Bombay High Court
Shankar Yadavrao Kubde vs The Executive Engineer And ... on 21 July, 2022
Bench: Mangesh S. Patil
1 WP / 9052 / 2018 +
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9052 OF 2018
WITH CA/5891/2022 IN WP/9052/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Dilip S/o. Sadashiv Chincholkar,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat, Mudkhed,
Ta. Mudkhed, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9054 OF 2018
WITH CA/5909/2022 IN WP/9054/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Milind S/o. Bhikaji Narwade,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat, Mukhed,
Ta. Mukhed, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9055 OF 2018
WITH CA/5905/2022 IN WP/9055/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
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2 WP / 9052 / 2018 +
Maroti Hiraman Kamble,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat,
Mudkhed, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9053 OF 2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Ramrao S/o. Yankoba Dhade,
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare Vasahat,
Nanded, Ta. & District Nanded ... Respondent
WITH
WRIT PETITION NO. 9059 OF 2018
WITH CA/5898/2022 IN WP/9059/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Maroti Vyankatrao Nikam,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat, Mudkhed,
District Nanded ... Respondent
WITH
WRIT PETITION NO. 9056 OF 2018
WITH CA/5901/2022 IN WP/9056/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
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3 WP / 9052 / 2018 +
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Rama Pairoji Patingrao,
Aged Major, Occupation Service,
R/o. Yehaegaon (T), Ta. Kalamnuri,
District Hingoli ... Respondent
WITH
WRIT PETITION NO. 9057 OF 2018
WITH CA/5900/2022 IN WP/9057/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Ramchandra Sidappa Bhalke,
Aged Major, Occupation Service,
R/o. C/o. Milind Narwade,
Patbandhare Vasahat, Mudkhed,
District Nanded ... Respondent
WITH
WRIT PETITION NO. 9058 OF 2018
WITH CA/5902/2022 IN WP/9058/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Venkat Purbaji Ghule,
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare
Vasahat, Nanded, District Nanded ... Respondent
WITH
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4 WP / 9052 / 2018 +
WRIT PETITION NO. 9060 OF 2018
WITH CA/5894/2022 IN WP/9060/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Shaikh Taju Shaikh Kashim,
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare
Vasahat, Nanded, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9061 OF 2018
WITH CA/5899/2022 IN WP/9061/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Shankar Yadavrao Kubde,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat,
Mudkhed, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9062 OF 2018
WITH CA/5895/2022 IN WP/9062/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Aliyarkhan Latifkhan Pathan,
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5 WP / 9052 / 2018 +
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare Vasahat,
Nanded, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9063 OF 2018
WITH CA/5906/2022 IN WP/9063/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Namdeo Nagoba Dahale,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat,
Mudkhed, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9064 OF 2018
WITH CA/5904/2022 IN WP/9064/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Shamrao Ranba Jadhav,
Aged Major, Occupation Service,
R/o. Chaitanya Nagar,
Patbandhare Vasahat,
Nanded, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9065 OF 2018
WITH CA/5896/2022 IN WP/9065/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
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6 WP / 9052 / 2018 +
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Pandurang Gangaram Chavan,
Aged Major, Occupation Service,
R/o. C/o. Milind Narwade,
Patbandhare Vasahat, Mudkhed,
District Nanded ... Respondent
WITH
WRIT PETITION NO. 9066 OF 2018
WITH CA/5908/2022 IN WP/9066/2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Raghunath Mohangir Gosavi,
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare Vasahat,
Nanded, District Nanded ... Respondent
WITH
WRIT PETITION NO. 9067 OF 2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Bhagwan Hausaji Khillare,
Aged Major, Occupation Service,
R/o. C/o. Shamrao Jadhav,
Chaitanya Nagar, Patbandhare Vasahat,
Nanded, District Nanded ... Respondent
WITH
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7 WP / 9052 / 2018 +
WRIT PETITION NO. 9068 OF 2018
1. The Executive Engineer,
Upper Painganga Project,
Division No. 08, Nanded
2. The Superintending Engineer,
Upper Painganga Project,
Sinchan Bhavan, Nanded ... Petitioner
Versus
Pandurang Sadoji Govande,
Aged Major, Occupation Service,
R/o. Patbandhare Vasahat,
Mudkhed, District Nanded ... Respondent
...
Advocate for the petitioners in all WPs : Mr. Anand Chawre
Advocate for the respondent : Mr. B.A. Dhengle (in all matters)
...
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 06 JULY 2022
PRONOUNCED ON : 21 JULY 2022
JUDGMENT :
Heard learned advocate Mr. Chawre for the petitioners.
Rule. Rule is made returnable forthwith. Mr. Dhengle waives service
for the respondents in all these writ petitions.
2. The matters are heard finally at the stage of admission at
the joint request of both the sides.
3. The dispute pertaining as to the appropriateness and
legality of the pay fixation of the respondents who are serving in the
petitioner - establishment pursuant to the sixth pay commission arises
in all these matters. These are being disposed of by this common
judgment.
8 WP / 9052 / 2018 +
4. It is pertinent to note that even Industrial Tribunal in the
judgments and orders under challenge had clubbed some of these
matters. Though those have been disposed by separate judgments but
the reasoning is the same in verbatim.
5. The only short question that arises for determination in all
these writ petitions is as to if the employees who were getting salaries
in accordance with the fifth pay commission and after having received
higher scale pursuant to the Assured Career Progression Scheme
(ACPS) are entitled to fixation of their pay according to sixth pay
commission treating their earlier pay or what they were getting after
receiving ACPS benefit.
6. Primarily these employees can be grouped into following
four categories :-
i) Staff Car Driver;
ii) Operator;
iii) Mukadam;
iv) Choukidar - Cleaner - Helper - Majur
7. The learned Industrial Tribunal has found the pay fixation
illegal and incorrect on the ground that in spite of getting ACPS benefit,
their pay was fixed as if they were in the original scale of the previous
post. It has also referred to the Government Resolution dated
29-04-2009 which provided a guideline for the pay fixation to the effect
that in respect of the employees who were getting higher pay scale on
9 WP / 9052 / 2018 +
account of ACPS would be entitled to an additional increment of
Rs.200/- in the grade pay of the new scale.
8. The Industrial Court has also quoted as an instance pay of
one Maruti V. Nikam, Mukadam, who incidentally happens to be the
petitioner in writ petition no. 9059 of 2018, fixed by the concerned office
in the pay band of Rs. 5200 - 20200 with a grade pay of Rs.1900/- and
adding the increment of Rs.200/-, the grade pay has been made
Rs.2100/-. According to the learned Member of the Industrial Tribunal,
the pays of the respondents - employees have not been fixed in
accordance with the Government Resolution and, thus, the petitioners
has indulged in an unfair labour practice under item 9 of Schedule IV of
the Maharashtra Recognition of Trade Unions and Unfair Labour
Practices Act, 1971 (MRTU and PULP Act) and has further directed the
petitioner to correct the pay fixation and to pay the arrears within three
months failing which it would be liable to pay additional 9% per annum
as interest from the date of the complaints till realization.
9. Admittedly, except the petitioner in writ petition no. 9068 of
2018, rest of the petitioners had received the benefit under the ACPS
prior to coming into effect revised pay scale with effect from
01-01-2006 in accordance with the sixth pay commission report. There
is also no dispute about the fact that they all belong to isolated posts
where there is no further promotional opportunities. In order to
implement and give effect to the sixth pay commission, the State
Government promulgated Maharashtra Civil Services (Revised Pay)
10 WP / 9052 / 2018 +
Rules, 2009 (hereinafter the Rules of 2009). Both the sides are
unanimous that the respondents' pay has to be fixed in tune with these
rules.
10. Rule 14 of the Rules of 2009 lays down the manner in
which fixation of pay of employees who had received benefit of Time
Bound Promotion or ACPS before 01.01.2006. Clause no. (1) is
applicable to the employees who have got ACPS benefit prior to 01-01-
2006 but have been promoted subsequently, whereas clause (2) is
applicable to the employees who had got the benefits of ACPS prior to
01-01-2006 but have not got any promotion thereafter but had the
promotional opportunities available. Clause (3) is applicable to the
employees who got the ACPS benefit prior to 01-01-2006 but have no
further promotional opportunities like the respondents. It reads thus :-
" (3) If an employee who got the benefits of Time Bound
Promotion or Assured Career Progression Scheme prior to
the 1 day of January 2006 has no further promotion
opportunities, his pay band and grade pay will be the one
corresponding to the existing pay scale prior to getting the
benefits of Time Bound Promotion or Assured Career
Progression Scheme and his pay in the revised pay structure
shall be fixed in the manner prescribed in the rule 7 or 11, as
the case may be. In addition, he will be entitled to the
additional grade pay as mentioned below:-
(a) Rs.200 - if the grade pay corresponding to the
pay scale entitled to him prior to getting the benefits of
the above scheme is upto Rs.2000;
(b) Rs. 300 - if the grade pay corresponding to the
pay scale entitled to him prior to getting the benefits of
the above scheme is above Rs.2000, but not more than
Rs.4000;
11 WP / 9052 / 2018 +
(c) Rs. 400 - if the grade pay corresponding to the
pay scale entitled to him prior to getting the benefits of
the above scheme is above Rs. 4000, but not more than
Rs. 5000; and
(d) Rs. 500 - if the grade pay corresponding to the
pay scale entitled to him prior to getting the benefits of
the above scheme is above Rs.5000."
11. A bare look at this clause would clearly indicate that even
in respect of the employees who had got the benefit of ACPS prior to
01-01-2006 having no promotional opportunities the pay band and the
grade pay will be corresponding to the existing pay scale 'prior to
getting the benefits of ACPS' and the pay in the revised pay structure
has to be fixed as prescribed in rule 7 or 11 which provide for general
rules for fixation of initial pay in the revised pay structure. It is apparent
that the only additional benefit such an employee who has received
ACPS prior to 01-01-2006 but has no promotional opportunities is that
in addition to the revised pay structure and the pay band he would get
an additional amount of Rs. 200/- to Rs. 500/- depending upon the pay
scale, as an additional grade pay.
12. If one bears in mind this clause, it is quite evident that the
pays of the respondents have been fixed strictly in accordance with
these rules. The respondents are putting up a challenge to their pay
fixation on the ground that in spite of having received the benefit of
ACPS prior to the sixth pay commission, their revised pay structure has
been fixed without taking into account the fact that they were receiving
12 WP / 9052 / 2018 +
pay in a higher scale of such benefit and still the pay was revised by
taking into consideration their existing pay scale prior to getting the
ACPS benefit. They have not put up any other ground to challenge or
dispute their pay fixation.
13. The learned Member of the Industrial Tribunal has not
even adverted to rule 14 and clause (3) of the Rules of 2009 and
seems to have got swayed away by the logic than by law.
14. Needless to state that since it is a matter of pay fixation
which takes place in accordance with the rules framed by the State
Government, the enquiry could be limited in ascertaining as to if the
pay scale has been fixed strictly in accordance with these rules without
bringing in any other extraneous considerations de hors the Rules of
2009.
15. For the sake of convenience, it would be appropriate to
assimilate the pay of each of the respondents, as mentioned herein-
above in the categories in which they have been serving.
16. The following chart would point out the scale of pay of
each of these respondents under the fifth pay commission, their pay
scale after they got the ACPS benefit, the pay fixed after the sixth pay
commission which is after taking into account the scale that was being
drawn by them after receiving the ACPS :-
13 WP / 9052 / 2018 +
Sr. WP Name Post 5th Pay Scale 6th Pay Scale (01/01/2006) 5thPC 6th PC Pay 6th PC Pay as
No No. 5th Pay ACPS Pay 6th Pay ACPS Pay Pay on 01/01/2006
Scale Scale Scale Scale
(I) STAFF CAR DRIVERS
1 9056/ Shri. R. P. Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 5000 5000*1.86= 9300 +G.P. 2100
2018 Patingrao Driver (G.P. 1900) G.P. 2100 9300 i.e. 9300 (1900 +200)
(1900+200)
2 9057/ Shri. R. S. Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 4800 4800*1.86= 8930 +G.P. 2100
2018 Bhalke Driver (G.P. 1900) G.P. 2100 8928 i.e. 8930 (1900 +200)
(1900+200)
3 9058/ Shri. V. P. Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 4900 4900*1.86= 9120 +G.P. 2100
2018 Ghule Driver (G.P. 1900) (G.P. 1900+200) 9114 i.e. 9120 (1900 +200)
4 9067/ Shri. B. H. Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 4800 4800*1.86= 8930 +G.P. 2100
2018 Khillare Driver (G.P. 1900) G.P. 2100 8928 i.e. 8930 (1900 +200)
(1900+200)
(II) OPERATOR
5 9062/ Shri. Operator 3050-4590 4000-6000 5200-20200 5200-20200 4600 4600*1.86= 8560 + G.P. 2100
2018 Aliyarkhan (G.P. 1900) G.P. 2100 8556 i.e. 8560 (1900 +200)
Latifkhan (1900+200)
Pathan
(III) MUKADAM
6 9054/ Shri. M. B. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 G.P. 3575 3575*1.86= 6650 + G.P. 1800
2018 Narwade (G.P. 1600) 1800 6649 i.e. 6650 (1600 +200)
(1600+200)
7 9059/ Shri. M. V. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 (G.P. 3500 3500*1.86= 6510 +G.P. 1800
2018 Nikam (G.P. 1600) 1600+200) 6510 i.e. 6510 (1600 +200)
8 9061/ Shri. S. Y. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 G.P. 3875 3875*1.86= 7210 + G.P. 1800
2018 Kubade (G.P. 1600) 1800 7207 i.e. 7210 (1600 +200)
(1600+200)
9 9064/ Shri. S. R. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 (G.P. 3500 3500*1.86= 6510 + G.P. 1800
2018 Jadhav (G.P. 1600) 1600+200) 6510 i.e. 6610 (1600 +200)
10 9065/ Shri. P. G. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 G.P. 3500 3500*1.86= 6510 + G.P. 1800
2018 Chavan (G.P. 1600) 1800 6510 i.e. 6610 (1600 +200)
(1600+200)
11 9066/ Shri. R. M. Mukadam 2610-4000 3050-4590 4440-7440 4440-7440 G.P. 3800 3800*1.86= 7070 +G.P. 1800
2018 Gosavi (G.P. 1600) 1800 7068 i.e. 7070 (1600 +200)
(1600+200)
12 9068/ Shri. P. S. Mukadam 2610-4000 - 4440-7440 - 3300 3300*1.86= 6140 +G.P. 1600
2018 Govande (G.P. 1600) 6138 i.e. 6140
(IV) CHOUKIDAR - CLEANER-HELPER-MAJUR
13 9053/ Shri. R. V. Choukidar 2550-3200 2610-4000 4440-7440 4440-7440 G.P. 3370 3370*1.86= 6270 + G.P. 1500
2018 Dhade (G.P. 1300) 1500 6268 i.e. 6270 (1300 +200)
(1300+200)
14 9052/ Shri. D. S. Cleaner 2550-3200 2610-4000 4440-7440 4440-7440 G.P. 3440 3440*1.86= 6400 +G.P. 1500
2018 Chincholkar (G.P. 1300) 1500 6398 i.e. 6400 (1300 +200)
(1300+200)
15 9055/ Shri. M. H. Cleaner 2550-3200 2610-4000 4440-7440 4440-7440 G.P. 3440 3440*1.86= 6400 +G.P. 1500
2018 Kamble (G.P. 1300) 1500 6398 i.e. 6400 (1300 +200)
(1300+200)
16 9060/ Shri. Shaikh Helper 2550-3200 2610-4000 4440-7440 4440-7440 G.P. 3720 3720*1.86= 6920 +G.P. 1500
2018 Taju Sk. (G.P. 1300) 1500 6919 i.e. 6920 (1300 +200)
Kasim (1300+200)
17 9063/ Shri. N. N. Majur 2550-3200 2610-4000 4440-7440 4440-7440 G.P. 3370 3370*1.86= 6270 + G.P. 1500
2018 Dahale (G.P. 1300) 1500 6268 i.e. 6270 (1300 +200)
(1300+200)
17. Reference by the Industrial Tribunal to the pay of one of
the respondent - Mr. M.V. Nikam is factually incorrect. His pay has
been fixed according to the chart shown above and not as mentioned
in the judgments under challenge.
14 WP / 9052 / 2018 +
18. In view of the above state of affairs, the orders passed by
the learned Member of the Industrial Tribunal which are under
challenge in all these petitions are not sustainable in law.
19. The writ petitions are allowed.
20. The orders passed by the Member of the Industrial
Tribunal under challenge are quashed and set aside.
21. Rule is made absolute.
22. Pending civil applications are disposed of.
[MANGESH S. PATIL]
JUDGE
arp/-
