Gujarat High Court
Umeshkumar Chimanlal Pandya vs Maharaja Sayajirao University - ... on 11 October, 2018
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/12919/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12919 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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UMESHKUMAR CHIMANLAL PANDYA
Versus
MAHARAJA SAYAJIRAO UNIVERSITY - VADODARA
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Appearance:
MR ASIM J PANDYA(542) for the PETITIONER(s) No. 1
MR VISHRUT JANI AGP (1) for the RESPONDENT(s) No. 2,3
MR MUKUND M DESAI(286) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 11/10/2018
CAV JUDGMENT
1. The petitioner challenges the judgment and order dated 20.1.2010 passed by the Gujarat Universities Services Tribunal, State of Gujarat, Page 1 of 13 C/SCA/12919/2010 CAV JUDGMENT in Application No.29/2008, vide which, his challenge for pay protection has not been entertained.
2. Brief facts relevant for the purpose of this petition are that the petitioner has joined as Sanitary Sub Inspector in Municipal Corporation, Surat, vide appointment order dated 24.7.1992. He was appointed in the pay scale of Rs. 1350-2200. In the year 1994, the petitioner came across the advertisement, whereby, M.S.University (respondent no. 1 herein) had invited applications for filling up different posts including the post of Sanitary Inspector. In the said advertisement, the pay scale against the post of Sanitary Inspector was shown as Rs. 1200- 2040. The petitioner applied for this post and at item no.10 of the form filled up by the petitioner, a specific question was asked to the petitioner that, "if he/she is willing to accept the minimum pay offered? If not, state what is the lowest initial pay that he/she would accept in the pay scale?" The petitioner has filled up the above-said item no.10 in the form with the following statement, "My present scale should be protected."
3. The petitioner was thereafter found suitable by the committee and was selected for the post of Page 2 of 13 C/SCA/12919/2010 CAV JUDGMENT Sanitary Inspector. He was issued appointment order dated 12.2.1996 and was appointed in the pay scale of Rs.1200-2040, on probation for a period of two years. After joining, the petitioner resigned from the Surat Municipal Corporation and was relieved by the Corporation on 26.2.1996. The petitioner joined respondent no.1 on 27.2.1996. Thereafter, the petitioner made various representations seeking protection of his pay which he was drawing with Surat Municipal Corporation. However, the same was denied to the petitioner. The petitioner seems to have approached the Tribunal on four occasions, however, his petition came to be disposed of with the directions to the respondents to look into the matter. However, the grievance of the petitioner remained un-redressed, which has given rise to filing of the present petition.
4. After notice, respondents have contested this petition by filing reply, wherein, it has been submitted that the Gujarat Universities Services Tribunal has correctly interpreted the provisions of G.R. for the pay protection which was not applicable to the petitioner as once the petitioner was offered the salary in the pay scale of Rs. 1200-2040 and the same has been accepted by him, the same cannot be agitated after a gap of three years. The GR dated Page 3 of 13 C/SCA/12919/2010 CAV JUDGMENT 14.9.1988 was not applicable to the petitioner as the same was applicable to consider the qualifying service for the purpose of pension etc. The petitioner was not eligible to have the protection of last pay of Rs.1440/- which he was drawing with Surat Municipal Corporation. While relying upon this submission, he has prayed for the dismissal of this petition.
5. Learned counsel Mr.Asim Pandya for the petitioner has submitted that at the time of applying for the post of Sanitary Inspector, the petitioner has specifically mentioned that he was drawing Rs.1440/- from Surat Municipal Corporation, and as such, this pay will be acceptable to him if he joins M.S. University. He has argued that Surat Municipal Corporation being a local authority and an extended arm of the State Government, the services rendered by the petitioner with the said Corporation in the pay scale applicable to the petitioner was required to be protected. According to him, some of the expenditure incurred by the Surat Municipal Corporation was borne by the State Government, and therefore, it was grant-in-aid institution in a liberal sense.
6. Mr.Pandya learned counsel has further argued that four employees of respondent no. 1, viz.(1) Page 4 of 13 C/SCA/12919/2010 CAV JUDGMENT Mr. M.R.Patel, (2) Mr.M.S.Mehta, (3) Mr.S.K. Kushvaha and (4) Mr.Bharat Shah who were similarly situated employees were given pay protection and action of respondent no.1 denying the same benefits to the petitioner was discriminatory and in violation of Articles 14, 16, 19 and 21 of the Constitution of India. He has also referred to Article 243-Q, and has submitted that Municipal Council and Nagarpalika were subsidiary of the State. Finally, it has been argued that clause-6 of the G.R. dated 14.9.1988 has been misinterpreted as Surat Municipal Corporation was a semi-government limb of the State and has been receiving grant-in-aid from the Government and as such, the pay drawn by the petitioner while working with Surat Municipal Corporation was liable to be protected.
7. The above arguments have been controverted by the learned counsel representing M.S. University. It has been argued that the case of the present petitioner was not covered under the G.R. dated 14.9.1988 as Surat Municipal Corporation was generating its own fund, and in absence of any grant-in-aid from the State Government, the benefits of the G.R. cannot be extended to the petitioner and his case has been rightly rejected by the Tribunal. Denying the claim of the petitioner claiming parity with four other Page 5 of 13 C/SCA/12919/2010 CAV JUDGMENT employees, it has been argued that all these employees were earlier working with the State Government and were being paid salary by the Government and case of these persons was fully covered as per G.R. dated 14.9.1988. Relying upon this submission, he has prayed for dismissal of this petition.
8. This Court has considered the submissions of both the sides. The main grievance of the petitioner is denial of pay protection which he was getting before joining with respondent no.1 - M.S. University.
9. It could be seen that at the time of inviting application, the respondent-University has sought information whether the candidate was willing to accept the minimum pay scale offered and what was the lowest initial pay which would be acceptable to him. The petitioner filled up the form available at Annexure-E, wherein, in answer to item no.10, it is mentioned that "my present scale should be protected." While giving further details, he has mentioned that he was drawing the salary in the pay scale of Rs. 1350- 2200 from the Surat Municipal Corporation.
10. The respondents have denied the aforementioned pay scale to the petitioner while Page 6 of 13 C/SCA/12919/2010 CAV JUDGMENT relying upon the G.R. dated 14.9.1988. Clause-6 of this G.R. states as under:
"6. In computing the length of qualifying service for pension under this scheme, all previous service whether temporary officiating or permanent either in one or more than one universities, State Government, Semi Government, Non-Government aided colleges and other Education institution which are being paid Grant-in-aid from government shall be taken into account."
11. Main ground of the respondent in denying the pay protection to the petitioner is that Surat Municipal Corporation with whom the petitioner was working prior to joining M.S. University was not getting grant-in-aid from the State Government, and as such, he was not entitled to pay protection. While denying this benefit to the petitioner, learned counsel for the respondent has referred to the salary of the Commissioner of the Corporation and has stated that even the Commissioner of Municipal Corporation (IAS Officer) is drawing salary from the Corporation and Corporation being not a State and not getting grant-in-aid from the Government, the G.R. Dated 14.9.1988 was not applicable.
12. Interpretation arrived at by the Corporation in not protecting the pay of the petitioner as Sanitary Sub Inspector of Surat Municipal Page 7 of 13 C/SCA/12919/2010 CAV JUDGMENT Corporation seems to be erroneous. Their case is mainly based upon the arguments that the Surat Municipal Corporation has been generating its own fund and was not a State or Semi-Government, and not a subsidiary of the State Government.
13. Article 12 of the Constitution of India deals with the term "the State", which defines as under:
"12. Definition.- In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."
14. A constitutional or statutory authority would be within the meaning of the expression "other authorities" in Article 12, if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequence, or it has the sovereign power to make rules and regulations having the force of law. A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by Government Page 8 of 13 C/SCA/12919/2010 CAV JUDGMENT not only in its policy-making but also in carrying out the functions entrusted to it by the law establishing it or by the charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of State. It will be difficult to evolve a straight-jacket formula of term of instrumentality of Government as State. The question in each case, would be whether in light of the cumulative facts as established, the body concerned, is financially, functionally and administratively under the control of the Government. This particularly must be peculiar to the body in question and not general in nature.
15. As discussed in the foregoing paras, the Commissioner of Municipal Corporation is an officer of the State Government who is appointed to administer the day-to-day function of the Corporation. Not only the Commissioner of the Corporation, some other functionaries of the Corporation were also employees of the State Government who were sent on deputation to administer the Corporation. If Municipal Corporation is administered and controlled by the State Government through these officers, the Corporation cannot be termed as a private entity having no connection with the State. Otherwise also, grant-in-aid by the Government, is the main Page 9 of 13 C/SCA/12919/2010 CAV JUDGMENT stake of the Corporation and Municipalities. The employees retiring from the municipalities are paid pension by the State Government. By no stretch of imagination, the Surat Municipal Corporation can be termed as a private organization having no concern with the State. The aforementioned wordings of G.R. dated 14.9.1988 seems to have omitted word "coma" after "semi-Government". The word "Non-Government aided colleges and other Education Institution which are being paid Grant-in-aid from government" was in fact one word, while "semi- Government" was other word, and in between these two words, there would be "coma", which seems to have been left out at the time of issuing this G.R.
16. Learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of Mathuradas Mohan Lal Kedia and others vs. Shri S.D.Munshaw and others, reported in (1983)2 SCC 33. While terming the members of Gujarat Panchayat Service as Government servants, it has been held as under:
"28. We may now revert to the question whether the members of the Gujarat Panchayat Service are Government servants. First, we see that the duties which they are required to perform are in connection with those affairs of the State which are entrusted to the Page 10 of 13 C/SCA/12919/2010 CAV JUDGMENT Panchayat Institutions, by the statute itself or by transfer by the Governments under the statute. Next, the expenditure towards the pay and allowance of officers and servants of the Panchayat service, serving for the time being unde any panchayat has, no doubt, to be met by the panchayat from its own fund, but as we have seen, the fund consists substantially the sums contributed or lent by the State Government and of the proceeds of any tax or fee imposed by or assigned to the panchayat under the Act. The imposition of a tax or a fee in the nature of a tax, as we know, is essentially a function of the State. So the salary and allowances of the servants and officers of the panchayat services are paid out of funds contributed or lent by the Government or raised by the discharge of an essential governmental function. Secretaries of Gram and Nagar Panchayats are to be appointed in accordance with the Rules made by the Government, while the Taluqa Development Officer is to be Secretary of the Taluqa Panchayat and the District Panchayat. Taluqa and District Development Officers are, of course, officers of the State service. Gram and Nagar Panchayats may have other servants, as may be determined under Section 203, but they have to be appointed by such authority as may be prescribed by the Government and their conditions of service shall be such as may be prescribed by the Government. Section 203, as already noticed by us, contemplates the constitution of a single centralized panchayat service, the classes, cadres and posts of which have to be determined by the Government from time to time. The mode of recruitment, whether by examination or Page 11 of 13 C/SCA/12919/2010 CAV JUDGMENT otherwise, the conditions of service, the powers in respect of appointments, transfers and promotions of Officers and servants and disciplinary action which may be taken against them, are to be regulated by the Rules made by the Government. The Rules so made are particularly required to contain a provision entitling servants of such cadres in the panchayat service to promotion to such cadres in the State service, as maybe prescribed: vide Section 203(4)(a). This is an important provision.
42. The opening clause of the new Section 203 is extremely curious. It gives the reason for Constitution the new Panchayat service of the Amending Act. The reason, it appears, is to enable Taluka Panchayats and District Panchayats to exercise their powers, discharge their duties and perform their functions effectively and efficiently. But then what about the Gram and Nagar Panchayats which are at the very foundation of the whole idea of democratic decentralization of powers in favour of Panchayat Institutions? The entire panchayat superstructure has to stand on the base of Gram and Nagar Panchayats and obviously there can be no vigorous and strong local self- government Panchayats. It is, therefore, difficult to discover the logic behind excluding Gram and Nagar Panchayats from the benefits of the centralized, effective and efficient service."
17. In view of the foregoing discussion, the present petition is allowed. The impugned order dated 20.1.2010 passed by the Tribunal is quashed Page 12 of 13 C/SCA/12919/2010 CAV JUDGMENT and set aside. The petitioner is entitled to the protection of his pay scale which he was getting before joining the services with the respondents. The arrears etc. payable to the petitioner shall be paid to him, with interest at the rate of 7.5%, within a period of 4 weeks from the date of receipt of the copy of this order. Rule is made absolute.
(MOHINDER PAL, J) D.B. MANDORA Page 13 of 13