Bombay High Court
Kailash Manasram More And Others vs The State Of Maharashtra And Others on 13 February, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:4116-DB
1 WP / 15184 / 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 15184 OF 2017
1] Shri Kailash Manasram More,
Age 47 years, Occu. Tradesman,
R/o. At post Sultanpur, Tq. Khultabad,
Dist. Aurangabad
2] Shri Suresh S/o. Kamalakar Garad,
Age 50 years, Occu. Instructor,
R/o. Gut No. 123, Plot No.8, Shivpuri,
Padegaon, Aurangabad
3] Shri. Vidyasham Ganpatrao Kodgyale,
Age 50 years, Occu. Instructor,
R/o. Sai Swarup, Flat No. C-12,
Infront of SBO School, Jalgaon Road,
Aurangabad .. Petitioners
Versus
1] The State of Maharashtra,
Through its Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai - 32.
2] The Director of Social Justice Department,
Maharashtra State, Pune
3] The Commissioner for Person
With Disabilities, 3, Church Road,
Maharashtra State, Pune
4] The District Social Welfare Officer,
Zilla Parishad, Aurangabad
5] The Accounting Officer,
Salary Verification Unit,
Aurangabad .. Respondents
...
Advocate for petitioners : Mr. U.R. Awate i/by Talekar and Associates
AGP for respondents no. 1 to 3 : Ms. V.N. Patil - Jadhav
...
2 WP / 15184 / 2017
CORAM : MANGESH S. PATIL &
PRAFULLA S. KHUBALKAR, JJ.
RESERVED ON : 17 JANUARY 2025
PRONOUNCED ON : 13 FEBRUARY 2025
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. It is made returnable forthwith. Learned
AGP waives service for the respondents. At the joint request of the
parties, the matter is heard finally at the stage of admission.
2. The petitioners who have been working as Instructors with
the Government Primary School for Blind, Deaf and Mutes and
Orthopedically Challenged, in Government Industrial Trianing Center
for Physically Handicapped and Government Training Center cum
Sheltered Workshop for Physically Handicapped / Deaf and Mutes,
Adults, allege that pay parity has been disturbed and allege that they
were being paid at par with the Special Teachers till then but have been
discriminated against while fixing pay under V pay commission.
3. They are seeking writ of mandamus directing the state
government to include 'Instructor and Tradesman' which have been
excluded and treated differently while revising the pay of different
categories of employees in the government resolution dated
26-04-2012 (Exhibit - I), which was passed pursuant to the directions
of this Court in writ petition no. 8019 of 2009 (Smt. Kusum
3 WP / 15184 / 2017
Shankarrao Bansode and others Vs.The State of Maharashtra and
others) dated 08-06-2011. The relevant paras read as under :-
"2. By the present Petition, the petitioners who are
presently employed in primary schools run by the Zilla
Parishad for physically challenged children seek a direction
against the respondents to implement the
recommendations of the Fifth Pay Commission and to pay
them the arrears.
3. The petitioners were initially working with the
Government in its several schools run for the education
and welfare of the blind, deaf, mute and orthopedically
challenged children. They are all Special Teachers. Pay
scales as recommended by the First to Fourth Pay
Commissions were paid to the petitioners. It appears that
till 1998, the pay scales of the teachers working in the
Government schools, Zilla Parishad schools and private
schools for the physically challenged were receiving the
same pay scale. The educational qualifications for being
employed in the schools were identical. The nature of the
duties and responsibilities conferred on the teachers
working in these schools for the physically challenged were
the same.
...
...
8. It appears that the petitioners submitted a
representation once again on 6.11.2007 to the State. Since
that representation was not decided, Writ Petition no. 3156
of 2008 was filed by the petitioners. This Court directed
respondent no.1 i.e. the State to decide the representation
dated 6.11.2007 within six months from the date of
communication of the order, which was passed on
5.6.2008. It appears that thereafter the representation of
the petitioners went unheeded despite several reminders
by the petitioners to the Principal Secretary, Social Justice
Department. The petitioners then preferred Contempt
Petition no. 50 of 2009 on account of the deliberate inaction
on the part of the respondents to obey the directions issued
by this Court. The petitioners were informed by a letter
dated 1.2.2008 and 3.7.2008 that since the Central
Government had already appointed Sixth Pay Commission,
the question of deciding or considering representation of
the petitioners submitted to the Commissioner did not arise.
Hence, the present Petition.
...
...
...
4 WP / 15184 / 2017
11. In our opinion, there is no reason for not extending
the benefits of the revised pay scale of Rs.4500-7000 to
the Special Teachers working in Government schools.
There is no dispute that these Special Teachers were
extended the pay scales which were payable under the Pay
Commission recommendations. The revision in the pay
scales granted by the State Government for Special
Teachers employed in Educational and Training Institutions
was extended to all such teachers except those employed
in institutions run by the State. The reasons for refusing the
pay revision, in our opinion, reveal arbitrariness and
caprice on the part of the respondents. The first reason is
that the petitioners ought to have approached the Pay
Disparity/Anomalies Committee is without any substance.
The petitioners had in fact approached this Committee but
their representations were turned down. To suggest, that
because the Committee is no longer in existence the
petitioners are not entitled for the arrears of the pay
revision, is untenable. The contention that the petitioners
would no longer be entitled to these arrears, is
unacceptable. The second ground for refusing the
petitioners the revised pay scale is that they are not entitled
to the arrears because the Sixth Pay Commission had
been appointed. This contention is also without merit.
Merely because a new Pay Commission is appointed, it
would not mean that the arrears payable to the petitioners
under the revised pay scale Rs.4,500-7000 would no
longer be available to them. Significantly, the petitioners
have been paid this revised scale after their services were
allotted to the Zilla Parishad after the decision of the State
to transfer the institutions run by the State for the visually
challenged, hearing impaired, physically challenged and
such other special students to the Zilla Parishad. Apart
from this there is a tacit admission of the State that there
was an anomaly in implementing the revised pay scale for
special teachers working in institutes run by the
Government.
12. Accordingly, the Circular issued on 5.3.2007 by the
State, refusing the arrears payable to the Special Teachers
under the Fifth Pay Commission recommendations is set
aside. The petitioners are entitled to pay parity with
Primary Teachers working in Zilla Parishad and private
schools run for the visually challenged, hearing impaired,
physically challenged and other spcial students for the
period that they were employed in such special institutes
run by the Government. Arrears payable to the petitioners
shall be paid within six (6) months from today. Rule made
absolute accordingly."
5 WP / 15184 / 2017
4. Though writ petition no. 8019 of 2009 was filed by and
refers to Special Teachers, pertinently, even petitioner no. 1 in the
present petition was petitioner no. 4 in that writ petition and was
expressly described as Craft Teacher.
5. Again, as can be seen from paragraph no. 8 of the order in
writ petition no. 8019 of 2019 (supra), a reference was made to the
earlier writ petition bearing no. 3156 of 2008, wherein it was noted that
this Court had directed to consider the representations of the
petitioners therein. The order passed in writ petition no. 3156 of 2008
on 05-06-2008 reads as under :-
"2. The petitioners who are Special Teachers / Craft
Teachers / Art Teachers / Occupational Teachers /
Instructors in the Government Primary Schools for Blind,
Deaf and Mutes, Orthopaedically Handicapped and Mixed
Group Complex for Physically Handicapped in Government
Industrial Training Centre for Physically Handicapped are
getting less salary as compared to the teachers working in
the institutions / schools aided by the State Government
and there is a disparity between them. The petitioners
therefore, have addressed a representation to respondent
No.1, dated 6.11.2007 (Exhibit "T" to the petition). The
petitioners have approached this Court seeking Writ of
Mandamus against respondent No.1 for consideration of
this representation Exhibit "T".
As can be gathered, the petitioners in that writ petition included even
the 'Instructors'.
6 WP / 15184 / 2017
6. Admittedly, pursuant to the directions in writ petitions
no. 3156 of 2008 and 8019 of 2009, and specifically observing that
there was an anamoly in implementing the revised pay scale for
Special Teachers, that the government resolution was passed on
28-09-2012. However, as has been mentioned in the affidavit in reply
and as is the stand of the respondents, the revision was undertaken
only in respect of Special Teachers and not in respect of the Instructors
/ Tradesman. Time has been sought time and again under one pretext
or other on the ground that the government has been considering the
plight of such Instructors / Tradesman, who have been expressly
excluded from the government resolution dated 26-04-2012.
7. Even now, the learned AGP tenders across the bar a
communication dated 16-01-2025 received by him from the Deputy
Secretary of Persons with Disabilities Welfare Department of the state
government. It is being informed that for inclusion of the Instructors
and extending them a similar benefit at par with the Special Teachers
under the government resolution dated 26-04-2012, the matter has
been taken up with the Finance department and the proposal is
forwarded to it on 08-07-2024. It has also been mentioned that the
Finance department is examining financial implication and further
concluding that the decision would be taken in accordance with the
approval to be granted by the Finance department.
7 WP / 15184 / 2017
8. The above sequence of events would clearly demonstrate
that in spite of the directions contained in writ petition no. 8019 of 2009,
the post of Instructor was excluded while passing the government
resolution dated 26-04-2012.
9. Obviously, since the post of Instructor is not included in
government resolution dated 26-04-2012, no objection can be taken to
the query raised by respondent no. 5 i.e. the Accounting Officer of the
Salary Verification Unit, as has been sought to be substantiated in the
affidavit in reply filed by him.
10. The affidavit in reply filed on behalf of respondents no. 1 to
4 through one Jyoti Namdeo Rathod, District Social Welfare Officer,
Zilla Parishad, Aurangabad does not specifically deal with the claim of
the petitioners - Instructors / Tradesman. By way of an evasive reply,
it has been merely mentioned in paragraph no. 5 that the nature of
duties and responsibilities being different, non-inclusion of the post of
Instructor / Tradesman in government resolution dated 26-04-2012 was
justified. The justification should have been with a specific and
objective material.
11. While granting continuation to the individual posts, vide
government resolution dated 04-03-2020 in respect of the posts with
the office of the Commissionerate for Persons With Disabilities, the
8 WP / 15184 / 2017
post of Instructor is shown having grade pay of Rs.2800/-, But it is an
obvious mistake, as has been mentioned in the separate affidavit filed
on behalf of respondent no. 3 - District Social Welfare Officer on
15-02-2023. If it was merely a matter of grant of extension, obviously,
mentioning a grade pay inconsistent with the government resolution,
occupying the field, dated 26-04-2012, was a mistake and the
petitioners cannot take advantage thereof.
12. However, the fact remains that when admittedly, till
implementation of the fifth pay commission, the persons holding the
post of Instructor were drawing salary at par with the Special Teachers,
in the light of the directions contained in writ petition no. 8019 of 2009,
the respondents ought to have submitted the affidavit in reply,
expressly demonstrating as to why the post of Instructor was excluded
while passing the government resolution dated 26-04-2012. Nothing
has been averred in all the affdiavits in reply much less giving all the
particulars. One even does not know and make out any reason from
these affidavits in reply whether exclusion of Instructors from
government resolution dated 26-04-2012 was done deliberately for
some reasons and with objective scrutiny.
13. In the light of above, in the absence of any material and
concrete stand of the respondents to demonstrate deliberate exclusion
of Instructors while passing the government resolution dated
9 WP / 15184 / 2017
26-04-2012, in our considered view, the petition deserves to be
allowed.
14. However, following the decision in Union of India and
another Vs. Tarsem Singh; (2008) 8 SCC 648, the direction for
payment of arrears will have to be restricted to only three years prior to
the writ petition.
15. The writ petition is allowed.
16. Respondent no. 1 is directed to include the post of
Instructor / Tradesman in the government resolution dated 26-04-2012
and shall pay to the petitioners at par with the Special Teachers
working in Zilla Parishad primary schools.
17. The respondents shall thereafter undertake pay fixation
and disburse the arrears to them. However, the arrears shall be paid
only for a period of three (3) years next before filing of the petition on
07-10-2017.
18. Rule is made absolute in above terms.
[ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
