Eknath Gulabrao Khate And Another vs Maharashtra State Oil Seeds Commerical And Industrial Corporation Ltd., Thr. Managing Director And Ors.

[1] This petition claims the relief of declaration that the petitioners are entitled to get the arrears of salary and pensionery dues as per the payÂscale

prescribed in 5th Pay Commission, which is made applicable by Government Resolution dated 02.03.2010 to the employees working in the respondent

No. 2 â€" Maharashtra State Oil Seeds â€" Commercial & Industrial Corporation Ltd. The consequential direction is also claimed to work out the

arrears payable and release the same along with the enhancement in pension.

[2] The matter was earlier dismissed in default. It was restored. Thereafter, when the matter was called out on 15th October, 2018, the following

order was passed.

“Put up this matter on 17Â​10Â​2018, at the request of Shri P.S.Patil, Advocate, holding for Shri V.A.Kothale, the learned counsel for the petitioner.

If the counsel for the petitioner fails to appear and argue the matter on the next occasion, the petition shall be dismissed in default with the costs of

Rs.10,000/Â​â€​

 [4] Undisputedly, the petitioners were the employees working in the respondent No.1 Corporation and retired on attaining the age of superannuation

on 31.07.2008 and 31.12.2008. By Government Resolution dated 02.03.2010, the pay scales recommended by 5th Pay Commission were made

applicable to the employees with effect from 1st January, 1996. Clause (1) of the said Government Resolution, which is relevant, is reproduced below.

“1. The 5th Pay Commission be made applicable to the employees of MOSICOL with effect from 1st January, 1996 and those employees who will

not participate in voluntary retirement scheme, they will be paid their dues as per provisions of Winding Up Act of MOSICOL instead of applying 5th

Pay Commission to such employeesâ€​

[5] It is the stand taken by the State Government that it is under the voluntary retirement scheme which is considered to be a package scheme making

applicable the payÂscales recommended by 5th Pay Commission was introduced. According to the State Government, the scheme is not applicable to

the employees who retired before issuance of this Government Resolution. The stand of the Corporation is also the same and we do not find after

going through the petition that the petitioners had participated in the voluntary retirement scheme. It is the statement made before us that the

petitioners are paid their dues as per the provisions of Winding Up Act of MOSICOL and hence, they were not entitled to the payÂscales

recommended by the 5th Pay Commission in terms of Clause (1) reproduced above.

[6] Shri V. A. Kothale, Advocate for the petitioners appeared subsequently before us and cited two judgment of the Hon'ble Apex Court in the matter

of (i) Kallakurichi Taluk Retired Officials Association, Tamilnadu and ors. Vs. State of Tamil Nadu with other Civil Appeals reported in (2013) 2 SCC

772 and (ii) State of Madhya Pradesh and anr. Vs. Mala Banerjee reported in (2015) 7 SCC 698 to urge that the action to exclude the applicability of

the scheme to the petitioners who retired prior to 02.03.2010 is discriminatory and violates guarantee contained in Article 14 and 16 of the Constitution

of India.

[7] We have gone through both these decisions and in our view, the ratio laid down in the said decisions does not apply to the facts of the present

case. In this case, we find that the object of making 5th Pay Commission applicable is to provide an inducement to the employees in service to seek

voluntary retirement so as to reduce the strength of the employees. In short, the payment as per the 5th pay Commission constitutes a package

scheme for voluntary retirement, which cannot be compared with the ordinary implementation of revision of payÂscales to the employees. Thus, only

those who are entitled to participate in the scheme shall get the benefit of it. The petitioners having retired from service on attaining the age of

superannuation prior to introduction of such scheme with effect from 02.03.2010, the question of their participation in the scheme on 02.03.2010 does

not arise. There is no question of violation of Article 14 and 16 of the Constitution of India.

In the result, the writ petition is dismissed. No order as to costs.