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2012 DIGILAW 8 (BOM)

A. D. Jillewar adult v. State of Maharashtra

2012-01-04

B.P.DHARMADHIKARI, P.D.KODE

body2012
Judgment : B.P. DHARMADHIKARI, J. 1] By this petition under Article 226 of Constitution of India petitioners who are duly qualified Ayurvedic Lecturer/Professor working with respondent no. 3 college in Yavatmal Town seek parity in quantum of non practicing allowance with their counter parts in Government Establishment in that area. The parity in other service conditions is not in dispute. 2] Shri Gordey learned Senior Counsel in this background has invited attention to Government Resolution dated 15.10.1993 by which disparity has been introduced. He contents that petitioners have not disputed availability of reasonable differentia so as to constitute their counter parts in employment of State Government a separate and distinct class by itself as compared with petitioners who are in private employment. According to him the intelligible differentia so employed, however, does not have any link with the purported object in introducing classification. Learned Senior Advocate has read out Government Resolution dated 15.10.1993 to show that, to induce the qualified medical graduates to join employment in Government Medical Colleges at Dhule, Yavatmal and Nanded, non practicing allowance payable to them has been doubled. He also substantiates his contention by reading out para 4 and para 7 of the Return as filed by respondents 1 and 2. He contents that object of such inducement is to prompt the persons to join colleges in these three districts in Government employment. Thus need of such special treatment for said purpose is already recognized by Government and that need is applicable equally in case of private establishments. He contents that if the petitioners are given similar treatment with their employer, their employer will also get better talent or then such special treatment will induce petitioners and their colleagues to continue in these three districts. Learned counsel therefore states that need recognized by State Government is universal and cannot depend upon nature of employment i.e. public or private. He, therefore, contents that as the intelligible differentia utilized by respondents fails to meet the object behind such classification and the requisite link is missing, classification must be held to be violative of Article 14 of Constitution of India. 3] Learned AGP relies upon very same Government Resolution and Return to urge that the Government has taken a conscious decision insofar as its establishments are concerned. 3] Learned AGP relies upon very same Government Resolution and Return to urge that the Government has taken a conscious decision insofar as its establishments are concerned. He contents that to induce government servants to join these three colleges by transfer, two special increments are sanctioned in advance by very same Government Resolution. According to him what has been extended is only by way of concession and service conditions as such remain unaltered. 4] After hearing respective counsel we find that the Government has opened medical colleges in Dhule, Yavatmal and Nanded and for about three years it could not deploy proper personnel and hence Indian Medical Council had not given necessary sanction to those colleges. Hence with a view to prompt the existing doctors working with it and to attract new recruits, measures to give two increments in advance over and above normal increments and also to pay non practicing allowance at twice the rate has been adopted. These measures were therefore with particular aim in mind, aim being to provide necessary and competent staff in these three newly established medical colleges. 5] Arguments reproduced by us above show that the distinction between government employment and private employment created by this Resolution is being assailed only on ground of lack of link with the object. The argument has been substantiated by contending that private establishments like respondent no. 3 also face similar problems. We find that the classification is only with a view to induce the qualified personnel to join three newly established colleges. The arguments do not show that measures adopted cannot meet the object behind the Government Resolution dated 15.10.1993. Contention is same treatment needs to be provided to private colleges and employees working therein. 6] The perusal of Government Resolution dated 15.10.1993 shows that what has been sanctioned is only a concession to those who accept to join these three new government colleges either by transfer or otherwise. The said concession is to last so long as incumbent continues to work in these three colleges in that area. Thus non practicing allowance with which we are concerned in this matter is not hiked permanently in his case and it is reduced to normal rate if he is transferred or goes out of these three districts. This concession extended by government therefore cannot be viewed as a service condition. Thus non practicing allowance with which we are concerned in this matter is not hiked permanently in his case and it is reduced to normal rate if he is transferred or goes out of these three districts. This concession extended by government therefore cannot be viewed as a service condition. 7] The petitioners are in private establishments and hence transfer is not a condition of service for them. They have got option to continue with private employer or then to move out in search of better prospects. Providing them non practicing allowance at twice the rate to stop them from moving out or then to attract better talent therefore cannot be a solution in this situation. The measure adopted is to persuade government employees to accept placement or posting in these three districts. Petitioners have failed to demonstrate need of any such inducement for employees in private sector. It is obligation of State to provide for education in medicine and also health services and steps taken by it is in public interest. It is not duty of State to promote private establishments like one of respondent no. 3. The contention that intelligible differentia used for classification by State Government, therefore, fails to meet its object as advanced by petitioners before this Court is misconceived. We do not see any violation of Article 14 of Constitution of India. In the result petition is dismissed. Rule discharged. No costs.