Gujarat High Court
Gujarat Municipal And Panchayat Kamdar ... vs Ahmedabad Municipal Corporation on 9 June, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/18165/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18165 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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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 ?
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GUJARAT MUNICIPAL AND PANCHAYAT KAMDAR ASSOCIATION & 2
other(s)
Versus
AHMEDABAD MUNICIPAL CORPORATION & 1 other(s)
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Appearance:
MR DG SHUKLA(1998) for the Petitioner(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 09/06/2020
CAV JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India seeking direction to the Ahmedabad Municipal Corporation - Respondent No.1 (hereinafter referred to as the 'Respondent Corporation') to extend the benefits of revised pay-scales of Head Clerk of Rs.5000 - 8000 as per the Fifth Pay Commission, with effect from 1st January 1996 and Rs.9300 - 34800 (Grade Pay Rs.4200) as per the Page 1 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT Sixth Pay Commission, with effect from 1st January 2006, working with the Respondent Corporation or who were working with the Respondent Corporation. Further direction has been sought for, for the payment of arrears of salaries and retirement benefits in case of the retired / expired Head Clerk, together with 12% simple interest.
2. Tersely stated are the facts: -
2.1. According to the petitioner, upon introduction of the Fourth Pay Commission, the State Government in its Finance Department, framed the Gujarat Civil Services (Revision of Pay) Rules, 1987 followed by framing of the Rules called Gujarat Civil Services (Revision of Pay) (Amendment) Rules, 1991 on 20th March 1991, revising the pay-scales of the employees working with the State Government. By virtue of the said Rules of 1991, the cadre of Senior Assistant/Assistant Accountant/Senior Store Keeper/Head Clerk were merged and re-designated as Head Clerk. The cadre of the Head Clerk was then placed in the pay-scale of Rs.1400 - 2600.
2.2 The Respondent Corporation through its Chief Accountant Department, vide circular number 84, dated 20th December, 1996, while considering the Resolutions dated 20th March, 1991 and 9th October, 1992 issued by the State Government, revised the pay-scales of the categories which were in the existence in the Respondent Corporation. By virtue of the said circular number 84 dated 20th December, 1996, the pay-scales of the Cadres (i) Stenographer-II, (ii) X-ray Technician, (iii) Sister In-charge, Home Sister etc. (iv) Staff Nurse, Operation Theater Nurse, (v) Nurse-Midwife, (vi) Compounder, Compounder-cum-Clerk, Junior Pharmacist, (vii) Assistant Engineer,
(viii) Additional Assistant Engineer, (ix) Inspector and (x) Sub-
Inspector were revised with effect from 1st January 1996 and were placed in the pay-scales at par with the pay-scales admissible to the aforesaid categories working with the State Government. In other words, the benefit of the pay-scales applicable to the employees Page 2 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT working with the State Government was made applicable to the aforesaid ten cadres of the Respondent Corporation, except the Head Clerk.
2.3 The State Government implemented Fifth Pay Commission with effect from 1st January, 1996 by framing the Gujarat Civil Services (Revision of Pay) Rules, 1996. As a result whereof, the Respondent Corporation issued a circular number 29 dated 15th October, 1998, whereby, while adopting the revision of the pay-scale effected by the State Government, revised the pay-scales with respect to ten categories; however, the post of Head Clerk was not appearing in the said circular. It is the case of the petitioner that the Respondent Corporation has been adopting the pay-scales provided by the State Government to its employees. It is not disputed that all the employees and officers at all levels have been extended the pay-scales and other benefits at par with the officers and employees working with the State Government. By virtue of the said circular number 29 dated 15th October, 1998, the new revised pay-scale was extended to all the officers on scale to scale basis with effect from 1st January 1996. It is the further case of the petitioner that serial number 11, provided the pay-scale of 1400-40-1800-L.A.-50-2300 and at serial number 12 the pay-scale was of Rs.1400-40-1600-50-2300-L.A.AA.60-2600.
2.4 The Central Government introduced Sixth Pay Commission, which was accepted and implemented by the State Government for its officers and employees with effect from 1st January, 2006, by framing the Gujarat Civil Services (Revision of Pay) Rules, 2006. Consequently, the Respondent Corporation in its Finance Department, vide circular number 36, extended the benefits of Sixth Pay Commission with effect from 1st January, 2006 to all its officers and employees in line with the State Government.
2.5 The existing Head Clerks through the petitioner Union, submitted a representation dated 25th June, 2012 to the Chairman, Page 3 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT Standing Committee of Respondent Corporation, inter alia, requesting that the pay-scale of the Head Clerk working with the Respondent Corporation is at a lower side compared to the pay-scales of the Head Clerks working with the State Government, Surat Municipal Corporation and Vadodara Municipal Corporation, and thus, requested that the said issue be considered and the Head Clerks working with the Respondent Corporation may be placed in the pay- scale of Rs.9300 - 34800, Grade Pay of Rs.4200. It was also stated in the representation that nature of duties and responsibilities of the Head Clerks working with the Respondent Corporation are identical to the nature of duties and responsibilities being performed by the Head Clerks working with the Vadodara and Surat Municipal Corporation.
2.6 The Chief Accountant, Finance Department of the Respondent Corporation, submitted a proposal dated 23rd July, 2012 to the Deputy Municipal Commissioner (Finance), inter alia, pointing out the pay-scales existing in the Respondent Corporation vis-à-vis the pay- scales of the Head Clerks working with the State Government. The Standing Committee of the Respondent Corporation, in its meeting dated 8th May, 2013, vide resolution number 275 resolved that owing to the anomaly prevailing in the pay-scales of the Head Clerks working with the Respondent Corporation and the Head Clerks working with the State Government; the Head Clerks in the administrative cadre working with the Respondent Corporation shall be extended the pay- scale of Rs.9300 - 34800, Grade Pay Rs.4200, as per the pay-scale fixed by the State Government for the Head Clerks working with it.
2.7 The Chief Accountant, Finance Department of the Respondent Corporation, accordingly, issued a circular number 10, dated 10th May, 2013, inter alia, stating that as resolved by the Standing Committee vide its resolution number 275 dated 8th May, 2013, Head Clerks of the administrative cadre be placed in the pay-scale of Rs.9300 - 34800, grade pay Rs.4200 instead of pay-scale of Rs.5200 -
Page 4 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT20200, grade pay Rs.2800 with effect from 1st April, 2013.
2.8 The General Board of the Respondent Corporation in its meeting, vide resolution number 363, dated 28th June, 2013 approved the resolution number 275 dated 8th May, 2013 passed by the Standing Committee with a minor modification that the effect of implementation be given not from 1st April, 2013, but from 1st January, 2013. The Chief Accountant, Finance Department, vide its circular number 37 dated 13th August, 2013 resolved that the difference for the three months i.e. from 1st January, 2013 to 31st March, 2013, be released in favour of the Head Clerks working with the Respondent Corporation.
2.9 Since the benefits were extended only qua the existing Head Clerks working with the Respondent Corporation, the retired Head Clerks, through Ahmedabad Municipal Pensioners' Association (hereinafter referred to as "the Association"), in the interregnum submitted a representation dated 2nd August, 2013 to the Municipal Commissioner, Ahmedabad Municipal Corporation, inter alia, requesting to remove the anomaly and revise their pay-scales as well; in line with the revision extended to the existing Head Clerks by placing them in the pay-scale of Rs.9300 - 34800, Grade Pay Rs.4200 instead of the pay-scale of Rs.5200 - 20200 plus Grade pay Rs.2800 and give the pensionary benefits accordingly.
2.10 The Standing Committee of the Respondent Corporation in its meeting, dated 28th February, 2014 vide resolution number 2137 resolved that the Head Clerks working with the administrative cadre of the Respondent Corporation and who have retired or who have passed away on or after 1st January, 2006 be placed in the pay-scale of Rs.9300 - 34800, Grade Pay Rs.4200 at par with the employees working with the State Government. The Finance Department of the Respondent Corporation, while indicating the financial burden, sought Page 5 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT the sanction to the effect that the benefits of the pay-scales be extended only for the purpose of pension and not for other retirement dues to the employees who have retired. It also provided that necessary permission be granted to extend the benefits to the Head Clerks working on the administrative side and have retired during the period from 1st January, 2006 to 31st December, 2012 with effect from 1st March, 2014.
2.11 The General Board of the Respondent Corporation, in its meeting dated 27th June, 2014 resolved vide its resolution number 54 that the Head Clerks working on the administrative side and who have retired after 1st January, 2006 or have expired, be extended the pay- scale of Rs.9300 - 34800, grade pay Rs.4200 with effect from 1st January, 2013. The Finance Department of the Respondent Corporation, vide circular number 31, dated 4th August, 2014 passed consequential orders releasing benefit of differential amount.
2.12 During the year 2015, the Gujarat Municipal and Panchayat Kamdar Association made another representation to the Respondent Corporation, inter alia, informing that the anomaly in the pay-scales of the Head Clerks working in the administrative wing of the Respondent Corporation, which has been rectified was prevailing since inception i.e. from the year 1st January, 1996 and not from 1st January 2006. The Association requested that the Head Clerks of the administrative wing be extended Fifth Pay Commission and Sixth Pay Commission with effect from 1st January, 1996 and 1st January, 2006 respectively, as per the revised scales; after removing the anomaly.
3. The Respondent Corporation while removing the anomaly in the pay-scales, placed the Head Clerks in the pay-scale of Rs.9300-34800, Grade Pay Rs.4200, giving effect of rectification from 1st January, 2013 instead of 1st January, 2006 and thus, the present petition with the aforementioned prayers.
Page 6 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT4. Mr. D.G. Shukla, learned advocate for the petitioners, while taking this Court to the record of the captioned writ petition, referred to the factual aspects, and submitted that the Standing Committee of the Respondent Corporation, has passed a resolution number 275 dated 8th May, 2013, inter alia, resolving to extend the benefit to the Head Clerks (Administrative cadre) working with the Respondent Corporation, by placing them in the pay-scale of Rs.9300 - 34800, Grade Pay Rs.4200 instead of the pay-scale of Rs.5200 - 20200, Grade Pay Rs.2800, with effect from 1st April, 2013. It is further submitted that the General Body in its meeting held on 8 th May, 2013, resolved vide its resolution number 363 to extend the benefit of pay- scale of Rs.9300 - 34800, Grade Pay Rs.4200 with effect from 1th January, 2013 and not from 1st April, 2013.
4.1 It is further submitted that since the benefit of the revised pay- scale was extended only to the existing Head Clerks (Administrative wing), the Association submitted a representation requesting to extend the benefit to the employees who have retired upon reaching the age of superannuation. It is submitted that so far as pensioners are concerned, resolution has been passed, resolving to extend the benefit of the revised pay-scale of Rs.9300 - 34800, Grade Pay Rs.4200 with effect from 1st April, 2013. It is further submitted that the retired/expired Head Clerks have been discriminated by not extending the benefit of the revised pay-scale at par with the Head Clerks presently in employment.
4.2 It is submitted that the learned Arbitrator Shri G.S. Barot, had recommended revision of the pay-scale of the employees working with the Respondent Corporation at par with the employees working with the State Government. In other words, as per the award of the learned Arbitrator, the pay-scales applicable to the employees working with the State Government was made applicable to the employees/officers working with the Respondent Corporation. Thus, it is submitted that Page 7 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT the respondent Corporation ought to have placed the Head Clerks in the pay-scale at par with the pay-scale applicable to the Head Clerks working with the State Government.
4.3 It is pointed out that the State Government in the year 1991, re- designated the three cadres, namely, (i) Senior Assistant/Assistant; (ii) Accountant; and (iii) Store Keeper/Head Clerk as Head Clerk and thereby placed the Head Clerks in the pay-scale of Rs.1400 - 2600. Accordingly, the State Government had framed the Rules of 1991, providing the pay scales. It is vehemently contended that the anomaly in the pay-scales had crept in since the year 1991. It is submitted that in the year 1996, the Respondent Corporation itself had extended the benefit of the revised pay-scales to ten different categories; however, the Head Clerks working with the Respondent Corporation were left out, and thus, since inception the action of the Respondent Corporation is discriminatory, illegal and arbitrary. It is further submitted that when in the year 1996, the Respondent Corporation revised the pay-scales of ten categories, it ought to have revised the pay-scale of Head Clerks as well.
4.4 Similarly, in the year 1998, the Fifth Pay Commission came to be implemented and the ten categories were extended the benefits of Fifth Pay Commission on scale to scale basis, whereas the Head Clerks since were not considered by the Respondent Corporation in the year 1996, were left out. In the year 1998 itself, the pay-scale of the petitioners ought to have been fixed in the scale of Rs.1400 - 2600 instead of Rs.1400 - 2300, and thus, owing to the said mistake, the Head Clerks have been subjected to injustice. That the Sixth Pay Commission has been introduced with effect from 1st January, 2006, and the Respondent Corporation has adopted the same vide its resolution dated 31st March, 2009 with effect from 1st January, 2006. It is incorrect to say that the Respondent Corporation does not give retrospective effect while implementing the pay-scales for the Page 8 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT employees of the Respondent Corporation, at par with the employees of the State Government.
4.5 While referring to page 43 of the compilation, it is submitted that, the Junior Clerks, were receiving the pay-scale of Rs.3050 - 4590 and as per the Sixth Pay Commission, they were placed in the pay-scale of Rs.5200 - 20200, plus 1900 (Grade Pay). Similarly, Senior Clerks were working in the pay-scale of Rs.4000 - 6000 and while extending the benefit on scale to scale basis, the Senior Clerks were placed in the pay-scale of Rs.5200 - 20200, Grade Pay Rs.2400. While further referring to page 45 of the compilation it is submitted that so far as the Head Clerks are concerned, they were getting the pay-scale of Rs.5000 - 8000 and as per the Sixth Pay Commission, the Head Clerks were placed in the pay-scale of Rs.9300 - 34800 + 4200 (Grade Pay). It is thus submitted that the reason behind removing the anomaly was that the Head Clerks as per the Fifth Pay Commission were getting the pay-scale of Rs.5000 - 8000 and as per the Sixth Pay Commission, they were placed in the pay-scale of Rs.9300 - 34800 on scale to scale basis.
4.6 It is submitted that, all the categories, namely, Junior Clerks, Senior Clerks, Head Clerks were extended the benefit of pay-scale with effect from 1st January, 2006. Since, the anomaly was removed and the Head Clerks working with the Respondent Corporation have been placed in the pay-scale of Rs.9300 - 34800, the petitioners should have been extended the revised scale from 1st January, 2006 and not from 1st January, 2013.
4.7 It is then submitted that as per the Fifth Pay Commission, the Head Clerks working with the corporation were receiving pay of Rs.4500 - 7000 whereas the Head Clerks working with the State Government were receiving the pay of Rs.5000 - 8000. It is further contended that so was the position during the Sixth Pay Commission; where, the pay-scale of the Head Clerks working in the corporation Page 9 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT was Rs.5200 - 20200, Grade Pay Rs.2800, whereas the Head Clerks working with the State Government were receiving pay-scale of Rs.9300 - 34800, Grade Pay Rs.4200.
4.8 While inviting the attention of this court to the note dated 23 rd July, 2012 of the Chief Accountant of the finance department of the Respondent Corporation addressed to the Deputy Municipal Commissioner (Finance) (page 129 of the compilation of the writ petition) it is submitted that Respondent Corporation itself was of a clear opinion that there was an anomaly in the pay-scales provided to the Head Clerks working with the corporation vis-à-vis the pay-scales of the Head Clerks working with the State Government, inasmuch as, as per the Fourth Pay Commission, the Head Clerks were receiving the pay-scale of Rs.1400 - 2300 whereas the Head Clerks working with the State Government were receiving the pay-scale of Rs.1400 - 2600.
4.9 It is then submitted that the Note (page 129 of the compilation of the writ petition) of the Chief Accountant, wherein, it has been categorically stated that as per third pay commission, the pay-scale of the Head Clerks working with the Respondent Corporation, was on a higher side compared to the pay-scale of the Head Clerks working with the State Government. Thereafter, the pay-scale of the Head Clerks working with the Respondent Corporation vis-à-vis the pay- scale of the Head Clerks working with the State Government continued to be on a lower side. It is further submitted that the said Note categorically contains that as per various representations submitted for various posts, the Respondent Corporation has removed the anomaly; however, in the absence of any representation by the Head Clerks, the pay-scales were not rectified. Thus, it is submitted that in fact, the Respondent Corporation itself had recognised that there was a mistake and the same remained unchanged. That, Note was prepared by the Chief Accountant (Finance) and was approved by the Deputy Municipal Commissioner (Finance) and further approved Page 10 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT by the Commissioner. Thus, Respondent Corporation itself had recognized that there was injustice caused to the petitioners.
4.10 It is submitted that the resolution of the Standing Committee, clearly uses the term "anomaly", and thus, the Respondent Corporation itself was of the opinion that there was an anomaly in the pay-scale of the Head Clerks working with the Respondent Corporation on one hand and the Head Clerks working with the State Government on the other. Thus, the Respondent Corporation itself upon realizing that there was an anomaly has removed the said anomaly and placed the petitioners in the pay-scale of Rs.9300 - 34800. Since the anomaly has been removed the effect should have been given from 1st January, 2006 and not from 1st January, 2013. It is submitted that the rectification should have been given effect from 1st January, 1996 inasmuch as it is the right of the petitioners to receive the particular pay-scale at par with the pay-scale of the Head Clerks working with the State Government. Thus, it is submitted that the action of the Respondent Corporation is bad, illegal and without any basis and thus, the Respondent Corporation be issued direction to extend the benefit from 1st January, 2006 and not from 1st January, 2013. So far as the benefit of revised pay-scale extended to the employees who have retired/expired after 1st January, 2006 is concerned, the same has been extended solely for the purpose of pension and not for other retirement benefits.
4.11 Learned counsel for the petitioner hence submitted that the petition deserves to be allowed with a direction to the Respondent Corporation as prayed for.
5. Per contra, Mr. H.S. Munshaw learned Counsel for the Respondent Corporation, submitted that employees cannot as a matter of right seek the implementation of the revised pay-scale and that it is purely a discretion of the Respondent Corporation inasmuch as, it is the employer who has to decide the cut-off date. It is further Page 11 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT submitted that if a policy decision has been taken by the Respondent Corporation extending the benefits and giving effect to the same from 1st January 2013, it is not permissible to the petitioners to claim that the same may be extended from a particular date of their choice. It is next contended that the Respondent Corporation by virtue of the decision has extended the additional benefits and while extending the same it will be the discretion of the Corporation to determine the cut- off date inasmuch as, the Respondent Corporation is a separate entity under the provisions of the Gujarat Provincial Municipal Corporation Act, 1949. It is further submitted that fixation of the cut-off date falls purely within the realm of the Respondent Corporation and it being a policy decision there arises no question of implementation thereof from a particular date and consequent fixing of cut-off date as well.
5.1 Learned Counsel for the Respondent Corporation submitted that the officers/employees working with the State Government belong to a different class and that the petitioners cannot claim parity with the officers/employees of the State Government. However, the benefits of the Sixth Pay Commission has been extended on scale to scale basis in the year 2009 with retrospective effect and thus, there arises no question on the part of the petitioners to make grievance that the petitioners have not been extended the benefits.
5.2 It is submitted that the Respondent Corporation, has considered the matter positively after taking into considering all the pros and cons of the matter. It is further submitted that after the benefits were extended, the petitioners are now seeking parity with the employees of the State Government and additionally, the petitioners are praying for extension of benefit from a particular date i.e. 1st January 2006 together with interest which, is not permissible, considering the fact that the Respondent Corporation has while taking a policy decision determined 1st January 2013 as a cut-off date.
5.3 Adverting to the aspect of delay, it is submitted that the petition Page 12 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT suffers from the vice of delay and laches inasmuch as, petitioners and/or retired Head Clerks for the first time made the representations to the Respondent Corporation in the year 2012 and 2013 respectively. It is further submitted that the grievance of the petitioners cannot be entertained for, the same has been raised for the first time in the year 2012 i.e. almost after a period of six years from the date of implementation of the Sixth Pay Commission. It is further submitted that so far as the claim of the petitioners for removal of the anomaly from the pay-scale from the year 1996 or for that matter from the year 2006 is concerned, the same is not permissible; considering the fact that the petitioners have raised the grievance for the first time vide representations dated 21st June 2012 as well as 2nd August 2013 respectively. Thus, the fixation of the cut-off date with effect from 1st January 2013 is legal and valid and no interference is called for by this Hon'ble court in exercise of its powers under Article 226 of the Constitution of India.
5.4 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 in Special Civil Application No.4239 of 2012 to contend that the learned single Judge, has categorically observed that unless and until the decision of the State Government is absolutely unreasonable or arbitrary, the cut-off date cannot be interfered with. While relying upon the said judgment in the case of Jagdip Parmanandbhai Raval and others vs. State of Gujarat and others it is submitted that the judgments cited in the paragraph 20 onwards of the Hon'ble Apex Court clearly provide that if a cut-off date has been prescribed by the State Government, the same cannot be challenged as arbitrary and violative of the Article 14 of the Constitution of India.
5.5 Further reliance has been placed on the judgment in the case of Union of India vs. P.N. Menon and others, reported in (1994) 4 SCC 68, where the challenge before the Apex Court, was of fixing of cut-off date Page 13 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT by the Central Government extending the benefits of dearness pay being counted for the purpose of retirement benefits to the particular class; as arbitrary and violative of Article 14 of the Constitution of India. The Apex Court, while not accepting the challenge, observed that, if the Central Government has fixed the cut-off date and directed that only those officers retiring on or after the specified date were entitled to the benefits of the dearness pay counted for the purpose of retirement benefits, cannot be said to be arbitrary or violative of Article 14 of the Constitution of India.
5.6 Reference has been made to the judgment of this Court in the case of Vaidya Rosemary Hazkial Ghoghara vs. Ahmedabad Municipal Corporation rendered in Special Civil Application No.9620 of 2015 where it has been held that not only the issue of adopting the implementation of the Pay Commission be left to the corporation, but prescription of the cut-off date should also be left to the corporation and this Court may not like to tinker with the said decision of the corporation.
5.7 It is further contended that, the prayer of the petitioners has been extended from the date of the representation, inasmuch as, the petitioners requested to extend the benefits from July 2012. The Respondent Corporation after considering all the aspects have implemented the revised pay-scale with effect from 1st January, 2013. Thus, if a particular date has been prescribed by the Respondent Corporation, the petitioners have no right of whatsoever nature to insist for the implementation of the Sixth Pay Commission with effect from 1st January, 2006 and benefit of the Fifth Pay Commission from 1st January, 1996. It is further submitted that the petition suffers from the vice of the delay and laches inasmuch as, the petitioners were aware about the pay-scales prevailing for the various categories and the petitioners ought to have raised their claim at a particular point of time. Having not raised the claim at the relevant point of time, Page 14 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT it is impermissible for the petitioners now to make grievance that the petitioners have not been extended the pay-scales. That, the petitioners have been extended benefits on scale to scale basis in the year 2006 itself, that is, original pay-scale of the petitioners, therefore, it is not that the petitioners have not been extended the benefits. The benefits of the revised pay-scale of Rs.9300 - 34800 have been extended with effect from 1st January, 2013.
5.8 Further reliance has been placed on the judgment of this court in the case of Ahmedabad Municipal Corporation vs. Bharat Trivedi in Special Civil Application No.25406 of 2007 to contend that this Court, while quashing and setting aside the order of the Tribunal, has held that the Tribunal, could not have revised the date from 1st January, 1986 and directed the corporation to extend the benefits. It is submitted that the learned single Judge while adopting the principles laid down by the Hon'ble Supreme Court as well as this Court has held that it will be for the corporation to adopt and implement the particular pay-scale from the particular date and thus, it is not open for the courts to issue mandamus and direct the authorities to implement the pay-scale from a particular date.
5.9 In view of the submissions made and judgments cited, it is urged that the petition being bereft of any merits, deserves to be rejected.
6. Mr. D.G. Shukla, learned advocate for the petitioners, in rejoinder, placed reliance on the judgment in the case of Kalpnaben C. Modi and another vs. Ahmedabad Municipal Corporation and another, rendered by this Court in Special Civil Application No.7135 of 2008 with Special Civil Application No.7703 of 2008. It is submitted that the issue in the said case was as regards discrepancy in the pay- scales of the Junior Legal Assistant working with the Respondent Corporation. The Junior Legal Assistants working with the Respondent Corporation claimed the parity with the Labour Welfare Page 15 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT Officers working with the corporation. This Court, while extending the benefit to the Junior Legal Assistants at par with the Labour Welfare Officers, held that the benefit of enhanced pay-scale of Rs.6500-10500 would be available to the petitioners not from the subsequent date, but from their respective dates of appointment. It is submitted that following the principle laid down in the aforesaid judgment, the petitioners be also extended the benefits from 1st January, 2006 and not from 1st January, 2013.
6.1 Reliance has been placed upon the judgment in the case of (2008) 16 SCC 383 of the Apex Court to contend that if the benefits are extended, the beneficiaries should not be subjected to differential treatment. Reliance upon para 14 of the said judgment has been placed to indicate that the directions issued by the Tribunal, were confirmed by the High Court, wherein, the Eastern Railway Administration was directed to extend the benefit from 1st January, 1996 instead of 18th February, 2000 and further directed to release other consequential benefits in favour of the applicants therein. Mr.Shukla, then submitted that Hon'ble Supreme Court in paragraph 18 has observed that it is impermissible for the appellant therein to treat the similarly situated workers, differently.
6.2 Further reliance has been placed upon the judgment of the learned single Judge of this Court, rendered in Special Civil Application No.1314 of 2009 in the case of Vipulkumar Atmaram Parekh and others V/s. State of Gujarat and others. While inviting attention at para 10 of the aforesaid judgment, it is submitted that this Court, has held that if there is a decision of this Court or the Hon'ble Supreme Court and if the same are with respect to other similarly situated employees, the authorities should extend the benefit arising out of the judgment to all the candidates and the authorities should not insist for individual orders from the Court, though covered by the decision of the Court. It is further submitted that even if the Page 16 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT employees are not before this Court, the benefits can be extended to all the employees who are entitled for the revised pay-scale of the Head Clerks.
6.3 Further reliance has been placed on the judgment in the case of Government of India vs. B. Anil Kumar reported in (2010) 6 SCC 419 in support of the contention that if Court once holds that under the respective Rules; if employees concerned are entitled to the benefits of Special Pay, the Court itself should grant relief and need not direct the employee to move the Government for reconsideration of the fixation of their pay-scale. It is submitted that the action of the Respondent Corporation is violative of the provisions of the Article 14 of the Constitution of India and this Hon'ble Court instead of relegating the petitioner to the Respondent Corporation may grant relief as prayed for.
6.4 While distinguishing the judgment in the case of Jagdip Parmanandbhai Raval (supra), it is submitted that the employees, in the said petition, were employees of the Gujarat Water Resources Development Corporation and the benefits of Sixth Pay Commission were extended from 1st January, 2009 and not from 1st January, 2006. Learned advocate for the petitioner while inviting attention of this Court to paragraph 12 submitted that the Special Committee had considered various aspects and on the basis whereof different dates were prescribed by the State Government for implementing the recommendation of the pay commission and there was rationale behind prescription of the cut-off date and that the cut-off date was prescribed uniformly for all the employees and no category was left out.
6.5 While referring to the judgment in the case of Vaidya Rosemary Hazkial Ghoghara (supra), it is submitted that the petitioner therein was working as Medical Officer (Ayurvedic), Class III with the Corporation whereas she claimed the benefits of Medical Officer Page 17 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT (Ayurvedic), Class II working with the State Government. In that background, the learned single Judge while dismissing the petition has in paragraphs 54 and 55, inter alia, observed that unless and until Corporation independently and on its own motion and after assessing and evaluating relevant factors accepts, adopts and implement such resolution / notification, the petitioner would not be entitled for any benefits in accordance with said resolution / notification and any direction to the Corporation to grant benefit to the petitioner in accordance with said resolution / notification cannot be passed and cannot be granted by the Court.
6.6 About the delay in approaching the Court, in that, the claim of the petitioners for the period from 1st January, 1996 to 1st January, 2006 and from 1st January, 2006 till 1st January, 2013, it is stated at Bar that if this court were to grant reliefs in favour of the petitioners, and looking to the delay on the part of the petitioners in approaching the court seeking reliefs, the interest aspect has been left to the discretion of this Hon'ble Court and this Hon'ble Court if deems fit may not grant any interest. It has been reemphasized that the employees working with the State Government and the employees working with the Respondent Corporation have been, from time to time, extended the similar pay-scale, and thus, not revising the pay- scale of the petitioners with effect from 1st January, 1996 and not placing them in the pay-scale of Rs.5000-8000 is arbitrary and illegal.
6.7 While concluding it is submitted that the right of the petitioners have been sufficiently established and since the Respondent Corporation has already removed the anomaly and extended the benefit of revised pay-scale to the Head Clerks working in the Respondent Corporation, and the date should be from 1st January, 2006 and not from 1st January, 2013. It is urged that the petition be allowed by granting the prayers as prayed for.
7. Heard Mr. D.G. Shukla, learned advocate for the petitioners, Mr. Page 18 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT H.S. Munshaw, learned advocate for the Respondent Corporation.
8. The following undisputed events which took place during the years 1996 to 2012 strengthen the case of the petitioners for suitable reliefs:-
i. As per the Gujarat Civil Services (Revision of Pay) Rules, 1987, in Schedule-C titled "Secretariat Organization", serial number 112 read thus:
Sr. Designation Present Scale Revised Scale Remarks No. 112 Senior Assistant /Assistant i.425-800 i.1400-2600 --
Accountant / Senior Store
Keeper /
Head Clerks ii.425-700 ii.1400-2300
The aforesaid position continued up to the year 1991. The State Government in its Finance Department, framed the Gujarat Civil Services (Revision of Pay) (Amendment) Rules, 1991. By which, the aforesaid Entry 112, came to be amended to the following effect: -
Sr. Designation Present Scale Revised Scale Remarks No. 112 Senior Assistant /Assistant i.425-800 1400-2600 To be re-
Accountant / Senior Store designated
Keeper / as Head
Head Clerks ii.425-700 Clerk
All the afore stated categories viz. Senior Assistant / Assistant Accountant / Senior Store Keeper / Head Clerks were re-designated as Head Clerk and were placed in the pay-scale of Rs.1400-2600.
ii. The Respondent Corporation in tune with the aforesaid amendment Rules of 1991 vide circular number 84 dated 20th December, 1996 resolved that in view of the revision of the pay-scales by the State Government in various categories, the said effect be also extended to the categories, that is, ten in number, in existence in the Respondent Corporation. Though, the category of Head Clerk was also in existence in the Respondent Corporation, the benefit of revision of Page 19 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT pay-scale could not be extended to the Head Clerks working with the Respondent Corporation.
iii. The Cadres of Junior Clerk, Senior Clerk, are there in the Respondent Corporation and their pay-scales are at par with the pay- scales of the Junior Clerks, Senior Clerks working with the State Government.
iv. The implementation of Fifth Pay Commission by the Respondent Corporation vide circular number 29 dated 15th October, 1998 (page 75 of the compilation) in line with the implementation of Fifth Pay Commission by the State Government. By the said Resolution, the benefits were extended on scale-to-scale basis to all the officers/employees working with the Respondent Corporation with effect from 1st January, 1996. The pay-scales of Rs.1400-2300 was revised to Rs.4500-7000. Similarly, the pay-scale of Rs.1400-2600 was revised and placed in the pay-scale of Rs.5000-8000. Pertinently, the Head Clerks working with the State Government were in the pay- scale of Rs.1400-2600 and consequently, they were placed in the pay- scale of Rs.5000-8000 applying the principle of scale-to-scale basis.
v. Similarly, the implementation of Sixth Pay Commission by the Respondent Corporation vide circular number 36 dated 31st March, 2009 (page 99 of the compilation) in line with the implementation of Sixth Pay Commission by the State Government. By the said Resolution, the benefits were extended on scale-to-scale basis to all the officers/employees working with the Respondent Corporation with effect from 1st January, 2006. The pay-scales of Rs.4500-7000 was revised to Rs.5200-20200. Similarly, the pay-scale of Rs. 5000-8000 was revised to Rs.9300-34800. Pertinently, the Head Clerks working with the State Government were in the pay-scale of Rs.5000-8000 and consequently, they were placed in the pay-scale of Rs.9300-34800 applying the principle on scale-to-scale basis.
Page 20 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENTvi. The Note prepared by the Chief Accountant of the Respondent Corporation incorporating the pay-scales recommended during the Third, Fourth, Fifth and Sixth Pay Commission giving the comparison of the pay-scales of the Head Clerks and observing that the pay-scales of the Head Clerks working with the Respondent Corporation are on the lower side.
vii. Resolutions passed by the Respondent Corporation unequivocally observing that there exists an "anomaly" in the pay- scales of the Head Clerks and the same deserves to be removed. Eventually, the Respondent Corporation being of a considered opinion that there exists an anomaly, removed it by taking a decision after due deliberation at all the levels of the Respondent Corporation.
9. The cumulative reading of the aforesaid events, clearly suggest that the revision has been effected to the categories working with the Respondent Corporation at par with the Cadres in the State Government. However, the Head Clerks were left out leading to deprivation of legitimate entitlement.
10. Pertinently, after the representation filed by the petitioners, the Standing Committee of the Respondent Corporation passed a resolution number 275 categorically observing that there exists an "anomaly" in the pay-scales for, the Head Clerks working with the State Government are in the pay-scale of Rs.9300-34800, Grade Pay Rs.4200 whereas, the Head Clerks working with the Respondent Corporation are in the pay-scales of Rs.5200-20200 plus Grade Pay Rs.2800. Thus, the Head Clerks working with the Respondent Corporation, be extended the pay-scale of Rs.9300-34800, Grade Pay Rs.4200 at par with the pay-scale of the Head Clerks working with the State Government. Vide said resolution, it was further resolved that the benefit be extended from 1st April, 2013 and salary be paid accordingly.
Page 21 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT11. It is thereafter that in the meeting of the General Board, the resolution number 275 of the Standing Committee, was approved with a minor modification vide resolution number 363. It was provided that instead of giving effect the decision from 1st April, 2013, the same should be implemented from 1st January, 2013. Read the resolution number 275 of the Standing Committee and resolution number 363 of the General Board of the Respondent Corporation in juxtaposition, it is more than clear that the Respondent Corporation was of the considered opinion that there exists an anomaly and which deserved to be removed from the pay-scale of the Head Clerks. Thus, the Respondent Corporation having realized the mistake which had crept in, in the pay-scales of the Head Clerks working with the Respondent Corporation, sought to rectify the said anomaly and took a conscious decision of placing the Head Clerks in the pay-scales of Rs.9300- 34800, Grade Pay Rs.4200.
12. Evidently, the present is not a case of revision of pay-scales, and implementation thereof but of removing the anomaly from the pay-scales of the Head Clerks working with the Respondent Corporation. Once the Respondent Corporation has itself taken a considered and conscious decision of removing the anomaly, then, an issue which arises for the consideration of this court is as to whether it was permissible to the Respondent Corporation to give effect, prospectively, that is, from a particular date.
13. Pertinently, the judgment cited on behalf of the learned advocate for the petitioners, the facts and principle being in close proximity, applies on all fours on the issue which has arisen in the present case.
14. This court in the case of Kalpnaben C. Modi vs. Ahmedabad Municipal Corporation (supra) and allied matters wherein the issue was as to whether the Tribunal was correct in allowing the benefits of the pay-scale from 29th October 2005 and not from the date of the Page 22 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT respective appointments of the petitioners therein. This court while allowing the writ petition observed thus:
"We find that the Tribunal below, in the Award impugned, has specifically recorded that the Corporation has not made out any case that it has financial inability to grant pay-scale to the petitioners.
It appears that in the set-up of the respondent-Corporation the duties and responsibilities of Labour Welfare Officer and that of Junior Legal Assistant are the same and previously also they carried identical pay-scale.
Such being the position, in our opinion, Ms. Shah is quite justified in contending that her clients, the petitioners, are also entitled to get the benefit of the enhanced pay-scale of Rs.6500-10500 from the respective dates of appointment which have been given to the Labour Welfare Officers.
The learned advocate appearing on behalf of the respondent-Corporation did not dispute the fact that the Labour Welfare Officers got the benefit of the enhanced pay-scale from their respective dates of appointment and that the Special Civil Applications filed by the respondent against such Award ended in dismissal.
Such being the position, we modify the Award impugned only to the extent that the benefit of the enhanced pay- scale of Rs.6500-10500 will be available to the writ- petitioners not from October 29, 2005 as awarded by the Tribunal below, but from their respective dates of appointment. The Award impugned is modified to the extent indicated above."
15. In the backdrop of the afore stated undisputed facts so also the principle laid in the aforesaid case, whether it was permissible to the Respondent Corporation, having agreed in principle that there was an anomaly and that the parity in the pay-scale of its employees be extended, to depart from this principle subsequently and deny the benefit from inception, that is, from 1st January, 2006.
16. Undisputedly, the representation dated 25th June, 2012 of the petitioners was seeking removal of the anomaly in the pay-scales of Page 23 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT the Head Clerks working with the Respondent Corporation with that of the Head Clerks working with the State Government followed by the Resolution of the Standing Committee categorically taking decision removing the anomaly in the pay-scales of the Head Clerks working with the State Government. It is further appropriate to mention that when the anomaly is removed in the pay-scales, it is the recognition of the fact that, earlier some mistake was existing which has been rectified later on. As a result whereof, the concerned set of employees have been subjected to sufferance on account of delay in payment which legitimately belonged to them. The Head Clerks, having been extended the benefit of rectification, they cannot be made to suffer further by curtailing the date of implementation. Accordingly, the benefit of the removal of the anomaly will relate back to the date when the said set of employees were eligible and entitled.
17. The right flows from the Statutory Rules i.e. Gujarat Civil Services (Revision of Pay) Rules and when the Respondent Corporation vide its circular number 36 dated 31st March, 2007 itself has taken a policy decision to implement the Sixth Pay Commission with effect from 1st January, 2006 then in that case it would be unreasonable on the part of the Respondent Corporation, while removing the anomaly, to give effect to the same from 1st January, 2013, merely because the representation was made to the Respondent Corporation for such purpose in the year 2012. Furthermore, the prescription of the cut-off date is misplaced and lacks basis for, the Respondent Corporation rectified anomaly in the pay-scales and granted the pay-scale of Rs.9300-34800 and if the mistake which has been rectified, the Head Clerks working with the Respondent Corporation are entitled for the pay-scales from the date the mistake crept in. Even otherwise also, the Respondent Corporation, has all throughout adopted the recommendation of the Pay Commission in line with the adoption of the recommendations of the Pay Commission by the State Government. The Respondent Corporation having accepted and Page 24 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT adopted the recommendation of the Pay Commission with a particular date, and that all the employees of the Respondent Corporation having extended the benefit, and when the anomaly has been removed, the same has to be given effect from the date, that is, 1st January 2006.
18. In the present case, at the cost of repetition, it is required to be stated that the Corporation itself has recognized the right of the petitioners to receive the pay-scale of Rs.9300 - 34800, Grade Pay of Rs.4200, and thus it cannot be contended by the Respondent Corporation that it is discretion of the Respondent Corporation to give a cut-off date. However, so far as the decision taken by the Respondent Corporation and even the affidavits filed by the Respondent Corporation, no basis have been offered by the Respondent Corporation for giving effect the date of implementation from 1st January, 2013. Thus, the decision of giving effect from 1st January, 2013 does not appear to be in sync with the circulars issued by the Respondent Corporation for other categories, inasmuch as, the benefits of Sixth Pay Commission have been extended by the Respondent Corporation to all its officers/employees with effect from 1st January, 2006. The Respondent Corporation, has adopted benefits of Sixth Pay Commission in line with the adoption by the State Government from 1st January, 2006. On this count also, it is clear that the petitioners, have been subjected to discrimination.
19. The contention of the Respondent Corporation that by resolution number 275 dated 8th May, 2013 and the resolution number 363 dated 1st July, 2013, the pay-scales of the Head Clerks have been revised is not in sync with the language and the intention discernible from the said Resolutions. As discussed hereinabove, the language in the resolutions categorically observes the existence of the anomaly prevailing in the pay-scales of the Head Clerks working with the State Government vis-à-vis the Head Clerks working with the Respondent Corporation and that the extension of the benefit of the Page 25 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT revised pay-scales to the Head Clerks of the Respondent Corporation in line with the pay-scales of the State Government. Thus, it is not open to the Respondent Corporation to argue de hors the language and intent of the resolutions.
20. Thus, the contention of Mr. Munshaw, learned counsel for the Respondent Corporation that the resolution number 275 dated 8th May, 2013 and resolution number 363 dated 1 st July, 2013 of the Standing Committee and General Board respectively, do not remove the anomaly but has revised the pay-scale, has to be out rightly rejected inasmuch as, having taken a decision after considering the pros and cons of eligibility of Head Clerks to receive the pay-scales at par with the pay-scales of Head Clerks working with the State Government, it is no longer open rather impermissible to the Respondent Corporation to raise such an argument. Further, the language used in the resolutions itself is self-explanatory and shall not detain this court any further.
21. In view of the aforesaid, the prayer of the petitioners insofar as it relates to extending the benefit of Sixth Pay Commission with effect from 1st January, 2006 deserves to be granted and accordingly, the Respondent Corporation is directed to pay to the petitioners the arrears of differential salary and arrears of differential pension together with interest at the rate of 6%.
22. Having held thus, the issue which now arises for consideration is as to whether the petitioners would be entitle for the benefit for the earlier period, that is, period prior to 2006. At this stage, it is required to be noted that it is true that the Respondent Corporation has recognized the rights of petitioners of getting a particular pay-scale at par with a pay-scale prevailing in the State Government for the post of Head Clerk. It is equally true that the Head Clerks working with the Respondent Corporation very well knew about the pay-scales extended to them vis-à-vis the pay-scales available to the Head Clerks working Page 26 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT with the State Government. Thus, if the Respondent Corporation, has removed the anomaly in the year 2013 and have extended the benefit to the petitioners and/or retired and/or expired Head Clerks of the Sixth Pay Commission then in that case it would be unreasonable on the part of the petitioners and/or the retired pensioners to claim the same with effect from 1st January, 1996 the Fifth Pay Commission as well. Having not agitated their grievance at the relevant point of time and when the benefits of Sixth Pay Commission have been extended to the petitioners, the petitioners cannot keep on extending their grievances and seek for the benefit of Fifth Pay Commission as well, at a highly belated stage.
23. It is well settled that though no limitation is provided for invoking the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India; however, the Apex Court has time and again cautioned that it is incumbent upon the party invoking the extra ordinary jurisdiction to approach the court promptly for enforcement of his/her right. The Apex Court in the case of Shiv Dass vs. Union of India reported in (2007) 9 SCC 274 where, the appellant, though had been relieved from service somewhere in the year 1983 filed a writ petition in the year 2005 with a prayer for grant of disability pension. The Apex Court held that normally in the case of belated approach writ petition has to be dismissed inasmuch as, delay or laches is one of the factors to be borne in mind by High Court when it exercise the discretionary powers under Article 226 of the Constitution of India. The Apex Court, while referring to the judgment in the case of State of M.P. vs. Nandlal Jaiswal observed in paragraphs 8, 9 and 10 as under:-
"8. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to Page 27 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.)
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
Thus, it is well settled proposition of law that although there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, the writ petition should be filed within a reasonable time. The Apex Court has also observed that entertainment of the writ petition would depend upon the facts of each case and if the writ petition is filed beyond a reasonable period say Page 28 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT three years normally the court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.
24. Initially, the petitioners made representation dated 25th June, 2012 which was by the Head Clerks presently working with the Respondent Corporation. The Respondent Corporation extended the benefits accordingly then came another representation dated 2nd August, 2013 by the Association and more particularly for the pensioners which also came to be granted. Perceptibly in both the representations the claim was for rectification of the pay-scale from Rs.5200-20200, Grade Pay Rs.2800 to pay-scale of Rs.9300-34800, Grade Pay Rs.4200; however, there was not a whisper about extension of benefit, that is, removal of anomaly from the year 1996. It is only after the Respondent Corporation removed the anomaly and granted the benefit from a particular date that the third representation dated 20th July, 2015 was made seeking extension of benefit of removal of anomaly and extending the revised pay-scale with effect from 1st January, 1996, which in the opinion of the court is impermissible in view of the aforesaid well settled law.
25. In the present case, the claim for extending the benefit of pay- scale for the period prior to 1st January, 2006, that is, implementation of Fifth Pay Commission after removing the anomaly is beyond the reasonable period and thus, cannot be entertained, at this distance of time. Insofar as the prayer of the petitioners for grant of relief of extending of benefit of Fifth Pay Commission with effect from 1st January, 1996 does not merit acceptance and is rejected.
26. Adverting to the judgments cited by the Respondent Corporation, it is pertinent to mention that the judgments are not applicable to the facts of the present case. The issue involved in the captioned writ petition is that the Respondent Corporation has itself implemented the Pay Commission with a particular date as discussed Page 29 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT hereinabove, the question is of removing anomaly from the pay-scales from a particular date.
27. The judgments, are dealing with the issue as to whether particular employee can claim a particular pay-scale? In such circumstances, this court has observed that it is the discretion of the employer to fix the pay-scale and the employee cannot as a matter of right claim higher pay-scale.
28. So far as the judgment in the case of Jagdish Parmanand Raval vs. State of Gujarat is concerned, the petitioners therein were the employees of Gujarat Water Resource Corporation who had challenged the decision of the State Government in extending the benefit of Sixth Pay Commission with effect from 1st January, 2009 instead of 1st January, 2006 on the ground that there is no valid, rationale or justifiable reason to deny the revision of pay-scales to the employees of the Corporation of the Sixth Pay Commission with effect from 1 st January, 2006. Under the circumstances, this court in paragraph 17, observed that recommendations of the pay commission are subject to the acceptance / rejection at the discretion of the Government. This court, while referring to various judgments of the Apex Court while dismissing the writ petition held that the cut-off date fixed by the State Government for extending the benefits of the Sixth Pay Commission recommendation to the petitioners, cannot be said to be arbitrary. Pertinently, there is no quarrel to the proposition that while implementing the recommendation of the pay commission, it will be the sole discretion of the State Government as to whether it should be implemented or not and the date of implementing the same.
29. Similarly, reliance placed on the judgment in the case of Vaidya Rosemary Hazkial Ghoghara vs. Ahmedabad Municipal Corporation is concerned, the said judgment can also not be made applicable to the facts of the present case, inasmuch as, the petitioner therein was working as Medical Officer (Ayurvedic), Class III; however, the Page 30 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT petitioner has prayed for extension of the benefit of pay-scales admissible to the Medical Officer (Ayurvedic), Class II working with the State Government. This court, while dismissing the petition held that the parity which was sought by the petitioner was misplaced inasmuch as, the petitioner had no right to claim a particular pay- scale of a particular post at par with the post on which the petitioner was not working. In fact, the observations made by this court in the said judgment helps the case of the petitioners to a certain extent. This court has categorically observed that unless and until Corporation independently and on its motion and after assessing and evaluating relevant facts, accept, adopt and implement, such resolution/notification, the petitioner would not be entitled for any benefit. What emerges from the aforesaid reading is that the officers/employees would be entitled for the benefit, if the Corporation independently and on its own motion accepts and adopts such resolution of the State Government. In the present case, the Respondent Corporation has accepted the implementation of the Pay Commission with effect from 1st January, 2006 and had extended the benefits with effect from 1st January, 2006 vide resolution dated 31st March, 2009. Relevant paragraphs 54 and 55 read thus:
"54.The decision related to said subject would fall within realm of discretion of the organization and it would not be justified for the Court to bind the employ with Court's view or wisdom or decision and direct any local authority or any autonomous body to adopt and implement any resolution issued by the Government though such resolution is not issued in respect of such independent and autonomous and distinct body (e.g. municipal corporation) and/or by ignoring the fact that such body / establishment (e.g. respondent corporation) is not covered within purview of such resolution / notification and the Government itself, in its wisdom, has not covered such autonomous body (e.g. respondent corporation) within purview of such resolution or recommendation. When the Government did not include the corporation within the ambit of the resolution / notification, this Court would not and cannot issue direction to corporation to adopt and implement such resolution / notification.Page 31 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT
55. Unless and until corporation independently and on its own motion and after assessing and evaluating relevant factors accepts, adopts and implements such resolution / notification, the petitioner would not be entitled for any benefits in accordance with said resolution / notification and any direction to the corporation to grant benefit to the petitioner in accordance with said resolution / notification cannot be passed and cannot be granted by the Court."
30. Reliance placed on the judgment of this court in the case of Ahmedabad Municipal Corporation vs. Bharat Trivedi and others, can also not be made applicable to the facts of the present case. In the said case, the order passed by the Tribunal directing the Ahmedabad Municipal Corporation to grant a particular pay-scale to the petitioner therein with effect from 1st January, 1986 was under challenge and this court, has categorically observed that the pay-scales cannot be granted directly or are made applicable automatically for, the same can be made applicable by passing appropriate resolution implementing the same. The issue before the learned single Judge was conferring the benefit of revision of pay with effect from 1 st January, 1986 though, the same was adopted by the Ahmedabad Municipal Corporation with effect from 1st April, 1996. Thus, the issue before the learned single Judge was regarding the implementation of the recommendation of the pay commission from a particular date, so is not the position in the present case.
31. The judgment cited by the learned counsel for the Respondent Corporation, cannot be made applicable to the facts of the present case inasmuch as, all the judgments deal with the issue of implementation of the recommendation of the pay commission from a particular date. Pertinently, the facts in the present case, are distinct. Concededly, in the present case, the Respondent Corporation has already recognised the right of the petitioners to the effect that there did prevail an anomaly in the pay-scale of the Head Clerks working with the State Government and other Corporations vis-à-vis the Head Page 32 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT Clerks working with the Respondent Corporation. Clearly, the present is not the case of implementation of the recommendation of the pay commission from a particular date, but the same is removal of the anomaly from the pay-scales of the Head Clerks. Thus, the reliance placed on the judgments by learned counsel for the Respondent Corporation are misplaced. The Apex Court in catena of decisions has held that observations of the courts are not to be read as Euclid's theorems nor as provisions of the statute. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. It is well settled that each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. Under the circumstances, the judgments relied by the learned counsel for the Respondent Corporation, deals with altogether a different issue and cannot be made applicable to the facts of the present case.
32. Moreover, it is nobody's case that the Respondent Corporation has not adopted and extended the benefit of Sixth Pay Commission to its employees with effect from 1st January, 2006. The case of the Respondent Corporation is indeed that the benefit of Sixth Pay Commission has been extended to its employees with effect from 1st January, 2006. Further, it is not that the Respondent Corporation has prescribed the cut-off date for extending the benefit of Sixth Pay Commission to all its employees as 1st January, 2013. Had it been the case, this court would have refrained itself from interfering with the decision taken by the Respondent Corporation inasmuch as, in such an eventuality prescription of cut-off date uniformly would fall within the realm of the Respondent Corporation; however, in the present case, all the employees of the Respondent Corporation have been extended the benefit of Sixth Pay Commission with effect from 1st January, 2006. Having rectified the anomaly and not removing the same with effect from the date the error crept in and that too without Page 33 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020 C/SCA/18165/2015 CAV JUDGMENT any rational, would be directly hit by the element of arbitrariness and violative of Article 14 of the Constitution of India rendering the action of the Respondent Corporation as discriminatory.
33. In view of the aforesaid discussion, the prayer of the petitioners insofar it relates to extending the revised pay scale of Rs.9300-34800, grade pay Rs.4200 as per the Sixth Pay Commission with effect from 1st January, 2006 deserves to be granted and the Respondent Corporation is directed to pay to the petitioners the arrears of differential salary and arrears of differential pension, as the case may be, together with interest at the rate of 6%, preferably within a period of eight weeks from the date of the receipt of the judgment. In view of the discussion aforestated, so far as the prayer of the petitioners extending the benefit of the revised pay-scale of Head Clerks of Rs.5000-8000 as per the Fifth Pay Commission with effect from 1st January, 1996 is hereby rejected.
34. In view of the aforesaid discussion, the writ petition is 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 34 of 34 Downloaded on : Tue Jun 09 23:11:14 IST 2020