M M Pathan And Anr vs The State Of Maharashtra And Ors
2017 Latest Caselaw 6861 Bom

                                   1         WP-1290-2007-JUDGMENT



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                       WRIT PETITION NO. 1290 OF 2007


1]   M. M. Pathan,
     Age : 57 years, Occu. : Service as
     Child Development Project Officer,
     Integrated Child Development Scheme,
     R/o : Plot No. 9, Yusuf Colony, Parbhani,
     Taluka & District : Parbhani

2]   Dr. Ashok S/o Dattatraya Kolhe,
     Age : 45 years, Occu.: Service as
     Dy. C.E.O. (ZP) - presently working
     as Associate Professor, YASHADA,
     Pune, R/o : C/o Adv. Kolhe,
     Kabad Galli, Beed, Taluka &
     District : Beed                           .. Petitioners
                                             (Orig. Applicants)

       VERSUS

1]   The State of Maharashtra,
     through the Secretary,
     General Administration Department,
     M.S., Mantralaya, Mumbai - 32.

2]   The Principal Secretary,
     Training Division Section 12-A,
     General Administration Department,
     M.S., Mantralaya, Mumbai - 32.

3]   The Officer on Special Duty (O.S.D.) -
     - cum - Additional Collector,
     Marathwada Administrative &
     Development Training Institute,
     Nath Nagar (North), Paithan,
     District : Aurangabad                   .. Respondents
                                          (Orig. Non-applicants)




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                                          2          WP-1290-2007-JUDGMENT



                                  ...
Mr. Avinash Deshmukh, Advocate h/f Mr. Rajendra Deshmukh,
Advocate for the petitioners
Mr. S.K. Tambe, A.G.P. for the respondent/State
                                  ...

                                    CORAM : SUNIL P. DESHMUKH &
                                            SANGITRAO S. PATIL, JJ.

DATE : 06-09-2017

ORAL JUDGMENT :

1. Heard learned counsel for the appearing parties, finally

by consent.

2. The petition concerns payment of 15% special training

allowance to petitioners on par with the persons on deputation at

YASHADA, Pune to whom such an allowance is being paid.

3. Petitioner no.1 had been on deputation from 12-01-2000

to 14-01-2005 working at Marathwada Administrative and

Development Training Institute, Nathnagar (North), Paithan and

petitioner no.2 had been working there on deputation from August,

1998 to July, 2001.

4. It would be worthwhile to refer to that YASHADA, Pune

and aforesaid Marathwada Administrative and Development Training

Institute, Nath Nagar (North), Paithan are two entities created by

the State Government for imparting similar training and carrying on

3 WP-1290-2007-JUDGMENT

the same functions. These two institutes are two autonomous,

independent organizations created by the State Government

carrying on similar functions at two locations viz. Pune and Paithan.

There is no dispute so far as aforesaid aspect is concerned.

5. Petitioners have placed on record a resolution of the

State Government dated 27-04-1995 in respect of YASHADA, Pune,

whereunder a decision has been taken to allow special training

allowance at the rate of 15% of basic pay and, while such allowance

is being accorded sanction, it has also been referred to that other

allowances viz. deputation allowance or special allowance and

incentives be proportionately reduced.

6. In accordance with aforesaid, it had been decided to

request the State Government and to demand special training

allowance also for the persons who are working on deputation at

Marathwada Administrative and Development Training Institute,

Paithan. Accordingly, meetings were held, decisions were taken. It

may be worthwhile also to refer to that the Commissioner and the

Collector had recommended payment of special training allowance,

the same had also been endorsed by the Executive Committee of

Registrar and Divisional Commissioner. Said decision had been

forwarded to the State Government. It may also be referred that

Board of Governance of the Marathwada Administrative and

4 WP-1290-2007-JUDGMENT

Development Training Institute, headed by its Chairman / Principal

Secretary, General Administrative Department, Government of

Maharashtra had accorded approval to the decision. Aforesaid

decisions were sent for approval under signature of the Divisional

Commissioner. A long correspondence had thereafter ensued,

however, no decision had been taken and finally a communication

had been issued on 09-01-2006, intimating that the request could

not be considered having regard to the financial condition of the

State Government.

7. Under the circumstances, the petitioners had been

before Maharashtra Administrative Tribunal, Aurangabad. The

Maharashtra Administrative Tribunal under decision dated 31-08-

2006 has referred to that the applicants were admittedly on

deputation to the institution, however, it appears to have been

considered by the tribunal that no approval to the proposal had been

given by the Government nor Government had taken any policy

decision to extend such benefits to persons working in Marathwada

Administrative and Development Training Institute. The tribunal

further appears to have preferred not to go ahead issuing directions

to the State Government to extend monetary benefits since that

may burden the State exchequer. It has been considered by the

tribunal that whether a particular pay scale or allowance is to be

sanctioned, is a matter to be decided by the State Government. It is

5 WP-1290-2007-JUDGMENT

under the circumstances, the tribunal declined the request made

under the original application and, as such, the petitioners are

before this Court.

8. The grievance of petitioners is while similarly situated

persons, who work at YASHADA, Pune on deputation, are being paid

special training allowance at the rate of 15% of basic pay, their

legitimate request for 15% special training allowance for the period

they had worked on deputation is not being considered despite

requests, representations, decision of the institute and

recommendations of Commissioner and Collector, and is declined by

a very cursory and terse, unreasoned and unsubstantiated ground.

9. Learned counsel Mr. Avinash Deshmukh h/f Mr. Rajendra

Deshmukh, appearing for the petitioners submits that while there is

no dispute that petitioners were working on deputation at

Marathwada Administrative and Development Training Institute and

were performing and discharging the same duties, as those by the

persons who are/were on deputation at YASHADA, Pune, to whom

the benefit of 15% special training allowance has been made

available pursuant to government resolution dated 27-04-1995,

refusal to grant similar allowance to the petitioners is discrimination

that stares in the face. He submits that the financial constraints,

which have been referred to under communication of 09-01-2006 is

6 WP-1290-2007-JUDGMENT

the only reason given declining legitimate request/demand made by

present petitioners. He submits that it is not a case, the

Government has under a policy, declined request of the petitioners.

The petitioners had been carrying on the same functions as the

persons working on deputation at YASHADA, Pune. In such a

case, parity in paying allowance ought to have been observed. The

tribunal has been in error in not acceding to legitimate request being

made under the original application. He submits that the tribunal

has not considered relevant aspects in the matter viz. the functions

and discharge of duties of the persons on deputation at YASHADA,

Pune is similar or rather the same, as those which were carried on

and performed by present petitioners. He submits that even

otherwise the financial burden would not be a reason to decline the

legitimate request, for in the present matter, looking at that the

financial burden by granting similar allowance to petitioners, would

be minuscule or a micro burden on the State exchequer. He,

therefore, urges to allow the writ petition, and, incidentally set aside

the decision of tribunal on original application.

10. Countering aforesaid submissions, learned A.G.P.

Mr. Tambe submits may be the two institutes YASHADA, Pune and

Marathwada Administrative and Development Training Institute,

Patihan are created under the aegis of the Government, but are two

independent, autonomous entities and as such, they would be

7 WP-1290-2007-JUDGMENT

governed by different sets of rules and regulations. Parity in the

same had not been envisaged while they were being created.

He submits that financial burden on the State exchequer would be

increased if the request of the petitioners is allowed as the activity

carried on by the institute is perennial in nature and the financial

burden would be an ongoing burden.

11. Learned A.G.P. Mr. Tambe goes on to submit that having

regard to the decision, as has been communicated under letter

dated 09-01-2006 to the institute, it may tantamount to policy by

the State Government wherever State exchequer is burdened.

12. Aforesaid argument on behalf of the State is sought to

be countered by learned counsel Mr. Deshmukh, referring to decision

of Supreme Court in the case of Delhi Development Authority, N.D. And anr.

V. Joint Action Committee, Allottee of SFS Flats and Ors. reported in AIR 2008

S.C. 1343. He refers to paragraphs 59 and 60 therein, reading thus :-

"Policy decision :

59. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior Courts may not interfere with the nitty gritties of the policy, or substitute one by the other but it will not be correct to contend that the Court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior Court would not be without jurisdiction as it is subject to judicial review.

60. Broadly, a policy decision is subject to judicial review on the following grounds :

8 WP-1290-2007-JUDGMENT

(a) if it is unconstitutional;

(b) if it is dehors the provisions of the Act and the Regulations;

(c) if the delegatee has acted beyond its power of delegation.

(d) if the executive policy is contrary to the statutory or a larger policy."

13. He submits that in fact communication dated 09-01-2016

is not a policy decision at all and even if for the sake of argument, it

is considered as a policy decision, in such a case, it is not such a

decision, which is immune to judicial review.

14. Learned counsel Mr. Deshmukh during course of his

submissions, referred to that looking at that Paithan does not

happen to be a city rather a remote mofussil area, the employees

are required to be induced and such inducement can be in the form

of incentive by payment of allowance. This ought to have been kept

in view by the State Government while making communication dated

09-01-2016.

15. Having heard learned counsel as aforesaid, while it

emerges that there is no dispute about the nature of functions of the

two institutes and, the duties performed and discharged by the

petitioners, who were on deputation to Marathwada Administrative

and Development Training Institute, Paithan, is the same as that of

9 WP-1290-2007-JUDGMENT

functions carried on by persons on deputation at YASHADA, Pune

and petitioners were discharging same duties and performing the

same functions, it had been legitimately expected by petitioners to

have parity in payment of allowances.

16. Aforesaid apart, one may have to take into account,

there is no dispute about work performed by the petitioners is of the

same nature as the ones performed by persons on deputation at

YASHADA, Pune and having regard further to that the reason of

financial burden on the State in the present case, appears to be

rather too perfunctorily put forth without referring as to whether the

burden would be of such a scale, as would crumble the finances of

State Government. The petitioners have referred to that burden on

State exchequer would be minuscule or rather micro and absolutely

unnoticeable. Further special training allowance is to be adjusted

and reduced by amounts which are payable to them towards other

allowances, as referred to in the Government Resolution dated

27-04-1995. In the circumstances, financial reason being put forth

to decline the otherwise legitimate request, causes discrimination

particularly, when special training allowance is made available in the

city like Pune and the same is being declined to persons, who are

being sent to remote places on deputation where generally there is

disinclination to go.

10 WP-1290-2007-JUDGMENT

17. It may not be out of place to refer to that the very

reason underlying General Administration Department's decision in

respect of YASHADA, Pune in making available payment of special

training allowance, is to induce and attract talented persons to

accept the posting in that training center. We have also considered

that such payment of special training allowance would, to quite some

extent, may act as an incentive to persons sent on deputation for

the purpose for which the institute has been created at Paithan.

18. It may also have to be noted, beyond terse

communication dated 09-01-2016, the State Government has not

placed anything on record which would indicate that the financial

burden is such that would cause any dent worth consideration in the

finances of the State and it would not be appropriate for the State

Government to refuse the incentive being made available in the form

of special training allowance for the petitioners working at Paithan

that while the two institutes carry on the same functions, it would

not be appropriate on the ground of burden on the State exchequer.

19. Having regard to aforesaid, in our estimate, the

tribunal's decision appears to be rather cursory, and as such,

unsustainable. The same, therefore, is set aside. In the

circumstances, writ petition is allowed.

11 WP-1290-2007-JUDGMENT

20. Respondent no.3 would pay to the petitioners arrears of

monthly special training allowance for the period for which they had

been respectively working in Marathwada Administrative and

Development Training Institute, Paithan on par with the persons on

deputation as referred to in Government Resolution dated 27-04-

1995 and as per the same terms and conditions.

21. We earnestly hope that whatever dues accruing under

this order, would be taken care of and paid by the State Government

within a period of six (6) months from the date of receipt of copy of

this order.

22. Rule is made absolute accordingly.

           [SANGITRAO S. PATIL]                       [SUNIL P. DESHMUKH]
                JUDGE                                        JUDGE

arp/