Bombay High Court
Bharat Govindrao Kulkarni And ... vs The State Of Maharashtra, Thr. ... on 7 September, 2023
Bench: Avinash G. Gharote, Urmila Sachin Phalke
2023:BHC-NAG:13298-DB
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5105 OF 2022
1. Bharat Govindrao Kulkarni,
Aged about 68 Years,
Occu. Retired,
R/o. Siddheshwar Ward, Borban,
Umarkhed, Tahsil Umarkhed,
District Yavatmal.
2. Prakash Ganpat Wankhede,
Aged about 60 Years,
Occu. Retired,
R/o. Post Dhanki, Umarkhed,
Tahsil Umarkhed, District Yavatmal.
3. Prakash Trayambakrao Pimpale,
Aged about 70 Years, Occu. Retired,
R/o. Professor Colony Colony,
Near Gajanan Mandir, Pusad,
Tahsil Pusad, District Yavatmal - 445204.
4. Shridhar Vishramji Bhoyar,
Aged about 59 Years,
Occu. Retired,
R/o. Tantra Prerna Society, Plot
No.25A, Near Bachpan School,
Wadgaon Road, Yavatmal,
District Yavatmal - 445001.
5. Aniqurraheman Hamid Khan,
Aged about 61 Years,
Occu. Retired,
R/o. Ghate Layout, Gandhi Nagar,
Pusad, District Yavatmal - 445204.
6. Shaikh Harun Shaikh Hanif,
Aged about 63 Years, Occu. Retired,
R/o. Post, Dhanki, Tahsil Umarkhed,
District Yavatmal - 445207.
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7. Pramod Madhukarrao Bhange,
Aged about 59 Years, Occu. Retired,
R/o. C/o. Chandrakant Naktode,
Janavhi Apartment, Mahindre
Chowk, Yavatmal, Tahsil and
District Yavatmal.
8. Dilip Krushnarao Pande,
Aged about 70 Years, Occu. Retired,
R/o. Siddheshwar Ward, Borban,
Umarkhed, Tahsil Umarkhed,
District Yavatmal.
9. Nandkumar Vishweshwar Joshi,
Aged about 70 Years, Occu. Retired,
R/o Yogayog Nivas, Mahur,
Tahsil Nanded, District Nanded.
10. Ravindra Anantrao Jangamwar,
Aged about 60 Years, Occu. Retired,
R/o. Palndiwal Layout, Pusad,
Near Asegaonkar School,
Tahsil and District Yavatmal.
11. Subhash Wamanrao Bansod,
Aged 60 Years, Occu. Retired,
R/o Near Buddha Vihar,
Girijanagar, Dhamangaon Road,
Yavatmal, Tahsil and District Yavatmal.
12. Bhaskar Eknathji Javalkar,
Aged about 61 Years, Occu. Retired,
R/o Raut Nagar, Lohara, Yavatmal.
13. Ramchandr Marotrao Revanwar,
Aged 74 Years, Occu. Retired,
R/o. Bhagyanagar, Near Vijay Tokies,
Pusad, Tahsil Pusad and District Yavatmal.
14. Keshav Gopaji Chavhan,
Aged 74 Years, Occu. Retired,
R/o. Bhagyanagar, Near Vijay Tokies,
Pusad, Tahsil Pusad and District
Yavatmal.
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15. Ku. Sindhu Raghunathrao Deshmukh,
Aged about 68 Years, Occu. Retired,
R/o. Chandore Apartment, State Bank
Chowk, Yavatmal.
16. Mohan Ramji Bonde,
Aged about 61 Years, Occu. Retired,
R/o. Umarkhed, Tahsil Umarkhed,
District Yavatmal.
17. Prakash Dattatrao Baraskar,
Aged about 62 Years,
Occu. Retired,
R/o. Savna, Tahsil Mahagaon,
District Yavatmal.
18. Kisan Bhavru Dhangar,
Aged about 65 Years,
Occu. Retired,
R/o. Karanji, Tahsil Mahagaon,,
District Yavatmal.
19. Avdhut Dattatraya More,
Aged about 66 Years, Occu. Retired,
R/o. Brahmangaon, Tahsil Umarkhed,
District Yavatmal.
20. Surendra Shriram Banginwar,
Aged about 67 Years, Occu. Retired,
R/o. Paldiwal Layout,
Near Aasegaon School, Pusad,
Tahsil Pusad, District Yavatmal.
21. Digambar Datattraya Gayakwad,
Aged about 60 Years, Occu. Retired,
R/o. Dhanki, Tahsil Umarkhed,
District Yavatmal.
22. Pralhad Mohanrao Davne,
Aged about 60 Years, Occu. Retired,
R/o Patre Layout, Gandhi Nagar,
Pusad, Tahsil Pusad, District Yavatmal..
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23. Sharad Bapurao Kejkar,
Aged about 58 years,
Occu. Retired,
R/o Bijargaon, Tahsil Umarkhed,
District Yavatmal.
24. Nilprabha Datattray Dhole,
Aged about 64 Years, Occu. Retired,
R/o. Borban, Near Old Court,
Umarkhed, Tahsil. Umarkhed,
District Yavatmal. ..... PETITIONERS
// VERSUS //
1. The State of Maharashtra,
Through its Secretary,
School Education and Sports
Department, Mantralaya, Mumbai - 32,
2. The Director Education,
Department of Education,
Central Building 3,
B. J. Medical Road, Agarkar Nagar,
Pune, Maharashtra - 411001.
3. The Deputy Director of Education,
Amravati Division, Amravati.
4. The Education Officer (Primary),
Zilla Parishad, Yavatmal,
Taluka and District Yavatmal.
5. The Education Officer (Secondary),
Zilla Parishad, Yavatmal,
Taluka and District Yavatmal. .... RESPONDENTS
---------------------------------------------------------------------------------------
Shri V. N. Patre, Advocate for petitioners.
Mrs. T. H. Khan, AGP for respondent Nos. 1 to 3 and 5/State.
Mr. V. M. Kolsange, Advocate for respondent No.4.
---------------------------------------------------------------------------------------
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CORAM : AVINASH G. GHAROTE AND
URMILA JOSHI-PHALKE, JJ.
RESERVED ON : 31.08.2023
PRONOUNCED ON : 07.09.2023
JUDGMENT : [ PER: URMILA JOSHI-PHALKE, J.]
1. RULE. Rule made returnable forthwith.
2. The matter is finally heard at the request and by the consent
of the parties.
3. By the present petition, all the petitioners are seeking
directions to the respondents to give one annual increment to them for
having completed one full year of service on the date of their
superannuation/retirement and consequential benefits flowing
therefrom. The petitioners are the retired/superannuated employees
who have served in various private schools governed by the Maharashtra
Employees of Private Schools (Conditions of Service), Act, 1977 and
Rules, 1981. The petitioners while in service in the private schools, the
respondent No.4 - Education Officer (Primary) was the Superintending
Authority. All the petitioners retired on 30th June in different respective
years. The following chart shows the dates of appointment, their
retirement and there respective posts.
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v- ukao izFke use.kqd lsokfuo`Rr lsokfuo`Rr
Øz- fnukad fnukad osGh in
1- Hkkjr xksfoanjko dqGd.khZ 16@07@1981 30@06@2012 l-f'k{kd
2- izdk'k x.kir oku[ksMs 01@07@1987 30@06@2020 l-f'k{kd
3- izdk'k «;acdjko fiaiGs 31@12@1982 30@06@2010 l-f'k{kd
4- Jh/kj foJketh Hkks;j 01@07@1993 30@06@2021 l-f'k{kd
5- vuhdqjjgseku gehn [kku 22@06@1993 30@06@2019 l-f'k{kd
6- 'ks[k gk:u 'ks[k guhQ 02@07@1988 30@06@2019 f'kikbZ
7- izeksn e/kqdjjko Hkkaxs 10@09@1987 30@06@2021 eq[;k/;kid
8- fnyhi d`".kjko ikaMs 08@11@1982 30@06@2010 l-f'k{kd
9- uandqekj fo'os'oj tks'kh 01@08@1981 30@06@2010 l-f'k{kd
10- jfoanz vuarjko taxeokj 10@07@1990 30@06@2020 l-f'k{kd
11- lqHkk"k okeujko culksM 09@08@1984 30@06@2020 l-f'k{kd
12- HkkLdj ,dukFkth toGdj 19@12@1986 30@06@2019 l-f'k{kd
13- jkepanz ekjksrjko jsouokj 14@07@1973 30@06@2006 l-f'k{kd
14- ds'ko xksikth pOgk.k 01@07@1971 30@06@2006 eq[;k/;kid
15- dq- fla/kw j?kqukFkjko 14@07@1986 30@06@2012 l-f'k{kd
ns'keq[k
16- Ekksgu jketh ckssaMs 15@12@1980 30@06@2021 f'kikbZ
17- izdk'k nRrjko ckjldj 17@07@1984 30@06@2018 iz;ksx'kkGk
lgk¸;d
18- fdlu Hko: /kuxj 02@12@1983 30@06@2017 f'kikbZ
19- vo/kqr nRrk=; eksjs 01@10@1981 30@06@2016 ifjpj
20- lqjsanz Jhjke cufxuokj 01@12@1976 30@06@2013 l- f'k{kd
21- fnxkacj nRrk=; xk;dokM 02@08@1995 30@06@2022 f'kikbZ
22- izYgkn eksgujko nous 13@08@1987 30@06@2020 mPp
ek/;fed
f'k{kd
23- 'kjn ckiqjko dstdj 17@07@1990 30@06@2022 l- f'k{kd
24- fuyizHkk nRrk=; <ksys 01@07@1990 30@06@2016 eq[;k/;kid
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4. They all have made representations and requested to grant
the benefit on the ground that they have rendered the services for entire
year, therefore, they are entitled for the annual increment which is due
on 1st July, though they retired on 30 th June, however, the
representations are not considered, and therefore, they approached to
this Court.
5. In response to the notice, respondents denied the
contentions of the petitioners on the ground that as they are already
retired from service on 30th June and therefore, they are not entitled for
any increment.
6. Heard learned Counsel Shri Patre for the petitioners who
has submitted that this Court in various judgments have already taken
the view that Zilla Parishad or any other department are liable to pay
annual increment as the employees had completed work of 365 days. In
view of the said judgments, present petitioners are also entitled for the
said increment. In support of his contentions, he placed reliance on the
decision of this Court, in Writ petition No.3028 of 2021 Kailash
Gulabchand Sahuji and others vs. The State of Maharashtra and others
decided on 02.05.2022 (Aurangabad Bench), wherein this Court has
interpreted Rule 10 of Maharashtra Civil Services (Revised Pay) Rules,
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2009 and held that the petitioners are entitled for the annual increment
which is due on 1st July. It is held that considering the dates of
superannuation of these petitioners as being 30 th June of the respective
years, the increment payable to them on 1 st July of the concerned year,
would be reckoned with for notionally calculating the pensionary
benefits, which would have been payable to them from 1 st July, but for
their superannuation on 30th June. This notional inclusion of the annual
increment would be considered for calculating their pension, gratuity,
earned leave, commutation benefits etc.
7. Learned AGP reiterated the contentions and submitted that
as petitioners retired on 30 th June, they are not entitled for any annual
increment. As per Rule 10 of the Maharashtra Civil Services (Revised
Pay) Rules, 2009 (hereinafter referred as "Rules of 2009"), annual
increment is due and payable of a uniform date i.e. 1st July of every year.
8. Rule 10 of Maharashtra Civil Services (Revised Pay) Rules,
2009 reads as under:
Rule 10.- Date of next increment in the revised Pay Structure.
This rule prescribes the manner in which the next
increment in the new Pay Structure should be regulated.
The provisos to this rule are intended to eliminate the
anomalies of junior Government servants drawing more
pay than their senior by the operation of substantive part
of this rule and also taking care of the Government
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servants who have been drawing pay at the maximum of
the existing scale for more than one year as on 1.1.2006
and also those Government servant who have been
stagnating at the maximum of the scale.
The increment as on 1.7.2006 under this rule as well
as subsequent annual increments thereafter are admissible
subject to the provisions contained in the rule 36 and 39 of
the Maharashtra Civil Services (Pay) Rules, 1981."
9. The petitioners despite rendering one full year of service
were not granted annual increment only because they had retired on 30 th
June of respective years. It is submitted that the petitioners were
receiving annual increment regularly when they were in service, except
the last annual increment which fell due on 1 st July, as they retired on
30th June of respective years.
10. It is material to note that payment of increment on 1 th July
is a statutory formality but the entitlement and eligibility, therefore, is
completion of one year of service i.e. 365 days of service, prior to that
date. The Maharashtra Civil Services (Pay) Rules, 1981, came to be
amended from time to time and in view of Maharashtra Civil Services
(Revised Pay) Rules, 2009, the recommendation of 6 th Pay Commission
came to be accepted and made applicable to the State Government
Employees. In view of Rule 10 of the Rules of 2009, the annual
increment is due and payable on 1st July of every year. The said Rule 10
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of the Rules of 2009 is by and large similar to Rule 10 of the Central
Civil Services (Revised Pay) Rules, 2008.
11. In view of both these rules, being pari materia what has
been held in Kailash Gulabchand Sahuji and others (supra) would apply
with full vigour to the present matter, and the annual increment will be
due and payable to an employee on 1 st July of every year for having
completed one year of service. The petitioners who retired on 30 th June
in different years, but they have completed their one year service on the
date of their retirement, but only because they were not in service on 1 st
July, they are declined the benefits of the said annual increment.
Consequently, their pay, pension and other retiral benefits are placed in
disadvantages position.
12. In Writ Petition No.3028 of 2021 Kailash Gulabchand Sahuji
and others along with the connected petitions (supra), which considered
the judgment of the Madras High Court dated 15.09.2017 in Writ
Petition No.15732/2017 in P. Ayyamperumal Vs. The Registrar, Central
Administrative Tribunal and others in Paragraph Nos.5, 6 and 7 it has
been held as under:-
"5. The petitioner retired as Additional Director
General, Chennai, on 30.06.2013 on attaining the age
of superannuation. After the Sixth Pay Commission, the
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Central Government fixed 1st July as the date of
increment for all employees by amending Rule 10 of the
Central Civil Services (Revised Pay) Rules, 2008. In
view of the said amendment, the petitioner was denied
the last increment, though he completed a full one year
in service, i.e. from 01.07.2012 to 30.06.2013. Hence,
the petitioners filed the original application in OA
No.310/00917/2015 before the Central Administrative
Tribunal, Madras Bench, and the same was rejected on
the ground that an incumbent is only entitled to
increment on 1st July if he continued in service on that
day.
6. In the case on hand, the petitioner got retired on
30.06.2013. As per the Central Civil Services (Revised
Pay) Rules, 2008, the increment has to be given only on
01.07.2013, but he had been superannuated on
30.06.2013 itself. The judgment referred to by the
petitioner in State of Tamil Nadu, rep. by its Secretary to
Government, Finance Department and others Vs. M.
Balasubramaniam, reported in CDJ 2012 MHC 6525,
was passed under similar circumstances on 20.09.2012,
wherein this Court confirmed the order passed in W.P.
No.8440 of 2011 allowing the writ petition filed by the
employee, by observing that the employee had
completed, one full year of service from 01.04.2002 to
31.03.2003, which entitled him to the benefit of
increment which accrued to him during that period.
7 The petitioner herein had completed one full year
service as on 30.06.2013, but the increment fell due on
01.07.2013, on which date he was not in service. In
view of the above judgment of this Court, naturally he
has to be treated as having completed one full year of
service, though the date of increment falls on the next
date of his retirement. Applying the said judgment to
the present case, the writ petition is allowed and the
impugned order passed by the first respondent-Tribunal
dated 21.03.2017 is quashed. The petitioner shall be
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given one notional increment for the period from
01.07.2012 to 30.06.2013, as he has completed one full
year of service, though his increment fell on 01.07.2013,
for the purpose of pensionary benefits and not for any
other purpose. No costs."
13. There is no dispute that Rule 10 of the Maharashtra Civil
Services (Revised Pay) Rules, 2009 is identical, to the amended Rule 10
of the Central Civil Services (Revised Pay) Rules, 2008 in relations to the
uniformity in annual increment, and therefore, what has been held in
Kailash Gulabchand Sahuji and others (supra) would apply with full
vigour to the present matter.
14. In the present petition, all these petitioners have
superannuated on 30th day of June of the particular years shown in the
chart as they were due for superannuation. It is undisputed that the
recommendations under the 6th Pay Commission altered the date on
which the annual increment would have become payable, which was
normally payable after putting in 12 months in continuous service
preceding the date of reference and fixed the date as 1 st day of July of
each year. That prior thereto, the employees used to earn their annual
increment by calculating 12 calendar months from the dates of their
appointment for each succeeding year. Thus, the reference of period of
12 months for calculating the annual increment, was a period of 12
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calendar months in each succeeding academic year from the date of
appointment. By the recommendations of the 6 th pay Commission
uniformity was decided to be introduced and 1 st of July of each year was
considered to the date on which the annual increment for completing
the 12 calendar months preceding 1 st July, would be payable. Thus, for
the work performed in 12 calendar months till 30 th June, the said
employee would earn the annual increment on 1 st July of the said year.
It is in this peculiar circumstances that, these petitioners after having
superannuated on 30th June of the respective years retired on 30 th June,
2021, would have earned the annual increment which became payable
to them on 01.07.2021. As they were superannuated on 30 th June,
2021, they were not granted the notional benefit of the increment which
would have been payable on 1st July for the work performed for the
earlier year.
15. It is in these circumstances, we find that the present
petitioners who are superannuated on 30 th June of the respective years
are also entitled to receive the increment which was due on 1 st July of
the concerned year, after 2006, and it would be reckoned for calculating
the pensionary benefits, which would have been payable to them from
1st July, but for their superannuation on 30th June. This notional
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inclusion of the annual increment would be considered for calculating
their pension, gratuity, earned leave, commutation benefits etc.
16. Considering these aspects, we are of the view that the
arrears of such benefits as granted by us could be restricted for a
reasonable period. These petitioners would be entitled for the arrears of
such benefits for a period of three years preceding the dates of their
superannuation or as per actuals, which ever is less. We direct the
payment of such arrears accordingly, and such payment to be made to
these petitioners on or before 30.09.2023.
17. The Writ Petition is disposed of in the above terms. Rule
accordingly. No order as to costs.
(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 07/09/2023 17:52:38
