Gujarat High Court
Chief Officer vs Keshubha Pratapsang Jadeja on 13 June, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/535/2020 ORDER DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 535 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 8040 of 2017
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CHIEF OFFICER
Versus
KESHUBHA PRATAPSANG JADEJA & ORS.
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Appearance:
MR DEEP D VYAS(3869) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1,2.1,3.1
NOTICE SERVED for the Respondent(s) No. 4,5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal, filed under Clause 15 of the Letters
Patent, 1865 by the Appellant-Chief Officer, who played for
Nagarpalika, has assailed the judgment and order dated
13.12.2019 passed in the captioned writ petition, wherein and
whereby, the Learned Single Judge has directed the
Appellant-Nagarpalika to extend to the petitioners the benefits
of 5th and 6th Pay Commission by revising their salary as well
as retirement benefits of the petitioners on the basis of such
revision. It is further directed that the arrears shall be paid
within a period of 10 weeks from the date of receipt of the
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order of the learned Single Judge.
2. Learned Advocate Mr.Deep D. Vyas has submitted that the
judgment and order passed by the Learned Single Judge is
required to be interfered with, since the Learned Single Judge
has not considered the guidelines framed by the State
Authorities formulating the policy decision in the cases of pay
revision. He has submitted that the Original petitioners
concerned were not recruited in the sanctioned setup and
were beyond the setup and hence, even if they are conferred
the benefit of pay revision earlier, they would not be entitled
to the benefits of 6th pay revision and the revision of pension.
3. He had invited the attention of this Court to the Government
Resolution dated 12.01.1998 and also the orders dated
02.06.1998 and 01.07.1998 describing the guidelines and
condition while extending the pay benefits. While placing
reliance on the Affidavit filed by him, he has submitted that
in fact, there is delay in claiming the benefits by the
Respondents (Original Petitioners) and hence, the Learned
Single Judge could not have issued any directions directing
the Appellant-Nagarpalika to give the benefit of 5 th and 6th
Pay Commission.
4. Further, he has submitted that the reliance placed by the
Learned Single Judge on the decision rendered in Special Civil
Application No.3060 of 2015 dated 28.06.2017 is also
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erroneous and the same would not apply in the present case.
5. On the contrary, the learned advocate Mr.Samir B. Gohil
appeared on behalf of the respondents has thus submitted that
the judgment, on which the reliance is placed by the Learned
Single Judge by granting the benefits, was also assailed
further before the Division Bench in Letters Patent Appeal No.
235 of 2018, which was not entertained and the same was
also challenged before the Hon'ble Supreme Court by filing a
Special Leave Petition and the Hon'ble Supreme Court has
also declined to interfere with the impugned order. Thus, it is
submitted that since the issue raised in the present Letters
Patent Appeal as well as orders, on which, Learned Single
Judge has placed reliance is common and hence, the present
Letters Patent Appeal may be rejected.
6. We have heard the learned advocates appearing for the
respective parties.
7. The facts, which are not disputed are that the original
petitioners are retired employees of the Appellant-Nagarpalika.
Petitioner No.1, Keshubha Pratabsang Jadeja and Petitioner
No.2, Mensibhai Hamirbhai Chandravadiya, were the drivers,
who retired on 29.02.2008 and 30.04.2008 respectively.
Petitioner No.3, Bhavanjibhai Chhaganbhai Uchdadiya was the
Wireman, who stood retired with effect from 30.11.2007. It is
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also not in dispute that all the petitioners retired were
receiving the Pay scale of 4th Pay Commission and their
pension came to be fixed in accordance with pay revision of
4th Pay Commission.
8. We have also noticed that by the Resolution dated
20.05.2008, the respondent - Regional Director of Municipality
implemented the 5th Pay Commission Recommendations for
the Municipal Employees, however, even after such
recommendations, such benefits were not extended to the
respondents herein (Original petitioners). By the order dated
05.01.2013, 6th Pay Commission Recommendations were also
implemented. At that time also, the Original petitioners were
left in lurch as the Appellant-Nagarpalika did not extend such
benefits. It is the case of the Original Petitioners-Respondents-
Employees that though they have retired from their services
after rendering the qualifying service and as they were
entitled to pension and accordingly, such pensionary benefits
are also paid to them, however, the benefits of 5 th and 6th
Pay commission are not extended to them and their pension
has been fixed on the basis of benefits of 4th Pay Commission.
9. Being aggrieved, they assailed such action before the Learned
Single Judge in the captioned Writ Petition and ultimately
they succeeded and the learned Single Judge, while allowing
the writ petition has observed thus:-
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"5. Having considered the merits of rival case and the
contentions, what is clinching is the decision of this Court in
Hiteshbhai Bhimjibhai Patel v. State of Gujarat being Special Civil
Application No.3060 of 2015 decided on 28th June, 2017. It was
the petition filed by the similarly situated employees of the
Mahuva Municipality who were granted the payscale and salary as
per the Fourth Pay Commission from 01st January, 1986 as also
were granted the Fifth Pay Commission benefits. Their prayer for
sanctioning of Sixth Pay Commission benefits and to pay the
arrears.
5.1 Noticeably, the very ground was raised by the Mahuva
Municipality to contest the petition by stating that appointment of
those petitioners were not as per the Rules. This may be extracted
from paragraph 4 of the order.
"4. This petition has been contested by the respondent by filing
reply; wherein, it has been stated that Mahuva Municipality has
total sanctioned set up of 341 posts. As against the sanctioned
set up, 191 employees have been appointed without seeking prior
approval of the Regional Director of Municipalities. Therefore,
practically, all the appointments are made dehors the provision.
As appointments of the petitioners are not as per rules,
petitioners are not entitled to benefits of the 6th Pay
Commission. Further, it has been averred that proposal sent by
the Municipality has been returned back by the deponent on
19.2.2013 and as such, petition is liable to be dismissed."
5.2 The Court in no uncertain terms negatived the contention in
the following observations.
"6. This Court has considered the submissions made by both the
sides. There is no dispute that the petitioners are employees of
the Municipality since more than past 20 years. Further, they
have been granted benefits of the 4th and 5th Pay Commissions
at the relevant time. The proposal sent by Municipality has been
further approved by the Collector and forwarded to the
concerned Authorities for release of benefits of the 6th Pay
Commission. However, the same has been denied by the
respondents on the ground that the initial appointments of the
employees are not as per law."
5.3 It was then stated and ruled,
"7. This Court has considered the submissions of learned
counsels. Once the benefits of the 4th Pay and 5th Pay
Commissions have been granted to the petitioners, the benefits of
the 6th Pay Commission cannot be withheld on the ground that
there were defects in the initial appointments. No doubt, the
respondent-authorities have sufficient machinery to fight luxurious
litigation. However, there should be a limit to unfettered powers.
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Respondents cannot be permitted to waste money aimlessly for
the rightful cause of its employees. This is particularly so, when
case for release of benefits of the 6th Pay Commission has been
recommended by the Collector."
5.4 Petitioners of Mahuva Municipality were similarly situated and
they were finally held to be entitled to get the Sixth Pay
Commission benefits, the present petitioners could not be treated
differently. Mere aspect of delay may not come in the way of the
petitioners when their case is squarely covered by the decision of
this Court in Hiteshbhai Bhimjibhai Patel (supra), more
particularly when the same was rendered in the backdrop of very
contention which was sought to be raised by the Municipality in
the present case. The mandate of Article 14 of the Constitution
reinforced by above-mentioned decisions of this Court requires to
give to the present petitioners similar treatment placing them at
par.
5.5 It deserves to be mentioned that the decision in Hiteshbhai
Bhimjibhai Patel (supra) came to be confirmed in Letters Patent
No.235 of 2018 which was not entertained by the Court by not
condoning the delay.
6. In view of the aforesaid discussion and the reasons, the present
petitioners are entitled to succeed, the respondents are directed to
extend to the petitioners the benefits of Fifth and Sixth Pay
Commission by revising their salary as well as retirement benefits
of the petitioners on the basis of such revision."
10. The first contention, which is raised before this Court is that
Learned Single Judge has not considered the aspect that the
respondents-Employees were not appointed on the sanctioned
setup. In our considered opinion, such contention is too late
for the day, since all the three Original Petitioners, after
rendering their services, have retired after they were extended
to the benefits of 4th Pay Commission and they are also being
paid pension, however, the issue only remains that even after
the sanctioning of 5th and 6th Pay Commission by the Director
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of Municipality i.e., the State Government, such benefits are
not extended to the Original petitioners. After conferment of
benefits of 4th Pay commission, the Appellant-Nagarpalika,
who was under an obligation to extend further benefits to
them so that their pension could have been revised. During
their entire service tenure, the Appellant has not raised any
objection regarding their appointment. Such objection is
untenable in wake of the fear that after their retirement, they
are also granted all pensionary benefits on the basis of regular
pay scale.
11. We have noticed that the judgment on which the reliance has
been placed by the Learned Single Judge has been confirmed
by the Division Bench and thereafter, it was assailed by
Mahuva Municipality before the Hon'ble Supreme Court in an
identical situation and facts and the Special Leave Petition
(Civil) Diary No. 3766 of 2019 was rejected vide order dated
01.04.2019 by condoning the delay and observing that the
Apex Court was not inclined to interfere with the impugned
order.
12. So far as the aspect of delay, which is contended before us, it
is no more res integra that the non payment of pensionary
benefits or pay scale would be recurring cause and hence,
such claim cannot be frustrated on the ground of delay. The
Appellant-Nagarpalika should have extended the benefits as
directed by the Learned Single Judge, after they were retired
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from services and were also granted the benefit of 4 th Pay
Commission.
13. Thus, the present Letters Patent Appeal is inconceived and the
same is rejected.
14. The Appellant-Nagarpalika shall pay the benefits as directed
by the Learned Single Judge within a period of 6 weeks from
the date of receipt of the judgment.
15. At this stage, learned Advocate Mr. Deep D. Vyas has
requested that the present directions may be stayed as this is
a policy decision, we do not subscribe to the request made by
learned Advocate Mr.Deep D. Vyas and the same is rejected.
Benefits shall be paid as directed by this Court.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
MOHD MONIS/17
