Bombay High Court
Smt.Sumati W/O Vasant Deodhar vs The State Of Maharashtra & 4 Ors on 25 January, 2018
Bench: B.P. Dharmadhikari
Judgment wp4392.02
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4392 OF 2002.
Smt. Sumati w/o Vasant Deodhar,
Aged adult, working as Sister Tutor
in the office of the Deaon, Govt.
Medical College, r/o. 149, Popular
Housing Society, Wadi Naka,
Nagpur. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, Medical
Education and Research Department,
Mantralaya, Mumbai - 32.
2. The Secretary,
Finance Department, Mantralaya,
Mumbai - 32.
3. The Director of Medical Education
and Research, St. George's
Compound, Chhatrapati Shivaji
Terminus, Mumbai.
4. The Dean, Government Medical
College, Nagpur.
5. The Pay Verification Officer,
Pay Verification Unit, Collector
Compound, Nagpur. ... RESPONDENTS
.
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Judgment wp4392.02
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Shri M.M. Sudame, Advocate for the Petitioner.
Ms. A.R. Kulkarni, A.G.P. for Respondents.
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CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : JANUARY 25 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Shri Sudame, learned counsel for the petitioner
and Ms. Kulkarni, learned A.G.P. for respondents.
2. Order passed by the Maharashtra Administrative Tribunal
on 24.09.2002 in Original Application No. 271/2001 is, questioned
by the petitioner - employee. She approached Maharashtra
Administrative Tribunal assailing order dated 30.10.2000, proposing
recovery on account of time bound promotion. It is not in dispute
that during the pendency of the proceedings, entire recovery is over.
After dismissal of the Original Application, this Court has on
13.12.2002 issued Rule in the matter and granted interim relief,
however, on 13.10.2003, that interim relief was vacated.
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3. In the meanwhile the petitioner has been superannuated.
One of the grievance of petitioner is because of pendency of this
proceedings, though she could have been fixed on 01.10.1997 in a
promotional pay-scale, that exercise has not been undertaken.
4. Learned A.G.P. has pointed out that in absence of specific
assertions on these facts by petitioner, she is not in a position to
rebut the contentions.
5. Impugned order dated 30.10.2000, shows that the
petitioner, then a sister tutor was entitled to be fixed in the pay scale
of Rs.2000-60-2300-EB-75-3200-100-3500. However, she was
erroneously fixed in the pay scale of Rs. 2374-75-3200-EB-100-3500.
From 01.01.1996 she was wrongly given pay scale of Rs. 7450-225-
11500 instead of Rs. 6500-200-10500. Order mentions that
therefore, for period from 01.10.1994 she has received excess
payment and hence recovery must be made. Audit objection dated
04.08.2000 is the cause for this order. Audit objection mentions that
the pay scale of Rs.2375-3500 does not figure in government
resolution dated 08.06.1995. It points out that the petitioner should
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have been given pay scales of Rs. 2000-3500 and 6500-200-10500.
6. Entitlement of petitioner to time bound promotion benefit
is not in dispute.
7. The employer extended that benefit from 01.10.1994. In
the impugned order the Maharashtra Administrative Tribunal has
held that the petitioner was entitled for this benefit only from
10.05.1997 and not from 01.10.1994. This is contrary to the audit
objection. However, we need not comment more on this facet.
8. The justification then advanced by the office of the
Assistant Director to State Government was that under an
impression that the post of matron in pay scale of 2375-3500 was the
next promotional post, said pay scale was given. Perusal of the
Recruitment Rules in respect of Non-gazetted post of Assistant
Matron and Matron formulated by the Government of Maharashtra
on 19.04.1973, shows that the post of Matron (non-gazetted), can be
filled in by promotion of non-gazetted assistant matron, or then by a
transfer of sister tutor possessing requisite qualification. Thus, the
post of matron [non-gazetted] is recognized as equivalent post for a
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sister tutor, if she holds the prescribed qualification.
9. The pay-scale of matron [non-gazetted] was Rs. 3275-
3500.
10. It is no doubt true that as per government decision dated
08.06.1995, which has been given effect to from 01.10.1994, the
existing pay scale of Rs. 2000-3200 has been assigned after
promotion a pay sale of Rs. 2000-3500. The government resolution
dated 08.06.1995, provides a relief against stagnation and also
accepted that the incumbent is not required to shoulder higher or
more responsibilities. Thus, for such incumbent putting in 12 years
of service, the promotional pay-scale has been made applicable in
same cadre i.e. on post on which he /she is working.
11. Pay-scale of Rs. 6500-10500 has been shown as revised
scale of pay for sister tutor, as per notification dated 05.11.1976.
Schedule-I to government resolution dated 20.07.2001, prescribes
revised scale of Rs. 7450-225-11500 for existing pay scale of
Rs.6500-200-10500 under assured progression scheme. This pay
scale of Rs. 7450-11500 was extended to petitioner from 01.01.1996
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only.
12. Considering this factual matrix, main question which
arises is, whether petitioner was after completion of 12 years of
services fixed in pay scale of Rs. 200-3500 and whether a revised
pay scale therefor was made applicable to her properly ?
The material on record does not show that on account of
audit objection any fresh exercise was undertaken and petitioner was
appropriately fixed thereafter.
13. The petitioner is already superannuated about 5 years
back, and in this situation, if there is no fixation after she completed
12 years of service and corresponding revision during regular pay
revision, she may have suffered severally.
14. The finding of Maharashtra Administrative Tribunal that
petitioner did not put in 12 years of service as a sister tutor on
01.10.1994, and thereafter benefit if any, could not have been
extended to her on that date is not shown to be erroneous or
perverse.
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15. Hence, though we in present facts, are not in a position
to hold that the recovery from petitioner is unsustainable, we hold
that the quantum thereof may not be correct. If the petitioner is
required to be fixed in appropriate pay-scale on 10.05.1997, because
of omission to undertake that exercise, her last pay and therefore,
terminal benefits are adversely affected.
16. Learned A.G.P. has pointed out that there is no material
on record about omission to extend benefit of assured progression
scheme or time bound promotion scheme from 10.05.1997. We find
that the impugned order has been passed on the basis of the audit
objection which does not consider this date 09.05.1997, as date of
completion of 12 years of service. It proceeds on a premise that
petitioner had completed 12 years on 01.10.1994.
17. The life of pay scale of 2000-3500 mentioned supra
shows that it may not materially affect the calculation of arrears to
be recovered. However, we keep all these aspects open and grant
petitioner leave to make appropriate representation pointing out
omission to revise her pay sale after completion of 12 years of service
as sister tutor and cascading effect thereof on amount recovered. If
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such a representation is made within a period of six weeks from
today, the Authorities shall independently consider it as per law and
take suitable steps thereafter within next three months.
18. This liberty is only on account of the submission or
apprehension that on 10.05.1997, exercise of revision has not been
undertaken. Hence, with this liberty to petitioner, we maintain the
order of Maharashtra Administrative Tribunal and dispose of the
Writ Petition. Rule discharged. No costs.
JUDGE JUDGE
Rgd.
