10-WP-239-2022.DOC
2024:BHC-GOA:1157-DB
Maria S.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.239 OF 2022
1. Shri Prakash Narayan Gaude, Son of
Narayan Gaude, aged 50 years, Indian
National, resident of House. No.106,
Madhalawada, Agapur, Durbhat-Agapur,
Ponda, Goa 403 401.
2. Shri Premendra Pandurang Naik, Son of
Pandurang Naik, aged 51 years, Indian
National, resident of 321, Madhala Wada,
Savoi-Verem, Verem De Ponda, Goa, 403
401.
3. Shri Vasundhar Ratnakar Naik, Son of
Ratnakar Jenu Naik, aged 32 years, Indian
national, resident of House No.623,
Konar, Gaunem, Bandora, Ponda, Goa
403401.
4. Shri. Atul Ranganath Naik, Son of
Ranganath Naik, Aged 33 years, Indian
National, Resident House No. 32/A,
Warbhat, Bandora, Ponda, Goa, 403401.
5. Shri. Gaurish Gurudas Naik, Son of
Gurudas Naik, Aged 34 years, Indian
National, Resident of House No. 171,
Talulem, Bandora, Ponda, Goa, 403401.
6. Shri. Jeetendra Naik, Son of Somi Naik,
Aged 39 years, Indian National, Resident of
House No. 2, Gauthan, Queula, Near
Shantadurga Temple, Ponda, Goa,
403401.
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7. Shri. Prakash Bhanu Naik, Son of Bhanu
Naik, Aged 45 years, Indian National,
Resident of House No. 454, Mahalwada,
Near Drinks Factory, Marcaim, Mardol,
…Petitioners
Goa, 403404.
Versus
1. State of Goa, Through its Chief Secretary,
Having his office at Secretariat, Porvorim,
Goa 403521.
2. Captain of Ports, Government of Goa,
River Navigation Department, Betim, Goa
403101.
3. Administrative Cum Accounts Officer,
River Navigation Department, Betim, Goa
403101. ...Respondents
Mr S. N. Joshi, Advocate with Ms Swapna Joshi, Advocate for the
Petitioner.
Mr Manish Salkar, Government Advocate for Respondents.
CORAM: M.S. KARNIK &
VALMIKI MENEZES ,JJ.
th
DATE: 29 JUNE, 2024
ORAL JUDGMENT: (Per M. S. Karnik, J)
1. Heard Mr S. N. Joshi, learned Counsel for the Petitioners and Mr
Manish Salkar, learned Government Advocate for the Respondents.
2. Rule. The Rule is made returnable immediately and heard forthwith with
the consent of the learned Counsel for the parties.
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3. The petitioners have invoked the writ jurisdiction of this Court under
Article 226 of the Constitution of India praying for the following reliefs:-
`a. Issue a Writ of Mandamus or any other Writ, Order or Direction in
the nature of Mandamus directing the Respondents to restore the salary
of the Petitioners as drawn till July, 2017 with all subsequent
consequential benefits.
b. Issue a Writ of Mandamus or any other Writ, Order or Direction in
the nature of Mandamus directing the Respondents to refund/repay to
the Petitioners the reductions / deductions carried out by them from the
salary payable in their favour from August, 2017 onwards till date.'
4. The Petitioners have a common grievance. We refer to the basic facts as
regards one of the Petitioners for convenience. The Petitioner was appointed by
order dated 08.02.2011 on the recommendation of the Departmental Selection
Committee to the post of Workman/Helper Group-D on temporary basis in the
₹
pay band of Rs.4400-7440 + GP + 1300/-. By a corrigendum dated
11.04.2011 the pay band was changed to Rs.5200-20200+ GP Rs.1800/-
₹
instead of Rs.4400-7440 + GP + 1300/-.
5. The recommendations of the VIth Pay Commission appointed by the
Central Government were accepted and made applicable for the Central
Government employees from 1st January 2006. The recommendations were
implemented by notifying Central Civil Services (Revised Pay) Rules, 2008.
6. Based on the recommendations of the VIth Pay Commission and in
compliance of Central Civil Services (Revised Pay) Rules, 2008, the Government
of India decided to upgrade the pay of all the employees in the existing Group
‘D’ and place them in Group ‘C’ in Pay Band-1 in the Pay Scale of Rs. 5200-
20200 with Grade Pay of Rs.1800.
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7. While implementing the VI th Pay Commission recommendations, the
Government of India also made it clear that those Group ‘D’ Employees who
did not possess minimum Qualifications were to be imparted training in their
field of activity by the concerned Department, preferably within a period of 6
months.
8. The Government of Goa also accepted the recommendations of the VIth
th Pay Commission in toto and implemented the same for the benefit of its
employees. The employees were also paid the arrears of the salary effective from
st
1 January, 2006. After the training, these employees were to be placed in Pay
₹ ₹
Band-1 in the Pay Scale of 5200-20200 with GP of 1800 with effect from
01/01/2006.
By an order No.8/7/2008-Fin(R&C) dated 10.10.2008, the Government
of Goa considered it expedient to allow its employees the benefits of revised pay
scales subject to conditions stipulated therein.
9. In exercise of the powers conferred vide Article 309, and clause (5) of
Article 148 of the Constitution of India and after consultation with the
Comptroller and Auditor General, in relation to persons serving in Indian Audit
and Accounts Department, the President made the following Rules called the
Central Civil Services (Revised Pay) Rules, 2008.
10. Note 1 is relevant for the purpose of the present matter, clauses (a), (b)
and (c) thereof need to be reproduced which read thus:-
Note 1 – (a) In the case of Group D employees, the pay in the
revised pay structure will be fixed initially in the -1S pay band as
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per Clause (A) above with the appropriate grade pay and arrears
paid accordingly. Thereafter, pay of such of those Group D
employees who already possess the revised minimum
qualifications recommended by the Commission prescribed for
entry into PB-1 would be fixed with effect from 1.1.2006 in PB-1
with grade pay of Rs.1800.
(b) Such of those existing Group D employees who do not possess
the revised minimum qualifications for entry into PB-1 would be
retrained by the concerned Department preferably within a period
of six months so that payment of arrears on account of
upgradation are not delayed. After re-training, these Group D
staff will also be placed in the Pay Band PB-1 with the grade pay
of Rs.1800 with effect from 1.1.2006 and arrears drawn
accordingly. Once placed in the PB-1 Pay Band, this category of
Group D staff will regain their seniority vis-à-vis the other
category of Group D staff that already possessed the minimum
qualifications and were, therefore, placed in the PB-1 Pay Band as
on 1.1.2006. Inter-se seniority of all the employees in erstwhile
Group D will be fully maintained with Group D employee in a
higher pre-revised pay scale being placed higher vis-à-vis an
employee in a lower pay scale. Within the same pre-revised pay
scale, seniority which existed prior to revision would continue.
(c) Arrears shall be payable with effect from 1.1.2006 in both the
cases i.e. to those Group D employees who possess the
qualifications and are placed in PB-1 straight away and those
Group D employees who do not possess the qualifications and are
placed after re-training. Illustration 3 in regard to fixation of pay
for Group D staff is in the Explanatory Memorandum to thse
Rules.
11. The grievance of the learned Counsel for the Petitioners is that having
₹
fixed the pay of the Petitioners in the year 2011 in the pay band of 5200-
₹
20200+GP 1800, the Respondents were then not justified in placing the
₹
Petitioners in the Grade Pay of 1300/- from the initial date of their
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appointment only because they did not undergo training within 6 months. It is
submitted by learned Counsel for the Petitioners that they were never intimated
or informed that they had to undergo such a training within such period.
Moreover, having undergone the training later, the consequent grade pay of
₹
1800/- is to be restored with arrears.
12. Learned Government Advocate vehemently opposed the petition. It is the
stand of the Respondents in the affidavit-in-reply that the Petitioners ought to
have undergone training within a period of 6 months from the date of
appointment. The contention is that the Petitioners were erroneously placed in
the grade pay of Rs.1800/- though they were not qualified. In the affidavit-in-
reply by the Respondents, the following stand is taken in paragraphs 7 and 8.
`7. I say that vide Order dt. 30/11/2016 the VIIth Pay Commission
was implemented and accordingly preparation of Pay fixation was
taken up. The department prepared pay fixation as per their pay fixed
in 2011 to 2015 in the pay band 5200-20200 plus grade pay 1800.
Directorate of Accounts had not approved the same as the employees
were not qualified for the grade pay 1800/-.
I say that the Department issued to all the non qualified employees
memorandum for training dt. 16/1/2017 and after giving them
training as per circular dt. 04/04/2017 and corrigendum dt.
12/09/2017 their pay was fixed w.e.f. 1/1/2016 in the grade pay
1800/-. And accordingly their pay fixation as per VIIthe pay fixation
was done w.e.f. 1/1/2016 in the pay scale of Rs.5200-20200 plus grade
pay Rs.1800/- and fixed at Rs.18,000/- as on 1/1/2016. Though
recovery is due from the Petitioner, till date department had not
recovered/deducted from their salary of overpayment done.'
13. Heard learned Counsel. Persued the petition memon, the annexures, the
affidavit in reply and the pleadings on record.
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14. We find that even as per the affidavit in reply of the Respondents,
especially paragraph 6, the Respondents have taken a stand that the Petitioners
had to be trained within 6 months of their appointment to be qualified for grade
pay of Rs.1800/-. As we understand from the affidavit in reply, the aforequoted
Rules are applicable to the Petitioners. Learned Government Advocate was at
pains to point out that the Petitioners were informed in the year 2013 that they
had to undergo the training. He invited our attention to paragraph 2 of the sur-
rejoinder to submit that in the year 2013 it was intimated to the Petitioners that
they had to undergo such a training. There is nothing on record to indicate that
they have refused to undergo training despite it being so scheduled. In any case,
the training was inhouse training. There is nothing on record to indicate that
within a period of 6 months from the date of their appointment the Petitioners
were asked to undergo the training.
₹
15. The Petitioners were granted grade pay of 1800/- when they were
appointed in the year 2011. It is in the year 2017 the objection was raised by
the Directorate of Accounts that the Petitioners had not undergone training.
This objection was at the stage of extending the benefits of Seventh Pay
Commission recommendations. The Petitioners were then sent for training
which was an inhouse training for six months duration. When sent for the
training, the Petitioners immediately underwent the same and completed it
successfully. There is nothing on record to indicate that merely because they had
not undergone training their work performance in any manner in discharge of
their duties since the initial date of appointment was affected. In any case,
merely because the Petitioners have completed their training at a later stage
₹
should not be a factor to deprive them the benefits of the grade pay of 1800/-
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already fixed, as in any case the same was to stand restored on completion of
training also entitling them to the arrears. This is not a case of overpayment
calling for a recovery. No prejudice is caused to the Respondents as a result of
granting the grade pay of Rs.1800/- initially as the Petitioners have admittedly
completed the training. We do appreciate that the Respondents would have
₹
been justified in fixing the pay in the grade pay of 1300/- as the Petitioners
were not trained, but factually upon completing the training, the Petitioners
₹
would then be entitled to the grade pay of 1800/- from the date of initial
appointment with arrears.
16. The decision of the Respondents to fix the pay of the Petitioners as per
the Seventh Pay Commission w.e.f. 01.01.2016 and not from 2011 in the pay
scale of Rs.5200-20200 + GP Rs.1800 only because the Petitioners did not
complete training till 2017 in our opinion is erroneous. When the Petitioners
were sent for training, they successfully completed the same. The purpose of
the Rules afore quoted is to ensure that the Petitioners complete their training. It
is upon completion of training that they are to be restored in the grade pay of
Rs.1800/- with retrospective effect. Upon completion of training, they, in any
case, are to be placed in the grade pay of Rs.1800/- and arrears paid. It does not
appear to be the intent of the Rules to place the Petitioners in the grade pay of
Rs.1800/- from the date of completion of training. The requirement is that upon
completion of training, the grade pay of Rs.1800/- is to be granted from the
initial date of appointment with arrears. In the present case, what has happened
is the Petitioners were granted grade pay of Rs.1800/- before undergoing
training. In any case, had the Petitioners completed training, they still would get
the grade pay of Rs.1800/- from the date they were initially appointed with
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arrears. Completing the training later should not prejudice the Petitioners in the
present facts is our considered opinion. This is not a case of unjust entitlement.
It is just that the Respondents wrongly placed the Petitioners in the grade pay of
₹
1800/- prior to completion of the training, which position would otherwise
have restored upon completion of training. The benefits which the Petitioners
were entitled to later was received by them earlier. Thus, the Petitioners pay
₹ ₹
which was initially fixed as 5200-20200+GP 1800 should be the basis for pay
fixation as per Seventh Pay recommendations. The fact that the Petitioners
completed the training at a later date should not be a factor to deprive them of
₹
the benefits of the grade pay of 1800/- fixed at the initial stage.
17. In the light of the aforesaid discussions, the Respondents may now
proceed with the pay fixation in terms of the Seventh Pay Commission
recommendations on the basis that the Petitioners are entitled to pay fixation in
₹ ₹
2011 to 2015 in the pay band of 5200-20200+GP 1800 i.e. assuming that
₹
the Petitioners are qualified for the Grade Pay of 1800/- during the period
2011 to 2015.
18. Learned Counsel for the Petitioners further submitted that the Petitioners
were entitled for annual increment of 3% of the basic salary and grade pay. It is
further urged that under the Seventh Pay Commission, the pay scales fixed by
the Department should include the addition of such annual increments. It is
open for the Petitioners to make appropriate representation to the concerned
Department as now the Petitioners pay will have to be re-fixed. These aspects
will be considered at the time of pay fixation.
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19. So far as the grievance about the deductions made from the salary of the
Petitioners is concerned, the Respondents have in paragraph 9 of the affidavit-in-
reply clearly stated that the deductions made are towards insurance and savings,
NPS contribution, computer advance, festival advance, bank loan, IWT and
LIC and they have provided a breakup of each of the Petitioners salary
statement which is at Exhibit R-1. It is thus the stand of the Respondents that
the deductions are not towards excess payment made. We do not have any
reason to doubt such a stand of the Respondents. The Respondents have stated
that the deductions of the excess payment made during the period from
February 2017 to August 2017, if any, shall be made after hearing the Petitioners
and following the principles of natural justice. Such a situation is not likely to
arise in view of the revised pay fixatioon to be done, but even if does, the same
shall be after hearing the petitioners and following the principles of natural
justice.
20. In view of the above, the Respondents may fix the pay within a period of
six months from the date of uploading of this order. Arrears, if any, be paid
expeditiously.
21. Rule is made absolute in the above terms.
22. No costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
Signed by: MARIA SUZANA REBELLO
Designation: Personal Assistant
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Date: 22/07/2024 20:18:14
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