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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2954 & 2505 OF 2011.
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WRIT PETITION No. 2954/2011.
Samadhan s/o Rajaram Umak,
Aged about 58 years, Occupation
Laboratory Attendant, Punjabrao
Krishi Vidyapeeth, Akola, r/o. Quarter
No. E/16, Punjabrao Deshmukh Krishi
Vidyapeeth Colony, Akola. ....PETITIONER.
VERSUS
1. Dr. Punjabrao Deshmukh Krishi
Vidyapeeth, Akola through
Assistant Registrar,
(Establishment).
2. Associate Dean,
Agriculture College Dr. Punjabrao
Deshmukh Krishi Vidyapeeth,
Akola. ....RESPONDENTS
.
WITH
WRIT PETITION No. 2505/2011.
Maroti s/o Tukaram Dhote Umak,
Aged about 58 years, Occupation
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Laboratory Attendant, Punjabrao
Krishi Vidyapeeth, Akola, r/o. P.K.V.
Quarter No. D/31, Krishi Nagar,
Akola. ....PETITIONER.
VERSUS
1. Dr. Punjabrao Deshmukh Krishi
Vidyapeeth, Akola through
Assistant Registrar,
(Establishment).
2. Head of Department, Soil Science
and Agricultural Chemistry Dr. Punjabrao
Deshmukh Krishi Vidyapeeth,
Akola. ....RESPONDENTS
.
--------------------------
Mr. A.M. Gordey, Senior Advocate with
Mrs. R.D. Raskar, Advocate for PetitionerS.
Mr. Abhay Sambre, Advocate for Respondents.
-------------------------
CORAM : B.P. DHARMADHIKARI
& P.D. KODE, JJ.
Date of reserving the Judgment. – 11.07.2011 (W.P.No.2954/2011)
20.11.2011 (W.P.No.2505/2011)
Date of Pronouncement. – 25.07.2011.
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JUDGEMENT.
In Writ Petition No. 2954/2011 filed under Article 226 of the
Constitution of India, the petitioner Samadhan Umak – a Laboratory
Attendant working with respondent no.1 Agriculture University has
challenged the notice of retirement dated 14.06.2011 served upon him
by the Secretary of respondent no.1, inter-alia mentioning that as he
completes 58 years of age on 30.06.2011, he would stand retired on
that date as per Rule 10[1] of the Maharashtra Civil Services (Pension)
Rules, 1982 (hereinafter referred to as “1982 Rules” for short). It is not
in dispute that his date of birth is 01.07.1953, however, according to
the petitioner, as he is Class-IV or Group-D employee, age of retirement
in his case is 60 years, as laid down in Rule 10.2 of the 1982 Rules.
This petition was filed on 27.05.2011 and this Court issued
notice in the matter on 28.06.2011 and made it returnable on
30.06.2011. The matter was then adjourned on one or two dates and
was heard on 06.07.2011, when we permitted respondent nos. 1 and 2
time till 11.07.2011 to clarify the issue in relation of status of
petitioner. Accordingly on 11.07.2011, respondent nos. 1 and 2 have
filed additional affidavit stating that, in appointment order of petitioner
he was shown to be in Category -D or Group-D. They further disclosed
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that, they have not published any grouping or categorization depending
upon the pay-scales of their own, but were relying on the Government
Resolution dated 02.07.2002.
2. Another Writ Petition No. 2505/2011 also filed under Article
226 of the Constitution of India, the petitioner Maroti Dhote – a
Laboratory Attendant working with respondent no.1 Agriculture
University has challenged the notice of retirement dated 28.04.2011
served upon him by the Secretary of respondent no.1, inter-alia
mentioning that as he completes 58 years of age on 20.05.2011, he
would stand retired on 31.05.2011 as per Rule 10[1] of the
Maharashtra Civil Services (Pension) Rules, 1982. In this case also it is
not in dispute that date of birth of petitioner – Maroti is 21.05.1953,
however, according to the petitioner, as he is Class-IV or Group-D
employee, age of retirement in his case is 60 years, as laid down in Rule
10.2 of the 1982 Rules.
This Writ Petition No.2505/2011 was filed on 30.05.2011
and this Court issued notice in the matter on 31.05.2011 and made it
returnable on 21.06.2011. The matter was then adjourned on one or
two dates and was heard and closed for orders on 20.07.2011. As the
issue involved in both these petitions is identical, with the consent of
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parties common judgment is being passed.
3. We have heard both the petitions finally by consent of Shri
A.M. Gordey, learned Senior Counsel with Mrs. R.D. Raskar, learned
Counsel for Petitioners and Shri Abhay Sambre, learned Counsel for
Respondents, by making Rule, returnable forthwith.
4. Shri Gordey, learned Senior Counsel places reliance upon
the appointment orders as issued to petitioners to urge that as per its
Clause 9, petitioners were in Group-D. It is further pointed out that
appointment of petitioner in Writ Petition No. 2954/2011 as laboratory
attendant was on pay scale of Rs. 3050-4590, and appointment of
petitioner in Writ Petition No. 2505/2011 also as laboratory attendant
was in the pay scale of Rs. 200-3-230-5-255-Extn5-280. In this
background, Government Resolutions dated 29.07.1993, 08.06.1995
and 02.07.2002 are relied upon to show that though there could have
been and there was pay revision, State Government had taken
precaution to see that, that wage revision and fixation does not deprive
the Group-D employees like petitioners, of their retirement at 60. He
contends that, though in the process of wage revision, employees like
petitioners may draw salary in pay scale shown in Class-III or Group-C,
then age of retirement remains 60.
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5. Shri Sambre, learned Counsel for respondent nos. 1 and 2
has relied upon the government resolution dated 02.07.2002 to urge
that as per categorization there, only those posts whose maximum in
pay scale is below Rs.4400/- qualify to be treated as Group-D. Thus
whose pay scale exceeds Rs.4400/-, but is less then Rs.9000/- fall in
Group-C. As the minimum of pay scale applicable to petitioners is Rs.
4590/-, it is in excess of Rs. 4400/- and hence, the petitioners has been
rightly treated as Group-C employee. He contends that Rule 10.1 of the
1982 Rules prescribe 58 as age of retirement for such Group -C
employee.
6. After hearing the respective Counsel, we find that the
application of 1982 Rules to petitioners is not in dispute. The only
question is, whether case of petitioners need to be regulated by Rule
10.1 thereof or then by its Rule 10.2. Rule 10.1 deals with group-C
employees and prescribes 58 as age of their superannuation. Rule 10.2
deals with group-D employee and prescribes 60 as age for that purpose.
7. Perusal of appointment order dated 04.09.2005 issued to
petitioner in Writ Petition No. 2954/2011 by respondent reveals his
designation as laboratory attendant and appointment in pay scale of Rs.
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3050-75-3950-80-4590 on probation for a period of two years.
Similarly appointment order dated 03.07.1980 issued to the petitioner
in Writ Petition No.2505/2011 as laboratory attendant shows pay sale
of Rs. 200-3-230-5-255-Extn5-280. The terms and conditions of
appointment enclosed in Schedule, particularly Condition No.9 show
that post of laboratory attendant is in Group-D and equivalent to post of
Attendant/Watchman etc. This appointment order or its terms and
conditions therein are not in dispute. While removing disparities, at
the time of implementation of 3rd wage revision, the State Government
issued a resolution on 29.07.1993. Its perusal reveals that till then
post having minimum of 1100 or below it, were treated as Group-D
post. This was hiked from 1100 to 1400. But, then its clause [5]
specifically stipulates that after wage revision, some group D posts may
get pay scales which are covered by group-C, and this may create
confusion about their superannuation age or other benefits.
Government therefore, has clarified that this change in wage revision
will not in any way prejudice such group-D employees and their service
conditions, and age of retirement will continue to remain the same.
8th June, 1995 is the another government resolution issued
on account of assured promotion scheme. Perusal of its clause 2[c]
again reveals the same protection to group-D employees. At the time of
implementation of 4th wage revision, State Government has issued
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resolution dated 02.07.2002. The respondents have placed reliance
upon this resolution. This resolution shows post having maximum upto
Rs.4400/- are included in Group-D. Post above it and having maximum
upto Rs. 9000/- are treated as group-C post, but its clause 5 again
shows similar protection to employees in Group-D. Hence the employee
appointed in Group-D is entitled to same service conditions and age of
superannuation, even if on account of such wage revision, his pay is
fixed in scale maximum of which exceeds Rs.4400/- and therefore, is
covered by group -C pay scales. Here maximum of pay scale of
petitioners is Rs.4590/- and hence that pay scale is of group-C. In view
of this clarification or protection extended by the State Government
vide Clause 5 of the government resolution dated 02.07.2002, it is
apparent that their age of retirement cannot be changed and they are
entitled be treated as group-D employee for all service conditions
including the age of retirement. We, therefore, find justification being
pressed into service for retiring them at 58, unsustainable. With the
result, it is apparent that their retirement as per notice having no. 856
dated 14.06.2011 and No. 340 dated 28.04.2011, cannot stand and
petitioners are entitled to be continued till they reaches 60 yeas of age.
Accordingly we quash and set aside the order of retirement dated
14.06.2011 (Annexure-V with Writ Petition No.2954/2011) and dated
28.04.2011 (Annexure-V with Writ Petition No.2505/2011) and declare
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that the petitioners are entitled to be taken back in service and
continue therein, till they attains the age of 60 years i.e. till 30.06.2013
and 31.05.2013. Respondent nos. 1 and 2 are accordingly directed to
take them back forthwith, to pay salary from 01.07.2011 and
01.06.2011 till they are reinstated and to permit them to work till they
attains age of 60 years.
8. Writ Petitions are thus allowed by making rule absolute in
the aforesaid terms. However, in the circumstances of the case, there
shall be no order as to costs.
JUDGE JUDGE
Rgd.
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