Gujarat High Court
Jyotiben Manharlal Bhatt & vs Bhuj Nagarpalika & on 26 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/7007/1992 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7007 of 1992
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JYOTIBEN MANHARLAL BHATT & 1....Petitioner(s)
Versus
BHUJ NAGARPALIKA & 1....Respondent(s)
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Appearance:
MR PRANAV S DAVE, ADVOCATE for the Petitioner(s) No. 1 - 2
MR SHIVANG M SHAH, ADVOCATE for the Petitioner(s) No. 1 - 2
MR. SHARMA, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 2
MR BY MANKAD, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/04/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioners, serving with the Bhuj Nagarpalika, have prayed for the following reliefs;
"(A) Your Lordship be pleased to issue an order, direction, writ in the nature of mandamus, and/or certiorari or any other appropriate writ, order or direction, declaring the impugned action on the part of the respondent to deprive the petitioner employees of the time scale of pay payable to the regular clerk of the Nagarpalika as arbitrary, illegal and unconstitutional and be pleased to direct the respondent Nagarpalika to extend the benefits of time scale of pay payable to the regular clerk in the respondent Nagarpalika, to the petitioner employees at Annx.'A' to the petition, from the date on which they are working on the post of clerk.
A. It is further submitted that the respondent No.2 is Page 1 of 10 HC-NIC Page 1 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER the authority to sanction the various posts as per the requirement of the respondent No.1. That as stated in petition, the population, income, area of the respondent No.1 has increased and as per the information of the petitioner, respondent No.2 has time and again required the respondent No.2 to sanction the posts and give grant. That as the respondent No.2 is not either sanctioning the posts as per uncrease in population, area etc. of respondent No.1, respondent No.1 express his helplessness to extend benefits of equality of pay to the petitioner employees. Thus due to inaction on the part of the respondent No.2 also, the employees are deprived of the benefits available to the regular employees. Therefore, it is a fit case to direct respondent No.2 to sanction the grant.
(B) Be pleased to declare that the petitioner employees at Annx.A are entitled to get all the consequential benefits available to the permanent employees working as Clerk and direct the Nagarpalika to extend the same with 18% interest.
(C ) Be pleased to direct the Nagarpalika to consider the petitioner employees as regular clerks from the retrospective date, since when they are working on the posts of clerk and grant all consequential benefits.
(D) Pending admission and final disposal of the petition be pleased to restrain the respondent Nagarpalika from terminating, discharging and/or discontinuing the present situation of the employees at Annx.A and further direct to pay them the salary payable to the regular clerk of the Nagarpalika regularly.
(E) Any other relief to which the Court deem fit and proper in interest of justice together with cost.
A) Be pleased to direct the respondent No.2 to sanction the requisite number of posts to unable the respondent no.1 to extend benefits of equality of pay to the employees.
B) Be pleased to correct the word as respondents instead of respondent."
2. The case of the petitioners may be summarized as under;
Page 2 of 10HC-NIC Page 2 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER 2.1 According to the petitioners, although they are working on the post of the clerk, yet they are not granted the time scale of pay and the other benefits available to the clerical staff. Their initial appointment was as the Class-IV, but due to administrative exigencies, clerical work is being taken up from them past couple of years.
3. The first affidavit-in-reply filed on behalf of the Nagarpalika, duly affirmed by the Chief Officer, reads as under;
"[3]. With reference to para 1 & 2 of the petition l say and submit that the contentions are not true. That so far the claim of the petitioner employees to extend the benefits of time scale of pay of Rs 950-1500 cannot be accepted. I say that the petitioner employees are not working in the sanctioned post of clerk. Moreover, the overall percentage of establishment expenditure exceeds 45% which is not permissible under the law. I say that the Bhuj Nagarpalika is having sanction of post of year 1984. That the new posts are required to be sanctioned by the Directorate of Municipalities in light of the expansion of the workload, population and area of the Nagarpalika. That on sanctioning of the required posts only the petitioner employees can be granted the scale of pay as they have asked for. It is not true that the Nagarpalika is acting in arbitrary manner as stated in the petition.
[4]. With reference to para 2 of the petition, i say that it is true that the petitioner employees are regular class IV employees working as Warder but as stated in the earlier para, due to expansion of the area of the Nagarpalika, increasing population and looking to the burden of work, these employees are directed to perform the duty of clerk. It is not true that the Nagarpoalika is exploiting the petitioner employees. It is also not true that the petitioners are working on the permanent vacant post. That the Nagarpalika has no objection to grant the scale of pay of clerk to the petitioner employees if the Page 3 of 10 HC-NIC Page 3 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER Director of Municipalities sanction the post and also sanction the grant for the same. I say that the difference of wages between the permanent employees working as Clerk and present petitioner employees is due to non availability of sanctioned post and non-availability of fund because in no circumstances the Nagarpalika is permitted to exceed the expenditure more than 45% and therefore in absence of sanctioned post by the director of Municipalities. the petitioner cannot be extended the benefits of time scale of pay. It is not true that the Nagarpalika has adopted such practice of exploitation and not granting the benefits of equality of pay.
5. With reference to para 3 of the petition.. l deny the contentions and it is not true that the Nagarpalika has adopted discriminatory treatment between the two sets of similarly situated employees. That as stated in the earlier para, the petitioners are not working on the sanctioned post and therefore, they cannot demand the scale of pay as stated. That there is no differential treatment by the Nagarpalikai and the duties are allotted to the petitioner employees as per vacancies and work available. I say that the petitioner employees are not entitled to get the scale of pay of clerk and therefore the same is not extended from 14.3.92. So far the nature of duties of warder and clerk on the octroi nake are concerned. are the same. It is true that most of the Octroi Nakas, there are three shifts. That the duties of Warder and Clerk are to collect the octroi to give receipts of the same and to check the vehicles. That the amount which is collected is required to be deposited with the Municipality and in case of any shortage or misconduct. the employees are responsible for the some. The petitioner cannot claim the benefits of scale of pay and they cannot be permitted to compare them with the work of clerk because they are not Working on the sanctioned posts. That so far the vacancies of clerk are concerned, the same are required to be adjusted by the persons who are given the posting by the award of the competent authority. Copy of the award is annexed and marked as Annexure-l to the reply. That the beneficiary of the award, some of them are working on the shadow post and therefore the petitioners cannot be granted the benefits of equality of pay. It is not disputed that the employees working as Clerk are later- transferable. It is Page 4 of 10 HC-NIC Page 4 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER not true that there is no justification available to the respondents to pay less salary to the petitioners than payable to the regular clerical cadre employees. [6].. With reference to para 4 of the petition, I say that so far the nature of work etc are concerned, Al have dealt with in the earlier para and the facts are not disputed. The petitioner employees are adjusted and utilized on the work as per the requirement and therefore they were transferred from the department to another, but it is not true that they are entitled for the benefits of scale of pay payable to the regular karkoon. So far the duties of warder and clerk on the octroi naka are concerned, as stated above, is similar but the petitioner employees are not given posting on the sanctioned post and therefore, they cannot claim any right from the Nagarpalika. [7].. With reference to para 5 of the petition, l deny the contentions of the petition. it is not true that the post of Karkoon are available vacant. That the Nagarpalika has time and again requested the Director of Municipalities to sanction the further posts in light of increase of the Workload and expansion of the city. I say that the petitioner employees cannot claim the benefits of time scale of pay because for performing the duties of Karkoon and shouldering the responsibility they are granted extra allowance of 5% of basic scale of pay as an Acting Allowance. That the amount which is required to be paid to the petitioner employees on the basis of scale of pay are not grantable as the posts are not sanctioned and therefore, the petitioner employees are granted the acting allowance. That there is no intention, of the Nagarpalika to exploit the employees as stated in the petition. There is no dispute about nature of Work and the contents of the affidavit of Octroi Inspector at Annx.D. it is not true that the Nagarpalika has adopted discriminatory treatment and is violative of Art 14 & 16 of the Constitution of India.
[8]. With reference to para 6 of the petition, I say that the judgments quoted by the petitioners are not applicable. In the present case as well as the petition nos which are quoted are also not applicable in the case of the petitioners and therefore they cannot ask any relief relying on those orders. The fact of the case is different than the fact in those cases.Page 5 of 10
HC-NIC Page 5 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER [9]. With reference to para 7 of the petition, I reiterate that the petitioners are not performing their duty on the vacant post and in absence of availability of vacant posts, the Nagarpalika cannot be directed to grant the scale of pay of clerk to the petitioner employees. I reiterate that l have stated in earlier para about increasing of population etc but till the director of Municipalities sanction the post, it is not possible for the Nagarpalika to extend the benefits of equality of pay to the petitioner employees and therefore, the petitioners are not entitled to get any relief and therefore, the same is required to be rejected.
[10]. With reference to para 8 of the petition, I say that the petitioners are not having any prima facie case and the balance of convenience is also not in favour of the petitioners. I say that the petitioners are not performing their duty on the vacant posts but they are performing the duty of clerical nature and for shouldering the responsibility of clerical cadre employees, they are granted the acting allowance. I say that the Nagarpalika is not going to terminate the service of any of the petitioner employees and therefore, they are not entitled to get any relief from this Hon'ble Court. I say that granting of the time scale of pay to the petitioner employees will create great hardship to the Nagarpalika because the Nagarpalika cannot bear such expenditure before the posts are sanctioned and grant is available from the Director of Municipalities.
4. The second affidavit-in-reply filed by the Nagarpalika, duly affirmed by the Chief Officer, reads as under;
"5. I say that, all the petitioners do not possesses the educational qualification of S.S.C, which is essential for the post of a clerk as per the rules of the municipality. Petitioners no.1 to 15 were appointed as warder (peon) on a regular establishment therefore. they are paid salary from the government grant While Petitioners no. 16 to 25 were appointed as Warder ( Peon ) in an irregular manner without following the due procedure as per the relevant rules of the municipality. Thereafter, Page 6 of 10 HC-NIC Page 6 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER they were regularized in view of labour court's award. Therefore. the government is not giving grant for their salary and the municipality has to give them salary from its own funds. The sanctioned set up showing the various posts and the qualifications necessary for holding that posts is annexed herewith at Annexure -2. Looking to this fact, it would be evident that Petitioners can not be equated with the clerks who are possessing requisite qualification of S.S.C and are appointed in the municipality on a sanctioned post after following the due procedure for appointment as per rules. The Petitioners can not be appointed as clerks even In future because they do not possess educational qualification of S.S.C. it is pertinent here to quote Rule-8(1) of the G.C.S. (classification and recruitment (general)) Rules. 1967. which provides that "Subect to the provisions of these rules. no person shall be appointed to any service or post unless he possesses the qualification, if any, prescribed in the rules relating to the recruitment to such service or post."
6. I say that, these Petitioners had actually not worked as a clerk at the octroi posts. They were just registering the vehicles passing from the particular post in a vehicle register. For this work. they were given acting allowance as per the Acting Allowance Rules. As per these rules, if the employee of the municipality is given the work of the post which is higher to his post, then he would be entitled to the acting allowance of 5% of the salary of that post. Copy of the Rules for Acting Allowance is annexed at Annexure - 3. Thus. they were given the allowances as per the rules and they are not entitled for the pay scale of a Clerk and they can not claim equal pay for equal work.
7. I say that, the Petitioners have made vague statements in the petition with regard to their nature of duty. I say that, by putting a signature as a clerk on the document, the employee would not become a clerk and can not claim the pay scale of a clerk. I say that, the petition is filed on a clear misconception and the petition is vague, frivolous and misconceived and the same is required to be dismissed."
5. The stance of the Director of Municipalities, according to Page 7 of 10 HC-NIC Page 7 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER the reply, is as under;
"4. It is submitted that with regard to the averments made in Para-1 to 8 of the petition, the same is not required to be deal with at this stage and with regard to Para-8(A) of the petition, it is submitted that the claim of the petitioner is not acceptable. It is submitted that in view of the provisions under section 273 of the Gujarat Municipalities Act, 1963 wherein it has been specifically directed that Municipality has no right to create post where financial burden on the municipality is increasing burden beyond Rs.200/- per month by way of salary. It is submitted that the vide letter dated 4.3.2004, Chief Officer, Bhuj Nagarpalika has informed that for the additional set p for the post of clerical staff no such representation has been made to the Bhuj Nagarpalika and such post are being sanctioned by the Urban Development & Urban Housing Department of the State. It is submitted that establishment expenses of the Nagarpalika should not in any case be increased beyond 45% as per the Govt. Resolution. A copy of the said Govt. Resolution dated 2.6.1998 issued from the Urban Development and Urban Housing Department of the State is annex hereto and marked as ANNEXURE-R-1. It is submitted that at present establishment expenditure of the Bhuj Nagarpalika has gone between 58% to 60%. It is submitted that as per the prescribed limit by the State Government the municipality cannot bare this financial burden and therefore, considering the present Govt. Resolution of the Ghovt., Bhuj Nagarpalika is not in a position to create and fill up the opst in the present establishment. It is submitted when the set up has not been sanctioned then the grant for the same would not be considered.
5. It is submitted that in view of the aforesaid submission made hereinabove, the petitioner is not entitled to the higher pay scale then the prescribed pay scale of the cadre in which he is working and therefore, petitioner is not entitled for any of the relief claimed for."
6. Having heard the learned counsel appearing for the Page 8 of 10 HC-NIC Page 8 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER parties and having considered the materials on record, more particularly, the affidavit-in-reply, it is not in dispute that although the petitioners were appointed as the Class-IV, yet on account of certain administrative exigencies, clerical work is being taken up from them past couple of years. If that be so, then their claim seems to be legitimate. If a particular work is being taken from an employee, although he may not be appointed in that cadre and he continues to discharge his functions, then the employer owes an obligation to pay him accordingly. If the Nagarpalika is short of staff in the Class-III, it should have undertaken the regular recruitment, but could not have asked the employees of the Class-IV to discharge the duties of the Class-III. This is something contrary to law and is nothing but an exploitation. The only reason assigned by the Director, in not sanctioning the claim is the total expenses of the Nagarpalika. As usual, the age old policy that if the overall expenses exceeds 48% of the total income, then the claim put forward by the petitioners is not tenable, deserves to be rejected. What has been highlighted so far as the expenses is concerned, is of the year 2004. Nobody knows what is the position as on date, i.e., after almost 12 years. In such circumstances, the Director is directed to once again look into the matter and take an appropriate decision in accordance with law within a period of two months from today. While taking such decision, the Director shall keep in mind that if the Nagarpalika intends to take work from the Class-IV employees, the work of clerks, they must be paid accordingly.
7. With the above, this writ application is disposed of.
Direct service is permitted.
Page 9 of 10HC-NIC Page 9 of 10 Created On Wed Apr 27 02:27:39 IST 2016 C/SCA/7007/1992 ORDER (J.B.PARDIWALA, J.) Vahid Page 10 of 10 HC-NIC Page 10 of 10 Created On Wed Apr 27 02:27:39 IST 2016