Back
In the High Court of Bombay at Aurangabad
B.P. DHARMADHIKARI & SUNIL P. DESHMUKH
Ajay son of Kishanrao Losarwar & Others
Versus
The State of Maharashtra, Through Principal Secretary, Law & Judiciary Department & Others
Writ Petition Nos. 7596 of 2006, 6231 of 2010 & 7404 of 2010
Decided on : 17-08-2012
Bombay High Court Appellate Side Rules, 2010 - Rule 17 - Maharashtra Civil Services (Pay) Rules, 1981, Rules 9 and 11 - Word "pay". - Word ’pay’ needs to be construed as per Rule 9(36) of Rules 1981 and it includes monthly payment of Rs. 400/- p.m.
Bombay High Court Appellate Side Rules, 2010 - Rule 17 - Maharashtra Civil Services (Pay) Rules, 1981, Rule 11(1) - Special pay. Employee entitled to get special pay available under Assured Promotion Scheme (ACP) on promotion. In earlier pattern, the Personal Secretaries used to receive special allowance of Rs. 400/ - p.m. and otherwise the pay scales of the cadre of Court Stenographer. Personal Assistants and Personal Secretaries was one and same i.e. Rs. 7450-225- 11500/-. In Schedule 1 dealing with pay-scales, as it stood then, only against cadre of Personal Secretaries to Hon. Judges, after this scale words "plus Special Pay Rs. 400/- per month" appeared. Distinct posts called as Personal Secretaries are created in 1982 by accepting the recommendation of the High Court. It is only Personal Secretaries who qualify for consideration as Private Secretaries. Hence, less number of posts of Private Secretaries has to be the reason for grant of sum of Rs. 400/- p.m. to the Personal Secretaries as a special pay.
If that be the position, a Personal Secretary failing to become Private Secretary must cease to draw it. As post of the Private Secretary does not carry any special pay, petitioners before Court are claiming merger of the special pay received by them with their basic wage last drawn as Personal Secretaries so as to find out the suitable next stage in promotional pay-scale of a Private Secretary. But then there is no such cessation of right to receive it even in case of failure to clear the selection process and/or refusal to accept the posting as Private Secretary. Employee reaching that post gets it from day one though he is not eligible for even consideration for the post of Private Secretary till he completes two years in the cadre of Personal Secretary. If really this payment of Rs. 400/- p.m. was to constitute a solace for stagnation, then entitlement to it would have commenced only after two years and lasted till occurrence of the vacancy in the cadre of Private Secretary.
This entitlement would have been then lost after some other Personal Secretary got selected against that vacancy. That is not the factual position and an employee occupying the post of Personal Secretary continue to receive Rs. 400/- p.m. till he continues on it. Said entitlement is therefore not an interim measure contingent upon any other event and 2000 Rules confer an unconditional right to it till the post of Personal Secretary is held by the incumbent.
It cannot be viewed as special pay and correlate it with either ACP or TBP. Even if it is hypothetically considered to be special pay, the clause "N" of resolution dated 8.6.1995 does not say that it cannot be looked into for the purposes of pay fixation upon actual promotion and the provisions of Rule 11(1) of the 1981 State Rules will not apply to it. As special pay dealt with under the policy decision dated 20.7.2001 read with earlier policy dated 8.6.1995 is materially different than the payment of Rs. 400/- p.m. relevant here, this policy has no application. The defence of the respondents 3 and 4 to that extent is liable to be rejected.
B.P. Dharmadhikari, J.
1. Heard respective Counsel.
2. In Writ Petition No. 7596 of 2006, this Court has already issued Rule on 18th August 2009. As common questions of law and facts are involved in these petitions, we also issue Rule in Writ Petition Nos. 6231 of 2010 and 7404 of 2010, and make the Rule returnable forthwith.
3. These three writ petitions are filed by Private Secretaries to Hon. Judges at Aurangabad contending that special pay of Rs. 400/-paid to them as Personal Secretaries prior to their promotion as Private Secretaries was rightly added to their total salary in said cadre before working out their fixation & entitlement in promotional cadre and its deletion subsequently with an order for recovery of the alleged excess paid is unsustainable. The reliance by High Court Administration or Registrar on government resolution dated 8.6.1995 issued by GAD read with later resolution dated 20.7.2001 of Finance Department to urge that after release of the benefits under Assured Promotion Scheme (ACP-hereafter) the special pay ceased to apply, is urged to be erroneous as the special pay received by them as the Personal Secretaries has/had no bearing on stagnation & was on account of higher responsibilities shouldered in that capacity. Contention is same could not have been withdrawn even if they are found not eligible to benefit of ACP.
4. Petitioner in WP 7596 of 2006 has been selected & appointed as Court Stenographer on 4.1.1990 in pay-scale of Rs. 2375-3500/-. Later on he became Personal Assistant in same scale and due to general wage revision, his wage was fixed in time-scale of Rs. 7450-11500/-on 1.1.1996. He completed 12 years in that cadre on 4.1.2002. By office order dated 2.6.2003, he was granted pay-scale of Rs. 10000-15200/-being that of promotional post of Private Secretary. On 18.12.2003 that scale was withdrawn & he was given scale of Rs. 7450-11500/-+ Rs.400/-PM. As special pay. This according to petitioner was extended as pay of promotional post or higher pay as per ACP/CAP. As a Personal Assistant, he had drawn the same scale or corresponding scale for 12 years. On 3.8.2005, Administration issued list of employees falling in cadre of Personal Secretary & Private Secretary. Petitioner was made a Private Secretary with effect from 1.4.2005 in pay-scale of Rs.10000-325-15200/-. This petitioner states that when he received the salary slips, he realized that special allowance of Rs. 400/-PM. was not treated as part of his salary while he was fixed in pay-scale of Rs. 10000-325-15000/-. He therefore seeks merger of that amount in his last wages as Personal Secretary & then determination of his initial stage in promotional time-scale of Private Secretary. The representation was accordingly made by his association & on 11.10.2006, Registrar at Aurangabad was informed that the Hon. Judges of the Administrative Committee considered & rejected it on 5.9.2006.
5. Petitioner in W.P. 6231 of 2010 also claims merger of special allowance first & then his fixation in time-scale of the post of Private Secretary. In fact, in his case the merger was actually done by the office & he was fixed at Rs. 11950/-initially which with increments became Rs. 12,925/-on 1.1.2005. On 14.7.2008, he was informed that his pay had been re-fixed in promotional scale of Rs. 10000-325-15000/-by excluding the special pay of Rs. 400/-PM. Excess payment of Rs. 48,885/-received by him due to addition of Rs. 400/-was to be recovered in installments from his monthly salary. Exhibit F annexed by him with his petition shows that the Administrative Judges Committee on 4.8.2009 decided that the controversy should be allowed to be decided on judicial side. On 2.8.2010, this Court granted stay to recovery from his salary.
6. Petitioner Praksh Narayanrao Kulkarni has also same grievance. Exhibit F annexed with Writ Petition 6231 of 2010 contains reference of his name & name of petitioner in W.P. 7596/2006. He has taken voluntary retirement w.e
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
