Viramgam Nagarpalika vs Gujarat Rajya Nagar Palika ...
2021 Latest Caselaw 18534 Guj

      C/LPA/1087/2021                               ORDER DATED: 17/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 1087 of 2021
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 5777 of 2017

                                        With

                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                                    In
                R/LETTERS PATENT APPEAL NO. 1087 of 2021

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                    VIRAMGAM NAGARPALIKA
                            Versus
      GUJARAT RAJYA NAGAR PALIKA KARMACHARI MAHAMANDAL
==========================================================
Appearance:
MR HARSHESH R KAKKAD(7813) for the Appellant(s) No. 1
MR RC KAKKAD(389) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 3
DEV D PATEL(8264) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                Date : 17/12/2021

                                 ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. The present Letters Patent Appeal challenges judgment and order dated 28.01.2020 passed by the learned Single Judge in Special Civil Application No.5777 of 2017.

2. The brief facts leading to filing of the Letters Patent Appeal are as follows:-

2.1 That the State Government by its order dated 24.01.2014 approved the grant of 6th Pay Commission benefits to the employees on regular establishment of Viramgam Nagarpalika.

C/LPA/1087/2021 ORDER DATED: 17/12/2021

The condition No.7 stipulated by the State Government in the said order was that if the yearly regular establishment expenditure of the Nagarpalika exceeds 48% of its annual expenditure, then the said benefits under the 6th Pay Commission would stand automatically withdrawn.

2.2 That the appellant Nagarpalika accepted the recommendation of 6th Pay Commission by resolution No. 54 dated 30.01.2012 passed by the General Body and accordingly, the benefits of 6th Pay Commission came to be granted to its employees with effect from 01.01.2014.

2.3 That by order dated 20.02.2017, the appellant Nagarpalika withdrew the benefits of the 6th Pay Commission being paid to its employees on the ground that the condition No.7 which stipulates that if the establishment expenditure exceeded 48%, then the benefits would stand cancelled automatically had been breached and in view of the same, from the month of November, 2016, the employees would be paid as per the benefits available under 5th Pay Commission.

2.4 Aggrieved by the same, the respondent No.1 preferred Special Civil Application No. 5777 of 2017 praying for the following reliefs :-

"(A) Your lordship may be pleased to issue a writ, or in the nature of Mandamus Writ to quash the step of discontinuing the implementation made by Respondents.

(B) This Hon'ble High Court may kindly declare this act of stopping the benefit of 6 th Pay Commission once implemented and then stopped ex-parte without giving an opportunity of hearing is in violation of Article 226 and to restrain recovery proceedings by Respondent No.1.

       C/LPA/1087/2021                                 ORDER DATED: 17/12/2021



                (C)        The Respondent No.1 may kindly be

directed to implement 6th Pay Commission benefit to the employees of Viramgam Nagar Palika and to pay arrears or differences be ordered to pay soon to employees.

(D) Any other relief that may find fit to be granted to the petitioner in the light and circumstances of this case with cost."

2.5 The respondents in the Special Civil Application filed their replies and opposed the grant of the benefits of 6 th Pay Commission to the employees on the ground that the establishment expenses of the Nagarpalika was more than 48% of the total expenditure and hence, as per the Government order dated 24.01.2014 and condition No.7 therein, the said benefits were liable to be withdrawn.

2.6 The learned Single Judge after considering the pleadings on record as well as the judgments cited by the Advocates was pleased to allow the Special Civil Application restoring benefits of the 6th Pay Commission granted to the employees. Aggrieved, the appellant Nagarpalika has preferred the present Letters Patent Appeal.

3. We have heard learned advocate for the appellant and learned advocates for the respondents who are appearing on caveat and also perused the documents on record.

4. This Hon'ble Court in its judgment of S. A. Jafai and ors. Vs. State of Gujarat along with connected Special Leave Petitions reported in 2011 (2) GLR 1223 has held that while calculating the establishment expenses, the salaries of employees who are working on the sanctioned posts is only required to be considered and the salaries of the employees who are not appointed against sanctioned posts as well as the expenditure towards the payment to daily wagers cannot be considered under

C/LPA/1087/2021 ORDER DATED: 17/12/2021

the head of establishment expenditure. The said judgment was subject matter of challenge before the Hon'ble Apex Court in Special Leave Petition (Civil) No. 9016 of 2012 and other connected matters. The said Special Leave Petitions came to be disposed of on 19.11.2019 whereby the judgment and order of this Court came to be upheld. Accordingly, the issue with respect to the calculation of establishment expenditure now stands confirmed. It is further seen that similar orders have been passed by this Court in the case of Rajpipala Nagarpalika, Godhra Nagarpalika and Manavadar Nagarpalika following the principles laid down in the judgment of S. A. Jafai (supra).

5. Reverting to the facts of the present case, a perusal of the document at page 146 of the Letters Patent Appeal which has been produced by the appellant Nagarpalika and is purported to be the annual expenditure statement for the year 2015-2016 shows the regular establishment expenses as 43.33%. This annual expenditure statement forms the basis for withdrawal of the benefits of 6th Pay Commission granted to its employees. Seen thus, we find that there is no breach of condition No.7 as the same is well below the expenditure limit of 48% as stipulated by the State Government in its order dated 24.01.2014. Therefore, the order dated 20.02.2017 passed by the appellant Nagarpalika withdrawing the 6th Pay Commission on the ground that condition No.7 has been breached since the total establishment expenditure of the Nagarpalika is exceeding 48%, is in contravention of the judgment of this Hon'ble Court in S. A. Jafai (supra) and as confirmed by the Hon'ble Apex Court since it takes into consideration the expenses towards payment to daily wagers as well as fixed pay employees who are not working on sanctioned posts and do not form part of the regular establishment of the Nagarpalika.

6. For the aforesaid reasons, the order passed by the learned Single Judge impugned herein does not require any

C/LPA/1087/2021 ORDER DATED: 17/12/2021

interference. The impugned order is upheld as the same is based on sound reasons. The Letters Patent Appeal is dismissed. There shall be no order as to costs. Consequently, connected Civil Application for stay does not survive and it also stands disposed of.

(S.H.VORA, J)

(ANIRUDDHA P. MAYEE, J.)

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