Kiranben Jayprakash Prachhak vs State Of Gujarat
2021 Latest Caselaw 7399 Guj

     C/SCA/634/2017                                      JUDGMENT DATED: 01/07/2021



             N THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 634 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       KIRANBEN JAYPRAKASH PRACHHAK
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
ABHIJIT V VANJARA(9339) for the Petitioner(s) No. 1
NIGAM D SONI(9314) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2
MR AMAR D MITHANI(484) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 01/07/2021

                                ORAL JUDGMENT

Heard learned advocate Mr.Nigam Soni for the petitioner, learned Assistant Government Pleader Mr.Jayneel Parikh for the respondent No.1 and 2 And learned advocate Mr.Amar Mithani for the respondent No.3 through video conference.

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1. Rule, returnable forthwith.

2. As the controversy raised in this petition is in narrow compass, with the consent of the learned advocates appearing for the respective parties the matter is taken up for hearing.

3. The brief facts of the case are as under :

3.1. The petitioner is a senior citizen and retired Teacher from the Bal Mandir run by the respondent No.3-Municipality worked continuously from 1992 to 2015. It is the case of the petitioner that the appointment of the petitioner was made on the vacant post of Teacher in Balmandir which was sanctioned but petitioner was denied the benefit of regular pay scale and equality of pay.

3.2. It is further the case of the petitioner that as the post of the Teacher was sanctioned and available for looking after education of children, the respondent No.3-Municipality called for application and selected the petitioner and given her appointment in the year 1992 in the pay scale of Rs.50-3-80 which was fixed in the year 1966 and revised from time to time.

3.3. The petitioner was initially appointed for a period of six months in the pay scale of Rs.1200-1800 with monthly salary of Rs.1200 vide order dated 24.11.1992 on ad-hoc basis which was renewed from

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time to time up to the 31.12.1996 and thereafter the petitioner was continued as a Teacher of Bal Mandir run by the respondent No.3-Municipality.

3.4. It is not in dispute that the pay scale of the petitioner was revised from time to time and she was getting the pay scale as per the forth pay commission which is equivalent to Rs.11,372/- in the pay scale of Rs.1200-1800. The petitioner retired in the year 2015 on attaining the age of superannuation and the last pay drawn by the petitioner was in the scale of Rs.1200-total Rs.11,372/- while the Teachers who were serving with the petitioner were granted salary of Rs.25,000/- in grade pay of Rs.1800. Prior to that the petitioner made several representations to regularize her service and to grant benefit as per the fifth and sixth pay commission extended by the respondent No.3-Municipality to the similarly situated employees with effect from 5th April, 2011 and 27th February, 2013 respectively. The petitioner thereafter issued a legal notice dated 18.12.2015 demanding equality of pay and difference of salary as per fifth and sixth pay commissions recommendations and to grant terminal dues accordingly.

3.5. The respondent No.3-Municipality by reply dated 6th January, 2016 informed the petitioner that she was appointed as temporary employee and she was not employed as per the set up and therefore, the benefits of fifth and sixth pay commission recommendations could not be granted to her. The

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respondent No.3-Municipality relied upon the order dated 25.04.2011 issued by the Office of the Regional Director of Municipalities granting benefit of fifth pay scale to the employees of the respondent No.3- Municipality. It was stated by the respondent No.3- Municipality that as per condition Nos.1 and 3 of the said order dated 25.04.2011, the benefit of fifth pay commission can be granted only to the employees who are in permanent set up and are regularly employed by the respondent No.3-Municipality.

4.1. Learned advocate Mr.Soni submitted that the petitioner is entitled to the benefits of revision of pay scale as per the fifth and sixth pay commission recommendations as the respondent No.3-Municipality has discriminated the petitioner from giving the benefits vis-a-vis the other similarly situated employees and therefore, there is violation of Article 14 of the Constitution of India. It was submitted that when the petitioner made representation in the year 2013, she was informed that the case would be considered when the matter is placed before the General Body of the Municipality. The representation addressed by the petitioner to the Collector also was not considered by the respondent- Authority.

4.2. It was submitted by the learned advocate Mr.Soni that it is not in dispute that after 1996 the petitioner was considered as a permanent employee of the respondent No.3-Municipality and there is nothing

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on record to show that the petitioner was not in the regular sanctioned set up as petitioner was made to known about such fact for the first time in the reply dated 06.01.2016 given by the respondent No.3- Municipality to the learned advocate of the petitioner in response to the legal notice.

4.3. It was submitted that it is not fault of the petitioner for not being regularized in the permanent set up as the respondent No.3-Municipality was required to point out as to whether the petitioner was appointed on the vacant post and why no action is taken for almost 23 years of service of the petitioner for not regularizing her in the regular sanctioned set up.

4.4. It was submitted that when the petitioner was given the benefit of forth pay commission and was also given all the retiral benefits calculated on the basis of the pay scale which was last drawn by the petitioner including the gratuity and provident fund, the respondent-Municipality has failed to provide the benefits of revised pay scales of the fifth and sixth commission relying upon the order passed by the Office of the Regional Director of Municipalities, Rajkot.

4.5. It was therefore submitted that the stand taken by the respondent-Municipality in the reply dated 6 th January, 2016 is contrary to the settled legal position that the petitioner who is considered as

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regular employee is entitled to the revision of pay scales as per the fifth and sixth pay commission recommendations and respondent No.3-Municipality could not have relied upon the conditions stated in the order dated 25.04.2011 to deny the benefit of revision of pay scales to the petitioner and it is for the respondent No.3-Municipality to pay the arrears as the petitioner has served for almost 23 years with the respondent No.3-Municipality as Teacher in the Bal Mandir.

5.1. On the other hand learned advocate Mr.Mithani submitted that the order dated 25.04.2011 of the Regional Director of Municipality is binding upon the respondent No.3-Municipality.

5.2. Learned advocate Mr.Mithani pointed out that the condition No.4 of the said order dated 25.04.2011 provides that if the benefits of revised pay scales are granted to the employees who are not regularly employed or promoted or who are not in the regularly sanctioned set up, then it would be the liability of the Chief Officer of the respondent No.3-Municipality to pay such revised pay scales.

5.3. Learned advocate Mr.Mithani further submitted that while the petitioner was paid retiral benefits in the year 2015 including gratuity and provident fund, the Municipality rightly not paid the revised pay scale to the petitioner as the petitioner is not under regular sanctioned set up.

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5.4. Learned advocate Mr.Mithani also submitted that there is no sanction of the appointment of the petitioner by the competent authority under the regular sanctioned set up and therefore as per the order dated 25.04.2011 passed by the Regional Director of Municipalities the petitioner is not entitled to the revision of pay scales as per fifth and sixth pay commission recommendations.

5.5. Learned advocate Mr.Mithani relied upon the paragraph No.47 of the judgment of the Apex Court in the case of Secretary, State Of Karnataka And Others vs Umadevi And Others reported in (2006) 4 SCC 1 and submitted that as the appointment of the petitioner was not regularized, she is not entitled to any benefit of regularly appointed employee including the revision of pay scales.

6. Learned Assistant Government Pleader Mr.Parikh submitted that by order dated 25.04.2011, the Regional Director of Municipalities has sanctioned the benefit of fifth pay commission to the employees of the Veraval-Patan Joint Nagar Palika on various terms and conditions stated therein and as the petitioner is not covered by such terms and conditions being appointed on the regularly sanctioned set up, the petitioner is not entitled to the revision of pay scales.

7. Having heard the learned advocates for the

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respective parties and having gone through the order dated 25.04.2011 with the reply of the respondent No.3-Municipality dated 06.01.2016 given pursuant to the legal notice issued by the petitioner, it appears that the following undisputed facts emerges :

(i) The petitioner was appointed on ad-hoc basis on 24.11.1992 for six months in the pay scale of Rs.1200.

         (ii)      The     ad-hoc               appointment             of         the
         petitioner            was         continued            by         passing
         periodical       orders       without          any     break         up     to
         31.12.1996.

(iii) Thereafter the petitioner continued to work as teacher in Bal Mandir till 2015 and retired from service in June, 2015 on attaining the age of superanuation.

(iv) Thus petitioner continuously worked from 1992 till superannuation in June, 2015.

         (v)       The    petitioner            was     also      granted          pay
         scale     as     per        the        forth      pay       commission

recommendation and was also paid the retiral benefits of gratuity, provident fund, etc. as being paid to the regularly employed employees on the sanctioned post on the basis of the pay scale as per the last pay.

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8. In view of the above facts, the petitioner cannot be denied the benefits of revised pay scales as per the fifth and sixth pay commission recommendations relying upon the order dated 25.04.2011. The interpretation put by the respondent No.3 on the order dated 25.04.2011 is not correct because the revised pay scale payable to the petitioner would depend upon her service tenure and when the respondent No.3-Municipality has continued the petitioner as Teacher from 1992 till 2015 and the petitioner was granted the pay scale as per the forth pay commission recommendation then the respondent No.3 cannot contend that in view of the order dated 25.04.2011, the pay scale as per the fifth and sixth pay commission recommendation cannot be granted to the petitioner.

9. Reliance placed by the learned advocate Mr.Mithani on the paragraph No.47 of the judgment in the case of Secretary, State Of Karnataka And Others vs Umadevi And Others (Supra) is also not applicable in the facts of the case as the petitioner has not prayed for regularization of service. The petitioner has prayed for the following reliefs in this petition:

"(A) The Hon'ble Court be pleased to issue a writ of mandamus / certlorar or any other appropriate writ, order or direction declaring the stand taken by the Nagar Palika in their reply dated 6.1.2016 relying on the condition of the Director of Municipalities' letter as illegal, unjust, arbitrary and violative of Art. 14 and 16 of the Constitution of India and be pleased to set aside the same and direct the respondents to extend the benefits of revision of pay to the petitioner from retrospective date with 12% interest.

(B) Be pleased to declare that the letter of the Director of

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Municipalities is to get sanction of the amount from the State and that cannot be the reason for denying the equality of pay to the petitioner by the Nagar Palika.

(C) Be pleased to declare that the petitioner was entitled to get the revision of pay scale as per the Fifth Pay Commission Recommendations from 1.1.1996 and from 2006 as per the Sixth Pay Commission Recommendiion from the Nagar Palika and hence, be pleased to direct the respondent No. 3 to pay all arrears to the petitioner with 12% Interest, declaring that the petitioner is entitied for equal pay for equal work.

(D) Pending admission and final disposal of petition, be pleased to direct the respondent No. 3 to extend the benefits of revision of scale of pay as per Fifth and Sixth Pay Commission Recommendation from retrospective date and pay arrears to the petitioner accordingly.

(E) Pending admission and final disposal of the petition, be pleased to direct the respondent Nagar Palika to pay all retirement benefits to the petitioner on the revised scale of pay as per Fifth and Sith Pay Commission Recommendation.

(F) Any other relief/ reliefs which this Hon'ble Court deems fit and proper in interest of justice."

10. On perusal of the above reliefs, it appears that the only prayer made by the petitioner is to pay the arrears of the pay scales as per the fifth and sixth pay commission recommendations as petitioner has discharged her duties as Teacher in Bal Mandir run by the respondent No.3-Municipality and the reply of the respondent No.3-Municipality dated 06.01.2016 that the petitioner was not regularly working and was not part of the regularly sanctioned set up is contrary to the facts on record.

11. It is not in dispute that the petitioner has discharged the service for more than 23 years and as such, all the benefits of regularly selected employees are granted to the petitioner by the respondent-Municipality. The petitioner is therefore

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entitled to the revised pay scale as per the fifth and sixth pay commission recommendations.

12. Respondent-Municipality is therefore directed to calculate the arrears on revision of pay scales as per the fifth and sixth pay commission recommendations and also to pay the difference of arrears of pay and retirement dues to be calculated on the basis of such revised pay scales to the petitioner within eight weeks from the date of receipt of this order, failing which, the respondent

-Municipality shall pay such dues with 9% interest per annum to the petitioner after eight weeks till realisation.

13. In view of the above, the petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK