Bombay High Court
Judicature Of Bombay vs The State Of Maharashtra on 17 August, 2012
Author: B.P. Dharmadhikari
Bench: B. P. Dharmadhikari, S.P. Deshmukh
(1) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 7596 of 2006
With
Ajay son of Kishanrao Losarwar,
Age : 42 years,
Occupation : Service,
working as Private Secretary to the
Honourable Judge, High Court of
Judicature of Bombay, Bench at
Aurangabad, R/o. 9, Kamdhenu Soc.,
Jadhavwadi, Near New Mondha,
Opp. Sunny Center, Pisadevi Road,
Aurangabad 431 201. .. Petitioner.
versus
1. The State of Maharashtra,
Through Principal Secretary,
Law & Judiciary Department,
Mantralaya, Mumbai - 400 032.
2. The Principal Secretary,
Finance Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32.
3. High Court of Judicature at
Bombay, Mumbai,
Through its Registrar General.
4. The Registrar (Administration),
High Court of Judicature of Bombay,
Bench at Aurangabad. .. Respondents.
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(2) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
.......................
Mr. Ajay S. Deshpande, Advocate, for the
petitioner.
Mr. V.B. Ghatge, Assistant Government Pleader,
for respondent nos.1 and 2.
Mr. P.M. Shah, Senior Advocate, with
Mr. C.K. Shinde, Advocate, for respondent
nos.3 and 4.
........................
Writ Petition No. 6231 of 2010
With
Nagesh s/o. Dinkarrao Kulkarni,
Age : 48 years,
Occupation : Senior Private Secretary
to Hon'ble Judge in High Court of Bombay,
Bench at Aurangabad, R/o. 59, Saptagiri,
Laxmi Nagar, Near Sootgirni, Garkheda,
Aurangabad, Dist. : Aurangabad. .. Petitioner.
versus
1. The State of Maharashtra,
Through Principal Secretary,
Law & Judiciary Department,
Mantralaya, Mumbai - 400 032.
2. The Principal Secretary,
Finance Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32.
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(3) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
3. High Court of Judicature of Bombay,
Appellate Side, Fort, Bombay - 400 032,
Through its Registrar General.
4. Registrar (Administration),
High Court of Judicature of Bombay,
Bench at Aurangabad,
Aurangabad. .. Respondents.
........................
Mr. A.P. Bhandari, Advocate, for the petitioner.
Mr. V.B. Ghatge, Assistant Government Pleader, for
respondent nos.1 and 2.
Mr. P.M. Shah, Senior Advocate, with
Mr. C.K. Shinde, Advocate, for respondent nos.3
and 4.
........................
Writ Petition No. 7404 of 2010
Prakash s/o. Narayanrao Kulkarni,
Age : 56 years,
Occupation : Pensioner,
R/o. D-1 Row House, Tirupati Executive,
Ulka Nagari Road, Garkheda,
Aurangabad, Dist. : Aurangabad. .. Petitioner.
versus
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(4) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
1. The State of Maharashtra,
Through Principal Secretary,
Law & Judiciary Department,
Mantralaya, Mumbai - 400 032.
2. The Principal Secretary,
Finance Department,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032.
3. High Court of Judicature of Bombay,
Appellate Side, Fort, Bombay - 400 032,
Through its Registrar General.
4. Registrar (Administration),
High Court of Judicature of Bombay,
Bench at Aurangabad,
Aurangabad. .. Respondents.
........................
Mr. A.P. Bhandari, Advocate, for the petitioner.
Mr. V.B. Ghatge, Assistant Government Pleader, for
respondent nos.1 and 2.
Mr. P.M. Shah, Senior Advocate, with
Mr. C.K. Shinde, Advocate, for respondent nos.3
and 4.
*************
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(5) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
CORAM : B.P. DHARMADHIKARI
&
SUNIL P. DESHMUKH, JJ.
Date of reserving the
judgment : 31st July 2012.
Date of pronouncing the
judgment : 17th August 2012.
JUDGMENT (Per 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 ::: Downloaded on - 09/06/2013 19:00:30 ::: (6) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
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.
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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.f. 31.12.2009 and amount of Rs. 87,469/- has been withheld/deducted from his gratuity amount of Rs. 4,55,813/-. Thus, he was also earlier fixed by merging Rs. 400/- PM with his wage as Personal Secretary & then his salary as Private Secretary was worked out at Rs 11950/- PM on 1.3.2002. Annual increment was released on 1.3.2003 & he was fixed at Rs. 12275/-. His wage increased to Rs. 12,925/- PM on 1.3.2005 & then he got impugned order. Impugned order dated 14.7.2008 in his case however mentions Rs. 96,469/- as the excess paid & orders its recovery in monthly installments.
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7. The post of Private Secretary is at the top of the hierarchy in administration so far as this litigation is concerned. Post of Personal Secretary is in the next below cadre with Personal Assistants below them & cadre of Court Stenographer is mentioned at last i.e. at bottom. All these posts were recognized as gazetted officers' posts in Bombay High Court Appellate Side Service Rules, 2000, referred to as 2000 Rules by us. This three tier system was prevalent when the respective petitioners were recruited & till they reached their present posts. Presently, only two tier system is in vogue and cadres of Personal Secretaries & Personal Assistants are clubbed together and is known as Personal Assistants only. In earlier pattern, the Personal Secretaries used to receive special allowance of Rs. 400/- PM & otherwise the pay scales of the cadre of Court Stenographer, Personal Assistants & Personal Secretaries was one & 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.
8. Respondents 3 & 4 High Court through its Registrar General & The Registrar (Administration) have filed "affidavit in reply" dated 24.1.2007 in W.P. 7596 of 2006 and in it, facts disclosed by the petitioner are not disputed. It is admitted in para 4 thereof that pay of said petitioner was fixed as per High Court notification dated 3.8.2008 w.e.f. 1.9.2008 without merging special pay of Rs. 400/-. Para 7 therein also accepts & states that State Government upgraded the posts of Personal Secretaries in scale of Rs. 7450-225-11500/ + special pay of Rs. 400/- as Private Secretaries in pay scale of Rs. 10000-325-15200 with effect from 1.4.2005 as per GR dated 18.3.2005 and High Court fixed pay of Private Secretaries ::: Downloaded on - 09/06/2013 19:00:30 ::: (9) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
as per Rule 11(1)(a) of the Maharashtra Civil Services Pay Rules,1981, referred to as 1981 State Rules here after. The Association of Private Secretaries & Personal Assistants then submitted a representation for merging Rs. 400/- to the Hon. the Chief Justice and then Administration invited attention to exercise of fixation in cases of Shri Deo in 2001 & Shri Joshi in 2002 by its Aurangabad registry office by merging special pay of Rs. 400/- which was objected to by the office of the Accountant General at Nagpur. It was pointed out that the reliance by Aurangabad office on Fundamental Rules was misconceived as said Rules are/were not relevant at all as the same were for Central Government employees. The representation was accordingly considered by the Hon. Judges of the Administrative Committee which resolved & rejected it on 5.9.2006. Thus non-adoption of the Fundamental Rules by the State Government & its non- applicability to its employees is the only defence of the Administration.
9. Respondent 3 & 4 High Court through its Registrar (Administration) at Aurangabad have filed identical affidavits in reply on 9.12.2010 in W.P. 6231, 7404 of 2010 and in it, the defence is based solely on the provisions of ACP scheme. It is pleaded that State Government notified "In-service Assured Progress Scheme" ( ACP ) on 20.7.2001 & it applied to officers receiving salary in pay-scale of Rs. 8000-13500/- & less. The earlier Time Bound Promotion Scheme (TBP) dated 8.6.1995 was substituted by it. Petitioners who completed 12 years as Personal Secretary by working between 24.1.1990 to 24.1.2002 (WP 6231/2010) & between 1.3.1990 to 28.2.2002 (WP 7404/10) were/are granted the promotional scale of Rs. 10000-325-15200/- as Private Secretaries. Because of adoption of earlier ACP scheme clauses in later TBP scheme & as it expressly forbids ::: Downloaded on - 09/06/2013 19:00:30 ::: (10) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
those receiving benefit of TBP to continue to enjoy special pay, stand of the Administration is petitioners are not entitled to any special pay. When earlier affidavit in reply points out "non-availability of merger" of special pay in salary of post of Personal Secretary, the later reply does not speak anything about it. The demand of these petitioners is not to extend or continue to them the special pay which they were getting in lower cadre of Personal Secretary but they seek its merger in last wages in lower cadre to determine their initial stage/fixation in promotional time-scale.
10. It is in this background, to scrutinize the challenge & to appreciate it, earlier position needs elaboration. Rule 19 of the unamended 2000 Rules shows that post of Court Stenographer was/is entry post. As per Rule 18, post of Personal Assistant could be filled in on the basis of seniority cum suitability from amongst Court Stenographers. Rule 17 contemplated promotion as Personal Secretary on merit cum seniority from Graduate Personal Assistants with not less than 3 years service. Rule 13 provided for appointment by selection from amongst Personal Secretaries with not less than 2 years service as such on post of Private Secretary. The position in so far as Rule 13 is concerned has remained unchanged. Hence lowest cadre or post is of Court Stenographer, next higher post is of Personal Assistant, then of Personal Secretary & at the top is post of the Private Secretary. Relevant details of the respective pay-scales of these posts are already mentioned above. Post of Personal Secretary carries a Special Pay of Rs. 400/- PM and Rule 9(48) of the Maharashtra Civil Services (Pay) Rules, 1981 admittedly employed by Respondent 3 & 4 define "Special Pay" to mean an addition of the nature of the pay, to the emoluments of a post or of a Government servant granted in consideration ::: Downloaded on - 09/06/2013 19:00:30 ::: (11) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
of - (a) the specially arduous nature of duties. (b) a specific addition to the work or responsibility. In para 18 of both Writ Petitions filed in the year 2010 assert that special pay of Rs. 400/- PM was or has been granted to the Personal Secretary in lieu of higher or promotional pay scale as otherwise both the cadres viz. Personal Assistants & Personal Secretaries carried same pay-scales and post of Personal Secretary is a promotional post. In WP 7596/2006, in para 9 & 10, it is pointed out that the Hon. the Chief Justice was pleased to make a recommendation to State for providing some promotional out-let for two cadres of Court Stenographers & Personal Assistants. It is also asserted that State Government on 25.10.1982 accepted it & created two cadres i.e. Personal Secretary & Private Secretary and since then, there existed 4 cadres in the High Court viz. (i) Court Stenographer & (ii)Personal Assistant (both 750-1150), (iii) Personal Secretary (680-1250) & (iv) Private Secretary in pay-scale of Rs. 1000-1500/-. The cadre of Personal Secretary was created with a view to remove resultant frustration faced by the two feeder cadres in same pay-
scale i.e. of Court Stenographers & Personal Assistants. On 1.1.1986, these two cadres & promotional cadre of Personal Secretary were all given one & same pay scale of Rs. 2375-3500/- with special pay of Rs. 200/- for Personal Secretaries. The cadre of Private Secretary was placed in pay- scale of Rs. 3000-4500/-. With effect from 1.1.1996, the first three cadres were placed in pay-scale of Rs. 7450-11500 & special pay of Personal Secretary was raised to Rs. 400/- PM. Again this special pay is pointed out to be in lieu of or for want of appropriate higher pay scale. Next higher post of the Private Secretary got revised scale of Rs. 10000-15200/-. These facts are not disputed by the Administration. By order dated 2.6.2003 office granted petitioner in WP 7596/2006 pay-scale of Rs. 10000-15200/- being ::: Downloaded on - 09/06/2013 19:00:31 ::: (12) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
that of promotional post of Private Secretary as he had completed 12 years in time-scale available to Personal Secretary. On 18.12.2003 Administration withdrew that scale & he was given back the pay-scale of Rs. 7450-11500/- which he was already in receipt of as Personal Secretary and Rs.400/- PM more as special pay. This special pay was obviously extended in lieu of the pay of promotional post or higher pay as per ACP/CAP. But then it was not payable after completion of 12 years in the cadre of Personal Secretary but from day one to every incumbent on that post.
11. From the history narrated above, it is apparent that the salary of the post or cadre of Personal Secretary had initial or starting stage of Rs.
680/- which was below that of post of Court Stenographer or Personal Assistant who started at Rs.750/-. But then, as seen already, only a Court Stenographer satisfying seniority cum suitability could become a Personal Assistant & a graduate Personal Assistant with 2 years of experience could be promoted as a Personal Secretary if he cleared merit cum seniority test. End point or stage in wage structure of the Personal Secretary was Rs. 1250/- i.e. Rs.100/- more than that of other two cadres. Thus when on 1.1.1986 or 1996 when all these three cadres were given the same pay scale, it is evident that special pay of Rs.200/- or Rs.400/- PM was given to the Personal Secretaries to compensate them for removal of more basic at the end of wage structure. The purpose obviously was to make some amends for feeling of frustration for lack of the promotional avenues for Court Stenographers & Personal Assistants. The independent pay-scale of Rs. 680-1250/- conferred earlier or then the grant of special pay later does not show that it was on account of any arduous nature of work or on account of ::: Downloaded on - 09/06/2013 19:00:31 ::: (13) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
any specific addition to work or responsibility. This grant therefore can not be viewed, for reasons being recorded little later, as Special Pay under Rule 9(48) of the 1981 State Rules. That is not even the plea of the petitioners before us. The Stenographer needed to be quite senior in service to reach the last stage in time-scale of Rs. 750-1150/- & hence stages above Rs. 1150/- were appended to his time scale by prescribing the pay-scale of Rs.
680-1250/- for next senior or better cadre of Personal Secretary. Thus, this additional stages above Rs.1150/- were constituting the grade pay or substantive pay for Personal Secretaries.
12. Other relevant issue is whether said post of Personal Secretary can be viewed as promotional post. Very plea of the petitioners that said post was created to remove the feeling of frustration for want of promotional avenues & peculiar arrangement of its wage structure as noted above, prima facie, militates with that concept. It is nowhere even whispered by the petitioners that the nature of duties of Personal Secretary is superior or duties are more arduous in nature or there is any additional work or responsibility. But then best of the Personal Assistants only could become Personal Secretaries & history mentioned above is sufficient to constitute exercise in Rule 17 of 2000 Rules a promotional exercise. Rule 17 expressly states that appointment as Personal Secretary is by promotion on merit cum seniority. As per the then 2000 Rules, a Court Stenographer can not become Personal Secretary directly and first he must be selected as Personal Assistant as stipulated in Rule 18 where he faces test of seniority- cum-suitability. Any Personal Assistant can not aspire to be a Personal Secretary and first he has to put in three years as Personal Assistant and thereafter he has to pass the test of merit-cum-seniority. Thus it is step by ::: Downloaded on - 09/06/2013 19:00:31 ::: (14) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
step that a Court Stenographer can reach the post of Personal Secretary after passing the test of seniority-cum-suitability (to become Personal Assistant) and then work for three years as Personal Assistant when he can prove his merit & can be promoted as Personal Secretary only if he crosses the hurdle of merit-cum-seniority. Thus becoming a Personal Assistant was/is an achievement for Court Stenographer & getting selected as a Personal Secretary is a certificate of competency. Though, there is no difference in substantive wages for any of these three cadres, looking to this scheme of the 2000 Rules and expectations of any employee, the placement as a Personal secretary needs to be viewed as a acceptance by Employer of his superior quality & a promotion to him. If he was at the end of time-scale of Rs.750-1150/-, his fitment above said maximum as Personal Secretary in scale of Rs. 680-1250/- definitely met the concept of promotion as defined in Rule 2(k) of the 2000 Rules. It constituted appointment to a post on higher scale. Subsequent change & payment of sum of Rs. 200/- or 400/-
PM is/was therefore in recognition thereof. By office order dated 2.6.2003, the petitioner in W.P. 7596 of 2006 was granted pay-scale of Rs. 10000-15200/- being that of promotional post of Private Secretary as he did complete 12 years in pay-scale of the post of Personal Secretary. On 18.12.2003 that scale was withdrawn & he was given scale of Rs. 7450-11500/- and additionally Rs.400/- PM as special pay. This according to petitioner was extended as pay of promotional post or higher pay as per ACP/CAP. He appears to be correct & his specific assertion in para 7 of the petition has not been denied by the Administration in para 2 of their affidavit in reply. Thus with additional Rs. 400/- PM the pay-scale of Rs. 7450-11500 + Rs.400/- has been treated as a promotional time-scale under the ACP.
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13. The next higher post is of a Private Secretary & filled in by selection from amongst Personal Secretaries who have completed two years as such. Thus the best amongst them can only aspire for this top post. This post enjoys a distinct & better time-scale & is admittedly above the cadres in dispute. However, reference to it is essential to find out whether grant of Rs. 400/- PM or Rs.200/- PM to Personal Secretaries can be perceived as a measure which can be subjected to "In-service Assured Progress Scheme" (ACP) notified on 20.7.2001 by the State Government which substituted the earlier Time Bound Promotion Scheme (TBP) dated 8.6.1995. Perusal of ACP scheme reveals that it also depends upon the earlier TBP scheme. Clause 2(M) in vernacular "Ma", of TBP scheme dated 8.6.1995 shows that though the duties & responsibilities do not increase, an incumbent gets benefit of fixation of his wage in promotional post. An employee found unsuitable for regular promotion or one who declines the regular promotion is not entitled to retain promotional benefits. If he is already given in-situ promotion, he is liable to be reverted to substantive post i.e. pay-scale. Amount paid to him already till he is found unsuitable, can not be recovered. The employee desirous of receiving benefit under ACP has to execute a bond accepting these terms & conditions. It is in this background that its clause "N" provides that after promotion under the Scheme, employee in receipt of a special pay shall cease to receive it. Thus an employee receiving special pay to compensate him for lack of promotional avenues ceases to be entitled to receive it when he gets the benefit of actual promotional pay-scale as per ACP or TBP.
14. When present controversy is viewed in this background to find ::: Downloaded on - 09/06/2013 19:00:31 ::: (16) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
out relevance of either TBP or ACP to appreciate the defence raised, it becomes apparent that here 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/- PM 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 us 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. We have already found that 2000 Rules reward them for their merit and said payment though styled as a special pay, in reality it is made part of wage structure of the post of a Personal Secretary by said 2000 Rules. 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/- PM was to constitute a solace for stagnation, then entitlement to it would have commenced only after two years & 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 & an employee occupying the post of Personal Secretary continues to receive Rs. 400/- PM till he continues on it. Said entitlement is therefore not an interim measure contingent upon any other event & 2000 Rules ::: Downloaded on - 09/06/2013 19:00:31 ::: (17) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
confer an unconditional right to it till the post of Personal Secretary is held by the incumbent. We are therefore unable to view it as a special pay & co-
relate it with either ACP or TBP. Even if it is hypothetically considered to be special pay, the clause "N" of resolution dated 8.6.195 does not say that it can not 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/- PM relevant here, this policy has no application.
The defence of the Respondents 3 & 4 to that extent is liable to be rejected.
15. The definitions of "Pay" or other terms having bearing on it & contained in 1981 State Rules need to be perused. The Administration has on affidavits disclosed that it has fixed the petitioners in higher pay scale of Rs. 10000-325-15200/- as per Rule 11(1)(a) of the Maharashtra Civil Services Pay Rules, 1981. We find that this payment of Rs. 400/- PM to a Personal Secretary is not a "compensatory allowance" as defined in Rule 9(8), "Personal pay" under Rule 9(40), "Presumptive pay" under Rule 9(42), "Selection grade" under Rule 9(47), "Special pay" under Rule 9(48), or then a "Time scale pay" as defined in Rule 9(55)(a) of the 1981 State Rules. Why it can not be a special pay in present facts is already discussed and as there is no personal consideration qua any individual which has prompted it grants, it is not Personal pay as it is applicable to entire cadre of Personal Secretary on uniform basis as a policy. It is definitely included in Rule 9(36) which defines "Pay" and falls in its residuary clause (iii) which reads - "any other emoluments which may be specially classed as pay by Government". This payment of Rs. 400/- PM & its nature as discussed ::: Downloaded on - 09/06/2013 19:00:31 ::: (18) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
above clearly attracts only this residuary clause & though Government may not have expressly recognized it as such, there is sufficient acceptance of this fact by High Court in the 2000 Rules. It also does not meet the requirements of Rule 9(51) defining "Substantive pay" which reads -
"Substantive pay" means the pay other than special pay, personal pay or the emoluments classed as pay by Government under sub-rule 36(iii) to which a Government servant is entitled on account of post to which he has been appointed substantively or by reasons of his substantive position in a cadre". In reply affidavit in WP. 7596 of 2006, in para 7, it is disclosed that fixation of the said petitioner is as per Rule 11(1)(a) of the Maharashtra Civil Services Pay Rules,1981. That Rule and its sub-rule (1)(a) deals with an employee who is holding a post not higher than a class-II post.
Petitioners during arguments have relied upon sub-rule (b) as according to them, they hold a post higher than class -II post. Under sub-rule 11(1)(b), initial pay of employee is to be fixed at the stage of the time-scale next above his pay in respect of the old (lower) post. Under sub-rule 11(1)(a), initial pay of employee in scale of higher post is to be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of lower post by one increment at the stage at which such pay has accrued. The relevant part of the said Rule 11 reads as under--
"Fixation of pay on appointment to another post - Save as provided in Rules 12, 13, 14, 17 and 20 where a Government Servant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity, to another post including an ex-cadre post, his initial pay shall be regulated as follows :-
(1) When appointment to the new post involves ::: Downloaded on - 09/06/2013 19:00:31 ::: (19) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
assumption of duties or responsibilities of greater importance than those attaching to the old post and, -
(a) if he is holding a post not higher than a Class II post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued and in the case of a Government servant drawing pay at the maximum of the pay-scale by an amount equivalent to the last increment; and
(b) if he is holding a post higher than a Class II post, he will draw as initial pay the stage of the time-scale next above his pay in respect of the old (lower) post. "
16. Thus, let it be sub-rule (a) or (b) of Rule 11(1); what is important is the pay of respective petitioner as a Personal Secretary and as word used is not "Substantive pay", there is no escape from the conclusion that said word pay needs to be construed as per Rule 9(36) of the 1981 State Rules above and hence, as including the monthly payment of Rs. 400/- PM.
Thus stage at which respective petitioner has last drawn his wages as a Personal Secretary needs to be found out by adding said sum of Rs. 400/- to it and then that product needs to be treated either under sub-rule (a) or (b) of Rule 11(1). Thus merger of said amount & exercise undertaken earlier before ordering the impugned corrections & recoveries was in fact in accordance with law. Even if it is held to be covered under definition of "Special pay" under Rule 9(48), it still constitutes part of "Pay" under Rule 9(36)(2) which expressly takes "special pay" in its fold and hence, merger ::: Downloaded on - 09/06/2013 19:00:31 ::: (20) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
as observed above becomes inevitable.
17. There is one more aspect which needs appreciation. If it is for the time being presumed that a Personal Secretary is given benefit of Rs.
400/- PM not as a part of wages attached to his post but due to completion of 12 years in the cadre & to relieve him of stagnation, can it be said that while fixing him in promotional cadre of Private Secretary, his last wages received before extending him said fixed sum only are relevant. In other words, whether he should be treated as a stagnating Personal Secretary only when he is considered for actual promotion. If his wages drawn before he becomes eligible to grant of Rs. 400/- PM are to be accepted as relevant, he loses the wightage for service rendered by him for entire period during which he drew Rs. 400/- PM. It is as if he has not earned any increment during said period. Result is an artificial situation in which stagnating Personal Secretary only earns Rs. 400/-PM as a solace for stagnating. This runs counter to the normal schemes which confer upon such an employee benefit of promotional scale. He does not lose it only if at the time of actual promotion, he is found eligible for its grant. If he is not found eligible, he does not get further benefits but then also no recovery can be effected from him for such promotional salary. If he is found eligible for promotional post, he continues his further march in promotional time-scale & he is not supposed to begin it afresh. However, here we have already held that Rs.
400/- PM is the condition attached to post of Personal Secretary & it is/was payable from day one without any requirement of stagnation. Only possible conclusion is that Rs. 400/- PM was/is not a special privilege & it is part of his basic wage or pay for a Personal Secretary.
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18. The position inter se of these cadres has not remained the same over the course of time. The Bombay High Court Appellate Side Service Rules, 2000, have undergone amendments from time to time. It is necessary for us to have a look at the same to find out its impact on present consideration. Posts of Stenographers are now placed in non-gazetted category by subdividing it into two cadres. Rule 25 is Stenographer (Lower Grade) which is to be filled in from open market & its pay-scale is Rs. 5500-175-9000/-. Rule 24 is Stenographer (Higher Grade) in pay-scale of Rs. 6500-200-10,500/- which is to be filled in similarly. Thus wage structure of both these cadres is lower than earlier pay-scale of Rs.
7450-225-11500/- made available to Court Stenographers. On 21.4.2005, the Rules 17 & 18 dealing with the cadres of Personal Secretaries & Personal Assistants are deleted. Earlier Rule 19 dealing with Court Stenographers has been modified to provide for Personal Assistants and recruitment to it from open market. It continues to be gazetted post with better pay-scale of Rs. 8000-275-13500/-. Rule 13 dealing with Private Secretaries to Hon. Judges prescribes for appointment by selection from amongst Personal Assistants who have completed two years on merit-cum- seniority basis. Private Secretaries continue in pay-scale of Rs.
10000-325-15200/-. With effect from 12.3.2008, post of Senior Private Secretary to Hon. Judges is also created in pay-scale of Rs. 12000-375-16500/- by adding Rule 9-A. Said post can be filled by promotion from amongst Private Secretaries who have put in 2 years as such. Thus now Private secretaries also have a chance of promotion. All these posts in Rule 9-A, 13 & 19 are the gazetted posts. The special pay of Rs. 400/- PM or any other amount is now not provided for. Thus entry is possible in either cadres of the Stenographers or then as a Personal ::: Downloaded on - 09/06/2013 19:00:31 ::: (22) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
Assistant. The earlier system of same pay-scales for cadres of Personal Secretaries, Personal Assistants & Court Stenographers is not continued. In earlier system Personal Secretaries were getting special pay of Rs. 400/- PM and that also has been discontinued. This entirely new scheme is not relevant while undertaking exercise of determination of the character or nature of sum of Rs. 400/- PM paid to present petitioners as per 2000 Rules then in force.
19. The Maharashtra Civil Services (Revised Pay) Rules, 1998, referred to as Revised Pay Rules are also pressed into service by the petitioners. The same are under Art. 309 of the Constitution of India & are deemed to have come into force from 1.1.1996. Its Rule 4 stipulates that from 1.1.1996, the scale of pay of every post specified in column 2 of the Schedule is revised as specified in column 4 against it. Clause 3 is definition clause & phrases existing scale, present scale, revised emoluments, revised scale & Schedule as defined in it show that these rules are aimed at implementing the general wage revision popularly known as 5th wage revision w.e.f. 1.1.1996 & it has got no bearing on present issue.
"Basic pay" has been defined therein to mean pay drawn in the prescribed scale of pay, including stagnation increment(s), but does not include any other type of pay like "special pay", "personal pay", etc. We have already held that payment of Rs. 400/- PM to petitioners was/is neither special pay or personal pay but it was a grade pay of the Personal Secretaries. Rule 7(1) (B) of the Revised Pay Rules is also pressed into service by petitioners.
However, it lays down procedure for fixation of initial pay in revised scale and sub-rule (1)(B) envisages a situation where existing pay-scale with special pay is replaced by a scale of pay after merging the special pay. The ::: Downloaded on - 09/06/2013 19:00:31 ::: (23) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
analogy may hold good here due to history noted above resulting in addition of Rs.200/- or Rs. 400/- PM as grade pay for the Personal Secretaries, but then as we are not concerned with wage revision, concepts evolved & utilized for such general pay revision & uniform exercise can not be invoked here. Division Bench judgment of this Court reported at 2002 (5) Mh.L.J. 265 - Narharrao s/o Bhagwantrao Deshpande vs. State of Maharashtra holds exclusion of special pay from pensionable pay bad. This judgment looks into provisions of the Maharashtra Civil Services (Pension) Rules,1982 & Maharashtra Civil Services (Revised Pay) Rules, 1988. The later Rules had come into force from 1.1.1986 on the eve of the IVth general wage revision & Rule 7(1)(B) therein was identical as in Revised Pay Rules of 1998 on which the petitioners rely. Perusal of paragraph 9 of this judgment shows that there the revised time-scale was devised by merging the existing scale & the special pay. This merger itself is in dispute before us. Similarly, the nature of pay as special pay was also not in dispute there. Hence, the law as laid down in this judgment by Division Bench is not relevant before us.
20. Case law cited by the petitioners need brief consideration.
Petitioners also rely upon Union of India v. Mohd. Haroon Rashid - (1997) 9 SCC 99, where first question raised on behalf of the appellant Union of India was whether the special pay of Rs 35 should be considered as a part of the pay of the employees concerned for adjustment of their pay in the pay scale of the post of the Senior Accountant when they are appointed to that post. The letter dated 3-1-1981 from the Director General of Posts and Telegraphs bearing No. 6-7/79-PAP read with Circular No. 8.7. (52)S. 123/78 of 5-5-1979 made it clear that the special pay of Rs. 35/- was ::: Downloaded on - 09/06/2013 19:00:31 ::: (24) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
granted to 10 per cent of the posts of Junior Accountants for discharging more complex and important nature of work. This means that 10 per cent of the Junior Accountants' posts were entitled to this higher or special pay and the appointees to the posts carried the same till they were appointed to the next promotional post of the Senior Accountant. It was not disputed that the 10 per cent of the posts earmarked for special pay had to be filled in on the basis of the rule of seniority-cum-merit. Hon. Apex Court has held that the special pay was not granted to them in lieu of promotion for having been stagnated in the lower post or grade as contended on behalf of the Union of India. It was found to be a kind of an intermediate level of post/grade.
Hence when the employees carrying the special pay were thereafter promoted to the next higher post of the Senior Accountant, their salary had to be fixed according to FR 22-C. Thus for performing rather an arduous work, the rule of seniority-cum-merit was applied & suitable persons were selected. Said special pay was therefore to meet special situation & was not applicable on uniform basis to every incumbent in the cadre. But then, this judgment shows that as per Fundamental Rule 22-C, the special pay earned by incumbent was merged with qualification pay for the purposes of fitment upon promotion. Here also, we have found that payment of Rs. 400/- PM needed to be merged with basic wage of Personal Secretary before his promotional fitment or fixation was undertaken as per Rule 11(1) of the 1981 State Rules.
21. In Calcutta Municipal Corpn. v. Sujit Baran Mukherjee - (1997) 11 SCC 463, after perusal of regulation 34 of the Calcutta Municipal Corporation Regulations, Hon. Apex Court holds that the question of stepping up of the pay would arise only when a junior employee, on his ::: Downloaded on - 09/06/2013 19:00:31 ::: (25) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
promotion, draws higher pay than his seniors. Where a junior person on transfer to a different place is being paid extra payment by way of special pay or overtime pay, whatsoever the nomenclature be and would be treated to be a special pay since he has to discharge the duty outside his normal duty or due to special circumstances, such a fortuitous circumstance would not be a ground for other seniors to claim parity of pay by stepping up of their pay. Hon. Apex Court points out that if the contention is given acceptance, the extra salary would become payable to persons who do not take pains and do the normal work while staying in a convenient post/place with indolence and thus, stepping up of pay would be a premium on their laziness and indolence. It is clarified that when all of them discharge the same duties and are under the same responsibility and not put in different circumstances, if the juniors draw higher pay on promotion, then the seniors who did not get the opportunity would be entitled to parity of pay with their juniors. In facts of writ petitions before us, we find that there is no question of any junior or senior as post of Personal Secretary is a promotional post.
Only competent Court Stenographers filtered twice by using sieves found suitable by administration, occupy the post as Personal Secretaries and earn Rs. 400/- PM. If this benefit of Rs. 400/- is withdrawn for promotional fixation, they are forced to sit with Personal Assistants or Stenographers who could not become Personal Secretaries. It will be treating unequals equally thereby violating Art. 14 of the Constitution of India.
22. We have thus found that pay of respective petitioners in WP 6231 & 7404 of 2010 was rightly fixed by merging the amount of Rs. 400/- PM before undertaking promotional fitment & hence, there was or is no question of effecting any recovery from them. Petitioner in WP 7596 of ::: Downloaded on - 09/06/2013 19:00:31 ::: (26) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
2006 is entitled to have his fixation redetermined by adopting this equation. But then, in any case, even if this conclusion is not accepted and petitions are to be dismissed, still the facts at hand do not warrant recovery. In Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, at page 525, Hon. Apex Court has observed that the petitioners, entitled only to the pay scale of Rs 330-480 have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale was being reduced in the year 1984 with effect from January 1, 1973, it would only be just and proper not to recover any excess amount already paid to them. More recently in P.H. Reddy v.
National Institute of Rural Development, (2007) 15 SCC 598, at page 599 , Hon. Apex Court has again held though the order of re-fixation by the appropriate authority did not require any interference, but the appellant employees, who had been in receipt of a higher amount on account of erroneous fixation by the authority should not be asked to repay the excess pay drawn, and therefore that part of the order of the authority was set aside & the direction of the appropriate authority requiring reimbursement of the excess amount drawn was annulled. Here also, we do not find any petitioners at fault. That is not even the plea of the respondent administration. Hence, recoveries as made or ordered are liable to be quashed & set aside.
23. Thus all petitions are allowed. Petitioners in W.P. 7596 of 2006 & 6231 of 2010 are entitled to relief in terms its of prayer "(B)". Petitioner in WP 7404/2010 is entitled to relief in terms of prayer clauses "(B) & (D)"
in his petition. Accordingly, we direct the Administration to merge amount of Rs. 400/- PM received by him as Personal Secretary with his basic wages of Rs. 7450-11500/- in that cadre & then to redetermine their wages as ::: Downloaded on - 09/06/2013 19:00:31 ::: (27) W.P.Nos. 7596/2006, 6231/2010 & 7404/2010.
Private Secretary in the pay scale of Rs. 10000-15200/-. This exercise be completed within period of 4 months from today & benefits flowing therefrom be released to him within further period of two months. Exercise of fixation thus undertaken in case of petitioners in WP 6231 & 7404 of 2010 was in accordance with law & there was no need to rescind it & revise their salaries. Re-fixation of these two petitioners by deleting or de-
merging said amount of Rs. 400/- PM is unsustainable. Hence, that exercise & consequential recoveries effected from them are also quashed & set aside. Petitioner in WP 6231/2010 and Petitioner in WP 7404/2010 are entitled to refund of amounts already recovered as per prayer in their respective prayer clauses "(C)". These refunds be effected within period of 4 months from today. If the amounts are not released to the respective petitioners within time stipulated above, they shall be paid simple interest at 8% till the actual payment.
24. All three writ petitions are thus allowed by making the rule absolute accordingly. No costs.
(SUNIL P. DESHMUKH) (B.P. DHARMADHIKARI)
JUDGE JUDGE
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TRANSCEND
bgp/WP7596etc
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