Gujarat High Court
Gujarat vs Haresh on 10 May, 2011
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
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LPA/1868/2010 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1868 of 2010
In
SPECIAL CIVIL APPLICATION No. 7391 of 2009
To
LETTERS
PATENT APPEAL No. 1903 of 2010
In
SPECIAL CIVIL APPLICATION No. 10222 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
================================================= GUJARAT MARITIME BOARD - Appellant(s) Versus HARESH H BHATT - Respondent(s) ================================================= Appearance :
MS SEJAL K MANDAVIA for Appellant(s) : 1, MR PARESH UPADHYAY for Respondent(s) :
1, ================================================= CORAM :
HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 10/05/2011 ORAL (COMMON) JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. These Letters Patent Appeals have been filed challenging the common judgment of the learned Single Judge dated 15th June, 2010 in the Special Civil Applications. We have taken up for hearing these Appeals for final disposal. The Letters Patent appeal No.1868 of 2010 arising out of Special Civil Application No.7391 of 2009 shall be treated as the leading Appeal.
2. The short factual matrix of this group of Appeals is that the respondents in the Appeals who were petitioners in the writ petitions were working with the Gujarat Maritime Board (for short "the Board") which was constituted on 5th April, 1982 under the provisions of Section 3(2) of Gujarat Maritime Board Act, 1981 (for short "the Act"). It was brought into force by the State Government from 5th April, 1982 by Port and Fisheries Department Notification dated 3rd April, 1982. The respondents in these Appeals were appointed when the Board was in existence. Since no service Regulations or Rules were framed by the State Government for the employees of the Board, therefore, the State Government issued a circular dated 16.4.1982 that the Government had decided that the Board should follow and continue the prevailing administrative/financial rules and regulations and about other matters, procedures, circulars, instructions, all schemes and approvals, subject to the provision of the Act from the date of formation of the Board, till the rules and regulations are framed by the Government. The service of the employees of the Board were governed by the administrative/financial Rules which were prevailing.
All the employees who are before this Court are working as Khalasi and they were granted first higher grade pay scale of the cadre of Tradesman retrospectively from the date they completed nine years of service as Khalasi as stipulated in Government Resolution no.AOP-1091/3/M dated 5th July, 1991. The employees were although treated as Tradesman by the Board.
3. An order dated 23.6.2009 was passed by the Board withdrawing the first higher grade pay scale granted to its employees in the cadre of Tradesman with retrospective effect from the year 1993 on the ground that the Khalasi were granted higher grade pay scale of the post of Tradesman by mistake as next promotional post for the post of Khalasi was the post of Assistant Tradesman. From the post of Khalasi, an employee is promoted on the post of Assistant Tradesman. Therefore, the employees were entitled for first higher grade pay scale of the next promotional post of Assistant Tradesman but they have wrongly been given higher grade pay scale of Tradesman which was sought to be recovered by the appellants as excess amount had been paid to the employees under a mistake.
4. We have heard Ms. Sejal K.Mandavia, learned counsel appearing for the appellant and Mr. Paresh Upadhyay, learned counsel appearing for the respondents. Learned counsel Ms. Sejal Mandavia appearing for the appellant has filed affidavit-in-reply in LPA 1868 of 2010. Learned counsel for the appellant has explained before us that at item No.120 Deck Hand are mentioned who are also called as Khalasi. The Board had always treated Deck Hand and granted pay scale of Rs.200-250 as Khalasi. In the affidavit-in-reply filed Ms. Sejal Mandavia on 6.5.2011 which has been duly affirmed by Mr S.K. Baria, Deputy Secretary, Gujarat Maritime Board clearly shows that the Deck Hand/Khalasi works on the ship and his job is loading and unloading of the ship. Besides he also cleans the vessels and helps mooring gang during berthing of vessel. Deck hand has also helps sarang in their work. It is further explained that so far as the work of Khalasi in pay scale of Rs.200-239 is concerned he looks after the engine of the ship and they are not connected with loading or unloading of goods. They may work either in repair of the engine of the ship or while ship is sailing in the sea. Besides, Khalasi (Workshop) is providing assistance to Assistant Tradesman and Tradesman. He maintains machineries, tools and tackles the job at the workshop and also works as helper in the workshop. The pay scale of Deck hand/Khalasi is the same which is paid to Assistant Tradesman. Ms. Mandavia has clearly stated that at various ports in Gujarat, the expression 'Khalasi' has been used for Deck hand working at the port and loading and unloading of the ship. Therefore, Khalasi/Deck hand mentioned at serial number 120 are the employees who are working at various ports in Gujarat. The learned counsel for the appellant has placed before us chronology of some of the important events along with annexures which we have accepted and treated part of the record of the Appeal as the respondents counsel have no objection.
4.1. We have used the expression Khalasi for Deck Hand pay scale Rs. 200-250 in the later part of this judgment in view of the statement made by the learned counsel for the appellant and affidavit-in-reply filed on 6.5.2011.
4.2. The learned counsel for the appellant has urged that the promotional post of Khalasi is Assistant Tradesman and Assistant Tradesman is promoted as Tradesman but under a mistake the employees who were working as Khalasi were granted the first higher grade pay scale of Tradesman after completion of nine years service as Khalasi. The pay scale of Khalasi (Deck Hand) and Assistant Tradesman was the same with effect from 1.1.1973. Therefore, according to the learned counsel for the appellant, the respondents were entitled for higher grade pay scale as per the schedule annexed to Government Resolution dated 5.7.1991, 16.8.1994 and 14.8.1998. Therefore, excess amount paid to the employees is to be recovered by the Board. It is urged that the sanctioned set-up of posts is fixed by the Head Office at Gandhinagar and whatever the posts are fixed by the Head Office for each port, the employees are appointed or promoted.
4.3.
Learned counsel has placed before us the draft rules framed by the Director of Ports, Gujarat State which were known as Draft Recruitment Rules for class III and Class-IV cadres framed on 11th August, 1976. The draft rules provide that a Majdoor/apprentice shall be eligible for the post of Khalasi/Fire fighter; Mukaddam/Khalasi would be eligible for the promotion to the post of Assistant Tradesman/switch board attendant/ wireman/ pump attendant; Assistant Tradesman would be eligible for promotion to the post of Tradesman, Tradesman would be eligible for promotion to the post of Mistry; Mistry would be eligible for promotion to the post of Foreman. Learned counsel vehemently urged that in absence of any statutory rules, the draft rules, though not yet notified by the Board or by the State Government, would have to be followed and it would be in force. The draft rules can be treated as administrative instructions and would govern the service conditions of the employees working under the Board.
4.4.
The learned counsel has urged that Finance Department, State of Gujarat issued notification framing Gujarat Civil Service (Revision of Pay) Rule, 1975 (for short the Rules,1975) in exercise of its powers conferred under Article 309 of the Constitution of India which came into force from 1st January, 1973. This notification contained department-wise post. Under the head of "Director of Ports"
and the pay scales applicable to the relevant posts were set out therein which mentioned the revised pay scale of Khalasi as Rs.200-250. The effect of this pay Revision was that the pay scale for the post of Khalasi and Assistant Tradesman became the same with effect from 1.1.1973. The learned counsel placing reliance on Pay Revision Rules 1975 urged that in view of the Government Resolutions dated 5.7.1991 and subsequent Government Resolutions dated 16.8.1994 and 14.8.1998, the first higher grade pay scale shall be the pay scale mentioned in Schedule attached along with Government Resolution
5.7.1991, 16.8.1994 and 14.8.1998. Since next promotional post of Khalasi was Assistant Tradesman, therefore, the higher grade pay scale of Tradesman given to the Khalasi was illegal. The appellants have placed on record, only two orders dated 6.2.1997 and 27.9.1993 by which some Khalasi were promoted to the post of Assistant Tradesman on ad hoc basis.
4.5. The learned counsel further urged that Government Resolution dated 5.7.1991 paragraph (iii) and its first proviso and schedule appended along with it, would apply to the Khalasi and since there was no promotional post for Khalasi, after nine years of service he would be entitled as per the proviso the higher grade pay scale mentioned in the schedule.
5. On the other hand, learned counsel for the employees Mr Paresh Upadhyay has urged that Tradesman is the next promotional post. Khalasi were being promoted on the post of Tradesman as pay scale of Khalasi and Assistant Tradesman was one and the same pay scale of Rs.200-250. The post of Khalasi and Assistant Tradesman were inter-changeable and Khalasi could be transferred to the post of Assistant Tradesman and vice versa, an Assistant Tradesman could be transferred on the post of Khalasi. Tradesman is the next promotional post. Learned counsel for the respondents have placed on record orders dated 7.11.1989, 30.11.1991 and 22.12.1993 passed by the appellants by which Khalasis were transferred to the post of Assistant Tradesman. On the strength of these orders, learned counsel for the employees have urged that prior to the creation of the Board and even after creation of the Board, the posts of Khalasi and Assistant Tradesman were in the same pay scales and they were interchangeable and transferable.
5.1.
Learned counsel for the employees have further urged that draft rules which were framed on 11th August, 1976, even after 35 years, have not yet been notified and the State Government never intended to notify these draft rules and therefore, these draft rules could not be considered either to be rules or executive/ administrative instructions governing the service conditions of the employees working under the Board. They further urged that service conditions of the employees of the Board were governed by the prevailing administrative/financial rules and the draft rules could not be relied by the appellants.
5.2. Learned counsel for the respondents have further urged that the higher grade pay scale of Tradesman was given to the employees between 1991 to 1994. After more than 17 to 18 years it was not open to the appellants to challenge that pay scales of Tradesman were wrongly given. The higher grade pay scale of Tradesman was granted to the respondents by the appellant after obtaining approval from the higher authorities between 1991 to 1994 and there was no misrepresentation made by the respondents. The accounts of the Board were also audited and no audit objection was raised at any point of time against the respondents/Tradesman.
6. The first question which arises for consideration in these Appeals is that what were the administrative/financial rules which were applicable to the employees prior to the creation of the Board and after its creation. Prior to the creation of the Board, rules of the State Government were applicable to the employees working under the Director of Ports which is clear from Revision of Pay Rules 1975 which were framed on 21st October 1975 and in exercise of the powers conferred under Article 309 of the Constitution of India. The Rules were made effective retrospectively from 1st January, 1973. The aforesaid notification contained Department-wise pay revision under the heading "Director of Ports" from pages 227 to 233 and the pay scales applicable to the relevant posts, which are set out hereunder:
Sr.No. Designation Existing Pay Scale Revised Pay Scale 120 Deck Hand 100-130 200-250 115 Assistant Tradesman 100-130 200-250 96 Tradesman 130-240 260-400 75 Mistry (Workshop)/Electrical 160-265 350-560 59 Foreman (Mechanical) 175-345 380-600 When the main Rules of 1975 came into force and the pay scales of Tradesman shown at serial no.96 was Rs. 260-400. By retrospective amendment, the figure 260-400 was substituted by figure 350-560. The result was that revised pay scale of Khalasi and Assistant Tradesman became the same Rs. 200-250 with effect from 1st January, 1973, the date on which main Rules 1975 became effective.
6.1. The Director of Ports and after creation of the Board, the Head Office of the Board and authorities of the Ports, were treating the posts of Khalasi and Assistant Tradesman to be interchangeable post and transfer was being effected from one post to another post, and treated the next promotional post of Khalasi/Assistant Tradesman to be Tradesman.
7.
After creation of the board, three orders of the appellants have been filed by the employees, dated 7th November, 1989, 30th November, 1991 and 22nd December, 1993 were issued which demonstrate that Khalasis were transferred to the post of Assistant Tradesman. Throughout, the respondents have been accepting that posts of Khalasi/Assistant Tradesman were interchangeable and transferable post, with the same pay scale of Rs.200-250 and the next promotional post of the Khalasi/Assistant Tradesman was Tradesman in higher grade pay scale of Rs.350-560. Therefore, the argument of the learned counsel for the appellants that the post of Assistant Tradesman was the promotional post of Khalasi cannot be accepted.
8. We are of other considered opinion that Khalasi and Assistant Tradesman were interchangeable and transferrable posts with same pay scale. The next promotional post of Khalasi working under the Board was Tradesman.
9. So far as Draft Rules are concerned, learned counsel for the appellants has placed reliance on the Single Judge decision of this Court in S.H.Bhambhani v. State of Gujarat and others 2006(2) GLH 404, wherein in para-6, the learned Single Judge has held as under:
"6. The plea that on the basis of Draft Rules, respondent Nos. 3 and 4 could not have been promoted to the post of Deputy Executive Engineers, is devoid of merits. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Ors. (2003) 4 SCC 712, under Rules 2 and 3 of the Draft Recruitment Rules framed by the High Court which were pending approval of the Government, appointment on the post of President of Industrial Court was made. That was challenged before the High Court by way of filing petition under Article 226 of the Constitution. The petition was allowed by Full Bench of th High Court. One of the grounds, which weighed with the Full Bench, was that no action could have been taken on the basis of Draft Rules which were pending approval of the Government. While setting aside the decision of the Full Bench of the Gujarat High Court, the Supreme Court has held that appointment can validly be made under the rules even in their draft stage if there is a clear intention of the Government to enforce them in the near future...."
7.1. Learned counsel for the appellant has further placed reliance on the Division Bench decision of this Court in Bhanumati Tapubhai Muliya v. State of Gujarat, 1995(2) GLH 228, wherein in para-6, Division Bench of this Court has held as under:
"6.....The reason for this is that it is now well-settled that in absence of statutory Rules, the Government can make recruitment on the basis of Administrative Instructions. The draft Recruitment Rules are no different from Administrative Instructions..."
9.1. On the other hand, learned Counsel for the respondents have placed reliance on the decision of the Apex Court in Vimal Kumari v. State of Haryana and others, (1998) 4 SCC 114, the Apex Court has held as under:
"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regular the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules"
cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them."
9.2.
The Apex Court in another decision in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 has held in para-27 as under:
"27. It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. (See Vimal Kumari vs. State of Haryana.)"
10. The Apex Court in Union of India through Government of Pondicherry and another v. V.Ramkrishnan and others and others (2005) 8 SCC 394 has held in para-28 as under:
"28.
Valid rules made under proviso appended to Article 309 of the Constitution operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principles in Abraham Jacob, Vimal Kumari and Gujarat Kishan Mazdoor Panchayat that draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."
11. From the aforesaid decision of the Apex Court, it is clear that if the Government had intention to notify the draft rules in near future, the draft rules could be treated to be an executive instructions, but where Government had no intention to notify the draft rules, in such cases, the draft rules could not be held to be executive instructions. In the case in hand, the employees were governed by the prevailing administrative/financial rules and regulations, circulars, instructions of the Government for the sake of administrative and financial convenience of the Board. It is necessary to extract the English translation of the circular dated 16.4.1982 issued by the Government as under:
"Regarding following the existing rules/regulations for the time being, of the Government for the sake of administrative and financial convenience of the Board upon formation of Gujarat Maritime Board.
Government of Gujarat Department of Ports and Fisheries Circular No. GMB/1082/G Sachivalaya, Gandhinagar.
Date:
16.4.1982 C I R C U L A R According to the provisions of Gujarat Maritime Board Act,1981, rules are to be framed by the Government and the said regulations are required to be drafted by the Board. According to the provisions of the Act, first regulations are to be framed by the Government. The act of framing and granting these rules and regulations may take time. Therefore, for the convenience of the Board, the Government has decided that the Board shall follow and continue the prevailing administrative/financial rules and regulations and about other matters, procedures, circulars, instructions, all schemes and approvals, subject to the provisions of Gujarat Maritime Board Act, 1981 from the date of formation of the Board, till the rules and regulations are framed for the administrative convenience. This arrangement shall be continued till the rules and regulations of administrative, financial and other affairs are issued by the Government under the provisions of the Gujarat Maritime Board.
By the order and in the name of Governor of Gujarat.
Sd/-
A.F.Vyas Deputy Secretary Ports and Fisheries Department"
From the aforesaid circular, it is clear that the rules and regulations of the Government were applicable to the Board. Gujarat Maritime Board is a statutory body and had been established for the predominant purpose of development of minor ports within the State of Gujarat, the management and control of the Board is essentially with the State Government. (See Commissioner of Income Tax v. Gujarat Maritime Board (2007) 14 SCC 704). Therefore, the draft rules had no sanctity of law and could not be relied upon by the appellant nor could it be argued that draft rules would govern the service of the employees of the Board. Though the draft rules were drafted on 11th August, 1976, but the State Government had no intention to notify or accept the draft rules. This was the reason why the State Government had not notified these draft rules for a period of about 35 years and issued the circular dated 16.4.1982. Therefore, the argument of the learned counsel for the appellant that draft rules would apply to the service conditions of the employees of the Board cannot be accepted.
The draft rules were neither a statutory direction nor it was a mandatory instruction. It had no force of law.
13. For appreciating the next argument of the learned counsel for the appellant, based on Government Resolution dated 5.7.1991 produced by the appellant and more particularly on paragraph (iii) and its first proviso, it is necessary to extract the relevant part of the said Government Resolution as under:
GOVERNMENT OF GUJARAT GOVERNMENT RESOLUTION No:AOP-1091/3/M, FINANCE DEPARTMENTA Sachivalaya, Gandhinagar, July 5, 1991 R E S O L U T I O N:-
To deal with the problem of stagnation in many cadres due to absence or restricted chances of promotions, Government had announced the Scheme of higher grade scales vide Government Resolution of even number dated 20.2.1991. In supersession of this earlier scheme, Government is now pleased to introduce the following scheme of grant of higher grade scales;
i) This scheme shall be applicable to all posts with a pay or scale of pay the maximum of which does not exceed Rs. 3500 per month;
ii) The first higher grade scale shall be granted on completion of 9 years of service in the relevant scale provide that the employee has not received more than two promotions earlier. For the purpose of computation of 9 years service in the relevant scale, all service that counts for increment in that scale shall be taken into account;
iii) The first higher grade scale of pay shall be the scale of pay of the next promotion post provided that for employees in a post having more than one promotional post in different scales of pay, their first higher grade scale of pay shall be the lower promotion post's scale of pay;
Provided further that in case there is no promotion scale, the first higher grade scale shall be the higher grade scale corresponding to his existing scale as specified in the Schedule annexed to this Government Resolution.
14. The main emphasis of the learned Counsel is that in case where there is no promotional post, the first higher grade pay scale would be higher grade pay scale corresponding to its existing pay scale as specified in the schedule annexed to this Government Resolution. On the strength of the first proviso, learned counsel for the appellant has urged that the Government Resolution dated 5.7.1991 prescribes that for existing scale of Rs.775-1025, the higher grade pay scale as per the schedule would be Rs.800-1150. Similar provisions were made in Government Resolution dated 16.8.1994 and 14.8.1998. This argument of the learned counsel is based on the assumption that from the post of Khalasi, a person is to be promoted on the post of Assistant Tradesman and Assistant Tradesman is to be promoted on the post of Tradesman. There is a fallacy in the argument of the learned counsel for the appellant. The pay scale of Khalasi and Assistant Tradesman being the same since the inception of Rules 1975 and the post of Assistant Tradesman and Khalasi were interchangeable and transferrable from one post to other. Therefore, in such situation, the next promotional post of Khalasi would be Tradesman. First proviso to paragraph (iii) and the schedule of the Government Resolution dated 5.7.91, and Government Resolutions dated 16.8.1994 and 14.8.1998 would not be applicable to the facts of the case. We have already held that the post of Khalasi and Assistant Tradesman were interchangeable therefore, the next promotional post of Khalasi was Tradesman.
15. From the facts of this case, it is clear that the appellants had given higher grade pay scale of Tradesman to the respondents which was next promotional post of Khalasi after completion of nine years of service. The benefit was granted by the appellant from the date each employee completed nine years service. There was no audit objection and the approval to the grant of higher grade pay scale was approved by the superior officers and the authorities of the Head Office of the Board. After 17-18 years, the appellants are estopped from challenging that wrong pay scale was given to the respondents under a mistake. Moreover, we have held that the next promotional post of Khalasi was Tradesman, therefore, we are of the firm opinion that the Board did not commit any mistake in granting higher grade pay scale of the post of Tradesman to the respondents.
16. The Government Resolutions dated 5.7.1991, 16.8.1994 and 14.8.1998 do not help the appellants. The recovery could not have been effected by the appellants against the respondents with effect from 1994 or from the date when higher grade pay scale were granted to them.
17. For the reasons given above, we do not find any illegality or infirmity in the order passed by the learned Single Judge. The Appeals lack merit and are accordingly dismissed.
[V M SAHAI, J.] [G B SHAH, J.] msp Top