Bombay High Court
Rajashree W/O. Prashant Yenurkar vs The State Of Maharashtra, Thr. ... on 9 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:3990-DB
-- 1 -- WP No.3106.2024 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3106 OF 2024
Rajashree w/o. Prashant Yenurkar
age 46 years, Occ. Service,
R/o.236, Sahakar Nagar, Khamla .. Petitioner
Road, Nagpur
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Department of Home (Transport),
Mantralya, Mumbai
2. The Transport Commissioner, .. Respondents
Maharashtra State, Mumbai - 32
3. The Regional Transport Officer,
Nagpur (City), Nagpur
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Mr. Firdos Mirza, Senior Advocate, assisted by Ms. Isha Thakre,
Advocate for Petitioner.
Mr. J.Y. Ghurde, Assistant Government Pleader for Respondents.
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CORAM : AVINASH G. GHAROTE AND
ABHAY J. MANTRI, JJ.
DATED : APRIL 09, 2025
JUDGMENT (PER : ABHAY J. MANTRI, J.)
Heard. Rule. Heard finally with the consent of the learned
counsel appearing for the parties.
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(2) The petitioner aggrieved by the judgment and order
dated 13/03/2023, passed by the learned Maharashtra Administrative
Tribunal (For short, "the Tribunal") in O.A.No.1028/2021, whereby
application filed by her was partly allowed and respondent No. 1 was
directed to pay 10% of basic as admissible vide Rule 56(B) of M.C.S.R.
(pay) Rules, 1981 from 01.07.2013 instead of payment of salary and
other benefits of the post of Assistant Motor Vehicle Prosecutor. Hence,
she prefers this petition to modify the impugned judgment and order to
that extent, and to grant the entire relief as claimed in the Original
Application.
(3) Succinctly, the facts of the case are as under :-
The petitioner holds educational qualifications of B.Com,
LL.B., and LL.M. and was enrolled with the Bar Council of Maharashtra
and Goa on 31.07.2001. The petitioner joined the service on
30/06/2008 as a 'Junior Clerk'. By order dated 25.06.2020, she was
promoted to the post of "Senior Clerk" and has been working in that
capacity since then.
(4) One Shri S.S. Siddiqui was working with respondent No.
3, who was promoted on 03.08.2004 to the post of 'Accountant'. Then,
vide order dated 01.11.2010, he was promoted to the post of 'Assistant
Motor Vehicle Prosecutor' (hereinafter referred to as 'AMVP') and
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retired on superannuation on 30/06/2013. On his superannuation, the
petitioner was given the additional charge of his post. From
01/07/2013, she held an additional charge until her promotion on
25/06/2020. However, despite having made various representations,
she was neither promoted as 'AMVP' nor the benefits of the said post
were extended to her.
(5) It is also contended that the office of the respondent
No.2 by communications dated 18/02/2015 and 19/05/2015
recommended her name for grant of promotion, as she fulfills the
eligibility criteria for the post of 'AMVP', however, the said
recommendation was pending, as no recruitment rules for the cadre of
'AMVP' was approved from the General Administration Department,
Maharashtra Public Service Commission and Law and Judiciary
Department. Subsequently, they were published, and accordingly, she
was promoted to 'Senior Clerk' on 25/06/2020. Although she was
holding the additional charge of the 'AMVP' post, she was neither
promoted to the said post on an ad-hoc basis nor was the salary for the
said post released to her. Therefore, she had filed O.A.No.1028/2021
before the learned Tribunal.
(6) After considering the record, the learned Tribunal partly
allowed O.A. No. 1028/2021, whereby "it directed Respondent No. 1 to
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issue necessary orders to pay 10% of the basic salary as admissible
per Rule 56(b) of the Maharashtra Civil Services (Pay) Rules, 1981,
w.e.f. 01/07/2013, when the applicant took over additional charge of
the said post, i.e. higher responsibility till 24/06/2020 and further
directed to promote the applicant temporarily as per rules and
regulations and if otherwise eligible from 25/06/2020 as per precedent
of Shri S.S.Siddiqui on the same terms and conditions." Hence, the
petitioner has filed this petition.
(7) Mr. Mirza, learned Senior Counsel, vehemently argued
that the learned Tribunal has erred in not granting entire relief as
prayed, as it is undisputed that since 01/07/2013, the petitioner has
been holding the post of 'AMVP' and therefore, as per the principle of
'equal pay for equal work', she would be entitled for the ad-hoc
promotion on the said post, as well as monetary benefits in that
regard.
(8) Learned Senior Counsel further contends that the
respondents have not disputed that, since 01/07/2013, the petitioner
has held the additional charge of 'AMVP' until her promotion. Although
the learned Tribunal observed that there was no hurdle to promoting
the applicant on the same terms, it did not grant monetary benefits;
therefore, the impugned order requires modification.
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(9) He further invites our attention to the communications
dated 23/12/2008, 18/06/2013, 18/02/2015 and 19/05/2015 and
canvassed that vide communication dated 18/06/2013, the respondent
No.3 Authority after considering the criteria laid down in
communication dated 23/12/2008, recommended the name of the
petitioner to grant her promotion on the said post, however, the said
representation was not considered by the respondent No.2. In fact, the
said recommendation itself denotes that the petitioner was eligible for
ad-hoc promotion on the post of AMVP, however, the learned Tribunal
has not considered the same in its proper perspective and erred in
discarding the relief as prayed.
(10) Apart from this, he pointed out paragraphs Nos. 4 and 6
of the reply filed by the respondents before the learned Tribunal and
propounded that by filing a reply, the respondents had not disputed
that, since 01/07/2013, the petitioner had been holding the additional
charge of 'AMVP' until her promotion on 24/06/2020. Therefore, he
submitted that as per the principle laid down in State of Punjab and
others vs. Jagjit Singh and others (2017) 1 SCC 148 , the petitioner is
entitled to get the salary of the said post on the principle of 'equal pay
for equal work', hence he urged to modify the impugned order by
granting the relief as claimed by the petitioner in the
O.A.No.1028/2021.
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(11) Mr. Ghurde, learned Assistant Government Pleader
resisted the petition, contending that the learned Tribunal after
considering the material on record has rightly passed the order and
thereby directed the respondents to pay 10% of the basic as admissible
as per Rule 56(b) of the MCS(Pay) Rules, 1981 to the petitioner for
holding additional charge of the post of 'AMVP' and therefore, no
interference is required in the impugned order. However, he does not
dispute that the petitioner was entrusted with the responsibility of the
post of 'AMVP' as additional charge w.e.f. 01/07/2013. He further
canvassed that the ad-hoc promotion of the petitioner to the post of
'AMVP' was not within the purview of the powers exercised by
respondent No. 3. Therefore, the proposal in that regard was forwarded
to respondent Nos. 1 and 2, which is pending with them. Hence, he
submitted that the petition is devoid of merit and urged its dismissal.
(12) We have considered the rival contentions of the learned
counsel for the parties, judgment cited by the petitioner and perused
the record.
(13) It is undisputed that the petitioner possesses a
qualification of B.Com. LL.B. and LL.M. She was appointed as a 'Junior
Clerk' on 30/06/2008 and has been holding the additional charge of the
post of 'AMVP' w.e.f. 01/07/2013. Similarly, respondent No. 3, as per
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the communication dated June 18, 2013, forwarded a proposal to get
approval from respondent No. 2 to the said proposal, wherein it was
stated that the petitioner had acquired the requisite qualification to
hold the 'AVMP' post and was eligible for promotion to the post of
'AMVP', as she complied requisite terms and conditions as per letter
and therefore, her name was recommended for promotion. The
communications dated 23/12/2008 (pg.21) and 18/06/2013 (pg.33),
stated that the petitioner fulfills the eligibility criteria for holding the
post of 'AMVP'. Likewise, since the superannuation of Shri Siddiqui on
30/06/2013, the petitioner held the additional charge of the said post
from 01/07/2013 until her promotion on 25/06/2020. However, due to
the non-approval of the recruitment rules, she was not promoted to the
post in question.
(14) It also indicates from the communication dated
18/02/2015 (page 41) that 09 posts in the 'AMVP cadre were lying
vacant out of the sanctioned strength of 14 posts. After the retirement
of Shri Siddiqui on 30/06/2013, the sanctioned post also remained
vacant, and the petitioner held the additional charge of the said post
until her promotion on 25/06/2020, i.e., approximately 7 years. In
paragraph 10 of the reply, the respondents have categorically stated
that, vide communication dated 01/11/2010, Mr. Siddiqui was given an
ad-hoc promotion to the post of 'AMVP', along with eight others, based
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on their eligibility as provided in the communication dated 23/12/2008.
However, the same benefit was not bestowed on the petitioner, as she
was eligible for the said ad-hoc promotion and fulfilled the eligibility
criteria for the post of 'AMVP', as reflected in the communication dated
18/06/2013, before she assumed the additional charge of the said
post. That being so, the respondent No.3 made a recommendation to
respondent No.2 to grant her ad-hoc promotion on the post of AMVP,
however, the learned Tribunal has not considered the said fact and
erred in granting only 10% of the basic as admissible as per Rule 56(b)
of the MCS(Pay) Rules, 1981 to the petitioner for holding additional
charge of the said post and observed about the recommendation of
respondent No.3 to respondent No.2 for grant her ad-hoc promotion.
In paragraph 12 of the impugned order, the learned Tribunal has
categorically held that there was no hurdle in promoting the
applicant/petitioner on the same terms as Shri Siddiqui was temporarily
promoted as 'AMVP' vide order dated 01/11/2010; however, it restrict
itself while granting the relief as prayed and erred in granting the relief
in partly.
(15) A perusal of the decision of the Hon'ble Apex Court in
Jagjit Singh (supra), wherein it is held that "if the employee is
performing duties and responsibilities as discharged by the regular
employees against the sanctioned post in such and eventuality the
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principle of 'equal pay for equal work' applies, as such, the employee is
entitled to get the same monetary benefits as would be receivable by
the regular employee. We would like to reproduce the relevant paras
42, 42.3, 44, 56, 57 and 58 of the said decision as under :-
"42. All the judgments noticed in paras 7 to 24 hereinabove pertain to
employees engaged on a regular basis, who were claiming higher wages,
under the principle of "equal pay for equal work". The claim raised by
such employees was premised on the ground that their duties and
responsibilities were against the same post, for which a higher pay scale
was being allowed in other government departments. Or alternatively,
their duties and responsibilities were the same as those of other posts
with different designations, but they were placed on a lower scale. Having
been painstakingly taken through the parameters laid down by this Court,
wherein the principle of "equal pay for equal work" was invoked and
considered, it would be just and appropriate to delineate the parameters
laid down by this Court. In recording the said parameters, we have also
adverted to some other judgments pertaining to temporary employees
(also dealt with, in the instant judgment), wherein also, this Court had the
occasion to express the legal position with reference to the principle of
"equal pay for equal work". Our consideration has led us to the following
deductions:- Accordingly, narrated the same in sub-paras 42.1 to 42.17...
the relevant sub-para 42.3 is as under:-
42.3 The principle of "equal pay for equal work" applies to cases of
unequal scales of pay, based on no classification or irrational classification
(see Randhir Singh case7). For equal pay, the employees concerned with
whom equation is sought, should be performing work, which besides being
functionally equal, should be of the same quality and sensitivity (see
Federation of All India Customs and Central Excise Stenographers case9,
Mewa Ram Kanojia case11, Grih Kalyan Kendra Workers' Union case12
and S.C. Chandra case19).
44. We shall first outline the conclusions drawn in cases where a
claim for pay parity, raised at the hands of the temporary employees
concerned, was accepted by this Court by applying the principle of "equal
pay for equal work", with reference to regular employees:-
Accordingly, narrated the same in sub-paras 44.1 to 44.9........
56. We shall now deal with the claim of temporary employees before
this Court.
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57. There is no room for any doubt that the principle of "equal pay for
equal work" has emerged from an interpretation of different provisions of
the Constitution. The principle has been expounded through a large
number of judgments rendered by this Court and constitutes law declared
by this Court. The same is binding on all the Courts in India, under Article
141 of the Constitution of India. The parameters of the principle have been
summarised by us in para 42 hereinabove. The principle of "equal pay for
equal work" has also been extended to temporary employees (differently
described as work-charge, daily-wage, casual, ad-hoc, contractual, and the
like). The legal position, relating to temporary employees, has been
summarised by us in para 44 hereinabove. The above legal position, which
has been repeatedly declared, is being reiterated by us, yet again.
58. In our considered view, it is fallacious to determine artificial
parameters to deny the fruits of labour. An employee engaged for the
same work cannot be paid less than another who performs the same
duties and responsibilities. Certainly not, in a welfare state. Such an
action, besides being demeaning, strikes at the very foundation of human
dignity. Anyone who is compelled to work at a lesser wage does not do so
voluntarily. He does so to provide food and shelter to his family at the
cost of his self-respect and dignity, at the cost of his self-worth, and at the
cost of his integrity. For he knows that his dependents would suffer
immensely, if he does not accept the lesser wage. Any act of paying less
wages as compared to others similarly situated constitutes an act of
exploitative enslavement, emerging out of a domineering position.
Undoubtedly, the action is oppressive, suppressive and coercive, as it
compels involuntary subjugation."
(16) The learned Assistant Government Pleader vehemently
contended that the petitioner was working as a Junior Clerk and was
holding additional charge of the post of 'AMVP' and therefore, as per
Rule 56 (b) of the Rules of 1981, she is entitled to additional
pay/special pay of 10% of the presumptive pay of the post and not
entitled for the pay scale of the post of 'AMVP'.
(17) While dealing with the above submissions, we would like
to reproduce Rule 56 of the Rules of 1981:
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"56. Pay during appointment to two or more posts - A Government
servant already holding a post in a substantive or officiating capacity may
be appointed to officiate as a temporary measure in one or more other
independent posts at one time or may be given additional charge of one
or more independent posts in addition to his own. In such cases, his pay
shall be regulated as follows :-
(a) In the former case, the highest pay to which he would be entitled if
his appointment to one of the posts stood alone, may be drawn on
account of his tenure of that post.
(b) For each other post, he may be permitted to draw additional
pay/special pay at 20 per cent of the presumptive pay of the post
limited to Rs.250 per month irrespective of whether the
Government servant is appointed to such a posts or is given
additional charge, subject to the condition that such additional
pay/special pay should in no case exceed 20 per cent of the
presumptive pay of the highest post limited to Rs.250 p.m. of
which he held additional charge. Even, if a Government servant is
appointed to more than one independent post or is given full or
current charge of more than one independent post, the additional
pay/special pay should in no case exceed 20 per cent of the
presumptive pay of the highest post limited to Rs.250 p.m. of
which he held additional charge. No additional pay/special pay
shall, however, be granted if such charge is held for a period of
less than sixteen days or if a regular appointment is made for a
like period."
(18) Bare perusal of the above Rule indicates that if any
person holds an additional charge of any post in addition to his own, he
is entitled to draw additional pay/special pay at 20% of the
presumptive pay, but should not exceed Rs. 250/- p.m. However, the
expression holding of an additional charge does not specify its nature,
whether in the same cadre or another cadre. Thus, in our view, a
contextual interpretation of the above Rule would mean holding the
additional charge of the post in the same cadre rather than a higher
one.
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(19) On consideration of the affidavit of respondent Nos.1 to 3
presented before the Tribunal as well as this Court, it is quite clear that
the respondents have not disputed that the petitioner was performing
the duties as a full-time 'AMVP' from 01/07/2013 until her promotion
on 25-06-2020, i.e. approximately for seven years. Although the office
order dated 29-06-2013 refers to giving additional charge of the post of
'AMVP' as a stop-gap arrangement, it is a matter of record that the
petitioner has performed full-time duty as a 'AMVP' continuously for a
period of seven years. In such an eventuality, it would not be
permissible to contend that it was a stop-gap arrangement by way of
additional charge. It should not be overlooked that the petitioner has
performed the functions as a full-time 'AMVP' long-term. Similarly, it is
not disputed that the clerical cadre differs from the 'AMVP' cadre. Rule
56 relates to the combination of appointments. The post held by the
petitioner as a 'Junior Clerk' in the clerical cadre cannot be compared
with the cadre of 'AMVP'. Moreover, the said post was vacant when she
was performing her duties as 'AMVP'. Therefore, in our opinion, as long
as she was performing the full-time duties of an 'AMVP' and taking
responsibility for said post, she must receive the pay scale of the
'AMVP' post. Therefore, the provisions of Rule 56 of the Rules of 1981
would not apply to the petitioner as the nature of the work of the
Junior Clerk and 'AMVP' is totally distinct. Apart from this, she was
eligible for the post of 'AMVP' and therefore, her name was
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recommended vide communication dated 18-06-2013 for grant of ad
hoc promotion to the post of AMVP by respondent No.3 to respondent
No.2. It would be thus apparent that the expression 'additional charge'
would indicate an additional charge in the same cadre and not
otherwise. For this reason, in our opinion, holding charge of the higher
post with responsibilities for a long and substantial period entitles her
to get the pay scale of the said 'AMVP' post on the principle of 'equal
pay for equal work'. Therefore, in our view, the findings recorded by
the learned tribunal are not sustainable in the eyes of the law regarding
the applicability of Rule 56 of the Rules of 1981 for holding additional
charge of the post of 'AMVP'. That being so, applying the additional pay
at 10% of the basic pay as per Rule 56 of the Rules of 1981 would not
be proper. Hence, we do not find substance in the respondents'
contention in this regard.
(20) Apart from this, the issue in the present matter is
covered by the judgment of this Court dated 12/12/2012 in Writ
Petition No.163/2012 (The State of Maharashtra vs. Dr. Mannulal S/o
Gabbulal Naik). Since the facts of the said case and the case in hand
are identical, as such, what has been held in the said judgment applies
to the present case. In the above decision, this Court confirmed the
order of the Tribunal to grant the consequential pay scale applicable to
the post of 'Motor Vehicle Prosecutor'; though, he did not fulfil the
eligibility criteria for appointment to the said post. On the contrary, the
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case in hand is on better footing as the petitioner was eligible to hold
the said post, and her name was also recommended by respondent No.
3 to respondent No.2. In the said case, the person was appointed as a
clerk and performed the duty of Motor Vehicle Prosecutor. That being
so, in our considered view, the dictum laid down in the said case
applies to the case in hand.
(21) It would thus be apparent that the petitioner was not
promoted on an ad hoc basis as 'AMVP', but she held the additional
charge and discharged the duties and responsibilities of the said post
for a substantive period, w.e.f. 01/07/2013 to 24/06/2020 until she
was promoted and discharged her duty as 'AMVP'. Similarly, the said
sanctioned post remains vacant. Moreover, the petitioner was eligible to
hold the said post, and her name was also recommended by
respondent No. 3 to respondent No. 2, vide communication dated
18/06/2013.
(22) In such an eventuality, in our considered opinion, in view
of the mandate laid down in the case of Jagjit Singh (supra) the
principle of 'equal pay for equal work' applies, to the employee i.e. the
petitioner who would be entitled to get the same monetary benefits as
are receivable by the regular employee. Learned Tribunal has not
considered this aspect in its proper perspective and erred in granting
limited relief i.e. additional 10% pay of the basic as admissible vide
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Rule 56(b) of the MCS(Pay) Rules, 1981, in view of the above
discussion the said finding cannot be sustained in the eyes of law nor
appears consonant with the law laid down by the Hon'ble Apex Court in
Jagjit Singh(supra), therefore, the same is required to be modified. It
would thus be apparent that, as per the law laid down by the Hon'ble
Apex Court in Jagjit Singh (supra), the petitioner is entitled to the
relief as claimed. However, she was not promoted due to the non-
approval of recruitment rules until 2019, when the sanctioned post
became vacant, and she was holding the additional charge.
(23) In the wake of the above, we find substance in the
learned Senior Counsel's contention in that regard; therefore, in light of
the dictum laid down in Jagjit Singh (supra), we partly allow the
petition and modify the impugned judgment passed by the learned
Tribunal. The respondents are directed to grant the applicant the pay
scale attached to the post of 'AMVP' w.e.f. 01/07/2013 until she has
held the said post, and to pay consequential benefits arising from it by
adjusting the earlier payment made to her.
(24) Rule is made absolute in the above terms. No costs.
[ABHAY J. MANTRI, J.] [AVINASH G. GHAROTE, J.]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 15 OF 15
Designation: PA To Honourable Judge
Date: 17/04/2025 18:58:31
