Gujarat High Court
Kachchh vs State on 7 October, 2011
Bench: V. M. Sahai, Ks Jhaveri
Gujarat High Court Case Information System
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SCA/15909/2003 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15909 of 2003
WITH
SPECIAL
CIVIL APPLICATION No. 15296 of 2003
WITH
SPECIAL
CIVIL APPLICATION No. 16004 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE KS JHAVERI Sd/-
======================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
======================================
KACHCHH
JILLA MAZDOOR VIKAS MANCHJ & 2 - Petitioners
Versus
STATE
OF GUJARAT SECRETARY & 3 - Respondents
======================================
Appearance
:
MR
NV ANJARIA for Petitioners.
MR NJ SHAH, AGP for Respondent Nos.1 -
3.
MR YS MANKAD for Respondent No. 4.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/10/2011
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE K. S. JHAVERI) In all these three petitions, the petitioners have prayed for quashing and setting aside the decisions dated 16/20.10.2003, 09.10.2003 and 9/15.10.2003 respectively passed by the respondent No.3 - the Regional Director of Municipalities, Rajkot whereby the 5th Pay Commission pay scales granted to the petitioners by the State Government were ordered to be cancelled.
2. Heard learned counsel Mr. N. V. Anjaria appearing for the petitioners, Mr. N. J. Shah, learned Assistant Government Pleader appearing for respondent Nos.1 to 3 and Mr. Y. S. Mankad, learned counsel appearing for respondent No.4.
3. The question involved in the present three petitions is identical to the question raised in Special Civil Application Nos.2274 to 2283 of 2008 with Special Civil Application No.8059 of 2009 (reported in 2011 (2) GLR 1223). In the said petitions, this Court in the case of S. A. Jafai and Others v. State of Gujarat and Others, 2011 (2) GLR 1223, issued following directions in paragraph 27, which is extracted below:-
"27. Non application of mind on the part of the Director of the Municipalities is evident who has failed to notice the aforesaid fact and, thereby, instead of taking recourse of reducing the number of persons, who have been illegally appointed without any post or engaged in absence of any scheme, which is one of the measures which could have been taken under Section 260 of the Act, and have reduced the scale of pay of regular employees who have been appointed against sanctioned posts and in accordance with law. Thus, without application of mind, scales of pay of regular employees have been reduced, who were rightly provided with the revised scale of pay and, thereby, given advantage to the illegal appointees in violation of Article 14 of the Constitution. Such illegal action on the part of the Director being passed without application of mind and being violative of Article 14 of the Constitution cannot be upheld and, thereby, we set aside the impugned decision dated 9.10.2003 passed by the Regional Director of Municipalities, Rajkot and the orders passed by the State approving such illegal order.
The respondents are directed to pay the employees of regular establishment, who have been appointed against sanctioned posts, revised scale of pay as per the recommendations of the 5th Pay Commission, granted by resolution dated 2.6.1998 and given effect vide letter dated 9.11.1998 and the arrears of salary in the said scale within two months from the date of receipt/production of a copy of this judgment. They be also provided such revised scale of pay with immediate effect. But this order shall not stand in the way of the Director of Municipalities to pass appropriate order under Section 260 with respect to those appointed against no post or unsanctioned posts and/or not appointed by the approval of the Director. If there is any scheme specifically framed by the State Government for the Municipalities or by the Municipalities and for giving effect to the same, if daily wage or contract employees are required, they may be paid wages under the scheme, but their salary and wages cannot be clubbed together with the salary to which the employees of regular establishment."
4. Since the issue involved in the present petition is squarely covered by the above referred decision, we are of the opinion that the above referred decision squarely applies to the facts of the present cases also.
5. In the result, all the three writ petitions are allowed. We set aside the impugned decisions dated 16/20.10.2003, 09.10.2003 and 9/15.10.2003 respectively passed by the Regional Director of Municipalities, Rajkot and the orders passed by the State approving such illegal order. The respondents are directed to pay the employees of regular establishment, who have been appointed against sanctioned posts, revised scale of pay as per the recommendations of the 5th Pay Commission, granted by resolution dated 2.6.1998 and given effect vide letter dated 9.11.1998 and the arrears of salary in the said scale within two months from the date of receipt/production of a copy of this judgment. They be also provided such revised scale of pay with immediate effect. But this order shall not stand in the way of the Director of Municipalities to pass appropriate order under Section 260 with respect to those appointed against no post or unsanctioned posts and/or not appointed by the approval of the Director. If there is any scheme specifically framed by the State Government for the Municipalities or by the Municipalities and for giving effect to the same, if daily wage or contract employees are required, they may be paid wages under the scheme, but their salary and wages cannot be clubbed together with the salary to which the employees of regular establishment. Rule is made absolute to the above extent. No order as to costs.
Sd/-
[V. M. SAHAI, J.] Sd/-
[K. S. JHAVERI, J.] Savariya Top