Gujarat High Court
Pradip Tribhuvandas Thanki vs State Of Gujarat on 17 January, 2023
Bench: A.Y. Kogje
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22969 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 22969 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE 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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PRADIP TRIBHUVANDAS THANKI
Versus
STATE OF GUJARAT
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1,2,3,4
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1
MR MURALI N DEVNANI(1863) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 17/01/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Aditya Pathak, learned AGP
waives service of notice of rule for and on behalf of the
respondent State.
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
2. This petition under Article 226 of the Constitution of India
is filed seeking direction to extend the benefits of yearly
increments in favour of the petitioners with effect from the date
of regularization.
3. It is the case of the petitioners that they are in service
since 1988 with the erstwhile Bokhira Gram Panchayat which
was later on merged with the Porbandar Municipality.
4. Learned advocate for the petitioners submitted that the
petitioners are, for all purposes, treated to be the employees of
the Municipality and are given the benefits as such. It is
submitted that the petitioners being treated at par with other
employees of the municipalities, they were also paid salary as
per the sixth pay commission, however they were paid only the
basic salary whereas the increments were not paid.
5. It is submitted that prior to this petition, previously also a
petition was filed in the year 2016 where the stand of the
Municipality was that the petitioners are entitled to such
benefits and the proposal was forwarded in this regard to the
Director of Municipalities but the Director of Municipalities did
not take any decision. The said petition came to be disposed of
issuing directions to the State Government to decide the
proposal sent by the Municipality which was pending with the
Director of Municipalities. Even, thereafter, only upon the
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
application filed by the petitioners under the provisions of the
Contempt of Courts Act before this Court that the Director of
Municipalities complied with the directions of this Court to
decide the proposal and has rejected the proposal.
6. Learned advocate for the petitioners has referred to the
decision of this Court in the case of the very petitioners wherein
the Court has accepted the legitimacy of the claim of the
petitioners. He thereafter relied upon the decision of the Division
Bench of this Court rendered in the Latest Patent Appeal
No.1933 of 2017, which took care of the employees like the
petitioners who were earlier working with the Bokhira Gram
Panchayat and thereafter with the Municipality and had been
extended all the benefits. Despite this, the respondent authority
has rejected the proposal.
7. Learned AGP submitted that after the directions issued by
this Court, the proposal sent by the Municipality has been duly
considered, and in view of the fact that the appointment of the
petitioners was illegal/irregular, the petitioners would not be
entitled to the benefits as claimed by them.
8. He has drawn attention of this Court to a resolution dated
9th September 1996, wherein in clause 4 it is provided that for
filling up the posts with the Gram Panchayat the prior approval
of the State Government is required. It is submitted that while
appointing the petitioners no such prior approval has been taken
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
and therefore the appointment of the petitioners de hors the
aforesaid communication which is backed by an Ordinance of
1984.
9. Having heard the learned advocates for the parties and
having perused the documents on record, it appears that the
petitioners were employees with the erstwhile Bokhira Gram
Panchayat as permanent employees and they have joined the
services, by and large, from 1981 onwards. At the time of merger
of the Village Panchayat with the Porbandar Municipality, the
petitioners were working on the permanent posts and were
getting regular pay scale with increments. Annexure A is an
order dated 2nd December 2009 by which the petitioners have
been given the benefits and against such posts the petitioners
are given salary as per the pay band and grade pay.
10. It is found that the petitioner no.1 was given appointment
by the aforesaid order to the post of Junior Clerk in the pay
band of Rs.5200 and grade pay of Rs.1900. Similarly, the other
petitioners have also been given appointment.
11. The petitioners had addressed a representation to the
Director of Municipalities for pay fixation at par with the other
employees of the Porbandar Municipality on the ground of equal
pay. As the same was not answered, a Special Civil Application
No.2484 of 2016 was filed which came to be disposed of by an
order dated 19th December 2018. While disposing of the said
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
petition, this Court has categorically observed in paragraph 5 of
the judgement that the case of the petitioners have legitimacy in
law and, therefore, directed the proposal forwarded by the
respondent Municipality for grant of benefits which included
annual increments.
12. From the record it appears that inspite of such directions,
no decision was taken. Therefore, Miscellaneous Civil Application
No.893 of 2019 was filed under the provisions of the Contempt of
Courts Act and it is thereafter that the impugned decision was
taken.
13. The perusal of the impugned decision dated 27th September
2019 by the Deputy Commissioner of Municipalities
(Administration) was on the ground that the appointment of the
petitioners was not as per the recruitment rules. It appears that
the foundation for such finding is a communication dated 9 th
September 1996 at Annexure R1 to the reply of the respondent
State which is addressed by a department to all the District
Development Officers, wherein in clause 4 it is provided that for
appointment to the posts in the Gram Panchayats prior approval
of the State Government is required.
14. It is evident from the record that the petitioners have been
given appointment under the order dated 2 nd December 2009 by
the Porbandar Municipality. The issue with regard to approval
would be of no consequence in view of the fact that admittedly
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
there is nothing on record to dispute that the petitioners have
been initially appointed with the Bokhira Gram Panchayat since
1981 onwards and have continued to work as such till the
Bokhira Gram Panchayat came to be merged with the Porbandar
Municipality.
15. Over and above this, the legitimacy of the claim of the
petitioners has already been approved by this Court in its
observation made in the previous petition being Special Civil
Application No.2484 of 2016 and, therefore, the stand taken of
their appointment not being legal appears to be not in
consonance with the policy of the State Government.
16. It would also be pertinent to observe that the Porbandar
Municipality has, as late as the communication dated 22 nd July
2019, addressed a communication to the Regional Commissioner
of Municipalities, wherein a reference is made to the order of this
Court passed in the Special Civil Application Nos.2921 of 1990,
1839 of 1994, 7184 of 1997 and 7575 of 1997, whereby
apparently the orders were passed in favour of the employees
who were working with the Bokhira Gram Panchayat.
17. This Court has also taken into consideration the directions
contained in the Latest Patent Appeal No.1933 of 2017 dated 8 th
January 2018 in the case of Porbandar Municipality vs. State of
Gujarat wherein identical stand taken by the respondent
authorities was turned down. Reference can be had to the
directions contained in paragraphs 5 and 6 of the aforesaid order
passed in the Letters Patent Appeal No.1933 of 2017.
C/SCA/22969/2019 JUDGMENT DATED: 17/01/2023
18. The Court is also of the view that the employment of the
petitioners with the Municipality is an accepted norm as they
have been working continuously since 1981. Therefore, it would
not lie in the mouth of the Government to once again go back to
the stage of original appointment and take a decision against the
interest of the petitioners. It is on record that the petitioners
have been given the benefits of the 6 th pay commission. However,
for no unknown reasons, the complete benefits which should
include the grant of increments does not appear to have been
given to the pettiioners.
19. In view of the aforesaid, the petition deserves to be and is
hereby allowed. Rule made absolute.
20. The respondent authorities are directed to undertake the
exercise to calculate and grant the increments to the petitioners
from the date on which the petitioners were given the benefits of
the 6th pay commission and pay the amount to the petitioners as
expeditiously as possible preferably within a period of six
months from the date of receipt of copy of this order.
21. In view of the order passed in the main matter, the Civil
Application stands disposed of.
(A.Y. KOGJE, J.)
/MOINUDDIN
