High Court · 2025

Legal Reasoning

1 WP / 15184 / 2017 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 15184 OF 20171] Shri Kailash Manasram More, Age 47 years, Occu. Tradesman, R/o. At post Sultanpur, Tq. Khultabad, Dist. Aurangabad2] Shri Suresh S/o. Kamalakar Garad, Age 50 years, Occu. Instructor, R/o. Gut No. 123, Plot No.8, Shivpuri, Padegaon, Aurangabad3] 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, Pune3] The Commissioner for Person With Disabilities, 3, Church Road, Maharashtra State, Pune4] 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 AssociatesAGP 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 2025PRONOUNCED ON : 13 FEBRUARY 2025JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule. It is made returnable forthwith. LearnedAGP waives service for the respondents. At the joint request of theparties, the matter is heard finally at the stage of admission. 2.The petitioners who have been working as Instructors withthe Government Primary School for Blind, Deaf and Mutes andOrthopedically Challenged, in Government Industrial Trianing Centerfor Physically Handicapped and Government Training Center cumSheltered Workshop for Physically Handicapped / Deaf and Mutes,Adults, allege that pay parity has been disturbed and allege that theywere being paid at par with the Special Teachers till then but have beendiscriminated against while fixing pay under V pay commission. 3.They are seeking writ of mandamus directing the stategovernment to include ‘Instructor and Tradesman’ which have beenexcluded and treated differently while revising the pay of differentcategories of employees in the government resolution dated26-04-2012 (Exhibit – I), which was passed pursuant to the directionsof this Court in writ petition no. 8019 of 2009 (Smt. Kusum 3 WP / 15184 / 2017 Shankarrao Bansode and others Vs.The State of Maharashtra andothers) dated 08-06-2011. The relevant paras read as under :-“2. By the present Petition, the petitioners who arepresently employed in primary schools run by the ZillaParishad for physically challenged children seek a directionagainst the respondents to implement therecommendations of the Fifth Pay Commission and to paythem the arrears. 3. The petitioners were initially working with theGovernment in its several schools run for the educationand welfare of the blind, deaf, mute and orthopedicallychallenged children. They are all Special Teachers. Payscales as recommended by the First to Fourth PayCommissions were paid to the petitioners. It appears thattill 1998, the pay scales of the teachers working in theGovernment schools, Zilla Parishad schools and privateschools for the physically challenged were receiving thesame pay scale. The educational qualifications for beingemployed in the schools were identical. The nature of theduties and responsibilities conferred on the teachersworking in these schools for the physically challenged werethe same.......8. It appears that the petitioners submitted arepresentation once again on 6.11.2007 to the State. Sincethat representation was not decided, Writ Petition no. 3156of 2008 was filed by the petitioners. This Court directedrespondent no.1 i.e. the State to decide the representationdated 6.11.2007 within six months from the date ofcommunication of the order, which was passed on5.6.2008. It appears that thereafter the representation ofthe petitioners went unheeded despite several remindersby the petitioners to the Principal Secretary, Social JusticeDepartment. The petitioners then preferred ContemptPetition no. 50 of 2009 on account of the deliberate inactionon the part of the respondents to obey the directions issuedby this Court. The petitioners were informed by a letterdated 1.2.2008 and 3.7.2008 that since the CentralGovernment had already appointed Sixth Pay Commission,the question of deciding or considering representation ofthe 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 extendingthe benefits of the revised pay scale of Rs.4500-7000 tothe Special Teachers working in Government schools.There is no dispute that these Special Teachers wereextended the pay scales which were payable under the PayCommission recommendations. The revision in the payscales granted by the State Government for SpecialTeachers employed in Educational and Training Institutionswas extended to all such teachers except those employedin institutions run by the State. The reasons for refusing thepay revision, in our opinion, reveal arbitrariness andcaprice on the part of the respondents. The first reason isthat the petitioners ought to have approached the PayDisparity/Anomalies Committee is without any substance.The petitioners had in fact approached this Committee buttheir representations were turned down. To suggest, thatbecause the Committee is no longer in existence thepetitioners are not entitled for the arrears of the payrevision, is untenable. The contention that the petitionerswould no longer be entitled to these arrears, isunacceptable. The second ground for refusing thepetitioners the revised pay scale is that they are not entitledto the arrears because the Sixth Pay Commission hadbeen appointed. This contention is also without merit.Merely because a new Pay Commission is appointed, itwould not mean that the arrears payable to the petitionersunder the revised pay scale Rs.4,500-7000 would nolonger be available to them. Significantly, the petitionershave been paid this revised scale after their services wereallotted to the Zilla Parishad after the decision of the Stateto transfer the institutions run by the State for the visuallychallenged, hearing impaired, physically challenged andsuch other special students to the Zilla Parishad. Apartfrom this there is a tacit admission of the State that therewas an anomaly in implementing the revised pay scale forspecial teachers working in institutes run by theGovernment.12. Accordingly, the Circular issued on 5.3.2007 by theState, refusing the arrears payable to the Special Teachersunder the Fifth Pay Commission recommendations is setaside. The petitioners are entitled to pay parity withPrimary Teachers working in Zilla Parishad and privateschools run for the visually challenged, hearing impaired,physically challenged and other spcial students for theperiod that they were employed in such special institutesrun by the Government. Arrears payable to the petitionersshall be paid within six (6) months from today. Rule madeabsolute accordingly.” 5 WP / 15184 / 2017 4.Though writ petition no. 8019 of 2009 was filed by andrefers to Special Teachers, pertinently, even petitioner no. 1 in thepresent petition was petitioner no. 4 in that writ petition and wasexpressly described as Craft Teacher.5.Again, as can be seen from paragraph no. 8 of the order inwrit petition no. 8019 of 2019 (supra), a reference was made to theearlier writ petition bearing no. 3156 of 2008, wherein it was noted thatthis Court had directed to consider the representations of thepetitioners therein. The order passed in writ petition no. 3156 of 2008on 05-06-2008 reads as under :-“2. The petitioners who are Special Teachers / CraftTeachers / Art Teachers / Occupational Teachers /Instructors in the Government Primary Schools for Blind,Deaf and Mutes, Orthopaedically Handicapped and MixedGroup Complex for Physically Handicapped in GovernmentIndustrial Training Centre for Physically Handicapped aregetting less salary as compared to the teachers working inthe institutions / schools aided by the State Governmentand there is a disparity between them. The petitionerstherefore, have addressed a representation to respondentNo.1, dated 6.11.2007 (Exhibit "T" to the petition). Thepetitioners have approached this Court seeking Writ ofMandamus against respondent No.1 for consideration ofthis representation Exhibit "T".As can be gathered, the petitioners in that writ petition included eventhe ‘Instructors’. 6 WP / 15184 / 2017 6.Admittedly, pursuant to the directions in writ petitionsno. 3156 of 2008 and 8019 of 2009, and specifically observing thatthere was an anamoly in implementing the revised pay scale forSpecial Teachers, that the government resolution was passed on28-09-2012. However, as has been mentioned in the affidavit in replyand as is the stand of the respondents, the revision was undertakenonly in respect of Special Teachers and not in respect of the Instructors/ Tradesman. Time has been sought time and again under one pretextor other on the ground that the government has been considering theplight of such Instructors / Tradesman, who have been expresslyexcluded from the government resolution dated 26-04-2012.7.Even now, the learned AGP tenders across the bar acommunication dated 16-01-2025 received by him from the DeputySecretary of Persons with Disabilities Welfare Department of the stategovernment. It is being informed that for inclusion of the Instructorsand extending them a similar benefit at par with the Special Teachersunder the government resolution dated 26-04-2012, the matter hasbeen taken up with the Finance department and the proposal isforwarded to it on 08-07-2024. It has also been mentioned that theFinance department is examining financial implication and furtherconcluding that the decision would be taken in accordance with theapproval to be granted by the Finance department. 7 WP / 15184 / 2017 8.The above sequence of events would clearly demonstratethat in spite of the directions contained in writ petition no. 8019 of 2009,the post of Instructor was excluded while passing the governmentresolution dated 26-04-2012.9.Obviously, since the post of Instructor is not included ingovernment resolution dated 26-04-2012, no objection can be taken tothe query raised by respondent no. 5 i.e. the Accounting Officer of theSalary Verification Unit, as has been sought to be substantiated in theaffidavit in reply filed by him.10.The affidavit in reply filed on behalf of respondents no. 1 to4 through one Jyoti Namdeo Rathod, District Social Welfare Officer,Zilla Parishad, Aurangabad does not specifically deal with the claim ofthe petitioners – Instructors / Tradesman.By way of an evasive reply,it has been merely mentioned in paragraph no. 5 that the nature ofduties and responsibilities being different, non-inclusion of the post ofInstructor / Tradesman in government resolution dated 26-04-2012 wasjustified. The justification should have been with a specific andobjective material.11.While granting continuation to the individual posts, videgovernment resolution dated 04-03-2020 in respect of the posts withthe 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 anobvious mistake, as has been mentioned in the separate affidavit filedon behalf of respondent no. 3 – District Social Welfare Officer on15-02-2023. 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 thepetitioners cannot take advantage thereof.12.However, the fact remains that when admittedly, tillimplementation of the fifth pay commission, the persons holding thepost 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 excludedwhile passing the government resolution dated 26-04-2012. Nothinghas been averred in all the affdiavits in reply much less giving all theparticulars. One even does not know and make out any reason fromthese affidavits in reply whether exclusion of Instructors fromgovernment resolution dated 26-04-2012 was done deliberately forsome reasons and with objective scrutiny.13.In the light of above, in the absence of any material andconcrete stand of the respondents to demonstrate deliberate exclusionof Instructors while passing the government resolution dated 9 WP / 15184 / 2017 26-04-2012, in our considered view, the petition deserves to beallowed.14.However, following the decision in Union of India andanother Vs. Tarsem Singh; (2008) 8 SCC 648, the direction forpayment of arrears will have to be restricted to only three years prior tothe writ petition. 15.The writ petition is allowed.16.Respondent no. 1 is directed to include the post ofInstructor / Tradesman in the government resolution dated 26-04-2012and shall pay to the petitioners at par with the Special Teachersworking in Zilla Parishad primary schools.17.The respondents shall thereafter undertake pay fixationand disburse the arrears to them. However, the arrears shall be paidonly for a period of three (3) years next before filing of the petition on07-10-2017.18.Rule is made absolute in above terms. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/