The Executive Engineer Upper Painganga Project And Another v. Dilip Sadashiv Chincholkar
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
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,
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
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,
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,
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
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 01-012006 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 hereinabove 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 + 6th PC Pay 6th PC Pay as on 01/01/2006 No No.
5th Pay Sr. WP Name Post 5th Pay Scale 6th Pay Scale (01/01/2006) 5thPC Pay ACPS Pay 6th Pay ACPS Pay Scale Scale Scale Scale (I) STAFF CAR DRIVERS 9056/ Shri. R. P.
Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 5000*1.86= 9300 i.e. 9300 9300 +G.P. 2100 Patingrao Driver (G.P. 1900) G.P. 2100 (1900+200) (1900 +200) 9057/ Shri. R. S.
Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 4800*1.86= 8928 i.e. 8930 8930 +G.P. 2100 Bhalke Driver (G.P. 1900) G.P. 2100 (1900+200) (1900 +200) 9058/ Shri. V. P.
Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 (G.P. 1900+200) 4900*1.86= 9114 i.e. 9120 9120 +G.P. 2100 (1900 +200) 9067/ Ghule Driver (G.P. 1900) Shri. B. H.
Staff Car 3050-4590 4000-6000 5200-20200 5200-20200 4800*1.86= 8928 i.e. 8930 8930 +G.P. 2100 Khillare Driver (G.P. 1900) G.P. 2100 (1900+200) (1900 +200) (II) OPERATOR 9062/ Shri.
Aliyarkhan Operator 3050-4590 4000-6000 5200-20200 5200-20200 4600*1.86= 8556 i.e. 8560 8560 + G.P. 2100 (G.P. 1900) G.P. 2100 (1900+200) (1900 +200) Latifkhan Pathan (III) MUKADAM 9054/ Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) Shri. M. B.
4440-7440 G.P.
3575*1.86= 6649 i.e. 6650 6650 + G.P. 1800 Narwade (1600+200) (1600 +200) Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) 9059/ Shri. M. V.
4440-7440 (G.P.
3500*1.86= 6510 i.e. 6510 6510 +G.P. 1800 (1600 +200) 9061/ Nikam 1600+200) Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) Shri. S. Y.
4440-7440 G.P.
3875*1.86= 7207 i.e. 7210 7210 + G.P. 1800 Kubade (1600+200) (1600 +200) Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) 9064/ Shri. S. R.
4440-7440 (G.P.
3500*1.86= 6510 i.e. 6610 6510 + G.P. 1800 (1600 +200) 10 9065/ Jadhav 1600+200) Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) Shri. P. G.
4440-7440 G.P.
3500*1.86= 6510 i.e. 6610 6510 + G.P. 1800 Chavan (1600+200) (1600 +200) Mukadam 2610-4000 3050-4590 4440-7440 (G.P. 1600) 11 9066/ Shri. R. M.
4440-7440 G.P.
3800*1.86= 7068 i.e. 7070 7070 +G.P. 1800 Gosavi (1600+200) (1600 +200) Mukadam 2610-4000 - 4440-7440 (G.P. 1600) 12 9068/ Shri. P. S.
- 3300*1.86= 6138 i.e. 6140 6140 +G.P. 1600 Govande (IV) CHOUKIDAR - CLEANER-HELPER-MAJUR 13 9053/ Choukidar 2550-3200 2610-4000 4440-7440 (G.P. 1300) Shri. R. V.
4440-7440 G.P.
3370*1.86= 6268 i.e. 6270 6270 + G.P. 1500 Dhade (1300+200) (1300 +200) 14 9052/ Shri. D. S.
Chincholkar Cleaner 2550-3200 2610-4000 4440-7440 (G.P. 1300) 4440-7440 G.P.
3440*1.86= 6398 i.e. 6400 6400 +G.P. 1500 (1300+200) (1300 +200) 15 9055/ Shri. M. H.
Cleaner 2550-3200 2610-4000 4440-7440 (G.P. 1300) 4440-7440 G.P.
3440*1.86= 6398 i.e. 6400 6400 +G.P. 1500 Kamble (1300+200) (1300 +200) 16 9060/ Shri. Shaikh Helper 2550-3200 2610-4000 4440-7440 (G.P. 1300) 4440-7440 G.P.
3720*1.86= 6919 i.e. 6920 6920 +G.P. 1500 Taju Sk.
(1300+200) (1300 +200) Kasim 17 9063/ Shri. N. N.
Majur 2550-3200 2610-4000 4440-7440 (G.P. 1300) 4440-7440 G.P.
3370*1.86= 6268 i.e. 6270 6270 + G.P. 1500 Dahale (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/-