Bombay High Court
Vijaykumar Gulabchand Sharma vs The Director Of Municipal & Others on 27 August, 2015
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.3107 OF 1999
Vijaykumar s/o. Gulabchand Sharma,
Age 49 years,
Occupation : Service as a City Engineer
in Achalpur Municipal Council, Achalpur,
Taluka Achalpur, District Amravati.
Amendment 1(i) Smt. Shobha Vijaykumar Sharma (Wife),
carried out as per Aged about 59 years,
Court's order Occupation : Housewife.
dt.8.6.2015.
1(ii) Chetan Vijaykumar Sharma,
Aged about 13 years, (Minor) (Son),
Both R/o. Achalpur, Tah. Achalpur,
District : Amravati. : PETITIONER
...VERSUS...
1. The Director of Municipal Administration,
New Administrative building,
15th Floor, Opposite Mantralaya,
Fort, Mumbai-400 032.
2. The State of Maharashtra,
through the Secretary,
Department of Urban Development,
Mantralaya, Fort, Mumbai-400 032.
3. The Collector, Amravati,
District Amravati.
4. Achalpur Municipal Council,
Achalpur, Taluka Achalpur,
District Amravati,
through its Chief Officer. : RESPONDENTS
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Mrs. R.D. Raskar, Advocate for the Petitioner.
Mrs. M.N. Hiwase, Addl. Public Prosecutor for Respondent Nos.1 to 3.
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CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
th
DATE : 27
AUGUST, 2015.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
1. We have heard Advocate Mrs. R.D. Raskar for petitioner
and Mrs. M.N. Hiwse, Assistant Government Pleader for the
respondent Nos.1 to 3. Nobody for respondent No.4.
2. Learned A.G.P. also sought adjournment pointing out
that no reply has been filed on behalf of the respondent Nos.1 to 3
till this date. As the request for adjournment was opposed by the
petitioner and our attention has been drawn to order passed by this
Court earlier, we rejected the request for adjournment. In this
situation, without prejudice to said request of adjournment learned
A.G.P. has assisted the Court in the matter.
3. Advocate Mrs. R.D. Raskar submits that the petitioner,
who expired during the pendency of the matter seeks proper pay
scale from 1.1.1986. He was working as City Engineer with
respondent No.4 and after wage revision by State Government in
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relation to its employees w.e.f. 1.1.1986 pay scale of
Rs.2000-3500 was extended to him from 1.1.1986. However, State
Government itself on 14.12.1995 substituted that pay scale of
Rs.2200-75-2800-EB-100-4000 with class one Gazetted status. It is
stated that thus when Government itself has recognized a proper
pay scale and substituted it for pay scale of Rs.2000-3500 the
revised scale as corrected by State Government ought to have been
extended even to the petitioner.
4. It is pointed out to this Court that the Municipal Council
in fact passed a resolution on 23.7.1996 and accepted that pay
scale. The proposal recommends it was accordingly forwarded to
the office of the Regional Director of Municipal Administration,
Office of Collector, Amravati examined the proposal and
recommended it, but by impugned order dated 20th January, 2000
Regional Director of Municipal Administration has rejected it on the
ground that no decision, to grant pay scale to the post held by the
petitioner, was taken by the Urban Development Department.
Counsel for the petitioner states that before that a query whether
administrative expenses of Municipal Council were below 42% of its
income was also raised and Municipal Council accordingly
answered it by stating that in past 3 years, the expenditure was less
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than 42%.
5. Advocate Mrs. R.D. Raskar states that thus there was no
legal bar to grant that pay scale to the petitioner. Our attention is
also invited to order dated 19 th March, 2001 passed by this Court in
present writ petition while issuing rule. Though, this Court then
directed the State Government to take a decision on the issue
within a period of six weeks, that decision has not been taken till
date, and no reply also has been filed before this Court.
6. Learned A.G.P. points out that as employment of
petitioner was with Municipal Council which is looked after by
Urban Development Department of State Government, the decision
taken by the Irrigation Department in relation to its employees
could not have been mechanically extended to the post of the
petitioner. Regional Director of Municipal Administration,
therefore, found that Urban Development Department ought to
have applied its mind and as there was no such decision by Urban
Development Department the proposal sent by the Municipal
Council has been rightly turned down. She also points out that in
absence of any reply-affidavit on record, the impact of any
adjudication by this Court cannot be evaluated as all such engineers
working with various Municipal Councils and Municipal
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Corporations may then become eligible to the revised scale of
2200-4000 with class one Gazetted status and, therefore, may claim
further appropriate revised wage in 5th Wage Revision from
1.1.1996 and thereafter from 1.1.2006. Her submission is that the
adjudication in absence of proper reply from the respondent may
result in casting huge financial burden on public revenue.
7. We find that the present petition was filed on 3.8.1999.
The impugned order dated 28th January, 2000 is subsequent to it
and challenge thereto has been added vide amendment. The
petitioner, who was about 49 years of his age then expired on
3.8.2011. Civil Application No.3129/2014 preferred by his legal
heirs has been allowed by this Court on 8.6.2015 and the petition is
now being prosecuted by his widow and a minor son. Respondent/
State did not avail the liberty given to it by this Court on 19.3.2001
and also did not find it necessary to file reply. It cannot, therefore,
plead its own omissions in defence, to avoid adjudication on merit.
8. Facts on record show that the petitioner joined the
services as Junior Engineer and in course of time became City
Engineer. The pay scale of Rs.2000-3500 extended to its employees
by Irrigation Department was also made applicable to him as per
the decision of the Urban Development Department and the order
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dated 7th January, 1994, where his post has been mentioned as
Municipal Engineer and pay scale 2000-3500 has been sanctioned
to it. It is subject to a condition that administrative expenditure of
Municipal Council should be below 42% of its net income.
Obviously as respondent No.4-Municipal Council satisfied this norm
pay scale 2000-3500 came to be extended to deceased petitioner
from 1st January, 1986.
9. The State Government through its Irrigation Department
has on 14.12.1995 revised this scale of 2000-3500 to 2200-4000
with class one status and this revised pay scale has been made
effective from 1.1.1986 retrospectively. It is, therefore, obvious that
had this revision been not necessary and pay scale of Rs.2200-4000
had been recognized as appropriate corresponding pay scale
initially itself, the petitioner would have received that pay scale
from 1.1.1986 as per order dated 7th January, 1994. In other
words, order dated 7th January, 1994 would have been mentioned
this revised scale of Rs.2200-4000 instead of Rs.2000-3500.
10. The resolution passed by the employer of the petitioner
accepting this new pay scale on 23.7.1996 and proposal accordingly
forwarded by it to Regional Director of Municipal Administration
on 20th August, 1996 is not in dispute. It appears that the Office of
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the Collector, Amravati has looked into said proposal and on
27th February, 1997 found the proposal just. It has, therefore,
recommended it. This communication dated 27 th February, 1997
forwarded by the Office of the Collector to Office of the Regional
Director of Municipal Administration, Amravati is produced by
petitioner as Annexure-IX.
11. The Office of the Regional Director of Municipal
Administration has on 4.9.1997 sought information about the
percentage of administrative expenditure from respondent No.4
Municipal Council. That information in relation to past 3 years has
been forwarded by Municipal Council on 15.11.1997. Its perusal
shows that percentage of expenditure in 1994-95 was 39.77%, in
the year 1995-96 it was 36.67% and in the year 1996-97 it was
36.57%. Thus, it was well below the ceiling of 42% envisaged by
the above mentioned order dated 7th January, 1994.
12. When the impugned order dated 20th January, 2000 is
perused in this background it is clear that it over looks all these
facts. Failure or omission on the part of Urban Development
Department to take consequential decision has been putforth as a
reason by the Regional Director of Municipal Administration to
deny approval to proposal forwarded by Municipal Council. The
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material on record shows that the respondent No.4-Municipal
Council did possess the financial capacity to shoulder the burden
and was therefore, ready for it. This fact itself was sufficient for
Regional Director of Municipal Administration to accept the
resolution of Municipal Council and to clear its proposal. The
Regional Director of Municipal Administration was not required to
consider the fixation of pay scale of entire cadre of City Engineer or
the Deputy Engineer in all Municipal Councils or Municipal
Corporations over the State. The norms to be met with are
prescribed for each Municipal Council and hence, pay scales of said
cadre in different Municipal Council may not be same. No policy
decision from Urban Development Department for its uniform
application all over the State was/is really warranted in present
matter.
13. In this situation, we find the order dated 20 th January,
2000 is unsustainable. It is accordingly quashed and set aside.
14. The respondent No1 is directed to grant approval to the
proposal submitted by the respondent No.4-Municipal Council.
15. The process be completed within a period of four months
from today.
16. Arrears becoming payable to petitioner on account of
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said wage revision till 1.1.1996 shall be paid to his legal heirs
within next four months.
17. Insofar as the apprehension of learned A.G.P. that the
wage revision would have a cascading effect is concerned, we find
that the petition has not been amended after 1996 wage revision or
2006 wage revision demanding higher corresponding pay scale. As
such the benefit shall be available to petitioner only for the period
from 1.1.1986 till 1.1.1996.
18. With these directions, petition is partly allowed and
disposed of. No costs.
(P.N. DESHMUKH,J.) (B.P.DHARMADHIKARI,J.)
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