Varsungbhai Revabhai Rabari vs State Of Gujarat
2021 Latest Caselaw 13974 Guj

     C/SCA/16794/2013                                  JUDGMENT DATED: 14/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16794 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                             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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                  VARSUNGBHAI REVABHAI RABARI & 1 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1,2
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR NILESH R KOYANI, ADVOCATE FOR MR PREMAL R JOSHI(1327) for
the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 14/09/2021

                                ORAL JUDGMENT

1. By the present writ petition, the petitioners have prayed for the following reliefs:

"19 (F) That Your Lordships be pleased to issue an order,

C/SCA/16794/2013 JUDGMENT DATED: 14/09/2021

direction and/ or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the Clause.3 of the Order date 30 th July, 2013 marked ANN. A to this petition, insofar as the said Order denies the benefit of the Sixth Pay Commission in cash from 1-1-2010 and be further pleased to declare and hold that the employees of the respondent no.2 Karamsad Nagar Palika are also entitled for the benefit in cash from 1-1-2010;"

2. At the outset, learned advocate Mr.T.R.Mishra, has submitted that the issue is squarely covered by the decision of the Co-ordinate Bench dated 19.09.2017 passed in Special Civil Application No. 10918 of 2015, wherein this Court has directed the concerned Nagar Palika to grant the benefit of 6 th Pay Commission to the petitioners in cash from 01.01.2010. He has submitted that the aforesaid judgment is confirmed by the Division Bench of this Court vide judgment dated 22.06.2021 passed in Letters Patent Appeal No.2445 of 2017. It is further submitted that the expenditure of Nagar Palika since 2004 has not crossed the limit of 48% and hence Clause 3 of the order dated 30.07.2013 may be set aside.

3. In response to the aforesaid submissions, learned advocate Mr. Nilesh Koyani, appearing for the respondent Nagar Palika has not disputed that the expenditure of the Nagar Palika from the year 2003 to 2012 and thereafter also till 2017 is below prescribed limit of 48%. He has submitted that the condition no.3 of the impugned order may be suitably modified so that the Nagar Palika can pay the benefit of 6th Pay Commission in cash from 01.01.2010.

4. Learned AGP Mr. Sahil Trivedi has submitted that the State has already clarified their position in the impugned order and looking to the financial condition, the Nagar Palika has to disburse the benefit of the 6 th Pay Commission.

C/SCA/16794/2013 JUDGMENT DATED: 14/09/2021

5. I have heard the learned advocates appearing for the respective parties. The only issue which requires consideration in this writ petition is whether the petitioners would be entitled for the benefit of 6 th Pay Commission in cash from 01.01.2010 or from the date as stipulated in clause no.3 of the impugned order i.e. from 01.07.2013. At this stage, I may refer the decision of the Co-ordinate Bench rendered in Special Civil Application No.10918 of 2015. In the case before the Co-ordinate Bench, the Director of Municipalities has granted the benefit of the 6th Pay Commission in cash from 04.08.2015 and the employees of the Nagar Palika had filed a writ petition claiming the same from 01.01.2010. After perusing the relevant scheme of the Government Resolutions as well as looking to the financial conditions as well as expenditure of the Municipalities, which was less than 48% of the total budget, the Court has issued the following directions:

"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 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:

C/SCA/16794/2013 JUDGMENT DATED: 14/09/2021

".......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 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

C/SCA/16794/2013 JUDGMENT DATED: 14/09/2021

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 6 th 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 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."

C/SCA/16794/2013 JUDGMENT DATED: 14/09/2021

6. The judgment dated 19.09.2017, was subject matter of challenge before the Division Bench in Letters Patent Appeal No.2445 of 2017. By the judgment dated 22.06.2021, the Division Bench confirmed the view of the Co-ordinate Bench. Thus, in the present case also the total expenditure of the Municipality from the year 2004-2017 has not exceeded 48% of its total income and hence the petitioners would be entitled to the benefit of 6th Pay Commission in cash from 01.01.2010. The respondents are directed to pay the difference of the 6 th Pay Commission to the petitioners in cash from 01.01.2010. The Clause 3 of the impugned communication is set aside. Rule is made absolute.

SD/-

(A. S. SUPEHIA, J) URIL RANA