1/22
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:00:25 :::
spb/ WP11679-13.doc
CORAM : S. C. DHARMADHIKARI AND
SMT.BHARATI H. DANGRE, JJ.
DATE : 29th NOVEMBER, 2017
(JUDGMENT RESERVED ON : 15.11. 2017)
(--"-- PRONOUNCED ON : 29.11.2017)
JUDGMENT : (Per Smt.Bharati H. Dangre, J.)
Rule. Respondents waive service. By consent
heard finally.
1 The present petition is filed by the Petitioner,
seeking issuance of a writ in the nature of certiorari and
direction to the Respondent No. 1 to withdraw the impugned
letter-cum- order dated 26th July, 2013 and confer the revised
pay-scale on the petitioner from the date of his appointment
to the post of "Wireman'/ 'Electrician", as per the Maharashtra
Civil Services (Pay) Rules, 1981 and as per the Maharashtra
Civil Services (Revised Pay) Rules, 2009.
2 Issue involved in the petition is a short one. The
petitioner was appointed to the post of 'Wireman" and he
joined in the said capacity on 26 th May, 2003 on the
establishment of Maharashtra University of Health Sciences,
Nashik, the Respondent No.3 herein. The appointment order
Borey 2/22
spb/ WP11679-13.doc
issued to the petitioner on 16.07.2004, provides that tenure
appointment of the petitioner is converted into probation on
the post of 'Wireman' in the pay-scale of Rs. 3050 to Rs. 4590.
The order mentions that the probation period shall be deemed
to have been started from the date of joining on the tenure
post i.e. w.e.f. 26.05.2003. It was also mentioned that
conversion of the tenure / appointment (probation) shall not
be deemed, as confirmed unless he is issued with the order, at
the end of the confirmation on the completion of period of
probation. On 17th February, 2005, the Medical Education and
Drugs Department granted permission to create 117 posts on
the establishment of the Respondent No 3, which included the
post of electrician in the pay-scale of Rs. 3050- 4590. though
it did not include post of 'Wireman'. On 23rd March, 2006, the
Respondent No.3-university declared that the petitioner has
completed his probation period successfully, as per the
provisions under section 7(5)(a) of the Standard Code Rules,
1984 and the respondent no. 3 confirmed the services of the
petitioner on the post of 'Electrician' in the pay-scale of Rs.
Borey 3/22
spb/ WP11679-13.doc
3050-75-3950-80-4590 w.e.f. 28th May, 2005. It was also
declared that the services of the petitioner would be
governed by the provisions of the Maharashtra University of
Health Sciences Act, 1998, including civil manuals, ordinance,
regulations and rules of the University for the time being in
force and as made by the University from time to time and
rules of the State Government.
The petitioner was entrusted with the post of
"Electric Supervisor" by the respondent no.3 and he was
screened for the said post and found eligible for the same and
was continued on the said post from 20.11.2009 till
06.04.2012 in the pay-scale of Rs. 9300-34800 - 4300, Grade
Pay, as per the 6th Pay Commission. However, on 2nd April,
2012, the petitioner received a letter from Respondent No. 3,
asking him to exercise his option whether to continue as
"Electric Supervisor" or to be reverted back to the post of
"Wireman' / 'Electrician". The Petitioner preferred to be
reverted back to the original post and from 7 th April, 2012, he
was continued as Wireman/ Electrician in the pay-scale of
Borey 4/22
spb/ WP11679-13.doc
Rs. 5200-2020-1900, grade pay. It is to be noted that the post
of "electric supervisor" was not a government approved post
but was on the separate establishment of the University and
the University was paying / bearing the salary of the said
post.
3 The Petitioner is aggrieved by non-fixation of his
pay-scale as applicable to the post of 'Electrician' in the State
of Maharashtra so also in other universities and its
departments. According to the petitioner, the respondent no. 3
recommended the case of the petitioner to the State
Government on the ground that the State Government has
already approved the pay-scale of Rs. 4000 -6000 for all non-
teaching posts with the required qualification of SSC plus two
years' diploma /certificate course (ITI) of two years. The
State Government, however, turned down the said request and
the same is reflected in government resolution dated
11.02.2013 issued by the State Government, revising the pay-
scale of several posts on recommendation of the Pay Revision
Borey 5/22
spb/ WP11679-13.doc
Committee (Anomaly Committee) and the grievance of the
petitioner is that the Committee did not confer the benefits
of revised pay-scales on the petitioner, specifically, when
according to the petitioner, the pay-scale for the posts of
'Electrician' and 'Wireman' is on par and the said fact has
been ignored by the Committee. Being aggrieved, the
petitioner has approached this court, seeking the aforesaid
reliefs, which we have mentioned above.
4 In response to the petition, the Section Officer of
the respondent no. 3 University has filed an affidavit on 19th
November, 2014, wherein it is mentioned that the University
had issued an advertisement on 03.07.2001 - Advertisement
no. 04 of 2001, inviting the applications to fill the non-
teaching post including the posts of Wireman, which was
created from its own funds for a tenure of three years. It is
stated on affidavit that the pay-scale for the post of wireman
was prescribed as Rs.3050-4590/-. The affidavit also states
that the petitioner was selected for the said tenure post and
Borey 6/22
spb/ WP11679-13.doc
was appointed vide order dated 30.04.2003. It is also stated in
the affidavit that the post of wireman was not sanctioned by
the State Government and it was temporarily created from its
own fund by the University. However, the Government of
Maharashtra vide government resolution dated 30.03.2005
has sanctioned 117 new non-teaching posts for the university
and it was mentioned in the said resolution that the preference
may be given to the candidates who were already working on
the posts created from university fund i.e. temporary /tenure
posts. The said government resolution had approved/
sanctioned the post of 'Electrician' with pay scale of Rs. 3050-
75-3950-80-4590. Therefore, the appointment of the
petitioner, which was on tenure post, was transferred from
the post created by the university from its own fund to the
corresponding post of 'Electrician' in the same pay-scale
which was sanctioned by the said Government Resolution and
the petitioner was retrospectively absorbed against the
corresponding post of 'Electrician', sanctioned vide G.R. Dated
30.03.2005 from the date of the creation of the post i.e. w.e.f.
Borey 7/22
spb/ WP11679-13.doc
17.02.2005. It was further mentioned in the order issued by
the university on 23.03.2006, that the services of the
petitioner would be counted from the date of his joining on
the tenure post i.e. on 26.05.2003 for the purpose of post
retirement benefits. The university has admitted in the
affidavit that the respondent no.3-university does not come
under the purview of Higher and Technical Education
Department and, therefore, the government notification dated
04.02.1999 was not made applicable to the university, whereas
the recommendations of 5th Pay Commission were made
applicable to the respondent university vide government
resolution dated 30.05.2000. The respondent no. 3 has
further stated in the affidavit that the pay-scale of the
petitioner was not revised and the university had submitted
the proposal of the petitioner for revision of the pay-scale to
Rs.4000-6000 to the State government.
5 Perusal of the proposal which has been forwarded
by the university to the State government on 03.05.2013
Borey 8/22
spb/ WP11679-13.doc
reveals that the post of Public Relation Officers (PRO),
Telephone Operator and Electrician call for a revision in pay-
scale and necessary information in relation to the said posts
was forwarded to the State government in regards to the post
of 'Electrician' , the respondent no. 3 has recommended that
the post of 'Electrician' and 'Wireman' on the establishment of
the university belong to the same cadre and it is also clarified
that on incorporation of the university, the permission was
granted to the university to create 88 posts from the funds of
the university and to fill in up the said posts, pursuant to which
the advertisement no. 04 of 2001 was issued by the
university and that the present petitioner was appointed as
'Wireman', by adopting the procedure, in the pay scale of Rs.
3050-4590. The respondent no.3 -university also clarified
that the petitioner possessed the requisite qualification for the
post of 'Wireman'.
6 When the matter was heard by us on 7th November,
2017, we noted that the issue involved is whether the
Borey 9/22
spb/ WP11679-13.doc
petitioner can be termed as an Electrician when respondent
no.3- university had issued an advertisement for recruitment
to the post of Wireman and the Petitioner was recruited in the
said capacity. We had also observed that the petitioner came
to be appointed as Wireman and his post was designated as
'Electrician' with retrospective effect. We have also taken note
of the clarification from the university that the eligibility
criteria for appointment to both the posts was identical and
in this background, the university had requested the State
government to correct the anomaly or disparity in the pay-
scales so as to enable the petitioner to draw pay as per both
5th and 6th pay commissions.
No affidavit filed by the State government in
response to the writ petition, and, therefore, we directed
production of original records by the Department of Medical
Education and Drugs and also directed the concerned Deputy
Secretary in the Department of Finance, Government of
Maharashtra to remain personally present with the original
records in relation to the proposal forwarded by the University
Borey 10/22
spb/ WP11679-13.doc
of Health Sciences to the Department of Medical Education
and Drugs, which was further forwarded to the Finance
Department for its opinion.
In pursuance of our order, the learned Assistant
Government Pleader Mr. Samant, has produced before us
original records and we had an opportunity to peruse the
same.
7 The recommendations which are forwarded by the
university to the State government on 03.06.2013, which is
placed at Exh. 'H' to the petition, in relation to the post of
petitioner clearly mentions that on incorporation of the
university, it was granted permission to fill in 88 posts in
various cadre from the funds of the university and after
following due procedure, the petitioner came to be appointed
as 'Wireman' in pursuance of an advertisement no. 04 of 2001
in the pay-scale of Rs. 3050-4590. It was also mentioned that
in the advertisement, following educational qualifications were
prescribed for the post of 'Wireman' :
Borey 11/22
spb/ WP11679-13.doc
Pay -scale Educational Qualification
Wireman : Essential :
(Scale 3050-4590) i) Candidate should have passed
Electrician course of Electric wireman of ITI
or equivalent Institute.
ii) Candidate should have 3 years
experience of Electrical work in reputed
organization.
Iii) Age limit between 18-35 years at the
time of appointment.
It is also mentioned that on issuance of the government
resolution dated 17.02.2005, the State government granted
permission to the university to create 117 posts in various
cadres and directions were also issued that the persons,
occupying the said post on the establishment of the university
should be given preference. In the list of 117 posts, the post of
wireman is not included. However, the university in
pursuance of the decision of the State government dated
17.02.2005 and in furtherance of the resolution of the
Management Council vide resolution no. 05 of 2006 issued an
order on 23.03.2006, for absorbing the petitioner in the post
of 'Electrician'. It is further relevant to note that by the
Borey 12/22
spb/ WP11679-13.doc
government resolution dated 05.03.2010, the pay-scales
recommended by the 6th Pay Commission were made
applicable to the respondent no.3-university and the pay-
scales prescribed for the post of Electrician is in the pay-band of
Rs. 5200-20200 with a grade pay Rs.1900/-. It is also relevant
to note that the notification issued by the higher technical
education department on 07.10.2009, made the
recommendations of 6th Pay Commission applicable to the post
of 'Electrician' and 'Wireman', and they have been brought in
the pay-scale of Rs. 5200-20200, grade pay Rs. 2400/-. It is
also mentioned that in the year 1997, the Pay Revision
Committee of State Government had prescribed the the
qualification of passing SCC examination with two years
diploma/ certificate ITI, as minimum educational qualification
for corresponding pay-scale of Rs. 4000-6000 (S-7). The
university also recommended that the educational
qualification prescribed for the post of electrician in Swami
Ramanand Tirth Marathwada University, Nanded is the same
as the post of electrician in the respondent no.3 university.
Borey 13/22
spb/ WP11679-13.doc
With this background, the university requested or
recommended to the State government that for the post of
electrician, the pay-scale of Rs. 5200-20200 and grade pay of
Rs.2400/- should be made applicable.
8 From the perusal of the recommendations made
by the Respondent No.3- University and the affidavit in reply
filed by the university before us, it is clear that the respondent
no.3-university has admitted that the petitioner was appointed
as wireman initially on the post which was created by the
university on its establishment and the petitioner was issued
with an order of appointment as wireman. However,
subsequently the State government granted approval to 117
posts which included the post of electrician, the university had
issued an office order on 23.03.2006 by taking recourse to the
government resolution dated 17.02.2005 and the resolution of
the management council, and transferred the post created by
the university from its own fund to the corresponding post of
electrician in the pay-scale of Rs.3050-75-3950-80-4590 and
Borey 14/22
spb/ WP11679-13.doc
absorbed the petitioner retrospectively from the date of
creation of the post. The university, however, clarified that
the services of the petitioner in the university for all pre and
post retirement benefits shall be counted from the date of
joining the tenure post i.e. on 26.05.2003. The respondent
no.3-university, therefore, treated the petitioner as
'Electrician' from the date of his joining with the university i.e.
on 26.05.2003. The university also recommended the case
of the petitioner for being extended the pay-scale of Rs. 5200-
20200 and, grade pay-2400, on par with the post of
'Electrician' and 'Wireman' in all universities under the control
of the Higher and Technical Education Department. The
university has, therefore, supported the case of the petitioner
for extension of the revised pay-scale for being made
applicable to the petitioner.
9 When we perused the record, produced before us
by the learned Assistant Government pleader, we have noted
that the pay anomaly committee in its report of 2012 dealt
Borey 15/22
spb/ WP11679-13.doc
with the proposal of the respondent no.3-university in
respect of the post of the petitioner, where the petitioner was
placed in the pay-scale of Rs.3050-4590 and it was
recommended by the university to confer the pay-scale of Rs.
5200-20200 with grade pay 2400 for the said post. The pay
anomaly committee observed that there is no anomaly/
disparity in the pay-scale conferred and it concluded that
the government resolution issued by the Medical Education
and Drugs Department on 17.02.2005 has created the cadre
of electrician in the non-revised pay-scale of Rs.3050-4590.
The committee further observed that the petitioner was
appointed as 'Wireman' and the posts of electrician and
wireman are different cadre posts and, therefore, it would not
be proper to make any comments on the pay-scale applicable
to the post of 'Electrician'. The committee further observed
that the said post have been sanctioned a revised pay band in
the 6th pay commission, which was equivalent to the non-
revised pay band in the 5th pay commission and therefore, there
Borey 16/22
spb/ WP11679-13.doc
is no anomaly in the pay band made applicable to the said
cadre.
10 We find that the said decision by the Pay Anomaly
Committee overlooks an important factual aspect involved in
the issue. The respondent no. 3-university had issued an
advertisement, inviting applications for the post of wireman
and the qualifications prescribed for the said post, required the
candidates to pass certificate course of electrician/electric/
wireman from ITI or equivalent Institute. It also required that
the candidates should have three years experience of any
electrical work in a reputed organization. The petitioner
possessed the said requisite qualification as he has completed
the course in the trade of electrician from the Industrial
Training Institute, Parbhani. The petitioner is also in
possession of the National Trade Certificate issued by the
State Council for Vocational Training, Ministry of Labour,
Government of India. In view of the said qualification, he was
selected for the said post of 'Wireman' and appointed
Borey 17/22
spb/ WP11679-13.doc
accordingly. The contention of the petitioner is that the State,
by issuing resolution on 17.01.2014, was pleased to direct
that the Maharashtra Civil Services Rules will be made
applicable to the employees of the respondent no.3 university
till the time a separate statute is framed. The petitioner's
contention is that in view of the applicability of the
Maharashtra Civil Services (Pay) Rules, 1981 to the cadre of
the petitioner, who is an employee of respondent no.3-
university, the petitioner is entitled for the benefit of salary as
per the Maharashtra Civil Services (Pay) Rules, as revised from
time to time. The requisite qualification for the post of
wireman and electrician is the same and the university has
admitted the said fact. The advertisement issued for the
purpose of electrician in the State owned department i.e. the
office of the Director General of Police, Maharashtra State,
Pune also prescribes the similar qualification for being
appointed to the post of electrician as the one which is
prescribed by the respondent no.3-university for the post of
wireman and a person who possesses a diploma in electrician
Borey 18/22
spb/ WP11679-13.doc
trade from ITI is qualified. It is not the case of the State
Government that the qualification of the petitioner is not
commensurate with the qualification prescribed in the
advertisement. The only reason given by the Pay Anomaly
Committee is that the posts of "Electrician" and "Wireman"
belong to different cadres. We have seen that there is a single
isolated post of electrician in the respondent no.3 university
and if the relief sought by the petitioner is granted, no
financial loss is going to be caused to the State government
nor it requires re-structuring of the pay of the entire cadre of
wireman. However, it is only an issue of single post of the
petitioner who, according to the university, was selected as
'Wireman' but subsequently absorbed into its services as
'Electrician'. In our view the petitioner is, therefore, entitled
for the pay-scale of the electrician as applicable in the other
universities and as revised by the 5th and 6th Pay Commissions.
11 The State Government had issued a Government
Resolution on 11th February, 2013 on recommendations by
Borey 19/22
spb/ WP11679-13.doc
the Pay Anomaly Committee and resolved in Appendix "D",
that post of 'Electrician' (Item 175) within the purview of the
Maharashtra Health University, Nasik does not call for a
change in the pay-scale since the Pay Anomaly Committee
has not noted any lacuna in the pay-scales of the said cadre.
The respondent no. 3 -university has also been communicated
by the Pay Anomaly Committee that there was no lacuna in
the pay structure of the post of electrician and the proposal of
the university is rejected. We find that the decision of the Pay
Anomaly Committee and also the communication to the
respondent no. 3 university on 26.07.2013, are not sustainable
for the reasons which we have noted in the above paragraphs.
It is not the cadre of which the pay-scale is required
to be revised but it is the case where only the petitioner is to
be held entitled for the pay-scale of the post of Electrician and
the university has admitted that he was appointed to said post
in the light of the decision of the State Government contained
in the Government Resolution dated 17.01.2014, where the
State Government has resolved to apply the Maharashtra Civil
Borey 20/22
spb/ WP11679-13.doc
Services Rules to the non-teaching staff of the Maharashtra
Health University, Nasik and the petitioner, being an employee
of the Maharashtra Health University, is entitled for extension
of the said benefits.
12 In these circumstances, in our opinion, it would be
unjust to deprive the petitioner of the benefits of pay on
revision as per 5th and 6th Pay Commission applicable to the
post of electrician, which the petitioner is undisputedly
occupying on the establishment of the respondent no.3. The
government resolution dated 11.02.2013 to the extent of the
post of the Petitioner ('Electrician') at item no. 175 under the
Appendix "D" is, therefore, liable to be set aside and the
petitioner is declared as eligible to receive the revised pay-
scale in terms of the Maharashtra Civil Services (Revised Pay)
Rules, 2009 as applicable to the post of 'Electrician'.
Borey 21/22
spb/ WP11679-13.doc
13 The Writ Petition is allowed in terms of prayer
clauses (b) and (c). Rule is made absolute accordingly. No
order as to costs.
(SMT.BHARATI H.DANGRE,J.) (S.C.DHARMADHIKARI,J.)
.....
Borey 22/22
