Gujarat High Court
Dhirubhai Vadilal Chauhan vs State Of Gujarat & 2 on 6 May, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16168/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16168 of 2015
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DHIRUBHAI VADILAL CHAUHAN....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASIM J PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR.MANAN V BHATT, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the RESPONDENT(s)
No. 1-2
MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/05/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner, serving on the work charged establishment, have prayed for the following reliefs;
"(a) This Hon'ble court may be pleased to issue appropriate writ, order or direction declaring the action of the respondents not extending the benefits of sixth pay commission to the petitioner, being discriminatory, arbitrary and violative of Article 14, 16 and 21 of the Constitution of India.
(b) This Hon'ble Court may be pleased to issue an appropriate writ order or direction declaring that the petitioner is entitled to the benefits of sixth pay commission and be pleased to direct the respondents to give the benefits of sixth pay commission to the petitioner with interest at rate of 10% per annum on the Page 1 of 13 HC-NIC Page 1 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER areas;
(c ) Pending admission, hearing and final disposal of the present petition, the respondents may be directed to give benefits of sixth pay commission to the present petition from the next month i.e. November, 2015.
(d) Ad-interim relief in terms of Prayer (c ) above may kindly be granted in the interest of justice.
(e) This Court may be pleased to grant such other and further relief and / or order in the interest of justice in favour of the petitioner."
2. The issue raised in this writ application is squarely covered by the judgment and order passed by this Court dated 12th April, 2016 in Special Civil Application No.14294 of 2013, which reads thus;
"1. By this writ application under Article 226 of the Constitution of India, the petitioners, serving with the Irrigation Department of the State Government, have prayed for the following reliefs;
"(A) Your Lordships be pleased to direct the respondents to fix the salary and other benefits to the petitioners according to the recommendations made by VI pay commission with effect from 1.1.2006 and also to further direct respondents to pay the arrears of pay and salary to petitioners by way of Writ of Mandamus and/or Writ of certiorari and or any other writ direction or order as deem fit by this Hon'ble Court, in favour of petitioners.
(B) Pending admission and final disposal of this petition Your Lordships be pleased to direct the respondents by way of interim relief to consider the case of petitioners for granting pay fixation and all consequential benefits as per recommendations made by VI pay commission w.e.f. 1.1.2006 at par with the case of Deepak Gandhi, in interest of justice."Page 2 of 13
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2. It appears that all the petitioners were appointed after 1988. They are receiving the benefits of the 5th Pay Commission and have also been extended the benefits of the Government Resolution dated 17.10.1988. The grievance voiced in this writ application is with regard to not granting the benefits of the 6th Pay Commission.
3. The issue is now squarely covered by the judgment and order of this Court dated 6th August, 2015 passed in the Special Civil Application No.12527 of 2013, which has been affirmed by the Division Bench in the Letters Patent Appeal No.1230 of 2015, decided on 23rd September, 2015.
4. This Court, while allowing the Special Civil Application No.12527 of 2013, observed in paragraphs- 15 to 21 as under;
"15. One such proposal dated 13th July, 2012, Annexure-B to this petition makes the picture very clear. The free English translation of the proposal is as under;
"Gujarat Water Supply and Sewerage Board (Govt. of Gujarat Undertaking) Gandhinagar.
Letter No.Estt. Bt. 1/EC.2/2012/5725 Date : 13.7.2012 To, Under Secretary, Narmada, Water Resources Water Supply and Kalpasar Department, Sachivalaya, Gandhinagar.
Subject: Regarding extension of the benefits of 6th Pay Commission to 44 Work Charge Employees of the Gujarat Water Supply and Sewerage Board appointed after 31.3.89 by direct recruitment.
Reference:
1). Board's letter dated 10.8.2011 bearing No.Esst.Br. 1/EC-2/2011/5494.Page 3 of 13
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2). Department's resolution dated 19.6.2012 bearing no.ESTT/102009/1372/KH.
Sir, In the above subject, this is to be submitted that the proposal was made for extending benefit of 6th Pay Commission to total 66 WC Employees recruited after 31.9.89 pursuant to which, vide resolution of the department at reference no.2, approval has been granted for extending the benefits of 6th Pay Commission to total 22 successor WC employees.
After 31.3.09, on the sanctioned work charge establishment posts in different group water supply schemes under the board for the works of maintenance and repairs, recruitments are made by the regional offices of the Board. Taking into consideration the position of scarcity, water shortage and aspects of supply of water to the remote villages of the State, in view of day of rise in the work of the board, group water supply schemes of the board, water supply schemes running with the aid of the Central Government, action plan, scarcity program and thus, for keeping different programs and such schemes, the posts approved for such schemes are filled in by regional offices of the board through the employment exchange of the concerned district in respective cadres are appointed according to the recruitment rules in respective cadres by direct recruitment. Copies of the appointment orders in that regard are enclosed herewith.
It is stated in the circular of the Roads and Building Department dated 31.3.89 bearing no. DRE/2189/ (39) G-2 that vide resolution of the R & B Department dated 17.10.1988, orders have been issued as regards the services of the rojamdars and wages. In these orders, there is no any provision for engaging the rojamdars on the establishment by way of work charge. Therefore, rojamdars have not to be made the work charge. In view of the said instruction of the Government, the rojamdars under the Board have not been taken on the work charge.
Page 4 of 13HC-NIC Page 4 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER The employee of work charge establishment recruited under the board after 31.3.89 have been given the benefits of 5th Pay Commission vide letter of the department dated 29.8.88 bearing No.ESTT/ 1098/1233/KH (Annexure-1) and as per the provisions of the resolution of the finance department dated 24.8.2007, benefits of merger of 50 per cent of the amount of dearness allowance in the basic salary with effect from 1.4.2004 has been given to the said employees. Statement (Annexure) showing caderwise information regarding extension of benefits of 6 Pay Commission to such th total 44 employees of total such 7 cadres is anenxed (Annexure-4), Pay Scale of such cadres as mentioned in Annexure-4 has been approved under the 5th Pay Commission.
Further information of work charge establishment (Column 17) in prescribed form is annexed herewith (Annexure-5). And serialwise copies of appointment orders of the said employees are enclosed herewith.
Considering the aforesaid details, it is recommended for granting permission to extend benefit of 6th Pay Commission to total 44 work charge employees appointed by direct recruitment after 31.3.89 since the recruitment of the said employees has been made on the posts sanctioned in the respective schemes through the employment exchange."
16. I fail to understand that after having extended the benefits of the 5th Pay Commission recommendation w.e.f. 1998, how would it lie in the mouth of the State Government to say that the petitioners herein were not appointed after following the regular recruitment process. I fail to understand the basis on which the circular of 31st March, 1989 is being relied upon.
17. The following facts are not in dispute.
"(i) All the petitioners are regularly appointed work charge employees and they Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER are not back-door entrants in the work charge establishment.
(ii) All the petitioners were given the benefits of Fifth Pay Commission without any objection raised by the respondents.
(iii) The work charge employees appointed prior to 31.3.1989 have already been given the benefits of Sixth Pay Commission by the respondents.
(iv) Even 22 work charge employees that were appointed on compassionate ground after 31.3.1989 and are absolutely similarly situated, have been given the benefits of Sixth Pay Commission by the respondents.
(v) The Gujarat Matirime Board, which is also an autonomous Corporation/ Board like respondent No.3, has given the benefits of Sixth Pay Commission to all his work charge employees without making any classification of the employees as the employees appointed prior to 31.3.1989 and the employees appointed after 31.3.1989.
(vi) 1500 work charge employees of the respondent No.2 have also been given the benefits of Sixth Pay Commission without raising any objection by the Finance Department of the State of Gujarat.
(vii) A circular dated 31.3.1989 simply forbids taking Daily Wagers on the work charge establishment and it does not prohibit the appointment of work charge employees directly after following regular recruitment procedure."
18. The Board has also made itself very clear that the petitioners were appointed as the work charge employees by way of direct recruitment and such recruitment was made on the posts sanctioned in the respective schemes through the employment exchange. If that be so, then where is the question Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER of applying the circular dated 31.3.1989.
19. To put in other words, at any cost, the Government wants to deprive the petitioners from their legitimate claim of the benefits of the 6th Pay Commission recommendations. I do not see any reason other than the financial constraints. It may not have been said so in so many words but it is only the financial implications which seems to be pinching the wallet of the State Government. It was sought to be argued before me on behalf of the State Government that this Court should consider the matter from different angles applying the practical experience and factual contexts before arriving at any decision. To put in other words, the State Government wants the Court to take a pragmatic approach in this type of matters. I am unable to record my concurrence there too. Pragmatic does not necessarily be deprivation of the legitimate claims of the weaker sections of the society. The submissions, if I may say with respect, is totally misplaced and does not warrant any further discussion thereon.
20. I may quote with profit the observations made by the Supreme Court in the case of Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal, 2008 (7) SCC 375. I may quote the observations made in paras 33 and 34 as under;
"33. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion.
34. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.
21. I may also quote with profit the observations made by the Supreme Court in the case of All India Judges' Association v. Union of India, AIR 1993 Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER SC 2493.
"The contention with regard to the financial burden likely to be imposed by the directions in question is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have thought that such plea was not raised to resist the discharge of the mandatory duties. The contention that the resources of all the States are not uniform has also to be rejected for the same reasons. The directions prescribe, the minimum necessary service conditions and facilities for the proper administration of justice. We believe that the quality of justice administered and the calibre of the persons appointed to administer it are not of different grades in different States. Such contentions are ill-suited to the issues involved in the present case."
5. The Division Bench, while dismissing the appeal of the State of Gujarat, observed in para-5 as under;
"5. Examining the matter further, keeping in view the aforesaid aspect, it appears that the petitioners may be the work-charge employees, who came to be appointed after 31.3.1989, but one of the important aspects is that when the benefits of Fifth Pay Commission were extended to the work-charge employees of the Board, vide Government Resolution dated 30.3.1998, the Government did not discriminate and rather gave the same treatment to all the work-charge employees, irrespective of the fact that whether they were appointed prior to 31.3.1989 or thereafter. The fact that the same treatment was given for extending the benefits of Fifth Pay Commission to all work- charge employees, irrespective of the aforesaid date of appointment, goes to show that all work-Page 9 of 13
HC-NIC Page 9 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER charge employees were given similar treatment and they were considered at par for the purpose of entitlement of the benefits of revised pay-scale of Fifth Pay Commission. Once having done so by the State, when the matter was to be considered for grant of benefits as per Sixth Pay Commission, the State could not and cannot discriminate by falling back upon the date of appointment after 31.3.1989. Once there is merger of the classes and one homogeneous class is created of all work-charge employees, it would not be open to the State to put such a cut-off date and to give discriminatory treatment within the same class to all persons, who were found as similarly situated at earlier point of time. Under these circumstances, even if it is considered that the State has the power to put cut- off date, in our view, such cut-off date should not be arbitrary, nor should it result into creating a discriminatory treatment amongst the same class of employees. As the cut-off date is arbitrary, because it results into giving different treatments to the similarly situated employees, the action has been rightly found illegal by the learned Single Judge. After having found the action illegal, the learned Single Judge has granted consequential relief."
6. In view of the above, this writ application succeeds and is allowed. The respondents are directed to extend the benefits of the recommendations of the 6th Pay Commission with its effective date. The State Government is directed to undertake this exercise within a period of two weeks from the date of the receipt of the writ of the order. The arrears towards the pay scale according to the 6th Pay Commission recommendations shall be worked out and the necessary payment shall be made to the petitioners latest by the end of June, 2016. The Government shall start paying the salary from the next month onwards in accordance with the 6th Pay Commission recommendations. The prayer for grant of the arrears with interest is declined.
7. With the above, this writ application is disposed of.
Direct service is permitted."
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3. Mr. Varun K. Patel, the learned counsel appearing for the respondent No.3 submitted that although it is true that the petitioners have been given the benefits of the 5th Pay Commission, yet in view of the government resolution, and they being the work charged employees, they are not entitled to the 6th Pay Commission. This issue has been taken care of in the judgment referred to above.
4. The State has also filed an affidavit-in-reply opposing this writ application, inter alia, stating as under;
"4. I say and submit that the Narmada Water Resource and Water Supply and Kalpsar Department had issued G.R. Dated 06.02.2013 for the purpose of providing the sixth pay commission benefits to the work charge employees. A copy of the G.R. dated 06/02/2013 is annexed herewith and marked as Annexure R-I. I say and submit that the petitioner has not challenged the G.R. dated 06/02/2013 in the present petition.
5. I say and submit that in the said G.R., the conditions are stipulated for the purpose of granting the benefits of sixth pay commission.
6. I say and submit that under the said G.R., clause VI of the G.R. clearly stipulates that the benefits of sixth pay commission are approved for the work- charge employees other than the work charged employees of Sardar Sarovar Narmada Nigam Ltd. WALMI and Gujarat State Water Resources Development Corporation. Thus, the G.R. expressly excludes the employees of WALMI from the benefits of sixth pay commission.
7. I say and submit that the petitioner was appointed under a backlog in the year 1990 and therefore, even, the petitioner cannot claim any benefits of sixth pay commission as he was not a regular work- charge employee so as to even otherwise entitle him the benefits of sixth pay commission. I say and submit that vide G.R. dated 12/12/1989 issued by Road & Building Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER Department, under Clause(VII) of regulation 92.22.11, it was expressly provided that no person shall be appointed on any vacant post of work-charge or any other vacant post as Clerk, Mistry, Suboverseer, or technical assistant. I say and submit that meaning thereby vide G.R. dated 12/12/1989 no appointments as such were required to be made on any work-charge post as clerks or suboverseers henceforth. A copy of the G.R. dated 12/12/1989 is annexed herewith and marked as Annexure R-II. Therefore, even otherwise the appointment of the petitioner was not regular in nature which would entitle him the benefits of sixth pay commission.
8. I say and submit that the petitioner has claimed parity with respect to the petitioners in the case of the petitioners in Special Civil Application No. 12527/2013. I say and submit that so far as the petitioners in Special Civil Application No. 12527/2013 are concerned, the petitioners in that case were appointed as work-charge employees prior to 31/03/1989 with the Gujarat Maritime Board. The decision was therefore, rendered in the case of the employees of Gujarat Maritime Board and not that of the employees of WALMI or work-charge employees under the respondent no.2 Department. Therefore, the decision of the Hon'ble Court rendered in Special Civil Application no. 12527/2013 dated 06/08/2015 as confirmed by the Hon'ble Division Bench of this Hon'ble Court in Letters Patent Appeal no. 1230/2015 would not be squarely applicable in the case of the petitioner herein.
9. I say and submit that therefore, in light of the averments made hereinabove, the Hon'ble Court may not entertain the present petition. "
5. In the result, this writ application succeeds and is allowed. The respondents are directed to extend the benefits of the recommendations of the 6th Pay Commission with its effective date. The State Government is directed to undertake this exercise within a period of two weeks from the date of the receipt of the writ of the order. The arrears towards the pay scale according to the 6th Pay Commission recommendations shall be worked out and the necessary payment shall be made Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun May 08 03:26:34 IST 2016 C/SCA/16168/2015 ORDER to the petitioners latest by the end of June, 2016. The Government shall start paying the salary from the next month onwards in accordance with the 6th Pay Commission recommendations. The prayer for grant of the arrears with interest is declined.
6. With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun May 08 03:26:34 IST 2016