Remanded

Rahul Rangarao Patil v. the State of Maharasthra and Others

Bombay HC22 Nov 2016WP/8846/2015

Case brief

AI extract

What is this about?

The Court disposed of two writ petitions. One was filed by an employee for appointment and pay scale, another by the employer challenging the pay scale order. The Court set aside the pay scale order as it was passed without imputing the employer to a hearing and remanded the matter for fresh consideration.

What did the court decide?

The impugned order granting pay scale was set aside and the matter remanded to the Assistant Commissioner, Social Welfare, Jalgaon, to decide the issue of pay scale afresh after hearing.

Rahul Rangarao Patil Vs the State of… — Pension and Retirement Benefits | Bombay HC (2016)

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23.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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 23 WRIT PETITION NO. 8846 OF 2015

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RAHUL RANGARAO PATIL
VERSUS
THE STATE OF MAHARASTHRA AND OTHERS

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WITH

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 WRIT PETITION NO. 5829 OF 2016

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BAHUUDDESHIYA SHIKSHAN PRASARAK MANDAL, GADKHAMB AND ANOTHER

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VERSUS

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THE STATE OF MAHARASTHRA AND OTHERS

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...

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Advocate for Petitioner in WP/8846/2015 : Ms.Surekha P.
Mahajan Advocate for Petitioner in WP/5829/2016 : Mr. N. P.

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Patil Jamalpurkar

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AGP for Respondents 1 to 3:Mrs. R.P. Gour
Advocate for Respondent No.5 in WP/8846/2015 : Mr. Sachin S.

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Deshmukh

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Advocate for Respondent No.4 in WP/5829/2016 : Ms. Surekha
P. Mahajan

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CORAM: S. V. GANGAPURWALA &
K. L. WADANE, JJ.
 DATE:22nd November, 2016

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ORDER:

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1. Writ Petition No.8846/2015 is filed by the
employee with a prayer to appoint him as Lab Assistant
with effect from 2008 with further prayer to grant him

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pay scale and grade pay as claimed in the petition.
Whereas, Writ petition No. 5829/2016 is filed by the
employer, challenging the order passed by the Assistant
Commissioner(SocialWelfare),Jalgaon,dated

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17.11.2015, directing pay scale of Lab Attendant to
be paid to the employee.

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2. Ms. Mahajan, the learned counsel for the
employee submits that the petitioner employee was
appointed as Lab Attendant on 03.07.2004 but is paid
salary of peon. The petitioner is entitled for the
salary as applicable to the Lab Attendant.

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3. In the impugned order, the petitioner employee
is granted pay scale as applicable to the Lab Attendant
from 28.02.2006. According to the learned counsel for
the petitioner employee, no error has been committed.

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The learned counsel submits that the post of Lab
Assistent became vacant in the year 2008. The claim of
the petitioner ought to have been considered on the
said post, however, the same is not considered. The
learned counsel relies on the judgment of the Division

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Bench of this Court in case of Ashok Shankarrao Shinde

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Vs. Prabodhan Shikshan Sanstha, Nagpur, reported in

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1999 (1) MH.LJ 348 and another judgment of the
Division Bench of this Court in case of Ramesh

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Shivram Khairnar Vs. the State of Maharashtra and

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others reported in 2003 (4) Mh. L.J. 470. The learned
counsel submits that the said post of Lab Assistant
ought to have been filled by promotion and the same
would be in consonance with Schedule F of the M.E.P.S.

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Rules.

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4. Mr. Patil, the learned counsel for the employer
submits that the order impugned in Writ petition No.
5829/2016 has been passed without even notice to the
Management nor the Management and the Headmaster were
heard. True and correct facts could have been brought
to the notice of the authority if the hearing would
have been given. Appointment order itself lays down
the pay scale to which the employee would be entitled
to. Now, after a long period of 6/7 years, the
employee cannot contend otherwise. The learned counsel
further submits that a person was appointed as Lab
Assistant in the year 2008. The said appointment was
never assailed up to the year 2015. Approval is also
granted to the appointment of the said person as Lab
Assistant i.e. Respondent No.6 in the petition filed by
the employee. The approval was also never challenged.

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5. We have considered the submissions canvassed by

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the learned counsel for the respective parties. The
judgments relied by Ms. Mahajan, the learned counsel
for the petitioner employee are perused.

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6. No doubt, for the post of Lab Assistant, the

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Management is required to consider a person to

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appointed on the said post by promotion and that is the
mandate in Schedule F of the M.E.P.S. Rules. It would

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appears that respondent No.6 in the petition filed by
the employee has been appointed as Lab Assistant in the
year 2008. In case the employee was aggrieved by such
appointment, the petitioner ought to have assailed the
said appointment immediately. Subsequently, even
appointment of said respondent No.6 is approved by the
authority. Objections for the first time seems to
have been raised after seven years. It would be
inappropriate and inequitable at this stage to unsettle
the said position.

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7. As far as pay scale is concerned, it appears
that the Management was not heard while granting pay
scale. The impugned order placed on record shows that
the petitioner was appointed as Lab Attendant. Pay
scale is required to be paid to an employee of a post
of which the employee discharges functions and duties.
According to the Management, there were some complaints
against the petitioner employee and some punishment was
imposed such as stoppage of increment and that has been
argued by the learned counsel for the employer. Be
that as it may, the said aspect would be considered
by the authorities.

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8. Considering the fact that the order impugned by

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the employer is passed without hearing the employer,
we set aside the said order with the observation that
the Assistant Commissioner, Social Welfare, Jalgaon
shall decide the issue of pay scale payable to the
employee afresh.

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9. All parties shall appear before the Assistant
Commissioner, Social Welfare, Jalgaon on 05.12.2016. As
the date of appearance is given by this Court, no
separate notice is required to be issued by the
authority. The authority shall pass orders afresh

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with regard to the pay scale, payable and applicable to
the petitioner as Lab Attendant, expeditiously,
preferably within six weeks from the date of

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appearance.

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10. The parties are at liberty to put forth their
stands before the Assistant Commissioner (Social
welfare). All contentions in that regard are kept
open.

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11. Writ petitions are accordingly disposed of. No
costs.

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(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

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JPC

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Rahul Rangarao Patil v. the State of Maharasthra and Others

Case brief

What is this about?

What did the court decide?

Rahul Rangarao Patil v. the State of Maharasthra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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