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2010 DIGILAW 568 (GAU)

State of Manipur v. Maisnam Mani Singh

2010-08-11

BIPLAB KUMAR SHARMA, KETULHOU MERUNO

body2010
JUDGMENT B.K. Sharma, J. 1. Heard Mr. Y. Ashang, learned counsel representing the appellants as well as Mr. Y. Nirmolchand, learned counsel representing the writ petitioners/respondents. We have also perused the entire materials on record. 2. This writ appeal is directed against the judgment and order dated 19.5.2009 passed by the learned Single Judge in WP(C) No.709/2005 allowing the writ petition filed by the respondents herein. By the said judgment and order, direction has been issued to provide the benefit of pay revision to the respondents/writ petitioners w.e.f. 1.1.1996 instead of 1.6.2004 as was provided under the impugned order dated 22.6.2004. By the said order, while the respondents/writ petitioners had been provided with the benefit of revised pay scale notionally w.e.f. 1.1.1996 but the cash payment was made effective w.e.f. 1.6.2004. 3. It was the contention of the writ petitioners that, the other employees of the Municipal Council in which the petitioners have been working as Executive Officers having been provided with the benefit of revised pay scale with cash payment w.e.f. 1.1.1996, there cannot be earthly reason as to why the petitioners, who are also the employees of the same Municipal Council should be deprived of cash payment w.e.f. 1.1.1996. It will be pertinent to mention here that the Government of Manipur has adopted the Municipal Services (Revised Pay) Rules 1999 w.e.f. 1.1.1996 in respect of all its employees. It is an admitted fact that the Municipal Council has also adopted the said ROP Rules w.e.f. 1.1.1996. 4. Consequent upon adoption of the said ROP Rules by the Municipal Council w.e.f. 1.1.1996, the said Municipal Council extended the benefit of revised pay scale to its employees w.e.f. 1.1.1996. However, such benefit was not extended to the respondents/writ petitioners, who are in the rank of Executive Officers in the Council. 5. When the petitioners made grievance against such denial of benefit of revised pay as per the provisions of ROP Rules of 1999, their grievance was sought to be redressed by the impugned order dated 22.6.2004 passed by the Government of Manipur. For a ready reference the said order is quoted below. 5. When the petitioners made grievance against such denial of benefit of revised pay as per the provisions of ROP Rules of 1999, their grievance was sought to be redressed by the impugned order dated 22.6.2004 passed by the Government of Manipur. For a ready reference the said order is quoted below. GOVERNMENT OF MANIPUR SECRETARIAT: MAHUD DEPARTMENT ORDERS BY THE GOVERNOR: MANIPUR Imphal, the 22nd June, 2004 No.2/21/90-MAHUD(MUC)Pt-1: The Governor of Manipur is pleased to accord sanction to the revision of the existing pre-revised scale of pay of Rs.3000-100-3500-125-5000 attached to the post of Executive Officers of Municipalities as prescribed under rule 9(2) of the Manipur Municipality (Qualification, Condition of Service, Power Function and Duties of Executive Officers) Rules, 1990 to the corresponding scale of pay of Rs. 10000-325-152000 p.m. under the Manipur Services (Revised Rules, 1999 notionally w.e.f. 1.1.1996 and cash payment w.e.f. 1.6.2004. This issues with concurrences of Finance Department (PIC)'s Government of Manipur vide U.O. No.25/2004-2005?FD/PIC, dated the 1st June, 2004. By orders and in the name of the Governor Sd- (M. Lakshmikumar Singh) Joint Secretary (MAHUD) Government of Manipur 6. By the said order, although the writ petitioners were also provided with the benefit of revised pay in the particular revised scale w.e.f. 1.1.1996 but they were made eligible for cash payment only w.e.f. 1.6.2004. On the other hand, their pay in the revised pay scale w.e.f. 1.1.1996 was fixed at per with the other employees of the Municipal Council. However, in the impugned order dated 22.6.2004 it was specified that, so far as the petitioners are concerned they would be entitled to get the benefit of revised pay scale only notionally w.e.f. 1.1.1996 and cash payment w.e.f. 1.6.2004. 7. The aforesaid situation which the petitioners feet to be discriminatory led to the filing of the writ petition making a grievance against the said order dated 22.6.2004 so far as the same denied the actual cash payment to the petitioners w.e.f. 1.1.1996. 8. In the writ petition, the respondents/appellants filed their counter affidavit justifying their action towards issuance of the impugned order. The respondents broadly agreed to the contentions raised in the writ petition and the only ground urged in the said affidavit towards denial of cash payment to the petitioners w.e.f. 1.1.1996 was stated to be the financial crunch being faced by the State. The respondents broadly agreed to the contentions raised in the writ petition and the only ground urged in the said affidavit towards denial of cash payment to the petitioners w.e.f. 1.1.1996 was stated to be the financial crunch being faced by the State. For a ready reference, the particular stand taken by the respondent appellants in their counter affidavit in para 4 is reproduced below : 4. that, with reference to para Nos. 6 to 12 of the writ petition, the deponent begs to submit that the Manipur Services (Revised pay) Rules, 1999 shall apply to persons appointed to services and posts in connection with the affairs of the State of Manipur and which are under the rule making control of the Government of Manipur and shall not apply to : - (a) Person not in whole time employment. (b) Persons paid otherwise then on a monthly basis, including those paid at piece rate basis. (c) Persons paid out of contingencies. (d) Persons re-employed after retirement; and (e) Persons specifically excluded wholly or in part, by the Governor from the operation of these rules. As such, the employees of local bodies/autonomous bodies are not covered by the above Manipur Services (Revised Pay) Rules, 1999 unless the competent authority authorizes such revision of pay scales to the employees under its control. It is pertinent to mention that a proposal for revision of the pay scale for the post of Executive Officers of Municipal Councils was referred by the Administrative Department of the Municipal Administration Housing and Urban Development (MAHUD) to the Finance Department (PIC). After minute examination of the proposal, it was intimated that the Finance Department (PIC) had no objection to the proposal revision of the pay scale of the Executive Officers of the 6(six) Municipal Councils to Rs.10000-15200 (which is the corresponding revised scale of Rs.3000-5000) on the condition that the revision is made notionally w.e.f. 1.1.1996 with cash payment w.e.f 1.6.2004 in view of the serious financial constraint of the state as expenditure on salaries are borne out of grant-in-aid given by the State Government. Accordingly, under Rules 9(2) of the Manipur Municipality (Qualifications, condition of Service, Powers, Functions and Duties of Executive Officers) Rules, 1990, the State Government issued an order bearing No.2/21/90-MAHUD(MUC)Pt-I dated 1.6.2004 (vide Annexure A/2 to the writ petition). Accordingly, under Rules 9(2) of the Manipur Municipality (Qualifications, condition of Service, Powers, Functions and Duties of Executive Officers) Rules, 1990, the State Government issued an order bearing No.2/21/90-MAHUD(MUC)Pt-I dated 1.6.2004 (vide Annexure A/2 to the writ petition). Further, the deponent begs to submit that there are number of similarly situated cases of giving immediate effect of subsequent enhancement or revised pay scales in different category of posts vide Government Orders dated 7.9.1999, 10.4.2000, etc. If the revision of pay scales are made retrospective effect, i.e., from 1.1.1996, it may amount to opening of floodgate carrying a financial implication of around Rs.62.12 crores which will be unbearable for the State Government. This will considerably increase the burden of debt of the State Budget, 2005-2006 which started an opening balance of (-) Rs.47,865.95 lakhs (overdraft) as on 1.4.2005. [Emphasis added] 9. Noticing the aforesaid facts involved and the particular stand of the respondents/appellants in their counter affidavit, the learned Single Judge has interfered with the impugned order holding that the plea of financial crunch cannot be a ground to treat differently a set of employees than another set of employees in the same organization. In this connection, the learned Single Judge while appreciating the arguments advanced by the learned counsel for the parties has also referred to the Apex Court's decision in which it has been held that the State financial crunch and financial over-burden of the Government cannot be the ground for giving different pay scale to the section of the employees where the revision of pay scale to be enjoyed by the other section of the same organization w.e.f. earlier date. Learned Single Judge has also referred to the decision of the Apex Court reported in State of Mizoram and Anr. v. Mizoram Engineering Service Association and Anr. (2004) 6 SCC 218 in which a similar plea of financial crunch was raised in the counter-affidavit filed by the State respondents. 10. Although not pleaded, Mr. Learned Single Judge has also referred to the decision of the Apex Court reported in State of Mizoram and Anr. v. Mizoram Engineering Service Association and Anr. (2004) 6 SCC 218 in which a similar plea of financial crunch was raised in the counter-affidavit filed by the State respondents. 10. Although not pleaded, Mr. Ashang, learned counsel for the appellants submits that the particular decision as contained in the impugned order dated 22.6.2004 had to be taken in view of the fact that, in the ROP Rules of 1999, there was no provision made for the Executive Officers working in the Municipal Council and that it was through the Pay Anomaly Committee, the matter was examined and accordingly, a decision was taken to provide the writ petitioners the benefit of revised pay scale notionally w.e.f. 1.1.1996 with actual cash payment w.e.f. 1.6.2004. He submits that, since the particular category, i.e., Executive Officer was not incorporated in the ROP Rules of 1999, the decision had to no taken through the Pay Anomaly Committee as to whether the said category should be provided with the revised pay scale or not at per with the other employees. He submits that, in such a situation, the petitioners cannot make any grievance relating to the effective date of cash payment and notional fixation of pay w.e.f. 1.1.1996. 11. To buttress the aforesaid arguments, Mr. Ashang, learned counsel for the appellants has placed reliance on the decision of the Apex Court reported in Union of India v. Arun Jyoti Kundu and Others (2007) 7 SCC 472 . 12. We have carefully gone though the said judgment. What we find is that, in that particular case, the 5th Central Pay Commission while jointly recommended equivalent revised scale of pay for the existing scale of pay w.e.f. 1.1.1996 also made a specific recommendation to merge the Language Typist with the Clerical staff of respective organization. However, there was no recommendation vis-a-vis Typist and their pay scale. It was found by the Apex court that the same was a case where the particular paragraph of the 5th Pay Commission Report was squarely applicable and all the Typists involved were entitled to corresponding replacement of pay scales recommended by the 5th Pay Commission. 13. However, there was no recommendation vis-a-vis Typist and their pay scale. It was found by the Apex court that the same was a case where the particular paragraph of the 5th Pay Commission Report was squarely applicable and all the Typists involved were entitled to corresponding replacement of pay scales recommended by the 5th Pay Commission. 13. It is in the aforesaid background the Apex Court held that, unless the Government accepts the recommendation to merge the cadres, the court cannot proceed on the basis of recommendation alone or to direct the Government to accept the recommendation. 14. Above is not the case in hand. The aforesaid submission made by the learned counsel for the appellants is the dehors the pleadings. In the writ proceeding, no such plea was raised. As noted above, the only plea raised was the financial crunch. Further, the impugned decision of the authority will have to be judged on the basis of the impugned order itself and the plea raised in the counter affidavit filed in the writ petition. The plea which was the basis for payment of cash cannot be allowed to be developed by filing affidavit or by oral submission made during the course of hearing. As has been held by the Apex Court in Mahindar Singh Gill v. Chief Election Commissioner, New Delhi and Ors. AIR 1978 SC 851 that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplement by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional ground later brought out. 15. In the instant case, the recommendation made by the Pay Commission was accepted and infact made applicable to the employees of the Municipal Council. The authority also accepted the recommendation of the Pay Commission and accepted the same in respect of the Executive Officers. However, in their case alone, the benefit of revised pay scale with cash payment was made applicable w.e.f 1.6.2004 with notional fixation w.e.f. 1.1.1996. It is on this count, the writ petitioners made a grievance and the same found favour of the learned Single Judge. However, in their case alone, the benefit of revised pay scale with cash payment was made applicable w.e.f 1.6.2004 with notional fixation w.e.f. 1.1.1996. It is on this count, the writ petitioners made a grievance and the same found favour of the learned Single Judge. The learned Single Judge while accepting the contention of the writ petitioners has also referred the particular provision of the Manipur Municipalities Act, 1996 as reproduced below: 46. (1) An employee of Nagar Panchayat or a Council who is aggrieved by an order of the Chairperson in a disciplinary proceeding against him shall have right to appeal to the Nagar Panchayat or the Council within thirty days from the date of service of such order on him. (2) An employee who is aggrieved by an order of the Nagar Panchayat or the Council may prefer an appeal to the State Government against such an order within sixty days from the date of service of such order : Provided that no appeal against an order other than an order for removal or dismissal shall lie to the State Government. (3) subject to the provisions of the Act, the disciplinary action, conditions of the service and qualifications in respect of the employees of a Nagar Panchayat or a Council shall be the same as applicable to the employees of the State Government, from time-to-time. 16. Section 46(3) referred to above provides that the conditions of service in respect of the employees of a Nagar Panchayat or a Municipal Council shall be the same as applicable to the employees to the State Government from time-to-time. The learned Single Judge while passing the impugned judgment and order has dully taken note of the aforesaid position and the status of the writ petitioners who are admittedly, the employees of the Municipal Council. 17. Above being the position, there could not have been any different treatment to the petitioners merely because their status is Executive Officer in the Municipal Council. If the particular recommendation has been accepted by the authority, said recommendation will have to be applied equally to all the employees and there cannot be any discrimination in the matter of effective date solely on the ground of financial crunch. 18. For all the aforesaid reasons, we do not find any merit in this writ appeal and accordingly, it stands dismissed. Appeal dismissed.