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Gujarat High Court · body

2016 DIGILAW 1724 (GUJ)

Y. A. Pandya v. State of Gujarat

2016-08-11

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this application under Article 227 of the Constitution of India, the applicants serving as 'Mukhya Sevikas' have prayed for the following relief’s : "(A) Quash and set aside impugned orders Annexures C, E and F (B) Pending notice, admission and final disposal of the petition, the honorable court be pleased to stay further implementation, execution and operation of impugned orders Annexures C, E and F. (C) Be pleased to grant such other and further relief as may be deemed necessary and in the interest of justice." 2. The case of the applicants may be summarized as under: 3. An advertisement was issued in the year 1991 published in the Gujarati Newspapers for appointments to the posts of 'Mukhya Sevika' in the various districts of the State. The applicants herein applied pursuant to the said advertisement and were selected for the post. They were offered appointments in the pay-scale of Rs. 1400-2300. They were given posting in the District of Banaskantha. From March, 1992 till the order dated 21st November 2000 was passed, they received the salary in the pay-scale of Rs. 1400-2300. The respondents, by the impugned order, reduced the pay-scale of the applicants to Rs. 1320-2040. The reason assigned by the respondents for reducing the pay-scale of the applicants is that the rules provide that Rs. 1400-2300 shall be the pay-scale for the candidates holding a graduate degree, whereas all other candidates shall be entitled to receive, Rs. 1320-2040. Hence, this petition. 4. It appears that the applicants had first approached the Gujarat Civil Services Tribunal by filing Appeals Nos. 437 to 442 of 2000. Thus the appeals were filed challenging the action on the part of the respondents in reducing the pay-scale. The Tribunal partly allowed all those appeals on the ground that before passing the order of reducing the pay-scale, the applicants were not heard and that they should be given an opportunity of hearing and a fresh order shall be passed. 5. Pursuant to the order passed by the Tribunal, an opportunity of hearing was given to the applicants and the order dated 28th February 2001 was passed. The order dated 28th February 2001 passed by the respondents was again made a subject matter of challenge before the Gujarat Civil Services Tribunal by filing the Appeals Nos. 198 to 203 of 2001. Those appeals were partly allowed. The order dated 28th February 2001 passed by the respondents was again made a subject matter of challenge before the Gujarat Civil Services Tribunal by filing the Appeals Nos. 198 to 203 of 2001. Those appeals were partly allowed. The Tribunal took the view that the down gradation so far as the pay-scale is concerned, was justified. However, the respondents shall not effect any recovery of the excess amount paid to the applicants for the period between 1992 and 2000. 6. Mr. Adesara, the learned counsel appearing for the applicants, vehemently submitted that the advertisement was very clear. In the advertisement, it was specifically stated that the pay-scale shall be Rs. 1400-2300. The advertisement did not draw any distinction between a candidate holding a graduate degree and a candidate not holding a graduate degree. According to Mr. Adesara, the reduction in the pay-scale on such ground has been effected only in two districts, viz. Valsad and Kachchh, whereas in all other districts, the 'Mukhya Sevikas' who are not graduate are still receiving the salary in the original pay-scale of Rs. 1400-2300. According to Mr. Adesara, such discrimination has not been explained by the respondents and is violative of Article14 of the Constitution of India. 7. On the other hand, this application has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the Panchayat and the learned AGP appearing for the State. According to both the learned counsel, no error, not to speak of any error of law, could be said to have been committed by the Tribunal in passing the impugned order. Both the learned counsel submit that the Tribunal, after due consideration of the relevant aspects, has taken the correct view keeping in mind the rules, which prescribe the pay-scale. They submitted that so far as the grievance as regards the employees serving in other districts is concerned, will be looked into and an appropriate decision shall be taken in that regard. 8. In such circumstances referred to above, the two learned counsel submitted that there being no merit in this application, the same be rejected. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order. The Tribunal, in the impugned order, has observed as under: "6. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order. The Tribunal, in the impugned order, has observed as under: "6. We have considered the contentions raised by the both the parties and also perused the papers pertaining to the case produced before us. The Government Resolution of the Panchayats, Rural Housing and Rural Development Department dated 10.6.1987 prescribed revised scales of pay for different categories of posts in district and taluka cadres of the Panchayat Services as shown in the Schedule accompanying this Resolution and st. Sr. No. 71, two scales have been mentioned for the post of Mukhya Sevika. It reads as follows:- Sr. No. Designation Existing Scale of Pay Revised Scale of Pay Remarks 71 Mukhya Sevika/Lady Social Education Organizer/Supervisor (Integrated Child Development Scheme) Women & Children (i) 425-700 (ii) 380-560 (i) 1400-2300 (ii) 1320-2040 (i) For  Graduates (ii) For Others. It is not the case of the appellants that they were Graduates when they applied for the post of Mukhya Sevika. In these circumstances, they were eligible to get only the revised scale of Rs. 1320-2040. It is true that when the posts were advertised by the Panchayat Services Selection Board, the advertisement mentioned only one scale of Rs. 1400-2300. The appointment of the appellants was also made in the same scale for a number of years, their pay cannot now be reduced since their appointment in that pay scales amounts to entering into a contract by both the parties. This contention cannot be accepted. In this connection, it would be worthwhile to reproduce an extract from the judgment delivered by the Supreme Court of India in the case of Union of India and Others v. Arum Kumar Roy (CA No. 1213 of 1982) (SCSR 1950-1992 Vol. 3 P. 204). In this case, the Apex Court observed as under:- "17. The question whether the terms embodied in this order of appointment should govern the service conditions of employees in Government service or the rules governing them is not a open question now. 3 P. 204). In this case, the Apex Court observed as under:- "17. The question whether the terms embodied in this order of appointment should govern the service conditions of employees in Government service or the rules governing them is not a open question now. It is now well settled that a Government servant whose appointment though originates in a contract acquires a status and thereafter is governed by his service rules and not by the terms of contract the power of the Government under Article - 309 to make rules, regulate a service conditions of its employees are very wide and unfettered. These powers can be exercised unilaterally without the consent of the employees concerned. It will therefore be idle to contend that in the case of employees under the Government, the terms of the contract of appointment should prevail over the rules governing their service conditions. The origin of Government service of ten times is of contractual. There is always an offer and acceptance, thus bringing it to being a completed contract between the Government and its employees. Once appointed, Government servant acquires a status and thereafter his position is not governed by the contract of appointment, public law governing service conditions steps into regulate the relationship between the employer and employees. His emoluments and other service conditions are therefore regulated by the appropriate statutory authority employed to do so. Such regulation is permissible in law unilaterally without reciprocal consent. This Court made it clear in two Constitution bench of this Court in Roshal Lal Tandon V. Union of India, 1968 (1) SCR 185 and in State of Jammu and Kashmir v. Triloki Nath Khosa and others, 1974 (1) SCR 771 ." Thus, it is clear that the terms and conditions of the employees who enters into service contract, will, once he is appointed be governed by the rules governing his service conditions. There is also no doubt that as the appellants were given higher scale of pay by mistake, the respondent was fully justified in correcting the mistake. There is also no doubt that as the appellants were given higher scale of pay by mistake, the respondent was fully justified in correcting the mistake. It is also not correct to say that the impugned order is a non-speaking order, the respondent has clearly mentioned that the pay scale originally given to the appellants was not in accordance with the Government Resolution of 10.6.87 and appellants were put in the pay scale prescribed by Government for non Graduates when an audit objection was raised in this regard. It is also to be appreciated that the pay scale prescribed by the Government for employers a cadre to be uniformly applied in respect of all such employees. The appellants cannot be allowed to continue in a pay scale not prescribed for them as it would result in discrimination vis-a-vis other such incumbents of the cadre. 7. For the reasons aforesaid we are of the opinion that the action of the respondent placing the appellants in the pay scale of Rs. 1320-2040 is perfectly justified. The learned advocate for the appellants has however, raised an issue regarding excess amount paid to the appellants for the period when they were paid salary in the higher scale of pay. He has drawn out attention to the provision contained in Rule 57A (iii) of the BCSRs. He has also cited a judgment of the High Court of Gujarat in the case of IC Pate I v. Gujarat Housing Board (LPA No. 5078 of 2000, SCA No. 2196 of 1999.) In this case, the petitioners were given up-gradation and higher grade scale by mistake, the Gujarat Housing Board subsequently corrected that mistake and ordered recovery and reduced the scale granted to him. The High Court has observed that the appellant was not at fault when he was paid salary on higher pay scale and recovery of the excess amount paid to him amounts to imposing a sort of penalty or punishment. The High Court has further observed that he should not be made to suffer for the mistake committed by the Gujarat Housing Board. The action of the Board in giving higher grade scale was, therefore, upheld but the High Court held that the Board be restrained from making any recovery of the excess payment made to the appellant on earlier up gradation and fixation in the higher pay scale. The action of the Board in giving higher grade scale was, therefore, upheld but the High Court held that the Board be restrained from making any recovery of the excess payment made to the appellant on earlier up gradation and fixation in the higher pay scale. The learned advocate for the appellant has therefore prayed that the recovery of the excess amount paid to the appellant in the present case should not be made. 8. We are of the opinion that the appellants should not be penalized for the mistake committed by the respondent for no fault on their part. We apply ration of the above mentioned judgment in the present case and on perusal of the documents produced before us we find the mistake was committed by the Gujarat Pane hay at Services Selection Board when they advertised vacancies of Mukhya Sevika without mentioning the pay scale of prescribed for non Graduates similarly by the respondent in giving appointment to the appellants in the scale meant for Graduates. We, therefore, pass the following order:- ORDER The appeal is partly allowed. The action of the respondent in giving the pay scale of Rs. 1320-2040 to the appellants is upheld by it is set aside in so far as the direction for recovery of excess amount paid to the appellants is concerned. The respondent is restrained from making any recovery of the excess payment made to the appellants on their earlier fixation in the pay scale of Rs. 1400-2300. Any recovery effected so far pursuant to the impugned order on rectification of their pay in the pay scale of Rs. 1320-2040 be refunded or re-adjusted suitably in favour of the appellants within a period of three months from the date of receipt of this order." 10. On behalf of the respondent No. 2, an affidavit-in-reply has been filed, inter-alia, stating as under: "4. It is most respectfully stated that the petitioners herein were recruited by Gujarat Panchayat Service Selection Board pursuant to its advertisement published in the newspapers. Respondent No. 2 states that in the advertisement the pay scale was mentioned as Rs. 1400-2300 for the post of Mukhya Sevika, but, at the same time educational qualifications were also mentioned and it categorically provided that the candidates holding qualification of Graduate as well as SSC were eligible for the recruitment. Respondent No. 2 states that in the advertisement the pay scale was mentioned as Rs. 1400-2300 for the post of Mukhya Sevika, but, at the same time educational qualifications were also mentioned and it categorically provided that the candidates holding qualification of Graduate as well as SSC were eligible for the recruitment. Respondent No. 2 states that the petitioners herein were selected by Gujarat Panchayat Service Selection Board and allotted to Banaskantha District Panchayat and accordingly appointment orders were issued on 7th February, 1992 and a copy of the said advertisement published by Gujarat Panchayat Service Selection Board as well as of appointment orders are annexed herewith and marked as Annexure 'A' & 'B' respectively to this reply. It is stated that in the appointment orders issued in favour of the petitioners, the pay scale was prescribed at Rs. 1400-2300. 5. Respondent No. 2 states that as such there are two separate pay scales for Mukhya Sevika holding different educational qualifications namely Graduate and others. It is further stated that those Mukhya Sevikas who are Graduates are eligible for the pay scale of Rs. 380-560 as per earlier pay scales which were revised to Rs. 1400-2300 and Rs. 1320-2040 respectively as recommendations of IVth pay commission Report were accepted that the petitioners who are holding qualification of SSC were as such required to be appointed in the pay scale of Rs. 1320-2040, but, through inadvertence the said appointments were made in the pay scale of Rs. 1400-2300 pursuant to the advertisement published by Gujarat Panchayat Service Selection Board. It is stated that accordingly the petitioners were given benefits of the pay scale of Rs. 1400-2300, but at a later point of time the said mistake came to the notice of the Auditors and, therefore, Child Development Project Officer, Deesa was addressed a letter with audit para of the Audit Department in this regard and a copy of the said audit para as well as copies of the letters dated 31st July, 2000 and 11th September, 2000 are annexed herewith and marked as Annexure "C" collectively to this reply. 6. It is stated that immediately administrative actions were taken and it was found that even in the Government Resolution dated 10th June, 1987, the pay scales prescribed for the Graduates as well as others were different. 6. It is stated that immediately administrative actions were taken and it was found that even in the Government Resolution dated 10th June, 1987, the pay scales prescribed for the Graduates as well as others were different. A copy of the said Government Resolution dated 10th June, 1987 is annexed herewith and marked as Annexure "D" to this reply. In view of this necessary corrective actions were taken immediately on 21st November, 2000 and the District Development Office, Banaskantha District Panchayat - respondent No. 2 herein passed necessary orders fixing the pay scale of the petitioners as Rs. 1320-2040. A copy of the said order dated 21st November, 2000 is annexed herewith and marked as Annexure "E" to this reply. It is stated that immediately thereafter compliance orders were passed by the Child Development Project Officer on 30th November, 2000 and a copy of the said order dated 30th November, 2000 is annexed herewith and marked as Annexure "F" to this reply. 7. Respondent No. 2 states that against the impugned action, the petitioners approached the Hon'ble Gujarat Civil Service Tribunal at Gandhi nagar by way of filing appeals bearing Nos. 198/2001, 199/2001 and 201/2001 to 203/2001, but, after careful consideration of the factual background and the pay scales prescribed for Mukhya Sevikas, the Hon'ble Tribunal through orders dated 3rd May, 2002 has rightly ordered to pay the pay scale of Rs. 1320-2040 to the concerned respondents before the Hon'ble Tribunal. It is stated that the case of the petitioners to continue them in the pay scale of the Rs. 1400-2300 is baseless. Respondent No. 2 states that the petitioners are given the benefit of the Vth Pay Commission report by way of placing them in the corresponding scale of Rs. 4000-6000 and it is categorically stated that they are not entitled to the corresponding scale of Rs. 1400-2300 i.e. revised pay scale of Rs. 4500-7000. It is pointed out that similarly situated Mukhya Sevikas in other District Panchayats are given the pay scales of Rs. 4000-6000 as recommended by Vth Pay Commission Report and, therefore, the petitioners cannot get undue advantage of the mistake committed by the Authority in fixing the pay scale." 11. In my view, no interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. 12. 4000-6000 as recommended by Vth Pay Commission Report and, therefore, the petitioners cannot get undue advantage of the mistake committed by the Authority in fixing the pay scale." 11. In my view, no interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. 12. The rules make it abundantly clear that so far as the 'Mukhya Sevikas' possessing graduate degree is concerned, they would be eligible to draw Rs. 1400-2300, whereas for the others, the pay-scale prescribed in the rules is Rs. 1320-2040. 13. It appears that at the relevant point of time while issuing the public advertisement, this aspect was not very well made clear or explained. However, the applicants cannot be permitted to take undue advantage of such lapse on the part of the authorities. If the rules do not permit them to draw a particular pay-scale, then the fact that such pay-scale was given to them at the time of their appointment and they continued to receive the same for eight odd years by itself would not confer any legal right to claim Rs. 1400-2300. 14. I am also not impressed by the submission of Mr. Adesara that the relief be granted on equitable ground. 15. Equity always follows law. If the law is otherwise, equity should not weigh with the court. So far as the other districts are concerned where, I am told that the pay-scale of Rs. 1400-2300 (pre-revised) is being paid even to non-graduate employees, the same should be looked into by the authorities and act accordingly in accordance with law. 16. I should be conscious of the fact that I am dealing with a matter, wherein the order of the Tribunal has been challenged. I am examining the matter in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227 of the Constitution of India. The supervisory jurisdiction conferred on the High Courts under Article 227of the Constitution of India is limited "to seeing that a inferior court or tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record, much less an error of law. The supervisory jurisdiction conferred on the High Courts under Article 227of the Constitution of India is limited "to seeing that a inferior court or tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Article 227 of the Constitution of India, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence, upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. 17. In view of the above, this application fails and is hereby rejected. Rule discharged.