Abhimanyu Sinha vs State Of Chhattisgarh
2022 Latest Caselaw 3541 Chatt

                                    1


                                                                    AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                          WA No. 171 of 2017

Vishnu Prasad Chandrakar S/o Late Shri Aen Lal Chandrakar, Aged
About 53 Years Occupation Service, Presently Posted As Time Keeper,
Municipal Corporation, Bhilai, R/o Qr. No. 413, Street No. 14, Sector 8,
Bhilai, Police Station Kotwali, District Durg, Civil And Revenue District
Durg Chhattisgarh.
                                                           ---- Appellant
                                 Versus
1.   State of Chhattisgarh Through The Principal Secretary,
     Department of Finance, Mahanadi Bhawan, Mantralaya, Naya
     Raipur Chhattisgarh.
2.   Department of Urban Administration, Through The Principal
     Secretary, Urban Administration And Development Department,
     Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.
3.   Director, Urban Administration And Development, Through The
     Director, Urban Administration And Development, R. D. A.
     Building, Raipur, District Raipur Chhattisgarh.
4.   Municipal Corporation, Bhilai, Through Its Commissioner,
     Municipal Corporation, Bhilai, District Durg Chhattisgarh.
                                                        ---- Respondents

WA No. 166 of 2017

Shiv Kumar Sharma S/o Late Fatte Prasad Tiwari, Aged About 54 Years Occupation Service, Presently Posted As Spot Assistant, Municipal Corporation, Durg, R/o Gaya Nagar, Gali No. 4, Ward No. 4, Durg, District Durg Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh.

4. Municipal Corporation, Durg, Through Its Commissioner, Municipal

Corporation, Durg, District Durg Chhattisgarh.

---- Respondents WA No. 167 of 2017

Abhimanyu Sinha S/o Shri Dularwa Sinha, Aged About 58 Years Occupation Service, Presently Posted As Pump Operator, Municipal Corporation, Dhamtari, R/o Thorid Nagar Dhamtari, District Dhamtari Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh.

4. Municipal Corporation, Dhamtari, Through Its Commissioner, Municipal Corporation, Dhamtari, District Dhamtari, Chhattisgarh.

---- Respondents WA No. 170 of 2017

Abdul Hamid S/o Late Sheikh Ahmed, Aged About 50 Years Occupation Service, Presently Posted As Assistant Revenue Inspector, Municipal Corporation, Ambikapur, R/o Rasoolpur, Ward No. 39, Ambikapur, District Ambikapur Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh.

4. Municipal Corporation, Ambikapur, Through Its Commissioner, Municipal Corporation, Ambikapur, District Surguja Chhattisgarh.

---- Respondents

WA No. 173 of 2017 Ajay Kumar Verma S/o Late Shri Bhagwati Prasad Verma, Aged About 42 Years Occupation Service, Presently Posted As Assistant Grade- Il, Municipal Corporation, Raipur, R/o Behind Of Aashirwad Hospital, Gayatri Nagar, Daganiya, Raipur, District Raipur Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh., Chhattisgarh

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh., District : Raipur, Chhattisgarh

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

4. Municipal Corporation, Raipur, Through Its Commissioner, Municipal Corporation, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

---- Respondents WA No. 168 of 2017

Rameshwar S/o Late Shri Lakhan Lal Chandrakar, Aged About 49 Years Occupation Service, Presently Posted As Work Assistant Grade - Il, Municipal Corporation, Bhilai, R/o Qr. No. 1 D, Street No. 34, Sector 8, Bhilai, District Durg Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh.

4. Municipal Corporation, Bhilai, Through Its Commissioner, Municipal Corporation, Bhilai, District Durg Chhattisgarh.

---- Respondents

WA No. 169 of 2017

Vijay Kumar Sherkar S/o Shri G. Rao Sherkar, Aged About 62 Years Occupation Service, Presently Posted As Assistant Draftsmen, Municipal Corporation, Bhilai, R/o Nehru Nagar, Block- G, Plot No. 2, Bhilai, District Durg Chhattisgarh.

---- Appellant Versus

1. State of Chhattisgarh Through The Principal Secretary, Department of Finance, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

2. Department of Urban Administration, Through The Principal Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh.

3. Director, Urban Administration And Development, Through The Director, Urban Administration And Development, R. D. A. Building, Raipur, District Raipur Chhattisgarh.

4. Municipal Corporation, Bhilai, Through Its Commissioner, Municipal Corporation, Bhilai, District Durg Chhattisgarh.

---- Respondents

(Cause-title taken from Case Information System)

For Appellants : Dr. N.K. Shukla, Senior Advocate assisted by Mr. Sourabh Sharma and Ms. Rashika Soni, Advocates

For Respondents/State : Mr. H.S. Ahluwalia, Deputy Advocate General

For Respondent No.4/ : Mr. Apurv Goyal, Advocate Municipal Corporation, Bhilai

For Respondent No.4/ : Mr. Rajnish Singh Baghel, Advocate Municipal Corporation, Durg

For Respondent No.4/ : Mr. Pankaj Agrawal, Advocate Municipal Corporation, Raipur

Date of hearing : 24.03.2022 Date of Judgment : 12.05.2022

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Gautam Chourdiya, Judge

CAV Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Dr. N.K. Shukla, learned senior counsel for the appellants in

all the writ appeals. Also heard Mr. H.S. Ahluwalia, learned Deputy

Advocate General, appearing for the State/respondents No.1 to 3 in all

these appeals, Mr. Apurv Goyal, learned counsel, appearing for

respondent No.4 in Writ Appeal Nos.171 of 2017, 168 of 2017 and 169

of 2017, Mr. Rajnish Singh Baghel, learned counsel, appearing for

respondent No.4 in Writ Appeal No.166 of 2017 and Mr. Pankaj

Agrawal, learned counsel, appearing for respondent No.4 in Writ Appeal

No.173 of 2017.

2. These writ appeals are presented against a common order dated

28.03.2017 passed by the learned Single Judge in Writ Petition (S)

Nos.1502 of 2014, 677 of 2016, 5622 of 2016, 5598 of 2016, 5617 of

2016, 5625 of 2016 and 5669 of 2016, .

3. Writ Appeal No.171 of 2017 is preferred in respect of Writ Petition

(S) No.1502 of 2014.

4. The writ petitioners, namely, Vishnu Prasad Chandrakar in Writ

Petition (S) No.1502 of 2014, Rameshwar Prasad Chandrakar in Writ

Petition (S) No.677 of 2016 and Vijay Kumar Sherkar in Writ Petition (S)

No.5669 of 2016 were the employees of Municipal Corporation, Bhilai;

the writ petitioner, namely, Shiv Kumar Sharma in Writ Petition (S)

No.5622 of 2016 was an employee of Municipal Corporation, Durg; the

writ petitioner, namely, Abdul Hamid in Writ Petition (S) No.5598 of 2016

was an employee of Municipal Corporation, Ambikapur; the writ

petitioner, namely, Ajay Kumar Verma in Writ Petition (S) No.5625 of

2016 was an employee of Municipal Corporation, Raipur and the writ

petitioner, namely, Abhimanyu Sinha in Writ Petition (S) No.5617 of

2016 was an employee of Municipal Corporation, Dhamtari.

5. For the purpose of disposal of these batch of writ appeals, we will

rely upon and refer to the appeal papers in Writ Appeal No.171 of 2017

as well as writ petition papers in Writ Petition (S) No.1502 of 2014.

6. The facts presented in Writ Petition (S) No.1502 of 2014, interalia,

are that the petitioner in Writ Petition (S) No.1502 of 2014 was

appointed as Daily Wager in the year 1985 and his services had been

regularized in the post of Time Keeper in the year 1996 and thereafter,

he was working with Municipal Corporation, Bhilai. Prior to 2007, there

were no rules governing the service conditions of the employees of the

Municipal Corporation and only in the year 2007, Chhattisgarh Municipal

Corporation (Appointment and Conditions of Service of Officers and

Servants) Rule, 2007 (for short, 'Rules of 2007') had been framed by the

Government in exercise of power conferred under Section 43 read with

Section 53(1) of the Chhattisgarh Municipal Corporation Act, 1956 (for

short, Act of 1956). The Rules of 2007 was enforced with effect from

24.01.2008. In the year 2009, the State Government had framed

Chhattisgarh Revised Pay Scale Rules, 2009 (for short, 'Rules of 2009')

and respondent No.1 had issued a circular dated 24.03.2009 making

applicable the 6th Pay Commission pay-scale to all the Departments of

State of Chhattisgarh with effect from 01.01.2006. Thereafter, on

17.09.2009, respondent No.2 issued two circulars : first one in respect of

the Officers of the State Municipal Service by which the benefit of 6 th Pay

Commission pay-scale is made applicable from 01.01.2006, providing

further that the cash payment of arrears amount and grant of pay scale

to the officers of the State Municipal Service would be made as per

Rules of 2009. The second circular dated 17.09.2009 is in respect of the

regular employees of the urban bodies of the State whereby revised pay

scale is sanctioned subject to certain conditions. Subsequently, another

circular dated 07.10.2009 was issued providing that Rules of 2007 would

be applicable in such local bodies where establishment expenditure is

less than 65% after the implementation of the revised pay scale. It is

pleaded that employees of the Municipal Corporation, Municipal Council

and Nagar Panchayat had been extended benefit of the 6 th Pay

Commission pay-scale vide circular dated 07.10.2009 by the State

Government after obtaining permission. Subsequently, the State

Government issued an order dated 25.05.2011 making applicable the

benefit of 6th Pay Commission pay-scale w.e.f. 20.05.2011 to all the

employees of four Municipal Corporations, i.e., Raipur, Bhilai, Korba and

Chrimiri. Another order dated 26.05.2011 was issued by respondent

No.2 in respect of all local bodies that the 6 th Pay Commission pay-scale

would be applicable from 01.01.2006 and financial benefit would be

applicable from the date which would be decided separately. Thereafter,

respondent No.2 issued a memo dated 14.05.2012, whereby order

dated 26.05.2011 was cancelled and a decision was communicated to

all the local bodies that the 6th Pay Commission pay-scale would be

applicable from 01.01.2006, but the benefit of 6 th Pay Commission pay-

scale revision would be made applicable from 01.04.2012 and arrears

from 01.01.2006 to 31.03.2012 would not be payable, providing further

that financial burden shall be borne by local bodies themselves and no

grant shall be made available by the State.

7. In the background of above facts, writ petition was filed seeking a

writ of mandamus directing the respondents to implement the

recommendations of the 6th Pay Commission in terms of circular dated

24.03.2009 (Annexure P/2 to the writ petition) issued by respondent

No.1, and to fix the pay scale and arrears of the petitioners as per

recommendation of 6th Pay Commission w.e.f. 01.01.2006, and to quash

the memo / order dated 14.05.2012 (Annexure P/8 to the writ petition).

8. In the reply filed by the State, it is stated that the Government of

Chhattisgarh, by an order dated 14.08.2013, had constituted a

Committee under the Chairmanship of the Principal Secretary,

Department of Urban Administration & Development and the Committee,

its meeting held on 18.09.2013, had sought for information with respect

to collection of property tax for past five years from all the Corporations

and Municipalities as also the amount that would be payable to the

employees of these bodies on account of 6 th Pay Commission pay-scale.

9. In the additional return filed, it is stated that total 154 urban bodies

submitted information with respect to the details of the revenue collected

by way of property tax and 149 bodies submitted the details of the

arrears payable to the employees. Accordingly, the said issue in respect

of the payment of arrears of 6th Pay Commission pay-scale was again

discussed and it was found that the majority of the urban bodies are

depending on the State Government for making their day to day

expenses, such as, payment of salary, electricity and other expenses,

etc. as they are not in a position to meet their daily expenses. There was

a loan of Rs.878 Crores in respect of urban bodies and the loan was

being serviced by the State Government. In the light of the above, it was

decided in the meeting held on 25.11.2016 that payment of arrears in

respect of 6th Pay Commission pay-scale to the employees of the urban

bodies was not practically possible.

10. In view of the above observations of the Committee, the State

Government had turned down the request for grant of arrears. It is

stated that the petitioner cannot claim parity with regular Government

servants.

11. The learned Single Judge held that the Rules of 2009 is applicable

to the employees of the State Government and not to the employees of

the Municipal bodies. The Rules of 2009 had not been made applicable

mutatis mutandis to the employees of the Municipal bodies, because,

the scale of pay of an employee of Municipal Corporation is determined

by the Appointing Authority, which is subject to the orders issued by the

State Government from time to time. The learned Single Judge

observed that decision taken by the State Government dated

14.05.2012 appears to be a policy decision allowing grant of 6 th pay

scale to the employees from 01.01.2006 with actual benefits from a

particular date but with notional fixation from 01.01.2006. It was

observed at paragraph-12 as follows :

"12. The decision taken by the State Government

on 14.5.2012 appears to be a policy decision

allowing grant of 6th Pay Scale to the employees

with actual benefits from a particular date, but the

notional fixation from 1.1.2006, when the 6 th pay

scale came into force. Such policy decision of the

Government, which prima facie does not appear

to be in violation of the statutory provision, is not

to be easily interfered with by the writ Court

because, it has financial implications. Had it been

a case that the Municipal Bodies are bound under

the Rules to give benefit of arrears of 6 th Pay

Scale, the issue of financial burden becomes

irrelevant, however, when it is at the discretion of

the Government and the said discretion appears

to have been exercised keeping in view the

finances of the Local Bodies, the writ Court may

not be entitled to interfere in such policy matters

having adverse financial implications."

12. Dr. N.K. Shukla, learned senior counsel for the appellants in this

batch of writ appeals, submits that the learned Single Judge committed

error in holding that the pay scale of the petitioners is different from the

pay scale of the employees of the State Government in same cadre /

post as the Municipal employees working in a particular cadre / post

draw the same pay scale with that of the employees of the State

Government employees working in a particular cadre / post. Placing

reliance on Rule 2 of the Rules of 2009, he contends that Rules of 2009

issued vide notification dated 23.03.2009, applies to the petitioners and

therefore, arrears that accrued from 01.01.2006 to 31.03.2013 cannot be

withheld. It is submitted that circular dated 24.03.2009 having not been

withdrawn or cancelled, the impugned order dated 14.05.2012 is

ex facie arbitrary and illegal and cannot be sustained in law. It is also

contended that having regard to the Rules of 2007, all the benefits which

are extended to the Government servants shall have to be extended to

the petitioners and similarly situated employees. Dr. Shukla places

reliance on the judgment of Hon'ble Supreme Court in the case of M.P.

Poorva Kshetra Vidyut Vitaran Co. Ltd. v. Uma Shankar Dwivedi ,

reported in AIR Online 2018 SC 163, as well as a decision of Bombay

High Court in case of Municipal Corporation, Dhule v. Smt. Indubai

Sukhlal Chauvan, reported in AIR Online 2021 Bom 986.

13. Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing

for the State in all the writ appeals, submits that no case is made out for

interference with the order of the learned Single Judge. He submits that

petitioners cannot legitimately claim that their pay scales should

necessarily be revised and enhanced when the organizations, in which

they are working, is unable to meet even the day to day expenses and

has to depend on the Government. He places reliance on the judgment

of Hon'ble Supreme Court in the case of Punjab State Co-operative Milk

Producers Federation Ltd. and Another v. Balbir Kumar Walia and

Others, reported in AIR 2021 SC 3316.

14. Mr. Apurv Goyal, Mr. Rajnish Singh Baghel and Mr. Pankaj

Agrawal, learned counsel, appearing for respective Municipal

Corporations, submit that the urban bodies would have to abide by the

directions given by the State Government from time to time in respect of

payment of salary, etc. to its employees.

15. During the course of submissions, the learned counsel for the

appellants as well as learned State counsel had furnished separately

translated version of Annexure P/2, Annexure P/3 (two separate orders),

Annexure P/4, Annexure P/8 to the writ petition as well as Annexure R/2

of the return of the State.

16. It is to be noted, at this juncture, that there is some variation in

translation in the two sets furnished to the Court.

17. We have considered the submission of the learned counsel for the

parties and have perused the materials on record.

18. By notification dated 23.03.2009, Rules of 2009 was deemed to

have come into force from 01.01.2006. Rule 2 is under the heading of

"Categories of Government servants to whom the rules applies". It lays

down that save as otherwise provided by or under these rules, these

rules shall apply to all Government servants under the rule making

control of the State Government. It is also laid down that rules shall not

be applicable to the Government servants of following categories :

(i) persons appointed on contract;

(ii) part time and daily rated employees;

(iii) re-employed pensioners;

(iv) persons paid from contingencies and work-charged employees;

(v) persons paid on pay scales of the University Grant Commission

and All India Council for Technical Education;

(vi) persons drawing pay in the All India Service scales;

(vii) judicial service personnel paid on pay scales recommended by

the Shetty Commission; and

(viii) any other class or category of persons as the Governor may,

by order, specially specify in this behalf.

19. Rule 14 is under the heading of "Mode of payment of arrear of

pay". It lays down that the arrear for the relevant period shall be paid in

cash in three installments, in the following manner -

(i) Year 2009-10 - From January, 2006 to October, 2006

(i) Year 2010-11 - From November, 2006 to August, 2007

(i) Year 2011-12 - From September, 2007 to August, 2008

"Relevant Period" is defined under Rule 14(b) to mean the period

commencing on the 1st day of January, 2006 and ending with 31 st

August, 2008."

20. Under the Rules of 2007, "Appointing Authority" means the

Mayor- in-Council or the Commissioner, as the case may be, specified

by the State Government by an order under proviso (i) of sub-section (1)

of Section 58 of the Act of 1956. Rule 3(2) provides, amongst others,

that scales of pay in respect of classification of the posts shall be

determined by the Appointing Authority subject to the orders issued by

the State Government from time to time.

21. Rule 13 is under the heading of "Other conditions of Service". Rule

13(1) provides that the Corporation shall be competent to prescribe the

method / procedure under which decision is to be taken in respect of

medical treatment, General Provident Fund and Pension. It is also

provided that the other conditions of service which have not been

provided in these rules or any other rules made under the Act of 1956

shall be deemed to be the same which are applicable to Government

servants on the same post from time to time. Rule 13(2) provides that

notwithstanding anything contained in sub-rule (1), the following rules as

amended from time to time applicable to the Government servants shall

be applicable to the employees of the Corporation, namely -

(a) Chhattisgarh Fundamental Rules Volumes I and II.

(b) Chhattisgarh Travelling Allowances Rules.

(c) Chhattisgarh Civil Services (Leave) Rules, 1977.

(d) Chhattisgarh Civil Service (Conduct) Rules, 1965.

(e) Chhattisgarh Civil Services (Classification, Control and Appeal)

Rules, 1966.

22. On the basis of Rule 13 of the Rules of 2007, Dr. Shukla sought to

contend that the Rules of 2009 shall stand extended to the petitioners as

they are enjoying the same pay scale as their counter-parts in the

Government service. Even if it is assumed that the petitioners in a

particular post are enjoying the same pay scale as their counter-parts in

the State Government, Rule 3(2) of the Rules of 2007 specifically

provides that pay scale has to be determined by the Appointing Authority

subject to the orders issued by the State Government from time to time.

Therefore, the contention advanced by Dr. Shukla that coming into force

the Rules of 2009, the same becomes automatically applicable to the

petitioners, cannot be accepted.

23. Rules of 2009 applies to the Government servants and it is not the

case of the petitioners that they are Government servants.

24. Annexure P/2 of the writ petition, dated 24.03.2009, is on the

subject of "Instructions regarding fixation of pay under the Chhattisgarh

Pay Revision Rules, 2009".

25. By order dated 17.09.2009 (Annexure P/3 to the writ petition),

revised pay scale (6th Pay Scale) was made applicable to all the Officers

of the State Municipal Service w.e.f. 01.01.2006 providing that cash

payment of arrears amount and pay scale to the Officers of the State

Municipal Service would be made as per the Rules of 2009.

26. By another order dated 17.09.2009, amongst others, it was

provided that all the regular employees of the urban bodies of the State

are given revised pay scale subject to the conditions as enumerated

therein. Some of the conditions are to the effect that : (i) as per Rules of

2009, it would be implemented in such urban bodies whose

establishment expenditure is less than 65% after the implementation of

the revised pay scale; (ii) cash payment of the revised pay scale will

start from January, 2010; (iii) pay in the revised pay scale will be fixed

notionally from 01.01.2006 till 31.12.2009 and cash payment will be

made from 01.01.2010 and no arrears will be paid; (iv) due to

acceptance of new pay scales by the urban body, the additional financial

burden on the establishment will neither be borne by the State

Government nor the State Government would provide any grant or

allocation and that the financial burden arising out of the implementation

of the new pay scale by the urban bodies will be borne from their own

expenses; (v) it had to be ensured by the urban body that development

works will not be affected by the implementation of the 6 th Pay

Commission pay-scale.

27. The order dated 07.10.2009 (Annexure P/4 to the writ petition) is

applicable to the regular employees of the urban bodies. Amongst

others, by the said order dated 07.10.2009, the provisions contained in

the earlier order dated 17.09.2009 to the effect that cash payment of

revised pay scale will be effected from January, 2010 and that the

revised pay scale will be fixed notionally from 01.01.2006 till 31.12.2009,

were deleted.

28. The order dated 14.05.2012 (Annexure P/8 to the writ petition)

recites that the State Government would have no objection if the urban

bodies, i.e., Municipal Corporations / Municipal Councils / Nagar

Panchayats, subject to conditions indicated therein, want to give the

benefit of the Rules of 2009 to its regular officers / employees. The

conditions are to the effect that : (i) the regular officers / employees of

the local urban bodies should be given financial benefits by the local

bodies from 01.04.2012 by revising the salary. While calculating the

salary fixation from the date 01.01.2006 to 31.03.2012 notionally, the

economic benefit would be payable from 01.04.2012 and arrears would

not be paid; (ii) fixation of salary should be compulsorily examined by

the Local Fund Auditor; (iii) the financial burden resulting from its

implementation by the urban bodies will be borne from their own source

and that the State Government will give no grant for the said purpose;

and (iv) it should be ensured that development work will not be affected

by the implementation of the 6th Pay Commission pay-scale.

29. The contention of Dr. Shukla that the orders dated 17.09.2009 and

07.10.2009 having not been cancelled, the impugned order dated

14.05.2012, whereby the financial benefit is allowed to be given to the

regular officers / employees of the local urban bodies only from

01.04.2012 and not granting arrears from 01.01.2006 to 31.03.2012,

cannot be sustained and that issuance of such an order shows non-

application of mind, is without any merit.

30. Though by an order dated 17.09.2009, which was applicable in

respect of regular employees of the urban bodies, revised pay scale was

directed to be fixed notionally from 01.01.2006 to 31.12.2009 and the

cash payment was to be done from 01.01.2010, providing that no

arrears would be paid, it is to be noted that such condition was deleted

by amending the order dated 17.09.2009 by the order dated 07.10.2009.

Thus, after passing of the order dated 07.10.2009, there was no order

specifying from which date and in what manner, 6 th Pay Commission

pay-scale would be made applicable to the petitioners and the similarly

situated persons and it was only after issuance of order dated

14.05.2012, it was determined that salary will be fixed on the basis of

Rules of 2009 notionally from 01.01.2006 to 31.03.2012 and to give the

financial benefit from 01.04.2012 with no payment of arrears from

01.01.2006 to 31.03.2012. It is already noted that under the Rules of

2007, scales of pay attached to the classification of posts included in the

service shall be examined by the Appointing Authority subject to the

orders issued by the State Government from time to time. Therefore, the

State Government was competent to direct as to how the Rules of 2009

is to be made applicable to the employees of the urban bodies.

31. Ratio of M.P. Poorva Kshetra Vidyut Vitaran Co. Ltd . (supra) and

Municipal Corporation, Dhule (supra), on which reliance was placed by

Dr. Shukla, is not applicable in the attending facts and circumstances of

the case.

32. In M.P. Poorva Kshetra Vidyut Vitaran Co. Ltd . (supra), the stand

taken by the appellants before the Hon'ble Supreme Court was that pay

revision of 2001 of appellant No.1 would not be applicable to employees

of Rural Electrification Cooperative Societies absorbed in the service of

appellant No.1, to whom the pre-revised pay scales were not applicable

and on the basis thereof, benefit of 5 th Pay Commission was not

extended to Rewa Society. On the submission being made by the

learned counsel for the respondent that despite such exclusion, benefit

had been extended to employees of the Societies where the pre-revised

pay scales were not applicable, Hon'ble Supreme Court had observed

that the employees belonging to Rewa Society would not be

discriminated and shall be extended the benefit of pay revision of 2001,

in case the appellant No.1 had extended the benefit of Pay Revision

Regulations of 2001, to whom the pre-revised pay-scale was not

applicable.

33. In Municipal Corporation, Dhule (supra), the petitioner had taken a

stand before the Bombay High Court that the respondents were not

working on a sanctioned post and thus, were not entitled to the benefit of

5th and 6th Pay Commission recommendations. It was the contention of

the respondents that they had been made permanent pursuant to the

order passed by the Industrial Court and the only ground taken by the

petitioner before the Industrial Court, decision of which was challenged

in the writ petition in question, was that the petitioner is lacking in funds.

Noticing that only a sum of Rs.3 Lacs is due to the respondents from the

Corporation, it was held by the Bombay High Court that lack of funds

cannot be a ground to deny the arrears of wages to the Class-IV

employees.

34. In Punjab State Co-operative Milk Producers Federation Ltd.

(supra), it was observed that the employees cannot legitimately claim

that their pay-scales should necessarily be revised and enhanced when

the organization in which they are working are making continuous losses

and are deeply in the red. The Hon'ble Supreme Court, in the attending

facts and circumstances of the case, observed that decision not to

grant revised pay scale from 01.01.1986 was taken keeping in view the

financial condition of the Federation. The question posed as to whether

such a decision could have been interfered with in a writ petition in

exercise of power of judicial review was answered in the negative. At

paragraph-49, it was observed as follows :

"49. Thus, we find that the decision that the

Federation was in financial difficulties is based

upon relevant material before the Federation. The

process to arrive at such decision can be said to

be flawed only on the permissible grounds of

illegality, irrationality and procedural impropriety.

We find that neither the decision-making process,

nor the decision itself suffers from any such vice."

35. The stand taken by the State Government that the local bodies are

taking financial help from the State Government to meet day to day

expenses is not disputed by the petitioners.

36. In view of above discussion, we see no good ground to interfere

with the order of the learned Single Judge and accordingly, the writ

appeals are dismissed. No cost.

                     Sd/-                                       Sd/-

             (Arup Kumar Goswami)                     (Gautam Chourdiya)
                  Chief Justice                             Judge




Anu