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2008 DIGILAW 1231 (BOM)

Sanjay Namdeorao Puriji v. State of Maharashtra

2008-08-28

ANOOP V.MOHTA, C.L.PANGARKAR

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ORAL JUDGMENT: (PANGARKAR J.) 1. This Writ Petition is filed against the order passed by the Administrative Tribunal Nagpur whereby it rejected the application of the petitioner for proper fixation of his pay on his being appointed to a new post. 2. The petitioner is a Medical Graduate and was appointed as a Lecturer in the Government Medical College initially in the year 1981. He continued to work as Lecturer but was not being promoted to the post of Associate Professor. He had to file writ petition in the High Court. The petition was allowed in the year 1989. After representations were made the petitioner was granted pay scale of Rs. 3700-5700 for the post of Associate Professor In the year 1989 Maharashtra Public Service Commission (for short MPSC) published an advertisement for filling the post of Junior Physician. The petitioner applied for the said post. He was selected by the MPSC and was duly appointed to the said post. The pay scale of this new post (Junior Physician) was Rs. 3000-100-4500. The petitioner contends that advertisement issued by the MPSC specifically says that pay of those already in the Government service would be protected. The petitioner's grievance is that inspite of this, his pay is fixed at the lowest i.e. at Rs.3000/- per month in the new post of Junior Physician. He contends that as Associate Professor he was drawing basic pay of Rs.3950/- and this pay which he was drawing in the old scale and post should be protected. 3. Respondents contention is that the pay is properly fixed and the Administrative Tribunal has considered all aspects and has rightly rejected the application of the petitioner. 4. We have heard the learned counsel for the petitioner and the respondents. 5. It is observed by the Tribunal that the case of the petitioner does not fall under Rule 11.2 or 11.3 of Maharashtra Civil Services Rules nor does it fall under Rule 57 of the Maharashtra Civil Services (Pay) Rules 1981. Holding so the application of the petitioner was rejected. At Annexure II to the petition there is a copy of the instructions issued to the candidates applying for the said post. Para 5 of these Instructions say that pay of those candidates who are already in the service of the Government of Maharashtra shall be protected under Rule 57, and their pay shall be fixed accordingly. At Annexure II to the petition there is a copy of the instructions issued to the candidates applying for the said post. Para 5 of these Instructions say that pay of those candidates who are already in the service of the Government of Maharashtra shall be protected under Rule 57, and their pay shall be fixed accordingly. This is the information supplied to the candidates by the Maharashtra Public Service Commission. It is mainly on account of this assurance of MPSC, that the petitioner's submission is that he had applied for the said post and therefore the Government was bound to protect his pay. 6. Tribunal seems to have not relied upon an assurance in the advertisement or Rule 57 upon which the pay was assured to be protected. Let us first see if at all the case of the petitioner falls under Rule 57. It would be necessary to reproduce here, for convenience, the Rule itself. 57. Remuneration when one post is subordinate to another.-(1) A Government servant who is appointed to officiate as a temporary measure in two posts of which one is subordinate to the other is not entitled to any additional remuneration under Rule 56 save in exceptional circumstances. (2) A Government servant who, in addition to his own duties, is required to be in charge of the current duties of a second post may be allowed special pay under Clause (b) of Rule 56, when his own post is subordinate to the second post but not when the second post is subordinate to his own post. A bear reading of this Rule would make it clear that the said Rule has no application to the case at hand at all. The Rule seems to apply to cases where a Government servant is appointed to officiate as a temporary measure on two posts. What is therefore necessary is that, at a time, the employee must hold two posts. In the case at hand the petitioner is relinquishing the earlier appointment or post and is seeking to join on a new post. To us it is therefore very clear that Rule 57 has no application. 7. This takes us to consider if the case falls under Rule 14 or 11. The case is not covered by Rule 14 for the simple reason that there is no break in service at all. To us it is therefore very clear that Rule 57 has no application. 7. This takes us to consider if the case falls under Rule 14 or 11. The case is not covered by Rule 14 for the simple reason that there is no break in service at all. There has to be some method of fixing pay of a Government servant upon joining on an inferior post on fresh appointment. The only Rule that is available is Rule 11. The learned counsel for the respondents contends that even under Rule 11 the pay of petitioner in the scale of new post has to be fixed at the minimum of the new scale. He submits that since the petitioner is not appointed to a post with higher responsibility the case is not governed by Sub Rule (1) of Rule 11. The proposition cannot be disputed. Petitioner's new appointment is certainly on an inferior post even salary-wise. Reliance was sought to be placed on the Clause (d) of Sub Rule 2 by the respondents in support of fixation made. Placing reliance by respondents to fix the salary at the minimum of new scale of pay in the new appointment, on the basis of Clause (d) is misconceived. Reliance was sought to be placed on the Clause (d) of Sub Rule 2 by the respondents in support of fixation made. Placing reliance by respondents to fix the salary at the minimum of new scale of pay in the new appointment, on the basis of Clause (d) is misconceived. Sub Rule 2 reads thus: (2) If the appointment to the new post does not involve such assumption:- [a] if there is a stage in the time-scale of the new post which is equal to his pay in the old post, he shall draw pay at that stage; [b] if there is no such stage, he will draw pay at the stage next above his pay in the post; [c] in the case covered by Clause [a] he will draw his next increment on the date on which he would have received increment in the old post and in the case covered by Clause (b), he will draw his next increment in the new post on completion of the required period after which an increment is earned in the time-scale of the new post: Provided that, a Government servant on his appointment to such a new post, may at his option, to be exercised without one month from the date of his appointment, elect for fixation of his pay in one of the following manners, namely:- (i) either to get his initial pay fixed straightaway with effect from the date of his appointment to the new post; or (ii) to get his pay fixed with effect from the date of his next increment in the old post. In either case, the date of next increment will fall due only on completion of the required period of qualifying service from the date the pay is fixed in the new post. [d] if the minimum of the time-scale of the new post is higher than his pay in the old post, he will draw that minimum as initial pay. What the Rule contemplates is that, if the minimum of the time scale of new post is higher than his pay is actually drawn in old post it should be fixed at minimum of the new time scale. Such is not the case here. What the Rule contemplates is that, if the minimum of the time scale of new post is higher than his pay is actually drawn in old post it should be fixed at minimum of the new time scale. Such is not the case here. The petitioner in the old post was drawing Rs.3950/- in a scale of Rs.3700-5700, while the scale of new post is 3000/- obviously the scale of pay of new post is less than what the petitioner was drawing. This clause therefore cannot have an application. 8. The only provision under which the scale of pay can be fixed and consequently pay can be protected is Rule 11.2. This being a fresh appointment it is certainly governed by Sub Rule 2 [a] to [c]. Said Sub Rule is already reproduced above. It seems that the petitioner has not exercised option under Clause (ii) of Sub Rule 2, therefore, the salary of the petitioner has to be fixed under the clause 2-a, b, c and (i). 9. The petitioner is appointed to a new post which does not involve higher responsibility. The scale of the new post is also lower than the one in which he was initially serving. In the circumstances we find that Rule 11 Sub Rule 2 is applicable to the case of the petitioner. The petitioner was drawing pay of Rs. 3950/- which is higher than the minimum in the new scale, therefore, if there is a stage available in grade of Rs. 3000-4500 it should be fixed according to Sub Rule [a] and if such stage is not available then as per [b]. Learned Member of the Tribunal had failed to appreciate the rule in proper perspective and erroneously rejected the application. We therefore, allow this petition and set aside the order passed by the Tribunal on 06.02.1998 as well as communication dated 30.07.1996 is set aside. It is directed that the petitioner is entitled to protection of his pay in old post which was his last pay and his pay in the new post be fixed protecting his last pay drawn under Rule 11.2 of Maharashtra Civil Services Rules (Pay) 1981. No order as to costs. Petition allowed.