Gujarat High Court
Umreth Municipality vs Vijaykumar Bhanuprasad Upadhyay on 22 June, 2021
Bench: J.B.Pardiwala
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 2445 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 10918 of 2015
With
CIVIL APPLICATION (FOR EXTENSION OF TIME) NO. 1 of 2018
In
R/LETTERS PATENT APPEAL NO. 2445 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
In
R/LETTERS PATENT APPEAL NO. 2445 of 2017
With
R/LETTERS PATENT APPEAL NO. 657 of 2019
In
SPECIAL CIVIL APPLICATION NO. 10918 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In
R/LETTERS PATENT APPEAL NO. 657 of 2019
In
SPECIAL CIVIL APPLICATION NO. 10918 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UMRETH MUNICIPALITY
Page 1 of 17
Downloaded on : Sat Jan 15 07:37:00 IST 2022
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
Versus
VIJAYKUMAR BHANUPRASAD UPADHYAY & 19 other(s)
==========================================================
Appearance:
MR CHIRAG B PATEL(3679) for the Appellant(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 18,19,20
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is
at the instance of the Umreth Municipality (original
respondent No.4) in the writ application being Special Civil
Application No.10918 of 2015 filed by the respondents
Nos. 1 to 17 herein (original writ applicants) and is
directed against the judgment and order passed by a
learned Single Judge of this Court dated 19.09.2017 in the
above referred writ application, by which, the writ
application came to be allowed with exemplary cost of
Rs.25,000/- to be paid by the respondents jointly and
severally.
2. The facts, giving rise to this appeal, may be
summarized as under;
2.1 The original writ applicants were all employees of the
Umreth Municipality. They came before this High Court by
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
filing the Special Civil Application No.10918 of 2015,
praying for the following reliefs;
"(A) Issue a writ of mandamus or a writ in the nature
of mandamus or any other appropriate writ directing
to the respondents authority to decide the proposal
and grant the 6th Pay commission to the present
petitioners with 8% interest at par with other
municipalities of the state i.e, from 01.01.2010 in the
interest of justice;
(B) Pending admission, hearing and final disposal of
this petition direct the respondents authority to
decide the proposal and grant the 6 th Pay
Commission within stipulated time at par with other
municipalities of the state i.e., from 01.01.2010 in
the interest of justice;
(C ) Any other appropriate relief grantable by this
Hon'ble Court may kindly be granted in the interest
of justice."
2.2 The learned Single Judge took notice of the following
facts;
(a) The writ applicants were the regular employees of
the Umreth Municipality and were getting the benefits of
the 5th Pay Commission;
(b) Originally there were seventeen writ applicants, and
all of those, except two have retired by the year 2013;
(c ) As all other municipalities in the State of Gujarat
granted the benefits of the 6th Pay Commission to their
respective employees, the writ applicants serving with the
Umreth Municipality also put forward their claim for the
benefit of the 6th Pay Commission. In the first round of
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
litigation, they preferred the Special Civil Application
No.14622 of 2012 which came to be disposed of by a
learned Single Judge of this Court vide order dated
26.04.2013 whereby a statement was made by the
learned counsel appearing for the Municipality that the
decision would be taken within a period of one month
regarding the benefits to be extended to the writ
applicants;
(d) As the municipality resiled from its statement made
before this Court, referred to above, the writ applicants
had to come back once again by filing the Special Civil
Application No.10918 of 2015, seeking appropriate
directions for the grant of benefits of the 6 th Pay
Commission with 8% interest, i.e., at par with the other
municipalities of the State w.e.f. from 01.01.2010.
(e) The learned Single Judge took notice of the fact that
during the pendency of the Special Civil Application
No.10918 of 2015, the Director of Municipalities passed an
order dated 04.08.2015 which was otherwise required to
be passed within one month of the previous petition, i.e,
the Special Civil Application No.14622 of 2012 and further
the benefits were granted to the writ applicants only with
effect from 01.08.2015 and the period between
01.01.2006 and 31.07.2015 was treated as notional.
(f) In the aforesaid facts, the learned Single Judge
allowed the writ application, holding as under;
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
"11. Originally, petitioners have approached this
Court for grant of benefits of 6th Pay Commission
and to be considered at par with the other
Municipalities of the State who have been granted
such benefits from 1 .1.2010. Action and inaction of
the Director of Municipalities has been justified by
the State while referring to Resolution of the State
Government dated 3.9.2010 according to which, such
benefits can be given to the Municipalities whose
establishment expenditure was below 48% and who
have sent proposal within the stipulated period.
12. It could be seen that none of the aforementioned
conditions can come in the way of the petitioners for
grant of benefits from 1.1.2010 i.e. the date from
which the employees of other Municipalities of the
State has been granted such benefits. Petitioners
have placed on record various orders concerning
other Municipalities wherein the Director of
Municipalities has granted benefits of 6th Pay
Commission to those employees from the year 2010.
13. It is known fact that things move slow when State
is on the driver's seat but slowness should have its
limits. Earlier, petitioners have to prefer Special Civil
Application No.14622 of 2012 which came to be
disposed of by giving an undertaking by the counsel
for the Municipality that the proposal for benefit of
6th Pay Commission to the employees of Municipality
shall be set in motion within a period of one month
from the date of passing of such order by the High
Court. It is unfortunate that the respondents failed to
comply with such undertaking and the petitioners
have been constrained to file a second petition. Once
again, respondents deceived the petitioners by
giving a statement in the Court that benefit has been
granted by the Director without explaining to the
petitioners or their counsel that such benefit has
been granted from 1.8.2015 and not from 1.1.2010,
the date from which those benefits has been granted
to employees of other Municipalities of the State. The
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
main arguments of learned AGP are on the point that
the Director was required to take decision after
proposal is sent to him. This Court is unable to
understand as to why the petitioners should be made
to suffer for the delay in sending proposal which is to
be forwarded by one of the employees of the
Municipality who is ultimately under the Director of
Municipalities. Even if the proposal has reached the
Director, he has taken two long years in deciding the
same and releasing the benefits. There is no valid
reason for the Director to have granted the benefits
from 1.8.2015 when there is nothing on record to
show that administrative expenses of the
Municipality was more than 48%. On the contrary,
learned counsel for the petitioners has pointed out
that there is a sanctioned strength of 93 employees
for the Umreth Municipality and out of these, only
two permanent employees are there on the
establishment of the Municipality, whereas all other
employees are treated to be temporary.
14. During the course of arguments, a legal point has
arisen whether the employees of Municipality who
are holding temporary or ad-hoc status, can be
treated to be regular employees. Whether the
expenditure on such employees can be counted
towards the expenditure on the establishment of the
Municipality.
15. Similar question came before Division Bench of
this Court in a case reported in 2011 (0) GLHEL-HC
224843 between S.A.Jafai V/s. State of Gujarat. In
this case, administrative expenditure of employees
on the establishment of the Municipality had gone
beyond the permissible limit of the Municipality.
While calculating the expenditure, the Director also
took into consideration pay and allowances and
wages paid to the employees of other groups for the
financial year 2002-2003. However, such
consideration was rejected by the Division Bench of
this Court while holding that wages of the daily
wagers and contractual employees who have been
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
engaged in terms that one or other scheme cannot
be taken into consideration while calculating
expenditure of the Nagarpalika. Relevant part of this
order is reproduced as
under:
".......Therefore, it will be evident that the salary
expenditure has been shown as 72.52% for the
financial year 2002-03 as wrongly inflated by
adding the salary and wages of employees paid
to the posts which are not in the establishment
of the Municipality, and who have been
appointed without any post, with approval of
the Director or without approval of the Director.
The wages of daily wage and contract
employees who may have been engaged in
terms with one or other scheme has also been
reflected as expenditure of the establishment
though such engagement under a scheme is not
in the establishment having fixed number of
posts.
26. The actual pay and allowances of the
employees on the approved set up for the
financial year 2002-03 is Rs.41,29,978, which if
calculated, comes to much less than 45% of the
total income of the Municipality, as shown in the
expenses incurred by the Municipality and the
details as quoted at para 17 hereinabove. 27.
Non application of mind on the part of the
Director of the Municipalities is evident who has
failed to notice the aforesaid fact and, thereby,
instead of taking recourse of reducing the
number of persons, who have been illegally
appointed without any post or engaged in
absence of any scheme, which is one of the
measures which could have been taken under
Section 260 of the Act, and have reduced the
scale of pay of regular employees who have
been appointed against sanctioned posts and in
accordance with law. Thus, without application
of mind, scales of pay of regular employees
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
have been reduced, who were rightly provided
with the revised scale of pay and, thereby,
given advantage to the illegal appointees in
violation of Article 14 of the Constitution. Such
illegal action on the part of the Director being
passed without application of mind and being
violative of Article 14 of the Constitution cannot
be upheld and, thereby, we set aside the
impugned decision dated 9.10.2003 passed by
the Regional Director of Municipalities, Rajkot
and the orders passed by the State approving
such illegal order...."
16. It will be relevant to point out that present
petitioners are working with the Municipality since
the year 1986. They seem to have worked
uninterruptedly for about 25 to 30 years. The status
of those employees cannot be termed as temporary
even if their initial appointments were irregular.
Earlier, all these petitioners were granted benefit of
the 5th Pay Commission and most of other
Municipalities have granted such benefits to its
employees. Under these circumstances, this Court is
unable to find any reason why such benefits should
not be granted to the present petitioners. This Court
is of the considered opinion that powers of Director
of Municipalities for release of such benefits are too
arbitrary which are required to be curtailed.
However, no formal orders in this regard are being
passed in this petition as the powers or resolution of
the State Government dated 3.9.2010 is not under
challenge before this Court.
17. In view of the foregoing discussion, this petition
is allowed. Petitioners are held entitled to the
benefits of 6th Pay Commission from 1.1.2010 i.e.
the date from which similarly situated other
employees of Nagar Palikas in the State have been
granted those benefits. As most of the petitioners
have retired and have been unnecessarily dragged
into the battle of litigation, petitioners will be further
entitled to interest at the rate of 8% per annum on
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
the arrears from the date such arrears fell due. The
arrears shall be paid to the petitioners within a
period of six weeks from the date of receipt of copy
of the order.
18. This petition is allowed with Rs.25,000/- as cost
which will be paid by respondents jointly and
severally. Direct service is permitted."
(g) Being dissatisfied with the judgment and order
passed by the learned Single Judge, the Umreth
Municipality is here before this Court with the present
appeal.
3. Mr. B.S. Patel, the learned senior counsel appearing
for the appellant submitted that the learned Single Judge
committed a serious error in passing the impugned order
inasmuch as the writ applicants ought not to have been
granted the benefits of the 6th Pay Commission with effect
from 01.01.2010. According to Mr. Patel, the writ
applicants have levelled no allegations against the
Municipality in the entire writ application. On the
contrary, according to Mr. Patel, the stance of the
Municipality help the writ applicants to a certain extent.
4. Mr. Patel invited the attention of this Court to the
Government Resolution at Annexure-C, more particularly,
at Page-18/3. Mr. Patel invited the attention of this Court
to Clause (7) which provides for a condition to pay the
requisite amount from the date of approval by the
Director. According to Mr. Patel, the Director approved
the proposal in the year 2015 and, therefore, the writ
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
applicants are entitled to receive the benefits with effect
from 2015 and not 2010.
5. Mr. Patel, thereafter, invited the attention of this
Court to the order dated 04.08.2015 passed by the
Director of Municipalities granting the benefits with effect
from 2015 and granting notional benefits for the period
between 01.01.2006 and 31.07.2015.
6. Mr. Patel would argue that the learned Single Judge
could not have proceeded to grant the benefits to the writ
applicants on the ground of Article 14 of the Constitution
of India in the absence of any foundation laid by the writ
applicants in their pleadings in this regard.
7. According to Mr. Patel, nowhere it has been stated
that the employees of the other Municipalities in the State
of Gujarat have been given the benefits from 01.01.2010
nor any evidence has been adduced in this regard. Mr.
Patel would submit that assuming for the moment that
some of the municipalities have paid from 01.01.2010,
that by itself would not be sufficient for the writ applicants
to assert that they should also receive the benefits from
01.01.2010.
8. Mr. Patel would submit that in the absence of any
challenge to the order passed by the Director of
Municipalities dated 04.08.2015 and having regard to the
Government Resolution at Annexure C, the reliefs granted
by the learned Single Judge are not sustainable in law.
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
9. In the last, Mr. Patel submitted that the financial
burden which the Municipality will have to shoulder is also
one of the relevant considerations which the learned
Single Judge ought to have kept in mind while passing the
impugned order. In such circumstances, referred to
above, Mr. Patel, the learned senior counsel., prays that
there being merit in this appeal, the same be allowed and
the order be modified accordingly.
10. On the other hand, this appeal has been vehemently
opposed by Ms. Kruti Shah, the learned counsel appearing
for the original writ applicants. Ms. Shah would submit
that no error, not to speak of any error of law, could be
said to have been committed by the learned Single Judge
in passing the impugned order.
11. According to Ms. Shah, after due consideration of all
the relevant aspects of the matter, the learned Single
Judge has rightly granted the reliefs to her clients. Ms.
Shah would submit that it took two years for the Director
of Municipalities to consider the proposal forwarded by the
appellant-Municipality. Why should the writ applicants
suffer for such gross delay on the part of the Director of
Municipalities. According to Ms. Shah, the proposal was
forwarded by the appellant-Municipality in the year 2013
and the same came to be ultimately considered by the
Director of Municipalities in the year 2015 by clarifying
that the employees would get notional benefits for the
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
period between 2006 and 2015 and the 6 th Pay
Commission benefits would be granted with effect from
2015.
12. Ms. Shah would submit that her clients were
appointed in the year 1986. They worked with the
Municipality for a period spanning between 25 and 30
years. All her clients were earlier granted the benefit of
the 5th Pay Commission.
13. In such circumstances, referred to above, Ms. Shah
prays that there being no merit in this writ application, the
same be dismissed.
14. Mr. Chintan Dave, the learned AGP appearing for the
State of Gujarat very fairly submitted that the original writ
applicants are at least entitled to receive the 6 th Pay
Commission benefits from the year 2013 if not from 2010,
i.e., the year in which the proposal was forwarded by the
appellant-Municipality to the Director of Municipalities for
its approval.
15. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the only question that falls for our consideration is
whether the learned Single Judge committed any error in
passing the impugned order.
16. We take notice of the fact that on 25.01.2019, a
Coordinate Bench of this Court had passed the following
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order;
"The Chief Officer of the appellant-Umreth
Municipality is directed to visit and appraise
respondent No.2 Director of Municipalities, State of
Gujarat herein on 28.1.2019 about oral order dated
19.9.2017 passed in Special Civil Application
No.10918 of 2015 along with relevant record and
communication addressed by Umret Municipality.
Perusal of such record and the order as above, the
Director of Municipalities, State of Gujarat, is directed
to pass an order keeping in mind observations and
directions contained in para 17 of the order passed in
the writ petition. Stand over to 11.2.2019. Direct
service is permitted."
17. Thereafter, on 01.05.2019, the following order came
to be passed;
"Subject to further orders that may be passed, the
Chief Officer of Umreth Municipality is directed to
make payment to respondents No.1 to 17 with effect
from 01.08.2015, for which no Certificate that the
concerned employees are regularly appointed will be
insisted by any authority.
Stand over to 10.07.2019.
Direct Service is permitted."
18. In view of the aforesaid order dated 01.05.2019, the
original writ applicants started receiving the benefits of
the 6th Pay Commission with effect from 01.08.2015;
19. We are at one with the learned Single Judge so far as
the observations made in the impugned order that the
powers of the Director of Municipalities for release of pay
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commission benefits are too arbitrary and those are
required to be curtailed. We fail to understand why it took
two years for the Director of Municipalities to consider the
proposal forwarded by the appellant-Municipality. What
was the Director doing for a period of two years. We also
inquired with Mr. Patel why the proposal was not
forwarded in the year 2010 and why the same came to be
forwarded in the year 2013. One common reply which any
learned counsel appearing for the Municipality would give
is that between 2010 and 2013, the total expenditure of
the Municipality exceeded 48% of its total income and,
therefore, the proposal was not forwarded. The
highlighted portion of para-13 of the impugned order is
the answer to the unreasonable stance of the
respondents.
20. We are of the view that the learned Single Judge,
after due consideration of all the relevant aspects of the
matter, rightly allowed the writ application. We see no
good reason to interfere with the impugned order passed
by the learned Single Judge. We find no merit in any of the
submissions canvassed by Mr. Patel, the learned counsel
appearing for the appellant. The respondents are
reminded of the hard fact that the original writ applicants
have retired after putting in 25 years of service. We take
notice of the following;
(a) The proposal forwarded by the Collector vide letter
dated 03.01.2014 to the Director of Municipalities stating
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that the establishment expenditure of the Umreth
Municipality is below 48%;
(b) The documents at Page Nos.39,40,41, 60 and 67
respectively in the main matter, i.e, the Special Civil
Application No.10918 of 2015 would indicate that the
establishment expenditure of the Umreth Municipality was
below 48% for the period between 2010 and 2016.
(c) The original writ applicants, in their affidavit-in-reply
filed in the present appeal, in para-2 have stated as under;
"The Umreth Nagar Palika has a reasonable books of
Account and even the criteria of the Government to
maintain 48% establishment expense for granting 6 th
Pay Commission is maintained by the municipality,
on the contrary present municipality has never
exceed his establishment expenses more than 48%
from 2011 till 2019 i.e, till date. Under these
circumstances the benefit of 6 th Pay Commission
cannot be denied. The copy of establishment
expenses of the Umreth Nagar Palika are annexed
herewith and marked as Annexure-R-2"
(d) The original writ applicants, in their affidavit, have
stated that the Umreth Municipality is receiving octroi
amount of Rs.12,02,038/- every month from the Gujarat
Municipal Finance Board, Gandhinagar for the purpose of
releasing salaries and other past dues and benefits to its
employees.
21. While dealing with the present appeal, one has to
bear in mind that a intra-Court appeal is really not
a statutory appeal preferred against the judgment and
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order of an inferior to the superior Court. The appeal inter
se in a High Court from one Court to another is really an
appeal from one coordinate Bench to another Coordinate
Bench and it is for this reason that a writ cannot be issued
by one Bench of the High Court to another Bench of the
High Court nor can even the Supreme Court issue writ to a
High Court. Thus, unlike an appeal, in general, an intra-
Court appeal is an appeal on principle and that is why,
unlike an appeal, in an ordinary sense, such as a criminal
appeal, where the whole evidence on record is examined
afresh by the appellate Court, what is really examined, in
an intra-Court appeal, is the legality and validity of the
Judgment and/or Order of the Single Judge and it can be
set aside or should be set aside only when there is a
patent error on the face of the record or the judgment is
against the established or settled principle of law. If two
views are possible and a view, which is reasonable and
logical, has been adopted by a Single Judge, the other
view, howsoever appealing such a view may be to the
Division Bench, it is the view adopted by the Single Judge,
which should, normally, be allowed to prevail. Hence, the
impugned judgment of the learned Single Judge should
not be completely ignored and this Court has to consider
the judgment and order in its proper perspective and if
this Bench, sitting as an appellate Bench, is of the view
that the decision has been arrived at by the learned Single
Judge without any material error of fact or law, then, the
judgment, in question, should be allowed to prevail.
C/LPA/2445/2017 JUDGMENT DATED: 22/06/2021
22. In view of the aforesaid, both the appeals fail and
are hereby dismissed. The connected civil applications
also stand disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
