Gujarat High Court
Manharbhai C Mehta vs Bhavnagar Mahanagarpalika on 9 June, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/11732/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11732 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11811 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11815 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11816 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11914 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11916 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 12414 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 12980 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 15418 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 15419 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MANHARBHAI C MEHTA Versus BHAVNAGAR MAHANAGARPALIKA & 1 other(s) ========================================================== Appearance:
MR DG SHUKLA(1998) for the Petitioner(s) No. 1 Page 1 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENTMR. DHARMESH DEVNANI, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 2 MR HS MUNSHAW(495) for the Respondent(s) No. 1 RULE SERVED BY DS(65) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 09/06/2020 COMMON CAV JUDGMENT
1. The issues involved in all these petitions are similar. They are heard together and are being disposed of by this common judgment.
The facts, as discernible from the record of Special Civil Application no.11732 of 2013 and Special Civil Application no.11811 of 2013, are as under.
2. These petitions are filed under Article 226 of the Constitution of India seeking direction to the respondents to grant the pay scale of Rs.1100-1600 with effect from 3.10.1974 and the pay scales of Rs.3000-4500, Rs.10500-15000 and Rs.15600-39100 revised from time to time as per the 4th Pay Commission, 5th Pay Commission and 6th Pay Commission to the petitioners. Further direction to the respondent no.1 has been sought for, to continue to pay the monthly pension to the petitioners being paid to them at present and holding the action of the respondents, reducing the monthly salary as well as monthly pension of the petitioners and recovery of huge sum as per the impugned orders dated 21.11.2009, 28.2.2013 and 15.6.2013, without authority of law, illegal, unjust and improper and pray to quash and set aside the same.
3. Tersely stated are the facts: -
3.1 The petitioners were appointed/promoted as engineers by the respondent no.1 - Bhavnagar Municipal Corporation (hereinafter referred to as the "respondent Corporation"). The petitioners were lastly serving as executive engineers in the respective divisions with Page 2 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the respondent Corporation. The petitioners after rendering the requisite service have retired from the service on attaining the age of superannuation, that is, 58 years. Petitioner of Special Civil Application no.12414 of 2013 is still in service with the respondent Corporation, while the petition - Special Civil Application no.11914 of 2013 is being prosecuted by the wife of the Sureshbhai S. Pandya who was serving with the respondent Corporation and passed away on 7.9.2001.
3.2 It is the case of the petitioners that the respondent Corporation had passed a resolution revising the pay scales of executive engineers with effect from 1.10.1990 on the lines of pay scales of 4th Pay Commission with retrospective effect; however, the said resolution was not implemented owing to the passing of another resolution dated 18.02.1991 about the pay scales to be given to the engineers. The said resolution was sent for approval of the respondent no.2 - State Government. The respondent Corporation was paying the pay scales as per the resolution dated 18.02.1991 revised from time to time to the executive engineers including the petitioners herein till the date of retirement of the petitioners.
3.3 The State Government vide Government Resolution dated 31.05.1993 approved the pay scales of various categories of officers but did not approve the proposal submitted by the respondent Corporation about the pay-scales of those officers/employees who were given higher pay scales than provided in Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as the "Revision of Pay Rules of 1987). It is the case of the petitioners that the respondent Corporation without application of mind and without properly understanding the contents of the said Government Resolution dated 31.5.1993 decided to reduce the pay scales of the engineers including the petitioners herein; however, it did not reduce the pay scale and continued paying the revised pay scale. The Page 3 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT respondent Corporation had submitted several letters to the State Government to accord its approval as the resolution passed by the respondent Corporation was just, legal and proper. Owing to the decision dated nil.05.2000 of the respondent no.2 - State Government, the respondent Corporation vide order dated 4.11.2000, directed reduction of the pay scale and consequent recovery.
3.4 It is the case of the petitioners that earlier their Union - Shramjivi Kalyan Sangh had raised charter of demands on behalf of 10 executive engineers of respondent Corporation including the petitioners, inter alia, demanding that the petitioners and other similarly situated executive engineers should be given the pay scales at par with State Government executive engineers, that is, Rs.1100-
1600, Rs.3000-4500 and Rs.10500-15000 as per the 3rd, 4th and 5th Pay Commission respectively from the dates from which they were working on the said post of executive engineer. The said industrial dispute came to be referred to the Industrial Tribunal at Bhavnagar (hereinafter referred to as "the Tribunal") being Reference (IT) no. 115 of 2000.
3.5 Being aggrieved by the order dated 4.11.2000 passed by the respondent Corporation, the petitioners and other executive engineers filed Complaints (IT) no.33 to 40 of 2000 in the pending reference before the Tribunal. The Tribunal granted ad-interim relief and the action of the respondent Corporation was stayed. The respondent Corporation challenged the said interim order before this court by preferring Special Civil Application no.87 of 2000, which came to be rejected vide order dated 12.1.2001 with a direction to the Tribunal to pass final order. The said interim order was confirmed by the Tribunal and thereafter, the parties submitted a joint purshis at Exh. 49 dated 02.11.2001 when the respondent Corporation agreed to take necessary action after following due process of law after the decision by the State Government. Accordingly, the said complaints were Page 4 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT withdrawn.
3.6 It is the case of the petitioners that the respondent Corporation once again decided to reduce the pay scales of petitioners and other similarly situated executive engineers by committing breach of the purshis/consent given by the respondent Corporation. The petitioners and other similarly situated employees once again filed Complaint (IT) nos.5 to 12 of 2002 and obtained ad-interim stay from the Tribunal. It was agreed by and between the parties to proceed with only two complaints being Compliant (IT) nos.5 and 9 of 2002 and the decision/order of the Tribunal will be binding in all other complaints and the other complaints were withdrawn. That both the complaints i.e. Complaint (IT) nos.5 and 9 of 2002 were pending before the Tribunal and as agreed between the parties the main matter was to be conducted and therefore, the ad-interim stay granted earlier was not pressed on their behalf.
3.7 It is the case of the petitioners that after about more than 7 years, the impugned order dated 21.11.2009 came to be passed reducing the pay scales of the petitioners and other similarly situated executive engineers. The petitioners and other similarly situated employees, therefore, once again approached the Tribunal and filed Complaint (IT) nos.20 and 24 to 30 of 2010 and obtained ad-interim stay which was confirmed vide order dated 15.03.2011.
3.8 Being aggrieved by the interim order dated 15.03.2011, the respondent Corporation preferred petitions before this court being Special Civil Application no.6968 of 2012 and others. It is the case of the petitioners that the said petitions were preferred after more than about one year and one month and during this period also, neither any recovery was made nor any reduction in the salary/pension was made by the respondent Corporation. This court vide common order dated 11.05.2012 dismissed the said petitions with certain observations and directions, which was challenged by the respondent Page 5 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT Corporation by preferring Letters Patent Appeal no.988 of 2012 and other Letters Patent Appeals. The Division Bench of this court vide order dated 19.12.2012 allowed the Letters Patent Appeals with a direction to the Tribunal to decide the preliminary issue as to whether the executive engineer would fall within the definition of "workman" and would be covered within the purview of the Industrial Disputes Act, 1947.
3.9 The Tribunal vide order dated 04.03.2013 dismissed the Complaints (IT) nos.20, 24 to 30 of 2010 in Reference (IT) no. 115 of 2000 holding that the engineers are not "workman" within meaning of Section 2 (s) of the Industrial Dispute Act, 1947. The Union on behalf of the petitioners and others had submitted purshis at Ex.94 to withdraw the main Reference, that is, Reference (IT) no. 115 of 2000 on 09.07.2013 and the Tribunal vide order dated 09.07.2013 permitted the Union of the petitioners to avail appropriate remedy ventilating their grievances before the appropriate forum.
3.10 Hence, the present group of petitions by the petitioners with the aforementioned prayers.
4. The present petitions are opposed by the respondent Corporation as well as by the respondent no.2 - State Government taking the following stand respectively.
4.1 In the affidavit-in-reply filed by the respondent Corporation in Special Civil Application no.11811 of 2013, it is stated that on 18.2.1991, the respondent Corporation had issued a resolution, inter alia, revising the pay scales of the officers as payable under the 4th Pay Commission for the period from 1.1.1986 to 1.10.1990 and higher pay scale as indicated therein. On 28.2.1991, the Commissioner issued office order for implementation of the resolution dated 18.2.1991. The said resolution was forwarded to the respondent no.2 - State Government on 2.7.1991 for its approval.
Page 6 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT4.2 On 31.5.1993, the respondent no.2 - State Government passed a resolution permitting limited revision of the pay scales only with respect to seven categories excluding the revision of pay scales suggested for the posts on which the petitioners were working. It also informed the respondent Corporation to withdraw any additional pay over and above the pay scales prescribed as per the Revision of Pay Rules of 1987. The officers of the Corporation including the petitioners submitted a representation with a request to make applicable the pay scales to such engineers inasmuch as, the engineers were not covered within the definition of "workman".
4.3 Accordingly, the respondent Corporation on 10.9.1993 issued a revised resolution with a view to revising the pay scale of the Officers of the post including the petitioners and thereafter, on 22.10.1993, the respondent Corporation approached the respondent no.1 - State Government for approval of the revised resolution. It is also the case of the respondent Corporation that in furtherance of the proposal dated 22.10.1993, the respondent Corporation followed up the matter with the State Government and as a result whereof, somewhere in the month of May, 2000 the State Government decided to implement 5th Pay Commission benefits on scale to scale basis. It is the case of the respondent Corporation that the respondent no.2 - State Government directed implementation of the Government Resolution dated 31.5.1993 and therefore, impliedly the application for increase in pay scales of the petitioners and other similarly placed employees stood rejected.
4.4 According to the respondent Corporation, in the intervening period, that is, on 2.1.1995, an order no.C.P.O./1/1684/95 was passed with the consent of the petitioners and similarly placed officers for change in the designation of such officers. It is the case of the respondent Corporation that the said order was specifically limited to change in the designation of such officers including the petitioners. As Page 7 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT a result whereof, the posts of engineers of the technical staff came to be re-designated as executive engineer.
4.5 Pursuant to the communication dated nil.05.2000, on 4.11.2000, the Commissioner of the respondent Corporation passed an order for reduction in the pay scales, against which the petitioners through their Union had filed a Reference (IT) no.115 of 2000 before the Tribunal seeking the payment of differential amount by implementing 3rd, 4th and 5th Pay Commission i.e. the pay scale of Rs.1100 - 1500, Rs.3000-4500 and Rs.10500-15000 respectively. It is further case of the respondent Corporation that the consensus was arrived at between the petitioners and the respondent Corporation and it was agreed that the respondent Corporation will follow whatever decision is taken by the State Government for revision of the pay scales of the petitioners. On 3.11.2008, the respondent no.2 - State Government rejected the revised proposal dated 18.5.2001 of the respondent Corporation.
4.6 After the rejection of the proposal dated 18.5.2001 of the respondent Corporation by the respondent no.2 - State Government on 3.11.2008, it passed a consequential order dated 21.11.2009 reducing the pay scales and recovery of the excess payment made. Being aggrieved, the petitioners through their Union preferred an interim application before the Tribunal and the Tribunal, granted the stay against the implementation of the order dated 21.11.2009. The said order passed by the Tribunal was challenged before this court unsuccessfully and in the intra court appeal, this court directed the Tribunal to first decide the preliminary issue as to whether the petitioners can be said to be a "workman" within the definition of section 2(s) of the Industrial Disputes Act, 1947.
4.7 Since the petitioners were not falling within the definition of "workman", the Reference (IT) no.115 of 2000 came to be withdrawn on 9.7.2013 and it is thereafter that the petitioners preferred the Page 8 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT captioned writ petition. It is the case of the respondent Corporation that the pay scales demanded by the petitioners cannot be granted inasmuch as, the nature of work as well as the job description differ. It is further the case of the respondent Corporation that the petitioners would not be entitled for higher pay as prayed for considering the fact that the State Government has not sanctioned the pay scales and thus, consequential benefits granted to the petitioners are required to be rectified and consequential recovery from the petitioners.
4.8 Further affidavit-in-reply has been filed narrating the sequence of events starting from the passing of the resolution dated 18.2.1991. While reiterating, it is stated that the respondent Corporation had passed a resolution on 18.2.1991 granting benefits of the pay scales as per the recommendation of the 4th Pay Commission and according to the said resolution, the engineers of the Water Works Department, Drainage Department, Electricity Department etcetera were to be paid a pay scale of Rs.2200-4000 for the period from 1.1.1986 to 30.9.1990 and the pay scale of Rs.2500-4200 with effect from 1.10.1990. As stated in the earlier paragraphs, it is reiterated by the respondent Corporation that the Municipal Commissioner had passed an order on 28.2.1991 granting the benefits of the revised pay scale subject to the approval of the respondent no.2 - State Government. A proposal was forwarded to the respondent no.2 - State Government on 2.7.1991. The respondent no.2 - State Government passed a resolution on 31.5.1993 granting the permission in part and also instructed to recover the benefits from the concerned officers/ employees who have been paid in excess of the Revision of Pay Rules of 1987. It is the case of the respondent Corporation in the further affidavit that so far as the executive engineers were concerned, pay scale of Rs.2200-4000 as against the pay scale of 700-1300 as per the recommendation of the 3rd Pay Commission, was instructed to be paid. In other words, the pay scales of Rs.2500-4200 released by the Page 9 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT Administrator of the respondent Corporation with effect from 1.10.1990 was to be withdrawn and the concerned engineers were to be placed in the pay scale of Rs.2200-4000 with a recovery of the differential amount. It is further stated that the Administrator of the respondent Corporation issued another resolution on 10.9.1993 revising the pay scales of the concerned Officers with effect from 1.10.1990. According to the said resolution, the petitioners were continued in the pay scale of Rs.2500 - 4200, instead of Rs.2200 - 4000.
4.9 The respondent Corporation once again had sent a proposal dated 21.10.1993 to the respondent no.2 - State Government for appropriate decision followed by various reminders; however, the State Government issued a communication dated nil.05.2000 rejecting the proposal and directed the respondent Corporation to implement the Government Resolution dated 31.5.1993. In view of the communication dated nil.05.2000 issued by the respondent no.2 - State Government, the respondent Corporation passed an order dated 4.11.2000 for modification of the pay scale; however, the said order dated 4.11.2000 could not be implemented due to the pendency of the proceedings before the Tribunal and before this court.
4.10 It is further stated that the respondent Corporation had sent another detailed proposal dated 18.5.2001 to revise the pay scales of various posts including the post of executive engineer. As per the said proposal, the pay scales proposed for the posts of engineers was Rs.8500-14000. The said proposal was followed by a reminder letter dated 24.5.2006, inter alia, requesting to sanction the pay scales of Rs.8500-14100 to the engineers (re-designated as executive engineers in the year 1995). It is the case of the respondent Corporation that the proposal dated 18.5.2001 came to be rejected by the respondent no.2
- State Government vide communication dated 3.11.2008 and thereafter, the respondent Corporation passed an order dated Page 10 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT 21.11.2009 revising the pay scales of the concerned officers including the petitioners and also directing the recovery from the arrears payable to them on release of the benefits as per the recommendation of the 6th Pay Commission. It has been stated in the further affidavit that pay scale of Rs.9300- 34800, Grade Pay Rs.5400 was adopted on the basis of 6th Pay Commission for executive engineer working with the respondent Corporation with effect from 1.1.2006.
4.11 Considering the pay scales of the executive engineers working with other Municipal Corporations, various representations were made and on the basis whereof, a proposal dated 24.10.2017 was made to the respondent no.2 - State Government seeking revision of the pay scales for the said post. The respondent no.2 - State Government accepted the proposal dated 24.10.2017 of the respondent Corporation and permitted the revision of pay scales of the executive engineers from Rs.9300-34800, Grade Pay Rs.5400 to Rs.15600-39100, Grade Pay 5400 and pay scale of Rs.56100- 1,77,500 as per the 7th Pay Commission, and accordingly, a resolution dated 3.1.2019 came to be issued. As per the said resolution dated 3.1.2019 passed by the Urban Development and Urban Housing Department of the respondent no.2 - State Government, the approval was granted without incurring any burden upon the State Government. It is further submitted that the petitioners having been retired on attaining the age of superannuation, are not entitled to the benefit of the Government Resolution dated 3.1.2019. It is thus urged that the writ petition be dismissed in limine with costs.
5.1 The respondent no.2 - State Government has also filed an affidavit-in-reply opposing the writ petitions. It is stated that apropos the direction of this court, the resolution dated 3.1.2019 passed by the Urban Development and Urban Housing Department fixing the pay scales of the executive engineers of the respondent Corporation, has been placed on record. It is stated that the resolution has been Page 11 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT passed by the Urban Development and Urban Housing Department in view of the provisions of sub-section (4) of Section 51 of the Gujarat Provincial Municipal Corporation Act, 1949 upon certain terms and conditions. According to the said Government Resolution dated 3.1.2019, it will be the respondent Corporation who will bear the expenses and the same would be applicable to the executive engineers who have been appointed by valid recruitment process/promotion. It is stated that the respondent Corporation has passed a resolution no.55 dated 17.10.2017 sanctioning the pay scale; removing the anomaly in the pay scale of executive engineers working with the respondent Corporation. It is further stated that the proposal dated 24.10.2017 of the respondent Corporation indicates that the pay scale of executive engineers and deputy executive engineers being same, it required a change. Accordingly, it has been resolved by the respondent Corporation that the pay scales of the executive engineers should be fixed as per the 5th Pay Commission at Rs.15600 - 39100, Grade Pay Rs.5400 instead of Rs.9300 - 34800, Grade Pay Rs.5400. The said proposal clearly indicates that the said is subject to the final decision of the State Government.
5.2 While referring to the earlier chain of events, it is stated that the engineers of various departments were given the pay scale of Rs.700 - 1300 as per the 3rd Pay Commission and after coming into force of the 4th Pay Commission and extending the benefit on scale to scale basis, again the pay scale of Rs.700 - 1300 was revised to Rs.2200 - 4000. It is stated that despite the fact that the pay scale of Rs.700 - 1300 was revised to Rs.2200 - 4000, the respondent Corporation wrongly granted the pay scale of Rs.2500 - 4200 to the engineers with effect from 1.10.1990 without any permission of the State Government.
5.3 It is further stated that proposal of the respondent Corporation which was sent to the respondent no.2 - State Government on 2.7.1990 for sanctioning the pay scale which has been approved by Page 12 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the Commissioner of the respondent Corporation came to be turned down by issuance of the Government Resolution dated 31.5.1993. In fact, it has been observed in the Government Resolution dated 31.5.1993 issued by it, that the employees who were receiving more salary than what has been prescribed as per the Revision of Pay Rules of 1987, was required to be recovered. It is thus stated that the resolution dated 31.5.1993 is clear wherein, the State Government has rejected the proposal of the respondent Corporation with a further direction to recover the salary paid in excess.
5.4 It is stated that though the respondent no.2 - State Government has vide its resolution dated 31.5.1993 refused to sanction the pay scale of Rs.2500 - 4200, the respondent Corporation neither took any action for recovery nor has changed the pay scales from Rs.2500 - 4200 to Rs.2200 - 4000. It is further stated that the State Government through its Urban Development and Urban Housing Department once again rejected the proposal vide its letter dated 3.11.2008 and therefore, the pay scales which ought not to have been granted to the engineers of the respondent Corporation has been granted by it in anticipation of the approval of the State Government which was rejected by the State Government way back in the year 1993. It is stated that the financial condition of the respondent Corporation was not sound and therefore, the proposal of the respondent Corporation was rejected by the respondent no.2 - State Government in the year 1993.
5.5 It is further stated that the petitioners are claiming parity with the executive engineers working with other Corporations as well as the State Government which is not permissible inasmuch as, the executive engineers working with the State Government have been appointed after following the Recruitment Rules; whereas, the respondent Corporation is concerned, the petitioners have been appointed without following any Recruitment Rules, but on the basis Page 13 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT of the rules of the respondent Corporation.
5.6 It is further stated that the recommendation of the 6th Pay Commission has been implemented by the respondent Corporation with effect from 1.4.2010; whereas, it has been implemented by the State Government with effect from 1.1.2006 and thus, it may also happen that the different Corporations have adopted the same with different dates and everything is dependent upon the financial condition of the respective Corporations.
5.7 It is lastly stated that when the respondent no.2 - State Government has refused to sanction the pay scale of Rs.2500-4200 way back in the year 1993, the respondent Corporation continued the same though the executive engineers, that is, the petitioners were not entitled for the said pay scales. The pay scale as per the Revision of Pay Rules of 1987 was Rs.2200-4000 against the pay scale of Rs.700- 1300 and therefore, the fixation of the pay scale of Rs.9300-34800 along with Grade Pay of Rs.5400 was in consonance with the revision of pay rules. It is thus prayed that the petitions deserve to be rejected without grant of any relief.
6. Mr. D.G. Shukla, learned advocate for the petitioners submitted that the petitioners since inception, were pursuing the grievance and that there is no delay or inaction on the part of the present petitioners in seeking redressal of their grievances for extending the benefit of revised pay scale.
6.1 It is submitted that in the year 2000 itself, the petitioners have raised the dispute under the provisions of Industrial Disputes Act, 1947. Attention was invited to the order dated 19.10.2000 wherein, the Labour Commissioner in exercise of its power under Section 10(1) of the Industrial Disputes Act, 1947 has referred the dispute to the Labour Court. The reference was as to whether the petitioners and other executive engineers can be given the pay scale of Rs.900-1500, Page 14 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT Rs.3000-4500 and Rs.10500-15000 at par with the executive engineers of the State Government?
6.2 Learned advocate for the petitioners further submitted that the Bhavnagar Municipal Corporation has vide its proposal dated 01.10.1990 sanctioned the pay scale of Rs.3000-4500 to the engineers as per the 4th Pay Commission and the said proposal was given effect from 01.10.1990. It is then submitted that thereafter the respondent Corporation had prepared another proposal dated 18.02.1991, inter alia, observing that the pay scale as has been suggested vide Resolution dated 01.10.1990 required reconsideration. It is further submitted that as per the revised pay scale, the executive engineers (Water Works) and another were suggested revised pay scale of Rs.3000-4500 instead of Rs.2500-4200. Similarly, the water works engineers and other cadres mentioned at serial no.3 were suggested the revised pay scale of Rs.2500-4200 instead of Rs.2200-4000. It is further submitted that all the cadres mentioned at serial No.3 were re- designated as executive engineers. It is further submitted that it has been resolved in the said proposal that the revised pay scale mentioned in column no.5 shall be made effective from 01.01.1990 and the officers shall be paid arrears for the period from 01.01.1986 to 30.09.1990 as per the Revision of Pay Rules of 1987.
6.3 That the revised pay scale was to come into effect from 01.10.1990. It is submitted that in view of the proposal approved by the respondent Corporation, the petitioners ought to have been granted the revised pay scale with effect from 01.10.1990 and instead of Rs.3000-4500, the petitioners were granted the pay scale of Rs.2500-4200. It is submitted that if the respondent Corporation wanted to revise the pay scale of Rs.3000-4500 which was given to the petitioners, the respondent Corporation ought to have given an opportunity of hearing to the petitioners to enable them to place on record their say.
Page 15 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT6.4 Attention has been invited of this court to the order dated 21.11.2009 passed by the Municipal Commissioner and it is submitted that the respondent Corporation, while rectifying the pay scale of the petitioners, placed the petitioners in the pay scale of Rs.2200-4000 as per the 4th Pay Commission with effect from 01.01.1990 and in the pay scale of Rs.8000-13500 as per the 5th Pay Commission with effect from 01.01.1996. It is further submitted that the decision has been taken that the recovery be initiated against the officers for the excess payment which has been paid owing to the revised pay scale extended to the petitioners.
6.5 It is submitted that thereafter on 28.02.2013, the respondent Corporation had issued a Circular as per the instructions by the State Government in its Urban Development and Urban Housing Department vide its letter dated 03.11.2008 whereby the respondent no.2 - State Government has rejected the proposal of the respondent Corporation for extending the pay scale of 4th Pay Commission at par with the pay scale of the employees working with the State Government. It is further submitted that the petitioners have retired way back and by the said circular, the State Government has issued direction to re-fix the pension and recovery has been directed to be effected from the pension being paid to the petitioners.
6.6 It is further submitted that a bare perusal of the Government Resolution dated 31.05.1993 suggests that the State Government though has approved the pay scale with modification with respect to the seven cadres, it has not stated anything with respect to the pay scale of the petitioners. It is further submitted that the respondent Corporation has while sanctioning the proposal on 18.02.1991 has taken a conscious decision of granting pay scale with effect from 01.10.1990. It is submitted that wherever the State Government wanted to modify it has modified the pay scale; however, the pay scale of category of other engineers has not been touched. Thus, revised pay Page 16 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT scale granted by the respondent Corporation to the engineers has been retained and approved by the State Government. It is further submitted that while reducing the pay scale of some of the categories mentioned in the Government Resolution dated 31.05.1993, it is nowhere stated that the pay scale of the category of engineers has been reduced.
6.7 It is further submitted that thereafter in the interregnum correspondences were exchanged between the State Government on the one hand and the respondent Corporation on the other and ultimately the respondent Corporation on 04.11.2000 came out with the letter, inter alia, directing that as per the instructions dated 12.02.1998, the officers concerned be paid salary on scale to scale basis. It is further submitted that it is thereafter the petitioners approached the Tribunal and on assurance given by the respondent Corporation before the Tribunal that they will not effect any deduction in the salary of the employees except after following the due process of law while implementing the decision of the State Government, that the petitioners withdrew the Complaints no.36/2000 to 40/2000.
6.8 It is further submitted that so far as the Jamnagar Mahanagar Palika is concerned, it has fixed the pay scale of Rs.10000-325-15200 of the executive engineer and the said pay scale has been sanctioned by the State Government. It is further submitted that Jamnagar Mahanagar Palika has created the post of Executive Engineer (Environment) and the State Government has sanctioned the said post of the Executive Engineer (Environment) vide Government Resolution dated 12/13.05.2005 in the pay scale of Rs.10000-325-15200 at par with the executive engineers working with the State Government. Similarly, the Junagadh Mahanagar Palika has also created three posts namely Deputy Commissioner, Executive Engineer and Town Planning Officer, which have also been sanctioned by the State Government vide Government Resolution dated 19.04.2003. It is Page 17 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT further submitted that the pay scales of, namely, Rs.8000-14550 for the post of Deputy Commissioner; Rs.10000-15200 for the post of Executive Engineer and Rs.12000-16500 for the post of Town Planning Officer have been sanctioned.
6.9 Learned advocate for the petitioners further submitted that the State Government in its Urban Development and Urban Housing Development Department, vide Government Resolution dated 21.04.2007 has approved the post of Executive Engineer created by the respondent Corporation and the pay scale of Rs.8500-14000 has been sanctioned for the post of Executive Engineer (Project). Thus, it is submitted that all the while the State Government has sanctioned the pay scale of the executive engineers at par with the pay scale admissible to the executive engineers working with the State Government barring the petitioners. It is further submitted that when the State Government has sanctioned the pay scale to the executive engineers working with the respondent Corporation, at par with the pay scale admissible to the employees of the State Government, there arises no question of recovery. It is further submitted that on the contrary, the petitioners were entitled for particular pay scale inasmuch as, it is the respondent Corporation itself who had vide its letters dated 18.5.2001 and 24.05.2006 pointed out to the State Government, the anomaly existing in the pay scales of executive engineers. It is further submitted that it is the case of the respondent Corporation that the deputy executive engineers are getting the pay scale of Rs.8000-13500 whereas, owing to non-acceptance of proposal, the pay scale of the executive engineers, both the cadres, namely, deputy executive engineer and executive engineer are placed in the same pay scale of Rs.8000-13500. It is further submitted that the respondent Corporation is also of the opinion that compared to the pay scale of the executive engineers working with the Jamnagar and Junagadh Municipal Corporations, the pay scale of the executive engineers working with the respondent Corporation is unequal Page 18 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT inasmuch as, the executive engineers working with the Jamnagar and Junagadh Municipal Corporations are receiving pay scale of Rs.10000-15200 sanctioned by the State Government whereas, the pay scale of the executive engineers is Rs.8000-14100.
6.10 Further reliance has been placed on the affidavit-in-reply of the respondent Corporation to submit that the office order was passed on 21.11.2009 rejecting the proposal of the respondent Corporation of revising the pay scale by removing the anomaly and further reduction of the pay scale. It is submitted that in the absence of any evidence much less any material available on record, the decision could not have been taken. It is further submitted that there is nothing on record to suggest that the petitioners were being paid higher pay scale than the pay scale provided in the revision of pay. There is no decision on this aspect as to how the petitioners are being paid higher pay scale than the pay scale provided in the revision of pay. It is further submitted that the decisions taken by the respondent Corporation and the State Government are in violation of principles of natural justice.
6.11 It is further submitted that the respondent Corporation itself has admitted that there is an anomaly in the pay scale of the executive engineers working with the respondent Corporation vis-à-vis the executive engineers working with the various Corporations, namely, Junagadh, Jamnagar etcetera. In support of the said contention, the learned advocate for the petitioners relied upon the following statement detailing the pay scales of the executive engineers working with the Surat Municipal Corporation, Vadodara Municipal Corporation, Jamnagar Municipal Corporation and Junagadh Municipal Corporation etcetera.
Sr. Department-Post 3rd Pay 4th Pay 5th Pay 6th Pay No Comm. Comm. Comm. Comm. Page 19 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT
1 Executive Engineer 1100-1600 3000-4500 10000-15200 15600-39100 (Roads & Bldg) 2 Executive Engineer 1100-1600 3000-4500 10000-15200 15600-39100 (Irrigation) 3 Executive Engineer 15600-39100 Municipal Corp.
Surat 4 Executive Engineer 15600-39100 Municipal Corp.
Vadodara
5 Executive Engineer 3000-4500 10000-15200
Municipal Corp. Govt. GR Govt. GR-
Jamnagar 22/4/1991 12/5/2005
6 Executive Engineer 10000-15200
Municipal Corp. Govt. GR-
Junagadh 19/4/2003
7 Executive Engineer 8500-14000 15600-39100
(Project) Govt. GR
Municipal Corp. 21/4/2007
Bhavnagar
6.12 While referring to the letter dated 28.2.1991/02.03.1991, learned advocate for the petitioners submitted that the proposal, which was sent by the respondent Corporation was indicating only seven categories and only qua those categories, the State Government has given its approval. It is clear from the said Office Order that except seven categories, sanction for other categories was not sought for by the respondent-Corporation.
6.13 It is further submitted that vide proposal dated 18.02.1991 of the Administrator - respondent Corporation, the proposal relating to the engineers mentioned at Sr. no.3 was for enhancement of the pay scale to Rs.2500-4200. It is further submitted that what was granted was pay-scale of Rs.2500-4200 instead of Rs.3000-4500. It is further submitted that the grievance is that firstly the executive engineers should have been placed at par with the executive engineers working with the State Government and other corporations, and secondly, recovery effected by the corporations should not be implemented.
6.14 While reiterating submissions, the learned advocate for the Page 20 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT petitioners submitted that the State Government, vide the Government Resolution dated 31.05.1993, did not effect any reduction and the proposal so far as the executive engineers are concerned, was never sent to the State Government, inasmuch as, neither approval was sought for nor any permission was required by the State Government. It is further submitted that during the 6 th Pay Commission, the executive engineer has been extended the benefit of Rs.15600-39100 plus grade-pay Rs.5400. It is further submitted that the aforesaid grade has been granted to all the executive engineers vide Government Resolution dated 03.01.2019 and thus, there was no occasion to reduce the pay-scale of the executive engineers.
6.15 It is further submitted that apropos the Government Resolution dated 03.01.2019 issued by the State Government in its Urban Development and Urban Housing Department, it has passed the consequential order dated 19.01.2019 and extended the benefit of the rectified pay scale to the employees of the respondent Corporation. It is further submitted that under the circumstances, the pay scale extended to the petitioners should not have been reduced and consequently, no recovery should have been effected. It is further submitted that the petitioners should have been extended the pay scale, as contained in the proposal dated 18.02.1991, as approved by the corporation. It is further submitted that the said pay scales were not extended mistakenly and thus, there arises no question of recovery of the pay-scale.
6.16 Reliance has been placed on the judgment of the Apex Court in the case of Bhagwan Shukla S/o. Sarabjit Shukla vs. Union of India reported in (1994) 6 SCC 194. While referring to paragraph 3 of the said judgment, it is submitted that the basic pay of the appellant therein was reduced retrospectively, without granting any opportunity of hearing. The Apex Court, while allowing the Special Leave Petition, quashed and set aside the order effecting recovery on the ground that Page 21 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the appellant therein has been visited with civil consequences without granting any opportunity to show cause against the reduction of the basic pay.
6.17 Learned advocate for the petitioners has further relied upon the judgment of this court in the case of Mukeshbhai Jaswantrai Joshi vs. Bhavnagar Municipal Corporation reported in 2011 (3) GCD 2601. It is submitted that in the similar circumstances, the petitioner therein was given the benefit of higher pay-scale for more than three years. That the respondent Corporation issued an order, whereby the pay scale which was revised from Rs.5500-9000 to Rs.8000-13500, in respect of all the employees, who have been given the said benefit, was required to be corrected. The impact of the said order was that the employees concerned were entitled to the pay scale on lower side and not the pay scale which was extended. It was consequent to the said order passed by the respondent Corporation, recovery of the excess amount was directed. It is accordingly submitted that this court has observed that in view of the settled position of law that no order resulting infliction of civil consequences should be passed against the person without affording him a reasonable opportunity of hearing. It is further submitted that in the present case also, no opportunity was afforded to the petitioners before passing the order dated 21.11.2009 effecting recovery of huge amount from the petitioners.
6.18 The learned advocate for the petitioners relied upon the judgment of the Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334. Reliance has been placed to contend that where the payments have been mistakenly made by the employer; recoveries by the employer would be impermissible in law in the situation postulated therein. It is further submitted that the recovery from retired employees or employees, who are due to retire within one year of order of recovery has been held to be impermissible amongst other factors.
Page 22 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT6.19 Reliance has been placed on the judgment in the case of Kalpanaben C. Modi and Anr. vs. Ahmedabad Municipal Corporation in Special Civil Application no.71335 of 2008 and another to contend that this Honourable Court while extending the benefit to the Junior Legal Assistant at par with the Labour Welfare Officer held that the benefits would be payable not from the subsequent date but from the respective dates of appointment.
6.20 The learned advocate for the petitioners then relied upon the judgment of this Court in the case of Bhavnagar Municipal Corporation vs. Rajnikant Jamnadas Jani rendered in Letters Patent Appeal no.720 of 2017 in Special Civil Application no.3790 of 2012 which was dealing with the very similar resolution of the State Government dated 31.05.1993. While placing reliance upon paragraph-8 of the said judgment, it is submitted that the view taken by the learned Division Bench may be followed in the present case also and recovery from 01.01.1990 may not be effected.
6.21 Reliance has been placed on the judgment in the case of Girishbhai Jivrajbhai Dave vs. Bhavnagar Municipal Corporation and another rendered in Special Civil Application no.13928 of 2011. It is submitted that the learned single Judge of this court, while placing reliance on the judgment in the case of Bhavnagar Municipal Corporation vs. Rajnikant Jamnadas Jani (supra), has allowed writ petition. It is submitted that as per the judgment, it has been held that if the respondent, that is, Bhavnagar Municipal Corporation had actually withheld any amount or recovered any amount on the basis of the order refusing pension, such arrears was directed to be refunded.
6.22 Reliance was placed on the judgment of the Apex Court in the case of Union of India vs. Satya Brata Chowdhury and Ors. reported in (2008) 16 SCC 383, to contend that if the benefits are extended, the Page 23 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT beneficiaries should not be subjected to differential treatment. It is submitted that in view of the principles laid down in the said judgment it is impermissible to treat the similarly situated employees differently.
6.23 Mr. D.G. Shukla, learned advocate for the petitioners while concluding the submissions, urged that the petitions deserve to be allowed and reliefs as prayed for may be granted and the order effecting recovery passed by the respondent Corporation may be quashed and set aside and also the consequential orders.
7. Mr. Kuldeep Vaidya, learned advocate on behalf of the petitioner in Special Civil Application no.15418 of 2017, submitted that, initially, the petitioner herein was granted the pay scale of Rs.2200- 4000 as per the 4th Pay Commission for the various posts held by him from the period from 2.3.1991 to 22.10.1997. It is further submitted that the petitioner was promoted to the cadre of Assistant Commissioner/Vigilance Officer/Tax Officer with effect from 22.10.1997 and was granted the pay scale of Rs.2500-4200 as per the 4th Pay Commission and on implementation of the 5th Pay Commission, was upgraded to the scale of Rs.8500-14100. It is further submitted that by the orders under challenge, the pay scale of the petitioner has been reduced/re-fixed with retrospective effect to Rs.2200-4000 as per the 4th Pay Commission and Rs.8000-13500 as per the 5th Pay Commission.
7.1 It is further submitted that the petitioner along with other similarly situated officers had made a representation dated 16.9.2002, inter alia, requesting the respondent Corporation to rectify the anomaly in the pay scale. It is further submitted that the respondent Corporation had given assurances to the petitioner on many occasions on the ground that the issue is pending with the State Government and therefore, the petitioner was waiting for the issue to be resolved Page 24 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT amicably without entering into litigation; however, no decision was taken by the authorities and on the contrary, recovery of Rs.74,949/- has been ordered to be effected from the petitioner. It is next submitted that the said order has been passed without offering to the petitioner any opportunity of hearing and thus, the same is in violation of principles of natural justice.
7.2 It is further submitted that from the contents of letter dated 24.10.2017 addressed by the respondent Corporation to the respondent no.2 - State Government, it is clear that there existed an anomaly in the pay scales of the officers of the respondent Corporation and the post held by the petitioner, at the relevant point of time, is also included therein. That as per the said communication, the pay scales of the officers of Bhavnagar Municipal Corporation, including the petitioner, are not at par with the pay scales of officers working with other Corporations in the State. It is then submitted that in spite of the aforesaid communication dated 24.10.2017 of the respondent Corporation, the respondent no.2 - State Government has not taken any steps to rectify the anomaly in the pay scale of the petitioner.
7.3 While referring to the facts of Special Civil Application no.15419 of 2017, learned advocate Mr. Kuldeep Vaidya submitted that the petitioner was granted the pay scale of Rs.3000-4500 as per the 4 th Pay Commission for the post of city engineer and on implementation of the 5th Pay Commission was granted the scale of Rs.10000-15200. It is next submitted that by way of the orders under challenge, the pay scale of the petitioner was reduced/re-fixed with retrospective effect. The pay scale of Rs.10000-15200 has been reduced to Rs.8500-14100 and the pay scale of Rs.3000-4500 has been reduced to Rs.2500- 4200. Except this, Mr. Vaidya, learned advocate for the petitioner reiterated the submissions made in Special Civil Application no.15418 of 2017.
Page 25 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT8. Mr. Dharmesh Devnani, learned Assistant Government Pleader for the respondent-State, submitted that the respondent Corporation has forwarded approval in the year 1991 under the provisions of sub- section (4) of Section 51 of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Corporation Act of 1949"). It is submitted that feasibility and viability of the proposal was assessed threadbare and it is only thereafter that the proposal was sanctioned by the State Government exercising the powers under the provisions of the Corporation Act of 1949. It is submitted that there was a proposal and the State Government has assessed the viability and feasibility and it is only thereafter that the proposal was sanctioned.
8.1 Learned Assistant Government Pleader relied upon the affidavit- in-reply and submitted that the petitioners were working as engineers in the grade of Rs.700-1300 as per the 3 rd Pay Commission and consequent upon the revision of pay in the year 1986, pay scale of Rs.700-1300 was revised to Rs.2200-4000. That the resolution was passed on 18.2.1991 and that the respondent Corporation made a proposal dated 2.7.1991 to the respondent no.2 - State Government which came to be granted by the State Government vide Government Resolution dated 31.5.1993. The State Government has sanctioned the revised pay scales for other posts except the posts of engineers and it has been observed that if the officers/employees are receiving more salary - pay scale other than the pay scales prescribed in the Revision of Pay Rules of 1987, the same shall be recovered. It is submitted that the State Government has rejected the proposal of the respondent Corporation for revision of the pay scale qua other officers including the engineers. It is further submitted that what weighed with the State Government while refusing the revision was the weak financial condition of the respondent Corporation.
8.2 While inviting attention of this court to the various letters Page 26 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT issued by the State Government, it is submitted that the State Government has been consistent in rejecting the proposals of the respondent Corporation and thus, it is not open for the petitioners to contend that the petitioners were pursuing the grievance with the respondent Corporation and thus the delay in approaching the court should not come in their way. It is further submitted that it is impermissible to the petitioners to argue that the proposal of revision of pay scale, so far as the post of executive engineer is concerned, was never sent to the State Government. It is further submitted that as per Government Resolution dated 31.05.1993, so far as the seven categories are concerned, the State Government has modified the pay scale and for rest of the officers/employees, it has been clarified that the officers/employees who have been extended the pay scale beyond the Revision of Pay Rules of 1987, the same should be recovered. It is further submitted that in view of the decision of the State Government taken way back in the year 1993 followed by subsequent decision rejecting the proposal of the respondent Corporation for grant of revised pay scale, the petitioners cannot be extended any benefit. It is further submitted that the State Government has examined the pros and cons of the proposal and after considering, the decision has been taken not to extend the benefit of revised pay scale to the petitioners.
8.3 It is further submitted that the Government Resolution dated 3.1.2019 was issued considering the present financial position of the respondent Corporation. Reliance has been placed on the judgment of the Apex Court in the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh reported in (2016) 14 SCC 267. It is submitted that the judgment relied upon by the petitioners in the case of State of Punjab vs. Rafiq Masih (White Washer) (supra) is not applicable and even if excess payment has been made, recovery can be made even from the pension.
8.4 Learned Assistant Government Pleader submitted that sanction Page 27 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT granted by the State Government vide Government Resolution dated 03.01.2019 is applicable from the date on which it has been sanctioned and it will not have any retrospective operation. The benefit of the Government Resolution dated 03.01.2019, will be extended only to the executive engineers working in the Corporation. It has been submitted by Mr. Dharmesh Devnani, learned Assistant Government Pleader that financial strength of the respondent Corporation was not sound in the year 1993. So was not the position, in the year 2019. It is further submitted that the decision which was taken in the year 2008 apropos the proposal of the respondent Corporation dated 18.05.2001, that was because of the fact that in the interregnum communications were exchanged between the State Government on the one hand and respondent Corporation on the other. The State Government has followed up the matter with the respondent Corporation and necessary instructions were issued by the State Government to the respondent Corporation when it was found that the pay scale has been extended in excess which could not have been extended. It is thus urged that petitions being devoid of any merits, deserve to be rejected.
9. Mr. H.S. Munshaw, learned advocate for respondent Corporation, at the outset, submitted that the fixation of the pay scale of the employees is always subject to the approval of the State Government. In the present case, since the elected body, that is, general body was not available, the Administrator of the respondent Corporation had taken a decision subject to the approval of the State Government. It is further submitted that during the pendency of the approval, the benefit of revised pay scale was granted to all the employees/officers; however, it was made clear that the said benefit would be subject to the final approval of the State Government. It is further submitted that the demand of the petitioners claiming parity with the executive engineers working with Junagadh Municipal Corporation and Jamnagar Municipal Corporation is misplaced and Page 28 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT devoid of any merits inasmuch as, each respondent Corporations are independent legal entities and each Corporations determine its pay scales on the basis of nature of job, workload, financial conditions, etcetera.
9.1 It is further submitted that as is evident from the Government Resolution dated 31.05.1993, the State Government has approved the revised pay scale only qua seven categories and for rest of the officers/ employees, it has directed to the respondent Corporation to give the benefit on scale to scale basis and if any excess amount has been paid, to recover the same. It is further submitted that at no point of time, the proposal of the respondent Corporation for revision of pay scale was accepted and the same has been accepted only for the 7th Pay Commission. It is further submitted that only because there is similarity of the post, the pay scale cannot be granted. Disparity in the organization is impermissible; however, if there is disparity in the same organization, it can be said that there is an anomaly, but if the employees are in different organization, parity cannot be claimed and it cannot be said that there is an anomaly in the pay scales of the employees of a particular post working in the various Corporations. Apropos the representation dated 24.11.1994 from Bhavnagar Palika Officers Association, that various cadres pertaining to the executive engineers were re-designated in the year 1995 and that prior to 1995, the executive engineers were having different designation. It is submitted that the petitioners have not produced or pointed out anything to substantiate that the executive engineers working with the respondent Corporation are at par with the executive engineers working with other corporations; performing similar duties as being performed by the executive engineers working with other Corporations.
9.2 It is submitted that the respondent Corporation has no power to revise the pay scale and the same is subject to the final approval of Page 29 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the State Government. While inviting the attention of this court to condition no.5 of the proposal dated 28.2.1991, it is submitted that it provides that the pay scales are subject to the final approval of the State Government. Reliance has also been placed on the resolution No.87/93-94 dated 10.9.1993 of the Administrator to contend that proposal was subject to the final sanction of the State Government. It is further submitted that the proposals were sent by the respondent Corporation, since there was acute pressure by the officer for revision of the pay scale and the said aspect is reflected in the proposal dated 21.10.1993; which was sent to the State Government with a request to sanction the same. It is further submitted that the State Government, vide its letter dated nil.05.2000, has once again overturned the proposal and directed the respondent Corporation to act as per the directions contained in the Government Resolution dated 31.5.1993 and to extend the benefit on scale to scale basis, as per the 4th Pay Commission and the same practice should be followed while implementing the 5th Pay Commission and benefit be extended on scale to scale basis. It is further submitted that after the order of the State Government dated nil.05.2000, the respondent Corporation issued an Office Order dated 04.11.2000, wherein it was decided that the benefit of pay scale has to be extended on scale to scale basis, as has been conveyed by the State Government in its Urban Development and Urban Housing Department.
9.3 It is further submitted that since there was persistent insistence of the officers/employees, the respondent Corporation submitted another proposal dated 18.05.2001 to the State Government, the Urban Development and Urban Housing Department to reconsider its decision contained in the Government Resolution dated 31.05.1993. While drawing attention to the proposal, the learned advocate for the respondent Corporation submitted that the financial position of the respondent Corporation was weak; however, the respondent Corporation was of the opinion that there was a need to bring parity Page 30 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT in the pay scales of the officers of the Corporation. It is further submitted that the aforesaid proposal dated 18.05.2001 was followed by the reminder letter dated 24.05.2006 reiterating the request contained in the earlier proposal dated 18.5.2001. It is further submitted that the respondent Corporation had followed up the matter with the State Government and the State Government vide its communication dated 03.11.2008, rejected the proposal dated 18.05.2001 of the respondent Corporation. It is further submitted that it is thereafter that the respondent Corporation has passed the order dated 21.11.2009, effecting the recovery from the petitioners and other officers. It is further submitted that owing to the protection granted to the petitioners, the petitioners were getting the revised pay scale and were continued in the same pay scale till their retirement. It is submitted that almost all the petitioners retired way back in the year 2001, 2004, 2007 and 2008; however, the petitions have been filed in the year 2013.
9.4 It is further submitted that the State Government has issued the Government Resolution dated 03.01.2019 re-fixing the pay scale from Rs.9300-34800 grade pay Rs.5400 to pay band Rs.15600-39100 grade pay Rs.5400. It is further submitted that the said benefit has been extended on condition that the State Government will not grant any loan or financial assistance and that the respondent Corporation will have to bear the expenditure on its own. It is further submitted that it is incumbent upon the respondent Corporation to follow the directions of the State Government as per the provisions of the Corporation Act of 1949 and that the State Government is the competent authority so far as the certain scales of the officers/employees are concerned. It is further submitted that the State Government has taken a proper decision on the proposal wherein it has been stated to extend the benefit on scale to scale basis, merely because the benefits has been extended by the State Government in the year 2019 to the officers/employees of the Page 31 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT respondent Corporation, the petitioners cannot, as a matter of right, claim the extension of the said benefit or revised pay-scale.
9.5 Reliance has been placed upon the judgment of the Apex Court in the case of Union Territory, Chandigarh and others vs. Gurcharan Singh and another reported in (2014 )13 SCC 598, and submitted that the Apex Court has permitted the re-fixation and recovery as well. It is further submitted that the re-fixation cannot be denied and so also recovery and that it is always permissible for the employer to re-fix the salary. Further even if the same has been done mistakenly, it can effect recovery from the officers/employees who have been paid the amount in excess.
9.6 Reliance has been placed on the judgment of this court in the case of Jagdip Parmanandbhai Raval and others vs. State of Gujarat and others, rendered in Special Civil Application no.4239 of 2012 and other allied matters in support of the contention that to grant the pay scale as well as prescribing cut-off date are the prerogative of the State Government. It is submitted that the ratio laid down in the said case is applicable to the facts of the present petitions and thus, the petitions may not be accepted. Reliance has then been placed on the judgment in the case of Vaidya Rosemary Hazkial Ghoghara vs. Ahmedabad Municipal Corporation, rendered in Special Civil Application no.9620 of 2015, for the proposition that the employee has no right to insist for extension of particular pay scale.
9.7 Mr. H.S. Munshaw, learned advocate for the respondent Corporation, so far as the contention as regards recovery is concerned, referred to the judgment in the case of Bhavnagar Municipal Corporation vs. Rakeshbhai Kamleshbhai Dave, rendered in Letters Patent Appeal no.929 of 2019 and allied matters, and contended that the learned Division Bench while confirming the judgment of learned single Judge has not entertained the appeal against the recovery. It is submitted that delay has marred the case of Page 32 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the petitioners and the present petitions suffer from vice of delay and laches, since the petitioners have retired during the years of 2007 and 2008 and the present petitions have been filed in the year 2013, that is, almost after a delay of more than six years and no sufficient explanation is offered in the present petitions and thus, the present petitions should not be entertained.
9.8 Mr. H.S. Munshaw, learned advocate for the respondent Corporation, while adverting to the submissions made by the learned advocate Mr. Kuldeep Vaidya for Special Civil Application no.15418 of 2017 and Special Civil Application no.15419 of 2017, at the outset, submitted that except the posts and the pay scales of the petitioners is the aforesaid two writ petitions; rest of the factual as well as legal aspects are common inasmuch as, the proposal of the respondent Corporation, resolution and orders passed by the respondent no.2 - State Government covered all the posts, namely, city engineer, engineer and assistant commissioner/CPO/vigilance officer. Thus, all the submissions would be common for all the petitioners except minor factual aspects.
10. Heard learned advocates for the respective parties and have also perused the materials available on record.
11. Adverting to the prayer of the petitioners seeking direction to the respondents to grant the pay scale of Rs.1100-1600 with effect from 3.10.1974 and the pay scale of Rs.3000-4500, Rs.10500-15000 and Rs.15600-39100 revised from time to time as per 4th Pay Commission, 5th Pay Commission and 6th Pay Commission respectively to the employees, a peek over a few facts and events are necessitated.
11.1 Earlier the respondent Corporation had passed a resolution no.216 dated 1.10.1990 as well as resolution no.228 dated 10.10.1990 proposing to revise the pay scale for its employees. As per the said proposal, the pay scale prescribed was Rs.3000-4500;
Page 33 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENThowever, the same was not implemented and was replaced by another resolution dated 18.2.1991 whereby, the pay scales of the post, namely, city engineer came to be prescribed at Rs.3000-4500 and for the posts, namely, engineers and assistant commissioner/CPO/vigilance officer came to be prescribed at Rs.2500-4200 respectively with a clarification that the revised pay scale will be made applicable with effect from 1.10.1990 and for the period from 1.1.1986 to 30.9.1990 the pay scales of the officers/employees will be as per the Revision of Pay Rules of 1987. In furtherance of the said resolution dated 18.2.1991, the respondent Corporation passed an office order dated 28.2.1991.
11.2 The respondent no.2 - State Government after careful consideration and in exercise of its powers under the provisions of sub-section (2) of Section 40, sub-sections (2) and (3) of Section 45 and sub-section (4) of Section 51 of the Corporation Act of 1949, issued a Government Resolution dated 31.5.1993 whereby, the pay scales of seven categories were sanctioned as indicated therein, while pay scales proposed for other categories were not accepted by the State Government including the pay scales prescribed for the engineers and assistant commissioner/CPO/vigilance officer, that is, the post on which the petitioners were working. In spite of the Government Resolution dated 31.5.1993, the respondent Corporation passed another resolution no.87/93-94 dated 10.9.1993 prescribing the revised pay scales with effect from 1.10.1990. The pay scales of the technical staff, that is, the city engineer was fixed at Rs.3000- 4500; engineers, assistant commissioner/CPO/vigilance officer were fixed at Rs.2500-4200. The Commissioner of the respondent Corporation thereafter on 21.10.1993 had once again sent the proposal to the respondent no.2 - State Government, that is, Urban Development and Urban Housing Department. The aforesaid proposal was accompanied with the resolution no.87/93-94 dated 10.9.1993, inter alia, resolving to extend the benefit of the revised pay scales, with Page 34 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT a request to sanction the same.
11.3 Subsequently, the respondent no.2 - State Government in its Urban Development and Urban Housing Department issued a communication dated nil.05.2000, inter alia, informing the respondent Corporation to implement the earlier Government Resolution dated 31.5.1993 with further instructions to send a proposal on scale to scale basis for the purpose of implementing 5th Pay Commission. It is this communication dated nil.05.2000 which led to the issuance of the order dated 4.11.2000 by the respondent Corporation, inter alia, stating that the revised pay scales shall be withdrawn and the officers and employees will be given the pay scale as per the directions contained in the communication dated nil.05.2000 read with the Government Resolution dated 31.5.1993, both issued by the respondent no.2 - State Government.
11.4 Despite the rejection of the proposal twice, the respondent Corporation once again had sent another proposal dated 18.5.2001, inter alia, prescribing revision of the pay scales of various posts including the posts of city engineer, executive engineer and vigilance officer. As per the said proposal the pay scale proposed for the post of city engineer was Rs.10000-15200 and for the post of executive engineers (erstwhile engineers) and vigilance officer was Rs.8500- 14000. The said proposal was followed by a reminder letter dated 24.5.2006 with a slight modification and with a request to sanction the pay scales of Rs.8500-14100 to the executive engineers. The respondent no.2 - State Government vide a communication dated 3.11.2008 rejected the proposal dated 18.5.2001 of the respondent Corporation. Consequent thereupon, the respondent Corporation almost after a period of one year, has passed the impugned communication dated 21.11.2009. Evidently owing to the aforesaid decision of the respondent no.2 - State Government dated 3.11.2008, the respondent Corporation passed the consequential order reducing Page 35 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT the pay scale of the city engineer to Rs.2500-4200 (as per the 4th Pay Commission) and Rs.8500-14000 as per the 5th Pay Commission. Similarly, the pay scales of the executive engineer and vigilance officer came to be reduced to Rs.2200-4000 as per 4th Pay Commission and Rs.8000-13500 as per the 5th Pay Commission. It also ordered recovery of the excess amount from the arrears of the 6th Pay Commission and if still the amount remains outstanding, the concerned officers or employees shall be directed to deposit the differential amount with the respondent Corporation.
11.5 Thus, it can be seen that in the first instance, the respondent Corporation passed a resolution no.216 dated 1.10.1990 as well as resolution no.228 dated 10.10.1990 resolving to pay to other officers and the petitioners higher pay scales; however, the same came to be revised by virtue of the resolution no.323/1990-91 dated 18.2.1991 prescribing the pay scales of the petitioners at Rs.3000-4500 for the post of city engineers and Rs.2500-4200 for the posts of engineers and assistant commissioner/CPO/vigilance officer followed by an order dated 28.2.1991 passed by the respondent Corporation. Moreover, the respondent no.2 - State Government by Government Resolution dated 31.5.1993 approved the proposal of the pay scales as indicated therein. The respondent no.2 - State Government clearly directed that all the officers/employees who are receiving the pay scales more than what has been prescribed in the Revision of Pay Rules of 1987, the same shall be withdrawn.
11.6 Moreover, in the second round, the respondent Corporation on 10.9.1993 passed another resolution no.87/93-94 wherein also, the respondent Corporation provided the pay scale of Rs.3000-4500 for the post of city engineers and Rs.2500-4200 for the post of engineers which was forwarded by it on 21.10.1993 to the respondent no.2 - State Government for its approval. The respondent no.2 - State Government vide communication dated nil.05.2000 rejected the Page 36 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT proposal of the respondent Corporation for revised pay scales and clearly instructed to implement the earlier Government Resolution dated 31.5.1993. It also indicated that the proposal for implementation of 5th Pay Commission may be sent on scale to scale basis, that is, corresponding scale provided in the 4th Pay Commission. It is thereafter that the respondent Corporation passed the consequential order dated 4.11.2000 categorically providing that the officers/employees be paid as per the directions contained in the Government Resolution dated 31.5.1993 and amount paid in excess to the officers/employees, shall be recovered. Clearly, the proposal of the respondent Corporation was to provide to the city engineers the pay scale of Rs.3000-4500 and to the engineers the pay scale of Rs.2500-4200. The said proposal also came to be turned down by the respondent no.2 - State Government vide its aforesaid communication dated nil.05.2000 which also remained unchallenged.
11.7 Now came the third round of the proposal, that is, the proposal dated 18.5.2001, inter alia, resolving to prescribe the pay scale of the city engineers at Rs.10000-15200 and executive engineers (engineers re-designated as executive engineers) and vigilance officer at Rs.8500- 14000 on scale to scale basis, that is, against the pay scale of Rs.3000-4500 and Rs.2500-4200 respectively. The said proposal was followed by reminder letters and ultimately, the respondent no.2 - State Government vide communication dated 3.11.2008 rejected the said proposal as well. The said decision of the State Government dated 3.11.2008 has also not been challenged by the petitioners before any court of law. Thus, it can be seen from the aforesaid sequence of events that the respondent Corporation has sent the proposals proposing the revised pay scale, in succession, and the rejection of the proposals by the respondent no.2 - State Government in exercise of its statutory powers, in succession.
11.8 Besides, the Government Resolution dated 31.5.1993 has been Page 37 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT issued under the provisions of sub-section (2) of Section 40, sub- sections (2) and (3) of Section 45 and sub-section (4) of Section 51 of the Corporation Act of 1949. If one sees the seven posts mentioned in the Government Resolution dated 31.5.1993, the post pertains to Sections 40 and 45. Section 51 falls under Chapter IV and under the heading "other officers and servants". The post other than the post mentioned in Section 40 and 45 are governed by the provisions of Section 51 and the engineers would be falling within the purview of said Section 51. Sub-section (1) of Section 51 empowers the Standing Committee to determine the number, designation, grade, salary etcetera of the officers and servants covered therein. It is nobody's case that the State Government is not the final authority for sanctioning the pay scale or that the previous sanction of the State Government is not required. Indisputably the State Government in exercise of its aforesaid powers had issued the said Government Resolution dated 31.5.1993.
11.9 Concededly, the petitioners neither challenged the action of the respondent Corporation prescribing the revised proposal dated 18.2.1991 containing the pay scale of Rs.3000-4500 for city engineers and Rs.2500-4200 for the executive engineers and vigilance officers of the respondent Corporation as well as the order dated 28.2.1991 nor the Government Resolution dated 31.5.1993. Therefore, the proposal of the respondent Corporation and the Government Resolution dated 31.5.1993 has attained finality, a statutory exercise of power by the respondent no.2 - State Government under the provisions of the Corporation Act of 1949. The petitioners, as aforesaid, having not challenged the said action of the respondent Corporation prescribing revised pay scale, now it would be impermissible in law to seek direction to the respondent Corporation as well as the State Government to extend the pay scale of Rs.1100-1600 with effect from 3.10.1974 and pay scales revised from time to time as per 4th, 5th and 6th Pay Commission.
Page 38 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT11.10 Indisputably, the action of the respondent Corporation revising the pay scales was accepted by the petitioners with their eyes open and without any protest and continued to receive the said pay scale. The petitioners having accepted the pay scales, which otherwise the petitioners were not entitled in view of the Government Resolution dated 31.5.1993 passed by the State Government in exercise of its powers under the provisions of sub-section (2) of Section 40, sub- sections (2) and (3) of Section 45 and sub-section (4) of Section 51 of the Corporation Act of 1949, the present relief seeking higher pay scale is barred by the principle of waiver and acquiescence. Pertinently, non challenge to the Government Resolution dated 31.5.1993 is a fatal lapse on the part of the petitioners seeking pay scale of Rs.1100-1600 with effect from 3.10.1974 and pay scale of Rs.3000-4500, Rs.10000-15000 and Rs.15600-39100. In absence of any challenge to the, namely, (i) Government Resolution dated 31.5.1993; (ii) the communication dated nil.05.2008 as well as (iii) the communication dated 3.11.2008, the prayer of the petitioners, seeking direction to the respondent Corporation for extending the benefits of the pay scale of Rs.1100-1600 with effect from 3.10.1974 and the pay scale of Rs.3000-4500, Rs.10500-15000 and Rs.15600-39100 as per the 4th Pay Commission, 5th Pay Commission and 6th Pay Commission, is thus rejected.
12. Now, therefore, the issue which arises for consideration is about the legality and validity of the consequential communications dated 21.11.2009, 28.2.2013 and 15.6.2013 issued by the respondent Corporation. It is pertinent to mention; that all the communications suffer from the vice of arbitrariness and are passed in violation of the principles of natural justice as well as suffer from non-application of mind. Even on merits the aforesaid communications insofar as it directs recovery of excess payments made to the petitioners, are not capable of being sustained inasmuch as, it is the respondent Page 39 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT Corporation who all throughout by passing various resolutions, was in favour of revising the pay scales of the petitioners and other officers of the respondent Corporation.
12.1 While addressing the challenge to the recovery of the excess payment made, it is relevant to note that, so far as the entitlement of the petitioners for the higher pay scale is concerned, at the relevant point of time, the petitioners as per the 4th Pay Commission and as per the Revision of Pay Rules of 1987 were eligible for the pay scales of Rs.2500-4200 and Rs.2200-4000, instead, the respondent Corporation in its wisdom revised the pay scales of the technical staff, that is, the city engineers to Rs.3000-4500, engineers (re-designated as executive engineers) and vigilance officer at Rs.2500-4200. However, the proposal is silent as to on what basis does the respondent Corporation has extended the pay scale of Rs.3000-4500 and Rs.2500-4200. Besides when the respondent no.2 - State Government vide its Government Resolution dated 31.5.1993 clearly provided that the pay scales shall be as per the Revision of Pay Rules of 1987, then in that case, there was no reason available to the respondent Corporation to have provided the higher pay scales and continued extending the payment on a higher side, disregarding the decision of the respondent no.2 - State Government. The matter did not rest at that stage. The respondent Corporation had immediately sent a second proposal dated 21.10.1993, prescribing the revised pay scale, which revision of the pay scale provided in the proposal was already rejected by the State Government. The State Government once again conveyed its decision vide communication dated nil.05.2000 with a specific direction to implement the Government Resolution dated 31.5.1993 and to send a proposal for the implementation of the 5th Pay Commission on scale to scale basis i.e. corresponding scale of the 4th Pay Commission vis-à-vis the 5th Pay Commission. Despite the rejection of the proposal vide communication dated nil.05.2000, the respondent Corporation sent another proposal dated 18.5.2001 i.e. Page 40 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT after the introduction of the 5th Pay Commission, inter alia, requesting the State Government to sanction the pay scale of Rs.10000-15200 against corresponding pay scale of Rs.3000-4500 for the post of city engineers and Rs.8500-14000 against the corresponding pay scale of Rs.2500-4200 for the post of engineers and vigilance officers; proposal of the grant of the said pay scale was already rejected by the State Government way back in the year 1993. At the cost of repetition, it may be noted that the aforesaid proposal also came to be rejected vide communication dated 3.11.2008. The respondent Corporation knowing full well the decision of the respondent no.2 - State Government, continued paying the revised pay scale.
12.2 As is discernible from the record, it is evident that the respond- ent Corporation after due deliberation has taken a conscious decision of revising the pay scales of the officers and employees of the respond- ent Corporation on higher side compared to the pay scales provided as per the 4th Pay Commission. It is the respondent Corporation who had issued the resolution prescribing a particular pay scale and it is when the petitioners have challenged the communications dated 21.11.2009, 28.2.2013 and 15.6.2013, the respondent Corporation taking a somersault, has vehemently opposed the writ petitions, which conduct of the respondent Corporation speaks volume. In the opinion of this court, the stand of the respondent Corporation in the captioned proceedings, is not a stand expected of it, more particularly, when it itself has followed up the matter with the respondent no.2 - State Government taking a stand loud and clear that their exists an anom- aly and the same is required to be removed. This aspect is also strengthened by reading of the contents of the resolution dated 18.5.2001 and 17.10.2017 as well as the proposal dated 24.10.2017 which culminated into issuance of the Government Resolution dated 3.1.2019 removing the anomaly by revising the pay scale to Rs.56100- 1,77,500. Be that as it may.
Page 41 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT12.3 Pertinently, the petitioners were not at fault and they have already superannuated, except the petitioners of Special Civil Applica- tion no.12414 of 2013, the case of the petitioners will stand squarely covered by the situations postulated by the Apex Court in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. reported in (2015) 4 SCC 334. The Apex Court in the said case has laid down the guidelines postulating situations, which would govern the employees on the issue of recovery, where payments have mistakenly been made by the employer in excess of their entitlement. The Apex Court has summarized the following situations, wherein recoveries by the em- ployers, would be impermissible in law:
"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
12.4 The aforesaid situations mentioned at items no.(ii) and (v) would apply on all fours to the facts of the present case inasmuch as, in the present group of writ petitions except one petitioner, all other writ petitioners have retired somewhere in the years 2004, 2008, 2009, 2014 etcetera. Further, as discussed hereinabove, the action of the respondent Corporation effecting recovery is iniquitous, harsh and arbitrary inasmuch as, it was the respondent Corporation who had all throughout extended the benefit of revised pay scale to the petitioners after taking a decision and continued with the payment unconditionally. Thus, the communications dated 21.11.2009, Page 42 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT 28.2.2013 and 15.6.2013 insofar as it directs recovery from the petitioners are illegal and bad in law and deserve to be quashed and set aside.
13. While concluding, a few tangential contentions raised by the learned advocates for the respective parties are required to be addressed.
13.1 So far as the contentions raised on behalf of the petitioners that the State Government though has approved the pay scales with modification with respect to the seven categories, has not stated anything with respect to the pay scales of the petitioners, is concerned, it is required to be noted that the State Government over and above the provisions of Sections 40 and 45 has while issuing the Government Resolution dated 31.5.1993, also exercised the powers under the provisions of sub-section (4) of Section 51, which requires the previous sanction of the State Government in the matter of increase in salary of other officers and servants of the Corporation. Further, the Government Resolution dated 31.5.1993 specifically contains the direction, free english translation whereof, is to the effect that the officers/employees who have been given more salary than what has been prescribed in the Revision of Pay Rules of 1987, should be taken back, which direction is general in nature, governing all the officers and employees of the Corporation. Thus, it is incorrect to contend that the revised pay scale granted to the petitioners has been retained and approved by the respondent no.2 - State Government and that it nowhere states that the pay scale of the engineers has been reduced. Hence, the said contention is devoid of any merits and is rejected.
13.2 Further, it is also contended that neither any proposal for revising the pay scales of the engineers was sought for, nor any permission was required. The said contention is also fallacious inasmuch as, as aforementioned, it is not in dispute that as per the Page 43 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT provisions of sub-section (2) of Section 40, sub-sections (2) and (3) of Section 45 and sub-section (4) of Section 51 of the Corporation Act of 1949, previous sanction of the State Government is must and accordingly, the proposals were sent by the respondent Corporation in succession and the respondent no.2 - State Government has rejected the proposals. Hence, the said contention raised by the petitioners is rejected.
13.3 So far as seeking parity with the pay scale of the executive engineers working with the State Government and Corporations is concerned, the said contention is also rejected; considering the fact that the respondent no.2 - State Government vide Government Resolution dated 31.5.1993, communications dated nil.05.2000 and 3.11.2000, has rejected the proposal of the respondent Corporation and in absence of any challenge to the aforesaid Government Resolution and communications issued in exercise of the statutory powers under the provisions of the Corporation Act of 1949, the said contention cannot be gone into. In view of the aforesaid facts, the judgments cited by the learned advocate for the petitioners cannot be made applicable to the facts of the present case. In the present case, the petitioners have not been able to substantiate their claim for the higher pay scale at the threshold. Thus, the issues of parity as well as extending the benefit of the pay scale do not arise. The facts of the said judgments are nowhere in the close proximity to the facts of the present case much less the principle.
13.4 So far as the objection raised by the respondents as regards delay in approaching the court, is concerned, the same is rejected. As is discernible from the record, the petitioners were all throughout agitating their grievance before the Tribunal and it is owing to the fact that the petitioners did not fall within the definition of the term "workman" as defined under the provisions of the Industrial Disputes Act, 1947 that the Reference (IT) no.115 of 2000 came to be Page 44 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020 C/SCA/11732/2013 CAV JUDGMENT withdrawn in the year 2013, followed by filing of the present group of writ petitions. Hence, it cannot be said that the petitions, except Special Civil Application no.15419 of 2017, suffer from the vice of delay and laches.
14. However, so far as Special Civil Application no.15419 of 2017 is concerned, the petitioner therein retired in the year 2004 and the petition has been filed as late as in the year 2017 with no explanation worth the name except making a representation in the year 2002, that is, prior to his retirement. Thus, Special Civil Application no.15419 of 2017 is also dismissed on the ground of delay and laches over and above the reasons discussed in the earlier paragraphs.
15. Under the circumstances, the communications dated 21.11.2009, 28.2.2013 and 15.6.2013 insofar as the same directs the recovery of the excess payment, made to the petitioners, from the pension or from salary is tainted with the element of non-application of mind, iniquitous and harsh and resultantly, suffers from arbitrariness. Thus, the communications dated 21.11.2009, 28.2.2013 and 15.6.2013 insofar as it directs recovery of the excess payment made to the petitioners, that is, beyond their entitlement, deserves to be quashed and set aside and accordingly, are quashed and set aside.
16. The petitions are partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(SANGEETA K. VISHEN,J) Ravi Patel / PALAK BRAHMBHATT Page 45 of 45 Downloaded on : Tue Jun 09 23:11:00 IST 2020