Gujarat High Court
Mansukh Arjanbhai Bhakhotara vs State Of Gujarat & 3 on 23 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2723/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2723 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 2738 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3897 of 2016
==========================================================
MANSUKH ARJANBHAI BHAKHOTARA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR MUKESH H RATHOD, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/03/2016
COMMON ORAL ORDER
1. Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2. Rule returnable forthwith. Mr. Goutam, the learned AGP, waives service of notice of rule for and on behalf of the respondents.
3. For the sake of convenience, the Special Civil Application No.2723 of 2015 is considered as the lead matter.
4. The writ applicants before me are all serving as the daily Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER wagers with the Irrigation Department of the State Government, and have prayed for the following reliefs;
"(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may please to direct the respondents to grant the benefits of 6th pay commission to the petitioner from the date on which the petitioner is entitled with difference of arrears as per Govt. Resolution dated. 27.02.2009 and 15.03.2010 and further direct to the Respondents to pay difference of salary amount which was prepared by the respondents (at Annexure-H) by way of appropriate Writ of mandamus or a writ in the nature of Certiorari or any other appropriate Writ, order or direction.
(C) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to direct the respondents to grant the benefits of 6th pay commission benefits in favour of the petitioner forthwith by way of interim order, in interest of justice.
(D) Any other relief as deemed fit and proper in the interest of justice."
5. It appears that so far as the writ applicant of the Special Civil Application No.2723 of 2016, i.e., the lead matter is concerned, his prayer is that he is not being given the benefits of the 6th Pay Commission, whereas the writ applicants of the allied matters have prayed not only for the benefits of the 6th Pay Commission, but according to them, 50% towards the dearness allowance is also not paid, the G.P.F Accounts have not been opened and they have not been paid the difference of the salary.
6. Mr. Goutam, the learned AGP appearing for the respondents, invited my attention to the affidavit-in-reply filed Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER on behalf of the respondent No.4, inter alia, stating as under;
"3. It is submitted that the petitioner earlier had approached this Hon'ble Court vide Special Civil Application No. 5755 of 2014 with prayers similar to those made in the present petition. The Hon'ble Court while taking into consideration the submissions made on behalf of the petitioner as also on behalf of the petitioner as also on behalf of the answering respondent passed order dated 24.03.2015. By way of the said order, this Hon'ble Court was pleased to direct the answering respondent to examine the case of the petitioner vis-a- vis award of the Labour Court and Government Resolutions dated 17.10.1988, 24.08.2009 and 30.07.2012 for grant of benefits of 6th Pay Commission. It is submitted that pursuant to the said direction of this Hon'ble Court, the case of the petitioner was examined by the answering respondent. After examining the case of the petitioner as directed by this Hon'ble Court in its order dated 24.03.2015 passed in Special Civil Application No. 5755 of 2014, the answering respondent passed an order dated 08.06.2015. The answering respondent in the order dated 08.06.2015 inter-alia held that the petitioner was initially appointed as daily wager on 03.12.1988. Considering the said date of appointment of the petitioner as a daily wager and while taking note of Clause-2 of Government Resolution dated 17.10.1988, it became evident that the petitioner's appointment was de-hors Government Resolution dated 17.10.1988. Undoubtedly since the appointment of the petitioner itself was against the stipulation of Government Resolution dated 17.10.1988, benefits flowing from the Government resolution dated 17.10.1988 could not have been granted to the same. While it may be true that in the case of the present petitioner such benefits have been granted, however the fact remains that his appointment as daily wager in itself was against the stipulation of the policy dated 17.10.1988. since the case of the petitioner was to be examined while taking into consideration the stipulation of Government Resolution dated 17.10.1988 as directed by this Hon'ble Court in its order dated 24/03/2015, while doing so it was held that the petitioner was not entitled for any benefits much less the benefits of revision of 6th Pay Commission. Such finding was registered in the order dated Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER 08/06/2015 and as such therefore the prayers sought for in the present petition cannot be granted.
4. It is submitted that over and above the aforesaid it was also considered by the authority that as per clause 13 of the Government Resolution dated 24.08.2009, the petitioner would not be entitled to avail benefits of the same. It may be taken note of that as per clause 13 of Government Resolution dated 24.08.2009, the benefit of the said Government Resolution can only be made available to those wagers who were regularly inducted prior to 17.10.1988. Such finding has also been recorded in the order dated 08/02/2016 and therefore the benefit as prayed for in the present petition cannot be granted.
5. It is submitted that the answering respondent while assessing the case of the petitioner has also taken into consideration the Government Resolution dated 30.07.2012. As is apparent from the said Government Resolution itself, the same was applicable to the wagers of Gujarat Water Supply and Sewerage Board. It is not in dispute that the present petitioner is not serving under the Gujarat Water Supply and Sewerage Board and therefore, neither the Government Resolution dated 30.07.2012 nor its stipulations would be applicable to the petitioner. Such finding is also noted in the order dated 08/06/2015 and therefore also the prayers sought for by the petitioner cannot be granted.
6. It is submitted that thus in the above said terms and in due compliance of the order passed by this Hon'ble Court dated 24/03/2015 in Special Civil Application No. 5755 of 2014, the case of the petitioner was considered and examined for conferment of benefits of the revision of 6th pay commission. It is submitted that as per the direction of this Hon'ble Court, the exercise of examining the case of the petitioner in terms of the Government Resolutions named in the said order was undertaken and after considering relevant facts pertaining to the petitioner, the order dated 08/06/2015 came to be passed by way of which it has been held that the petitioner would not be entitled to benefits of 6th pay commission as also those claimed for in the present petition.Page 4 of 12
HC-NIC Page 4 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER
7. It is submitted that ironically though the order dated 08/06/2015 passed by the answering respondent denying the benefits of 6th Pay Commission is a part of the record of the present petition (@ Page 76), the same however has not been challenged by the petitioner. Under the circumstances, the findings of the order dated 08/06/2015 can be deemed to have been uncontroverted and therefore in light of the findings of the order dated 08/06/2015, the prayers made by the petitioner in the captioned petition cannot be considered."
7. He further invited my attention to page-76, which is an order dated 8th June, 2015 passed by the Executive Engineer, Irrigation Department, Rajkot, wherein there is a reference of the Government Resolution dated 24th August, 2009, which provides a policy decision so far as the benefits of the 6 th Pay Commission is concerned.
8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to the reliefs as prayed for in this bunch of writ applications.
9. The objection as regards the grant of the 6th Pay Commission deserves to be overlooked outright because it is not in dispute that these writ applicants have been extended the benefits of the 5th pay commission. This Court had an occasion to consider an identical issue in the Special Civil Application No.12527 of 2013 and allied matters decided on 6th August, 2015.
10. It is also not in dispute as pointed out by the learned counsel appearing for the writ applicants that the identically Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER situated persons have been extended the benefits not only of the 6th Pay Commission but even their G.P.F Accounts have been opened, they have been paid the difference towards the 50% of the dearness allowance and also the difference of salary.
11. I may quote the observations made by this Court as contained in paragraphs-16,17,18,19,20,21,22 and 23;
"16. I fail to understand that after having extended the benefits of the 5th Pay Commission recommendation w.e.f. 1998, how would it lie in the mouth of the State Government to say that the petitioners herein were not appointed after following the regular recruitment process. I fail to understand the basis on which the circular of 31st March, 1989 is being relied upon.
17. The following facts are not in dispute.
(i) All the petitioners are regularly appointed work charge employees and they are not back-door entrants in the work charge establishment.
(ii) All the petitioners were given the benefits of Fifth Pay Commission without any objection raised by the respondents.
(iii) The work charge employees appointed prior to 31.3.1989 have already been given the benefits of Sixth Pay Commission by the respondents.
(iv) Even 22 work charge employees that were appointed on compassionate ground after 31.3.1989 and are absolutely similarly situated, have been given the benefits of Sixth Pay Commission by the respondents.
(v) The Gujarat Matirime Board, which is also an autonomous Corporation/ Board like respondent No.3, has given the benefits of Sixth Pay Commission to all his work charge employees without making any classification Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER of the employees as the employees appointed prior to 31.3.1989 and the employees appointed after 31.3.1989.
(vi) 1500 work charge employees of the respondent No.2 have also been given the benefits of Sixth Pay Commission without raising any objection by the Finance Department of the State of Gujarat.
(vii) A circular dated 31.3.1989 simply forbids taking Daily Wagers on the work charge establishment and it does not prohibit the appointment of work charge employees directly after following regular recruitment procedure.
18. The Board has also made itself very clear that the petitioners were appointed as the work charge employees by way of direct recruitment and such recruitment was made on the posts sanctioned in the respective schemes through the employment exchange. If that be so, then where is the question of applying the circular dated 31.3.1989.
19. To put in other words, at any cost, the Government wants to deprive the petitioners from their legitimate claim of the benefits of the 6th Pay Commission recommendations. I do not see any reason other than the financial constraints. It may not have been said so in so many words but it is only the financial implications which seems to be pinching the wallet of the State Government. It was sought to be argued before me on behalf of the State Government that this Court should consider the matter from different angles applying the practical experience and factual contexts before arriving at any decision. To put in other words, the State Government wants the Court to take a pragmatic approach in this type of matters. I am unable to record my concurrence there too. Pragmatic does not necessarily be deprivation of the legitimate claims of the weaker sections of the society. The submissions, if I may say with respect, is totally misplaced and does not warrant any further discussion thereon.
20. I may quote with profit the observations made by the Supreme Court in the case of Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal, 2008 (7) Page 7 of 12 HC-NIC Page 7 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER SCC 375. I may quote the observations made in paras 33 and 34 as under;
33. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion.
34. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.
Page 8 of 12HC-NIC Page 8 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER
21. I may also quote with profit the observations made by the Supreme Court in the case of All India Judges Association v. Union of India, AIR 1993 SC 2493.
The contention with regard to the financial burden likely to be imposed by the directions in question is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have thought that such plea was not raised to resist the discharge of the mandatory duties. The contention that the resources of all the States are not uniform has also to be rejected for the same reasons. The directions prescribe, the minimum necessary service conditions and facilities for the proper administration of justice. We believe that the quality of justice administered and the calibre of the persons appointed to administer it are not of different grades in different States. Such contentions are ill-suited to the issues involved in the present case.
22. Thus, I am convinced with the case made out by the petitioners for the grant of the reliefs prayed for in these writ applications.
23. For the foregoing reasons, both the petitions succeed and are, accordingly, allowed. The respondent Nos.1 and 2 are directed to extend the benefits of the recommendations of the 6th Pay Commission with its effective date. The State Government is directed to undertake this exercise within a period of two weeks from the date of the receipt of the writ of the order. The arrears towards the pay scale according to the 6th Pay Commission recommendations shall be worked out and the necessary payment shall be made to the petitioners latest by the end of November, 2015. The Government shall start paying the salary from next month onwards in Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER accordance with the 6th Pay Commission recommendations. The prayer for grant of the arrears with interest is declined. Rule is made absolute to the aforesaid extent."
12. I take note of the fact that the State of Gujarat challenged the judgment of this Court referred to above by way of Letters Patent Appeal No.1230 of 2015, which has been ordered to be dismissed by an order dated 23rd September, 2015.
13. While dismissing the letters patent appeal, the Division Bench observed as under;
"3. The contention raised on behalf of the appellants was two folds; one was that it is within the domain of the State to put 'cut-off' date for the purpose of grant of benefits of Sixth Pay Commission and the second was that the State had put up the 'cut-off' date on rational basis, because the work-charge employees, who were appointed prior to 31.3.1989 shall stand on different footing and different consideration in comparison to the work-charge employees, who were appointed after 31.3.1989, since after 31.3.1989, the Government had prohibited the appointment of work-charge employees and in spite of the same, they were appointed and, therefore, the State, in its wisdom, found it proper to put up cut-off date for grant of benefits of Sixth Pay Commission only to those persons, who were appointed prior to 31.3.1989. It was submitted that the learned Single Judge has not properly considered the said aspect and, therefore, this Court may consider the same in these appeals.
4. On the first contention, there cannot be any dispute that it is in the domain of the State for grant of higher pay-scale i.e. benefits of Sixth Pay Commission, but at the same time, one cannot forget that if such benefits are to be extended by the State, it is obligatory on the part of the State Government to give similar treatment to similarly situated employees or the persons. It is not Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER open to the State to discriminate within the same homogeneous class of employees. If such a treatment is given, the action would be rendered arbitrary and the Court may issue mandamus to the Government for giving the same treatment to the similarly situated persons.
5. Examining the matter further, keeping in view the aforesaid aspect, it appears that the petitioners may be the work-charge employees, who came to be appointed after 31.3.1989, but one of the important aspects is that when the benefits of Fifth Pay Commission were extended to the work-charge employees of the Board, vide Government Resolution dated 30.3.1998, the Government did not discriminate and rather gave the same treatment to all the work-charge employees, irrespective of the fact that whether they were appointed prior to 31.3.1989 or thereafter. The fact that the same treatment was given for extending the benefits of Fifth Pay Commission to all work-charge employees, irrespective of the aforesaid date of appointment, goes to show that all work-charge employees were given similar treatment and they were considered at par for the purpose of entitlement of the benefits of revised pay- scale of Fifth Pay Commission. Once having done so by the State, when the matter was to be considered for grant of benefits as per Sixth Pay Commission, the State could not and cannot discriminate by falling back upon the date of appointment after 31.3.1989. Once there is merger of the classes and one homogeneous class is created of all work-charge employees, it would not be open to the State to put such a cut-off date and to give discriminatory treatment within the same class to all persons, who were found as similarly situated at earlier point of time. Under these circumstances, even if it is considered that the State has the power to put cut-off date, in our view, such cut-off date should not be arbitrary, nor should it result into creating a discriminatory treatment amongst the same class of employees. As the cut-off date is arbitrary, because it results into giving different treatments to the similarly situated employees, the action has been rightly found illegal by the learned Single Judge. After having found the action illegal, the learned Single Judge has granted consequential relief."
13. The same is the position so far as the 50% towards the Page 11 of 12 HC-NIC Page 11 of 12 Created On Wed Mar 30 00:16:34 IST 2016 C/SCA/2723/2016 ORDER dearness allowance, opening of the G.P.F. Account and difference of salary is concerned. Time is granted for a period of three months to comply so far as opening of the G.P.F Accounts, payment towards the difference of salary and 50% of dearness allowance is concerned.
14. Thus, so far as the issue as regards the 6th Pay Commission Benefits are concerned, it stands concluded and I hold that the writ applicants are entitled to the same. The necessary benefits in that regard shall be calculated and paid within a period of three months from today. The salary now be fixed in accordance with the 6th Pay Commission recommendations. This is already a second round of litigation. I expect the authorities to ensure that there is no third round of litigation.
15. With the above, these writ applications are disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Mar 30 00:16:34 IST 2016