Bombay High Court
Ahmednagar Zilla Nagar Palika ... vs Shirdi Nagar Panchayat Through ... on 26 September, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4815 OF 2016
Ahmednagar Zilla Nagar Palika Kamgar Union,
Trade Union Center, Tahsil Kacheri Road,
Ward No.1, Shrirampur,
Tal.Shrirampur, Dist.Ahmednagar.
Through its General Secretary.
Balasaheb Annasaheb Surude.
...PETITIONER
-VERSUS-
Shirdi Nagar Panchayat, Shirdi,
Post Shirdi, Taluka Rahata,
District Ahmednagar.
Through its Chief Executive Officer.
...RESPONDENT
...
Advocate for Petitioner : Shri Barde Parag Vijay.
Advocate for Respondent : Shri V.D.Hon, Senior Advocate h/f Shri Hon
Ashwin V..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th September, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner Union representing 16 employees of the
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Respondent/ Municipal Council for whom Complaint (ULP) No.207/2013
has been filed, is aggrieved by the latter part of clause (3) of the operative
part of the judgment of the Industrial Court dated 11.01.2016.
3 I have heard Shri Barde, learned Advocate for the Petitioner
and Shri Hon, learned Senior Advocate on behalf of the Respondent/
Municipal Council at length.
The short issue that requires consideration in this petition is
as to whether, the Industrial Court has rightly understood the meaning of
the clause at Sr.No.28 paragraph Nos.3.6.3 and 3.25.1 set out on page 30
which is part of the Shri PMA Hakim Committee's report.
5 The Respondent started recovering arrears of additional
increments paid to such employees who had acquired additional
qualifications by passing the departmental examination and by enhancing
their qualifications, thereby, made them eligible for additional increments,
as per the Government Resolution dated 18.02.1975.
6 Clause 2(vii) of the Government Resolution dated 18.02.1975
reads as under:-
"(vii) If a Municipal servant who does not have less than
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three years more to serve, passes his Local
Government Diploma or Local Self Government
Service Diploma Examination, after such a stage in
the service that he has either already reached the
maximum of his scale or is due to get only one
increment before he reaches his maximum, he may in
the former case be granted an amount equal to the
sum of two increments last drawn by him before he
reached the maximum as special pay (day) or in the
latter case the increment next due plus a special pay
equal to the amount of that increment."
7 It is undisputed that with regard to some posts, the Municipal
Council used to grant higher pay scale and higher increment based on
higher qualifications. 16 employees are those who had acquired higher
salaries and higher increments in the light of their higher educational
qualifications at the time of their entry into employment. Pursuant to such
entry and on the condition of such higher pay scale and higher increment,
they have been continued in employment. It was under the Hakim
Committee recommendations that such higher pay scales and higher
increments based on higher educational qualifications, were not to be
extended to anybody. The said clause 28 which is the nucleus of this
litigation reads as under:-
अ. क. पररचछछ द रमजय वछतन ससधमरणम सममतत, २००८ चयम शमसनमनछ
कमममक अहवमलमततल मशफमरशत घछतलछलम
मनणर य
३.६.३ कमहत पदममनम सछवमपवछशमचयमवछळत दछणयमत यछणमरछ उचच ससवककत
२८ व पमरममभक वछतन तसछच शशकमणक अहतरचयम आधमरमवर
३.२५.१ ममजजर करणयमत यछणमऱयम वछतनवमढत यमपसढछ अनसजछय
असणमर नमहतत.
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8 The contention of Shri Barde is that benefits as per the
existing service conditions which are being legally extended to 16
employees, cannot be taken away by introduction of a subsequent
Government Resolution. He submits that the Respondent Municipal
Council has passed two resolutions dated 08.09.2006 and 09.01.2009 by
virtue of which those employees who had reached the level of maximum
increments, were extended two additional increments. The contention is
that whatever may be the change pursuant to the Hakim Committee
recommendations which have been accepted by the Resolution dated
27.02.2009, such recommendations cannot be made applicable
retrospectively.
9 Shri Hon strenuously submitted that the above reproduced
Marathi clause of the Government Resolution dated 27.02.2009 means
that those persons who were already being extended higher increments by
the subsequent Government Resolution, such increments would be taken
away and they would be deprived of the same and if excess payments are
made, they would be recovered from such employees.
10 I do not find that the submissions of the Respondent in the
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light of the language used in the Marathi clause reproduced above could
be sustained. The translated meaning of the said clause would be "those
positions/ posts to which higher pay scales and higher increments based
on higher educational qualifications were available at the time of entry,
would hence forth not be available at the said stage." It means that hence
forth nobody who enters services and occupies the said post to which such
higher pay scales and higher increments were available, would not be
entitled for the same. In my view, the said clause does not mean that
those employees who had entered service on the condition of higher pay
scale and higher increments which were extended to them at the time of
entry and paid regularly, would hence forth be deprived of such higher
pay scales and payments of such increments would be stopped.
11 Needless to state, interpretation of any provision newly
introduced and made applicable to existing employees, cannot result in
taking away those benefits which have been already made available to
them from the date of entry into service or during their service when such
benefits are extended to them from time to time. The Government
Resolution dated 27.02.2009 will become applicable prospectively and the
same cannot be interpreted to cause prejudice to the service conditions of
the existing employees and take away benefits which they have been
extended prior to the introduction of the Government Resolution, unless
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better benefits are being made available. Interpretation of such
Government Resolution cannot be to the prejudice of the existing service
conditions of the employees.
12 Clause 3 of the operative part of the impugned judgment
reads as under:-
"(3) The part of the action of respondent Nagar Panchayat
to recover the amount of additional increments paid
to the employees in Annexure-A prior to 27 th
February, 2009 is quashed and set aside being illegal.
The respondent Nagar Panchayat is at liberty to
recover the arrears of benefits of additional
increments after 27th February, 2009 onwards."
13 It is settled law in Syed Abdul Qadir vs. State of Bihar, (2009)
3 SCC 475 and the State of Punjab vs. Rafiq Masih (White Washer), (2015)
4 SCC 334, that unless a fraud or misrepresentation is noticed, there
cannot be any recovery of money even if it is paid inadvertently.
14 As such, this Writ Petition is partly allowed and the second
part of clause 3 i.e. "The Respondent Nagar Panchayat is at liberty to
recover the arrears of benefits of additional increments after 27 th February,
2009 onwards." shall stand modified and shall read as under:-
"The Respondent Nagar Panchayat would not be at
liberty to recover excess payments of benefits or
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additional increments paid after 27 th February, 2009
onwards in relation to the cases of these 16
employees. Consequentially, those benefits and
increments extended to these 16 employees
pursuant to the Resolutions dated 08.09.2006 and
09.01.2009, shall not be recoverable and they shall
be entitled for the same since the said benefits have
been extended to them prior to the introduction of
the Government Resolution dated 27.02.2009."
15 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
