Bombay High Court
Shaukat S/O Zaman Ansari And ... vs State Of Maharashtra Thr. ... on 14 December, 2021
Bench: S.B. Shukre, Anil Laxman Pansare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.7942/2019
1. Shaukat S/o Zaman Ansari,
aged 64 Major, Occ. Service,
R/o Warispura Chowk, In front of
Lal Madarsa, Taluka Kamptee, Dist.
Nagpur.
2. Roopchand S/o Ganpati Khawas,
aged 65 Major, Occ. Service,
R/o 539, Navin Subhedar Layout,
Nagpur.
3. Pandurang S/o Bapuraoji Khekre,
aged 69 Major, Occ. Service,
R/o Plot No.62, Shrikrushna Nagar,
New Subhedar Layout, Nagpur.
4. Ramesh S/o Marotrao Thubrikar,
aged 63 Major, Occ. Service,
R/o Behind Rameshwar Oil Mill,
Sambhaji Road, Timki, Nagpur.
5. Dnyneshwar S/o Mukaji Bawne,
aged 64 Major, Occ. Service,
R/o 403, New Subhedar Layout,
Nagpur.
6. Dinkar S/o Pundlik Sadawarti,
aged 61 Major, Occ. Service,
R/o Tandapeth, Navin Vasti,
Chandrabhaga Nagar, Nagpur.
7. Jageshwar S/o Yadavrao Parate,
age 64 Major, Occ. Service,
R/o Plot No.120B, Ramna Maroti Nagar,
Nagpur.
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8. Lakhan S/o Chhotelal Malik,
age 59 Major, Occ. Service,
R/o Ramsumer Baba Nagar,
Kawrapeth, Nagpur.
9. Vikas S/o Vasudeorao Kate,
age 67 Major, Occ. Service,
R/o 6, Janakpuri Colony
(Garkheda Campus), Aurangabad
10. Dnyandeo S/o Vasudeorao Babulkar,
age 56 Major, Occ. Service,
R/o Plot No.77, Mohan Nagar,
Near Vrindavan Garden, Mahabal Area,
Jalgaon.
11. Vishwanath S/o Rajeshyam Metku,
age 68 Major, Occ. Service, R/o
House No.1-16-723 Vishnu Nagar,
New Mondha, Nanded.
12. Shalikram S/o Yashwantrao Wakodikar,
age 66 Major, Occ. Service, R/o
Bhandewadi, Pardi, Ward No.6,
Bhandara Road, Nagpur.
13. Navroj S/o Bezun Dawar,
age 66 Major, Occ. Service, R/o
2nd Floor, Anjuman Memorial Block,
Besides, Gandhisagar, Nagpur.
14. Haribhau S/o Tulsiram Burde,
age 66 Major, Occ. Service, R/o
Vinkar Colony, Manewada, Nagpur.
15. Babarao S/o Haribhau Bhagwat,
age 66 Major, Occ. Service, R/o
780, Trimurti Nagar, C.A. Road,
Nagpur.
16. Anil S/o Krushnarao Dahare,
age 65 Major, Occ. Service, R/o
In front of J.K. Plaza, Jamunalal Bajaj
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Ward, Bhandara.
17. Shankar S/o Natthuji Ambalkar,
age 63 Major, Occ. Service,
R/o Plot No.27, Mahavishnu Nagar,
Narsala Road, Nagpur.
18. Omkar S/o Laxmanrao Sorte,
age 66 Major, Occ. Service,
R/o 215, Suyog Nagar, Nagpur.
19. Nagorao S/o Panchamji Raut,
age 66 Major, Occ. Service,
R/o Plot No.32, Dhanwantari Nagar,
Nagpur.
20. Shankar S/o Sitaram Selukar,
age 64 Major, Occ. Service,
R/o Plot No.133, Winkar Colony,
Manewada, Nagpur.
21. Bhimrao S/o Hiramanji Zade,
age 69 Major, Occ. Service,
R/o Nashik Nagar, New Subhedar Layout,
Nagpur.
22. Gangadhar S/o Vishwanath Chamate,
age 65 Major, Occ. Service,
R/o Plot No.87, Pawansoot Nagar,
Morghate Layout, Umred Road,
Nagpur.
23. Prabhakar S/o Mahadeorao Saonerkar,
age 66 Major, Occ. Service,
R/o Plot No.30, Manish Layout, Kharbi
Road, Shesh Nagar, Nagpur.
24. Sudhakar S/o Pundlikji Sadawarti,
age 66 Major, Occ. Service,
R/o Plot No.88, Ayodhya Nagar,
Nagpur.
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25. Pandhrang S/o Viththal Kumbhare,
age 69 Major, Occ. Service,
R/o Plot No.267, Panchwati Nagar,
Binakhi Layout, Nagpur.
26. Hariprasad S/o Kalusingh Rajput,
age 66 Major, Occ. Service,
R/o Plot No.132, Rambhau Mhalgi Nagar,
Hudkeshwar Road, Nagpur.
27. Pandurang S/o Rambhau Nimje,
age 66 Major, Occ. Service,
R/o Plot No.8/9, Sharda S. Kargil Nagar,
Nagpur.
28. Ramesh S/o Pandurang Pathrabe,
age 66 Major, Occ. Service,
R/o House No.84, Jagnath Budhwari,
Pathrabe Mohalla, Nagpur.
29. Manohar S/o Tikaramji Lanjewar,
age 66 Major, Occ. Service,
R/o Lanjewar Chawl, C.A. Road,
Telipura, Nagpur.
30. Dilip S/o Krushnarao Kumbhare,
age 64 Major, Occ. Service, R/o
Plot No.1333, N.I.T. Colony,
Nandanwan, Nagpur.
31. Nandu S/o Wamanacharya Tuljapurkar,
age 64 Major, Occ. Service, R/o
Plot No.159/60/384, Balaji Apartment,
S-1, Laxmipeth, Damani Nagar, Solapur.
32. Shrihari S/o Kolbaji Dhakate,
age 64 Major, Occ. Service, R/o Plot No.44,
Shrikrushna Nagar, Wathoda Road,
Nagpur.
33. Shankar S/o Pandurangji Wankar,
age 61 Major, Occ. Service, R/o Golibar
Chowk, Timki Road, Nagpur.
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34. Vinod S/o Dinanath Pathak,
63 Major, Occ. Service, R/o
Shastri Ward, Ramtek, Dist. Nagpur.
35. Allahbaksh S/o Faridso Hannure,
age 67 Major, Occ. Service, R/o
House No.1887, Namkar Colony,
Mendargi, Tahsil Akkalkot,
Dist. Solapur.
36. Ashok S/o Sitaram Ambone,
66 Major, Occ. Service, R/o
Plot No.65, Bharat Nagar, Abha
Colony, Nagpur.
37. Ghanshyam S/o Shivnath Selukar,
age 63 Major, Occ. Service, R/o
Maharashtra State Handloom Corporation,
Qtr. No.1, Umred Road, Nagpur.
38. Bhimrao S/o Roshan Dongre,
age 71 Major, Occ. Service, R/o
Lashkaribag, Nagpur.
39. Vasudeo S/o Jangluji Meshram,
age 68 Major, Occ. Service, R/o
Plot No.30, Shesh Nagar, Manewada,
Chikhli Road, Nagpur.
40. Narendra S/o Jeshiramji Pande,
age 67 Major, Occ. Service, R/o
Plot No.19, Mhalgi Nagar No.2,
Manewada Road, Nagpur.
41. Prabhakar S/o Laxman Bhasme,
age 68 Major, Occ. Service, R/o
148B, Hasanbag Road, Kamgar Nagar,
Nagpur.
42. Ashok S/o Motiraji Dhole,
age 66 major, Occ. Service, R/o
Plot No.16, Shri Prabhu Nagar,
New Nandanwan, Nagpur.
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43. Vitthal S/o Mahadeoraoji Landge,
age 70 Major, Occ. Service, R/o
Plot No.317, Munshi Galli, Near
Natraj Talkies, Mahal, Nagpur.
44. Krushnarao S/o Bhagwanji Pawanikar,
age 65 Major, Occ. Service, R/o
Plot No.225A, Yogeshwar Nagar, Umred
Road, Dighori, Nagpur.
45. Vilas S/o Govindrao Enpreddiwar,
age 63 Major, Occ. Service, R/o
Juni Mangalwari, Ganli Road, Nagpur.
46. Ramesh S/o Govindrao Gadgilwar,
age 64 Major, Occ. Service, R/o Plot No.8,
Chintamani Apartment, Swawlambi Nagar,
Nagpur.
47. Chintaman S/o Kisnuji Parate,
age 65 Major, Occ. Service, R/o
Plot No.345, Tata Chowk, Besa Road,
Vinkar Colony, Manewada, Nagpur.
48. Omprakash S/o Raghunath Selukar,
age 68 Major, Occ. Service, R/o Nagpur.
49. Gunwant S/o Mahadeo Chapre,
age 66 Major, Occ. Service, R/o
Plot No.121, Priyadarshni Nagar,
Bhamti, Nagpur.
50. Shailendra S/o Laxmanrao Gangatirkar,
age 67 Major, Occ. Service, R/o
Mayureshwar Apartment, Dev Nagar,
Nagpur. ..Petitioners.
..Vs..
1. State of Maharashtra,
through it's Secretary, Cooperation,
Marketing and Textiles Department,
14th Floor, New Administrative Building,
Madam Cama Road, Hutatma Rajguru
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Square, Mumbai 400 032.
2. Maharashtra State Handloom Corporation
Limited, Nagpur, a Government Undertaking
through it's Managing Director, having office
at ..Respondents.
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Mr. C.S. Kaptan, Senior Advocate with Mr. P.S. Chawhan, Advocate for petitioners.
Mr. A.A. Madiwale, A.G.P. for respondent No.1.
Mr. P.S. Khobragade, Advocate for respondent No.2.
------------------------------------------------------------------------------------------------
CORAM :- SUNIL B. SHUKRE AND
ANIL L. PANSARE, JJ.
DATED :- 14.12.2021.
ORAL JUDGMENT (Per Sunil B. Shukre, J.)
Heard. Rule. Rule made returnable forthwith. Heard finally
by consent.
2. After hearing both the sides, the undisputed facts which
emerge, are as follows:-
Petitioners, the employees of respondent No.2 had never opted
for any voluntary retirement scheme and they continued to work in
respondent No.2 corporation till they reached the age of
superannuation. The petitioners were granted benefit of 5 th pay
commission recommendations w.e.f. 8.4.2008 but while granting so,
an undertaking was obtained from the petitioners that they would not
claim any arrears of 5th pay commission recommendations to be
calculated from 1st January, 1996 as that was the date from which the
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recommendations were implemented by the Government for the State
Government employees. However, later on, some of the employees
who had retired prior to 8.4.2008 started claiming these benefits and
they also filed a writ petition before this Court which came to be
dismissed and the decision of the dismissal was confirmed by the Apex
Court. The Hon'ble Chief Minister by his decision taken on 9 th August,
2018 out of compassion for such employees, however, approved the
grant of benefits of 5th pay commission to all such employees in the
nature of arrears of pay w.e.f. 1.1.1996 till their date of
retirement/discontinuation in service. Thereafter by the
communication dated 9.1.2019 sent by the Managing Director of
respondent No.2 to the Director, Textiles, Government of Maharashtra,
Nagpur, the decision of respondent No.2 was communicated and it
was informed that as approved by the Hon'ble Chief Minister arrears
of pay as per 5th pay commission recommendations w.e.f. 1.1.1996
shall be paid, though the name given to the arrears of pay was
"Sanugrah Anudan" which is loosely translated as ex-gratia payment.
3. Now, it is the contention of learned Senior Advocate that effect
of this decision which is translated into a decision as per the
Government Resolution dated 20th September, 2020 is that those who
have retired or discontinued from the service of respondent No.2
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before 8.4.2008 have received greater arrears and benefits than those
including the petitioners who were in service of respondent No.2 as of
8.4.2008 and this amounts to impermissible discrimination against the
petitioners and other similarly situated employees.
4. Although, the submission so made on behalf of the petitioners
has been opposed by the learned A.G.P. and learned counsel for
respondent No.2 on the ground that the petitioners had waived their
right to claim their arrears prior to 8.4.2008, we are not inclined to
uphold the objection. The reason being that after having obtained an
undertaking from the petitioners that they would not claim any
arrears of 5th pay commission recommendations, the respondents
ought not to have agreed for granting benefits of arrears of 5th pay
commission recommendations to those who had retired or
discontinued from service of respondent No.2 and who were denied
these benefits even by the Courts including the Hon'ble Supreme
Court. But, respondent No.1 did take such decision on it's own
without thinking of it's consequences and the result is of creation of
two different classes of the employees of the same employer i.e.
respondent No.2 who were similarly situated. Now, there is one set of
employees which has been granted arrears of 5 th pay commission
recommendations w.e.f. 1.1.1996 and there is another set of
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employees which has been denied these benefits and the reason for
their deprivation is being attributed to the undertaking or the waiver
submitted by the other set of employees. When the rule of waiver is
applied differently to employees identically situated, the rule of waiver
ceases to be operative by the own action of the employer. An
employer cannot hold one set of employees by their own undertaking
when the effect of that undertaking which is nothing but waiver of
claim of arrears and consequent accrual of right in favour of the
employer to decline payment of arrears to the employees giving
undertaking cannot be forgotten when it comes to paying arrears to
another set of employees. But, when it is forgotten, it leads to
artificial creation of two classes of employees on the basis of favour
granted to one of them and favour refused to the other. This is
discrimination not permissible under Article 14 read with Article 21 of
the Constitution of India.
5. We are, therefore, of the view that now the undertaking given
by these petitioners has lost it's importance and consequently it cannot
be enforced against the petitioners. The petitioners, by virtue of a
subsequent decision taken voluntarily by respondent No.1, in case of
another set of employees, have become entitled for such benefits
which have been given to same and similar type of employees.
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6. In the circumstances, we find inaction on the part of the
respondents in not making available to the petitioners the benefits of
it's decision taken in the matter as arbitrary and not permissible in
law. The petition is, therefore, allowed in terms of prayer clause (i).
We direct that benefits be released within six months from the
date of the order.
Rule is made absolute in the above terms. There shall be no
order as to costs.
JUDGE JUDGE
Tambaskar.
Signed By:NILESH VILASRAO
TAMBASKAR
Private Secretary
Signing Date:15.12.2021 19:41
