1 W.P.No.4100/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4100 OF 2010. Shri Lalsingh S/o Kalsingh Pawar, Age 46 years, Occ.Service, R/o C/o Nagar Palika Hospital, Tq. Erandol, Dist.Jalgaon. ... Petitioner. Versus 1. State of Maharashtra through Department of Health Ministry, Mantralaya, Mumbai. 2. The Joint Director(Health Services), Maleriya-Filariya, Alandi Road, Infront of Yerwada Police Chauki, Yerwada, Pune-6. 3. The Assistant Director, Health Services Maleriya Filariya, Nashik Nashik ESI Hospital, Near Satpur Bus Stop, Nashik. 4. District Maleriya Officer, Unit No.1, Mandore Market, Zilla Peth, Jalgaon, Dist.Jalgaon. 2 W.P.No.4100/10 5. Nagar Palika, Erandol (now Rural Hospital), through Medical Superintendent of Rural Hospital, Erandol, Nagar Palika Hospital, Erandol, Dist.Jalgaon. ... Respondents. ... Mr.S.B.Yawalkar, advocate for the petitioner. Mr.S.B.Pulkundwar,Asstt.Govt. Pleader for the State. ... CORAM : S.V.GANGAPURWALA,J. Date : 18.07.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing. 3. The petitioner was appointed as Health worker with Respondent Nos.4 and 5. The petitioner's services were terminated on 21.9.1993. The petitioner filed (ULP) Complaint 3 W.P.No.4100/10 No.295/1993 against the order of termination. The said complaint came to be partly allowed. The petitioner was reinstated with continuity of service. The back wages were denied. On 14.10.1991, the petitioner has been made permanent employee. The Respondent No.4 by its order dated 25.9.2000 fixed the pay-scale of the petitioner with effect from 1.6.1997 though the petitioner is appointed in the year 1991. The petitioner filed complaint bearing (ULP) Complaint No.134/2002 claiming the fixation of pay from the date of appointment i.e. 13.7.1991 and the interest thereon. The Industrial Court disallowed the said complaint on the ground that the petitioner has waived the back wages. Aggrieved thereby, the present petition has been filed. 4. Mr.Yawalkar, learned counsel for the petitioner states that waiver of back wages has nothing to do with the fixation of pay qua the date of appointment. The petitioner has been granted reinstatement with continuity of service, thereby his pay fixation will have to be done as 4 W.P.No.4100/10 per the initial appointment. This aspect has not been considered by the Tribunal. Waiver of back wages would not tantamount to the waiver of service for that particular period. 6. The learned Asstt. Govt. Pleader submits that the petitioner was initially appointed on 13.7.1991 and was temporary since 30th September, 1993 to 31st May, 1997. The break period in the service is more than one year and as such pay fixation is made since 1.6.1997 and the same is in consonance with the order passed in (ULP) Complaint No.295/1993. The pay- scale is fixed as per the Rules. 7. Perusal of the order dated 5.4.1997 in (ULP) Complaint No.295/93, it is manifest that the Respondents were directed to reinstate the petitioner in service with the continuity of service from the date of termination. When the Labour Court had allowed the complaint, reinstated the petitioner with continuity of service from the date of termination then no question arises of any break in service. Waiver 5 W.P.No.4100/10 of back wages would not be relevant for determining the pay fixation. The same could be alien for the purpose of pay fixation. 8. The pay fixation of the petitioner will have to be done taking into consideration his appointment in the year 1991. There would be no question of break in service also. 9. In the result, the Writ Petition is allowed. The Respondents is directed to fix the pay-scale of the petitioner, taking into consideration his appointment in the year 1991. The impugned order is quashed and set aside. 10. Rule is accordingly made absolute in above terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp410010 6 W.P.No.4100/10