Mukesh Jaswantrai Joshi v. Bhavnagar Municipal Corporation
2016-08-16
ABHILASHA KUMARI
body2016
DigiLaw.ai
JUDGMENT : Abhilasha Kumari, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the issuance of an appropriate Writ, order or direction, to quash and set aside the order dated 12.09.2011, passed by the Commissioner, Bhavnagar Municipal Corporation (the respondent herein), whereby the benefit of the pay-scale of the next higher promotional post that had been granted to him with effect from 01.08.2005, has been withdrawn and recovery has been ordered to be effected. 2. The petitioner was appointed to the post of Sub-Auditor with effect from 01.06.1989 in the Audit Department of the respondent-Municipal Corporation. By an office order dated 18.01.1997, the petitioner was promoted to the next higher post of Senior Auditor in the pay-scale of Rs. 5500-9000 (old scale 1640-2900) with retrospective effect from 01.08.1996. The Government of Gujarat, through the Finance Department issued a Government Resolution dated 16.08.1994, introducing the Assured Career Progression Scheme called the 9-18-27 Scheme, under which an official is allowed the pay-scale of the next higher promotional post in the hierarchy of posts on completion of every 9, 18 or 27 years in service. The said Government Resolution was applicable to the employees of the State Government only and would not automatically apply to the respondent-Municipal Corporation. However, vide the order dated 19.02.2007, the respondent-Corporation adopted the said Government Resolution dated 16.08.1994, for the grant of the pay-scale of the next higher promotional post to its employees, as envisaged therein. The aforesaid order dated 19.02.2007 of the respondent-Municipal Corporation stipulates that such of those employees of the Corporation who have completed 9 years as on 01.01.2000, or thereafter, on one post, will be granted the benefit of the higher pay-scale of the next promotional post as per the Government Resolution dated 16.08.1994, on the same terms and conditions as stipulated therein. 2.1 In the hierarchy of posts in the Audit Department of the Bhavnagar Municipal Corporation, in which the petitioner was appointed, the next promotional post from the post of Senior Auditor in the pay-scale of Rs. 5500-9000, held by the petitioner, is the post of Deputy Chief Auditor, in the pay-scale of Rs. 8000-13500. The petitioner became Senior Auditor by promotion on 01.08.1996. At the relevant point of time, the petitioner was qualified and eligible to be considered for promotion to the next higher post of Deputy Chief Auditor.
5500-9000, held by the petitioner, is the post of Deputy Chief Auditor, in the pay-scale of Rs. 8000-13500. The petitioner became Senior Auditor by promotion on 01.08.1996. At the relevant point of time, the petitioner was qualified and eligible to be considered for promotion to the next higher post of Deputy Chief Auditor. However, for want of vacancy in the cadre of Deputy Chief Auditor, the petitioner was stagnating on the post of Senior Auditor; therefore, in terms of the order dated 19.02.2007, the respondent-Municipal Corporation considered the petitioner for the grant of the pay-scale of the next promotional post. Accordingly, by an order dated 05.04.2007, the petitioner was granted the higher pay-scale of the post of Deputy Chief Auditor (the next promotional post), namely, Rs. 8000-13500, with effect from 01.08.2005, upon completion of 9 years on the post of Senior Auditor. The arrears of pay and allowances, as a result of the grant of the higher pay-scale with effect from 01.08.2005, were also paid to the petitioner. More than three years after the petitioner was given the benefit of the higher pay-scale of the next promotional post, in lieu of promotion, and after the fixation of pay under the 6th Central Pay Commission, the respondent-Municipal Corporation passed an order dated 28.10.2010, stating that the pay-scale of the employees which was upgraded to Rs. 8000-13500, was required to be corrected. It was further stated that those employees would now be entitled to the higher pay-scale of Rs. 6500-10500, instead of the pay-scale of the next promotional post i.e. Rs. 8000-13500. The said order also mentions that the recovery of the excess payment made from the date of the fixation of pay in the pay-scale of Rs. 8000-13500 would be effected. It is stated in the petition that before the passing of the above order, the respondent-Corporation did not issue any Show Cause Notice, nor grant the petitioner an opportunity of hearing. 2.2 Under the circumstances, the petitioner approached this Court by filing a petition, being Special Civil Application No. 14857/2010, challenging the order dated 28.10.2010 on various grounds. The stand taken by the respondent-Corporation in the reply filed in that petition was that, the petitioner was granted the higher pay-scale of the next promotional post of Rs. 8000-13500 through inadvertence when he was actually entitled to the pay-scale of Rs. 6500-10500.
The stand taken by the respondent-Corporation in the reply filed in that petition was that, the petitioner was granted the higher pay-scale of the next promotional post of Rs. 8000-13500 through inadvertence when he was actually entitled to the pay-scale of Rs. 6500-10500. After hearing the parties, this Court partly-allowed the petition by the judgment dated 20.06.2011. The impugned order dated 28.10.2010 was quashed and set aside and it was ordered that the Commissioner of the respondent-Municipal Corporation shall grant an opportunity of personal hearing to the petitioner and shall, thereafter, pass a fresh reasoned order, in accordance with law. The respondent, after granting the petitioner an opportunity of hearing and submitting written submissions, passed the impugned order dated 12.09.2011, rejecting the submissions made by the petitioner and holding that the petitioner is entitled to the higher pay-scale of Rs. 6500-10500 only, and not the pay-scale of the next promotional post. Further, the respondent ordered excess payment to be recovered. 2.3 By way of the interim relief granted by this Court dated 23.09.2011, the recovery of the excess amount from the petitioner has been stayed, pursuant to the petitioner filing an undertaking that in case his claim in the present petition fails, the differential amount of higher pay-scale would be paid by him to the respondent-Corporation. 2.4 In the above factual background, aggrieved by the order dated 12.09.2011, passed by the respondent-Municipal Corporation, the petitioner is before this Court. 3. Ms. Vidhi J. Bhatt, learned advocate for the petitioner has submitted that, the respondent-Corporation has adopted the Government Resolution dated 16.08.1994 passed by the State Government, which clearly states, in paragraph-3(3), that while granting higher pay-scale, the pay of the concerned employee will be fixed in the next promotional post and, if there is more than one pay-scale assigned to the next promotional post, then his pay-scale will be fixed in the lowest pay-scale assigned to the said promotional post. It is submitted that while adopting the said Government Resolution, the respondent-Municipal Corporation has not made any qualifications. The entire Government Resolution has been adopted by it, therefore, the stipulation in the said Government Resolution that the petitioner would be entitled to the pay-scale of the next promotional post would be applicable as it is. The manner in which the respondent-Corporation is seeking to apply the said Government Resolution is incorrect as the pay-scale of Rs.
The entire Government Resolution has been adopted by it, therefore, the stipulation in the said Government Resolution that the petitioner would be entitled to the pay-scale of the next promotional post would be applicable as it is. The manner in which the respondent-Corporation is seeking to apply the said Government Resolution is incorrect as the pay-scale of Rs. 6500-10500 to which the petitioner is being downgraded is not the pay-scale of the next promotional post, namely, Rs. 8000-13500, that was rightly granted to the petitioner. 3.1 It is submitted that the higher pay-scale of the next promotional post is to be granted to the employee after nine years of continuous and satisfactory service. Therefore, after nine years of service as Senior Auditor, the petitioner has been rightly granted the higher pay-scale of the next promotional post of Deputy Chief Auditor. There has been no mistake or inadvertence on the part of the respondent-Municipal Corporation in granting the said pay-scale to the petitioner in the first place, therefore, the impugned order is unjustified. 3.2 It is contended that the decision to place the petitioner in the lower pay-scale of Rs. 6500-10500 and effect recovery of the differential amount from him is arbitrary and illegal, apart from being contrary to the Government Resolution dated 16.08.1994 that has been adopted by the respondent-Municipal Corporation. Moreover, the petitioner has not been granted any opportunity of hearing before taking the impugned decision at the first instance. 3.3 That, it is significant to note that in the earlier round of litigation as well, the very same decision of the respondent-Corporation dated 28.10.2010, came to be quashed and set aside on the ground that the petitioner was not heard. After granting an opportunity of hearing, the respondent-Municipal Corporation has reiterated the same decision, without giving any cogent reasons. 3.4 It is submitted that the respondent-Municipal Corporation comes under the definition of 'State' within the meaning of Article-12 of the Constitution of India. As a model employer, it is the duty of the said Corporation to create avenues of promotion in order to avoid stagnation in service to its employees. When the petitioner was recruited, he was not just recruited for the job, but also for his whole career, therefore, opportunities of advancement have to be provided by the employer.
As a model employer, it is the duty of the said Corporation to create avenues of promotion in order to avoid stagnation in service to its employees. When the petitioner was recruited, he was not just recruited for the job, but also for his whole career, therefore, opportunities of advancement have to be provided by the employer. In light of the above and to avoid stagnation, the Government Resolution dated 16.08.1994 has been passed by the State Government which is in the nature of a safety net to deal with the problem of stagnation and hardship faced by its employees due to lack of promotional avenues. When it is clearly stated in the said Government Resolution that upon completion of nine years of service, the employee will be entitled to receive the pay-scale of the next promotional post, it does not behave the respondent-Corporation to deny this benefit to the petitioner after it was rightly granted to him. The respondent-Corporation cannot now seek to correct the pay-scale on the ground that there is another higher pay-scale of Rs. 6500-10500 above the pay-scale of the petitioner, to which he would be entitled, instead of the pay-scale of the next promotional post, as stipulated in the Government Resolution. 3.5 Learned counsel for the petitioner further submits that a similarly situated employee, namely, Shri Alkesh P. Patel, was also granted the higher pay-scale of the next promotional post of Deputy Chief Auditor which had also been withdrawn by the respondent-Municipal Corporation in his case. He had successfully challenged the said action before the High Court. However, in his case, the respondent granted him promotion to the post of Deputy Chief Auditor, which is the next promotional post, whereas in the case of the petitioner the pay-scale of the next promotional post has been withdrawn and the petitioner has been placed in a reduced pay-scale. Further, recovery has been ordered from the petitioner. It is submitted that the petitioner has not made any false representations or played fraud with the respondents, so as to induce them to grant him the pay-scale of the next promotional post. The impugned order, therefore, deserves to be quashed and set aside.
Further, recovery has been ordered from the petitioner. It is submitted that the petitioner has not made any false representations or played fraud with the respondents, so as to induce them to grant him the pay-scale of the next promotional post. The impugned order, therefore, deserves to be quashed and set aside. 3.6 In support of the above submissions, reliance has been placed by the learned advocate for the petitioner, upon the judgment of the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 . 4. The petition has been strongly resisted by Mr. H.S. Munshaw, learned advocate for the respondent-Corporation, by submitting that, though it is true that the respondent-Municipal Corporation has adopted the Government Resolution dated 16.08.1994 of the State Government, however, it may be considered that the petitioner, who was in the pay-scale of Rs. 5500-9000 as Senior Auditor with effect from 01.08.1996, was entitled to the pay-scale of Rs. 6500-10500, which is the next higher pay-scale, as provided under the Government Resolution dated 16.08.1994. Through inadvertence, the petitioner was granted the higher pay-scale of the next promotional post of Rs. 8000-13500. As there is another higher pay-scale of Rs. 6500-10500, after the pay-scale of the petitioner, which is Rs. 5500-9000, the petitioner would be entitled to the next higher pay-scale and not the pay-scale of Rs. 8000-13500, which has been granted to him inadvertently and has rightly been rectified by the impugned order. As an over-payment has been made to the petitioner through inadvertence, the order of recovery of the excess amount has rightly been passed. 5. Learned counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the case of Union Territory, Chandigarh and others v. Gurcharan Singh and another, reported in (2014) 13 SCC 598, in support of the above submissions. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, the contents of the impugned order and other documents on record. 7.
6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, the contents of the impugned order and other documents on record. 7. The issue arising for determination before the Court is a short one, namely, whether the petitioner is entitled to receive the higher pay-scale of the next promotional post, after the completion of nine years of service in the post of Senior Auditor, as per the Government Resolution dated 16.08.1994 or whether he is entitled to the next higher pay-scale after the pay-scale of the Senior Auditor as per the interpretation of the respondent-Corporation, even though the said pay-scale is not the pay-scale of the next promotional post? 8. There is no dispute regarding the fact that the Government Resolution dated 16.08.1994 has been adopted by the respondent-Municipal Corporation by the order dated 19.02.2007. A perusal of the said order, which is annexed at Annexure-H to the petition, makes it clear that the Government Resolution has been adopted in its entirety, without any reservations or qualifications. It is stated in the above-mentioned order that all the benefits flowing from the said Government Resolution would be available to the employees of the respondent-Corporation. It is not as though the respondent-Corporation has adopted the Resolution in part only or specified that only certain aspects thereof would be applicable to its employees. Once the Government Resolution has been wholly adopted by the respondent-Corporation, it follows that the stipulations therein and the benefits envisaged thereby, have to be conferred by the said Corporation upon those of its employees, who are eligible to receive them. The intention of the State Government in passing the said Government Resolution is to provide an incentive to those employees who are facing stagnation in their careers, due to lack of promotional avenues. It has, therefore, been provided that those employees who have completed 9-18-27 years of service would be granted the higher pay-scale of the next promotional post in the hierarchy of posts. In the present case, the petitioner had completed nine years of service in the post of Senior Auditor. The post of Senior Auditor carries the pay-scale of Rs. 5500-9000. Undisputably, the next promotional post is that of Deputy Chief Auditor, in the pay-scale of Rs. 8000-13500. After the completion of nine years in the post of Senior Auditor in the pay-scale of Rs.
The post of Senior Auditor carries the pay-scale of Rs. 5500-9000. Undisputably, the next promotional post is that of Deputy Chief Auditor, in the pay-scale of Rs. 8000-13500. After the completion of nine years in the post of Senior Auditor in the pay-scale of Rs. 5500-9000, the petitioner was placed in the pay-scale of the next promotional post of Deputy Chief Auditor carrying the pay-scale of Rs. 8000-13500, by the order dated 05.04.2007, in consonance with the said Government Resolution. 9. A perusal of Clause-3(3) of the Government Resolution dated 16.08.1994, leaves no manner of doubt that after the completion of nine years of service, the employee is required to be placed in the higher pay-scale of next promotional post. The term used is the higher pay-scale of the next promotional post and not just the higher pay-scale. This subtle distinction is crucial to understand the case of the petitioner. It appears that in the respondent-Corporation, between the pay-scale of Senior Auditor, namely, Rs. 5500-9000 and that of the Deputy Chief Auditor, which is the next promotional post in the pay-scale of Rs. 8000-13500, there is another pay-scale of Rs. 6500-10500. What the respondent-Corporation has done is that it has placed the petitioner in the next higher pay-scale available after the pay-scale of the petitioner's post of Senior Auditor, instead of placing him in the higher pay-scale of the next promotional post as per the Government Resolution dated 16.08.1994. In the view of this Court, this action of the respondent-Corporation is a result of the deliberate misinterpretation on the part of the respondent-Corporation, of the clear and unambiguous recitals in the Government Resolution dated 16.08.1994, wherein it is clearly stated that after the completion of nine years of service in the post, the employee shall be placed in the higher pay-scale of the next promotional post. Instead, the respondent-Corporation is seeking to place the petitioner on the next higher pay-scale available after the pay-scale of his own post which is, admittedly, not the higher pay-scale of the next promotional post. 10. While wrongly interpreting the Government Resolution dated 16.08.1994, the respondent-Corporation maintains that it is acting in accordance with the said Government Resolution. Such averment made in the affidavit-in-reply is false and unacceptable.
10. While wrongly interpreting the Government Resolution dated 16.08.1994, the respondent-Corporation maintains that it is acting in accordance with the said Government Resolution. Such averment made in the affidavit-in-reply is false and unacceptable. When the object and intent of the State Government by passing the Government Resolution dated 16.08.1994 is to relieve the hardship of the employees who have put in the specified years of service and who are stagnating due to lack of promotional avenues, it is logical and sensible to place them in the pay-scale of the next promotional post. By placing the petitioner in the pay-scale higher to his own, but not in the pay-scale of the next promotional post, the respondent has not only acted against the object and intention of the State Government in framing the Government Resolution, but has also contravened its provisions, after adopting the said Government Resolution in its entirety. The said Government Resolution is applicable to the employees of the respondent-Corporation. That being the factual position, the respondent-Corporation cannot be permitted to take liberties with the stipulations in the Government Resolution and to distort and misinterpret it, in order to suit its convenience, to the detriment of its employees, such as the petitioner. 11. A perusal of the impugned order reveals that no cogent reasons have been advanced in support of the decision of the respondent-Corporation, except to reiterate the contents of the earlier order dated 28.10.2010, that has been quashed and set aside by this Court on the ground of violation of the principles of natural justice. There is no discussion in the impugned order, regarding the interpretation of the Government Resolution dated 16.08.1994. In the affidavit-in-reply filed on behalf of the respondent-Corporation, there is an attempt to justify the impugned action of placing the petitioner in the pay-scale of Rs. 6500-10500, instead of Rs. 8000-13500, by stating, in paragraph-2, that it has been done "as provided under Government Resolution dated 16.08.1994". Just because the respondent-Corporation has blindly stated that its impugned action is purportedly "as provided" under the said Government Resolution, does not make it so. This is clear from a reading of the relevant clauses of the Government Resolution. Clause-3(3) of the said Government Resolution is as clear as daylight. There is no ambiguity in the manner in which it is worded, which can lead to only one interpretation.
This is clear from a reading of the relevant clauses of the Government Resolution. Clause-3(3) of the said Government Resolution is as clear as daylight. There is no ambiguity in the manner in which it is worded, which can lead to only one interpretation. The respondent-Corporation has, in the view of this Court tried to deliberately misinterpret the said Government Resolution in order to snatch away the benefit which was rightly granted to the petitioner. To make things worse, the respondent-Corporation has also passed an order of recovery against the petitioner. 12. In State of Punjab and others v. Rafiq Masih (White Washer) and others (supra), relied upon by the learned advocate for the petitioner, the Supreme Court has, after discussing several judgments, arrived at the following conclusion: "18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover." 13. In the view of this Court, the above principles of law are squarely applicable in the case of the present petitioner, and would amply fortify his case. 14.
In the view of this Court, the above principles of law are squarely applicable in the case of the present petitioner, and would amply fortify his case. 14. On the other hand, learned counsel for respondent-Municipal Corporation has relied upon the judgment of the Supreme Court in Union Territory, Chandigarh and others v. Gurcharan Singh and another (supra), wherein it is stated that it is permissible to rectify a mistake committed during pay fixation and order recovery if the disbursement of the higher pay-scale has been made by mistake. In the view of this Court, this judgment would not be applicable to the case of the petitioner as, while granting the benefit of the next promotional post of Deputy Chief Auditor in the pay-scale of Rs. 8000-13500 as per the Government Resolution dated 16.08.1994, no mistake has been committed. Instead, a correct decision was taken, which was totally in consonance with the said Government Resolution that has been adopted by the respondent-Corporation, by its order dated 19.02.2007, without any reservations. 15. The respondent-Corporation has filed an Undertaking before this Court, affirmed on 07.09.2012, wherein it is stated that the Standing Committee of the Bhavnagar Municipal Corporation has passed Resolution No. 181 on 31.07.2012, undertaking to comply with the orders passed by this Court in the present petition. The respondent-Corporation has further undertaken to pay the interest determined by this Court within 45 days, in the event that this petition is allowed. 16. The respondent-Corporation has not denied the assertion of the petitioner that a similarly situated person, namely, Shri Alkesh P. Patel, Senior Auditor, who had challenged the earlier order of the respondent-Corporation successfully, was thereafter promoted to the post of Deputy Chief Auditor, whereas the petitioner has been denied the pay-scale of the said promotional post. This action is further indicative of the discriminatory treatment meted out to the petitioner by the respondent-Corporation. The respondent-Corporation cannot be permitted to treat similarly situated persons differently. Even assuming that no vacant post was available on which to promote the petitioner, the least that the Corporation could have done was to grant the petitioner the pay-scale of the next promotional post as per the Government Resolution dated 16.08.1994. 17.
The respondent-Corporation cannot be permitted to treat similarly situated persons differently. Even assuming that no vacant post was available on which to promote the petitioner, the least that the Corporation could have done was to grant the petitioner the pay-scale of the next promotional post as per the Government Resolution dated 16.08.1994. 17. As a result of the aforesaid discussion and for the reasons indicated hereinabove, this Court is of the firm view that the order dated 12.09.2011, passed by the respondent-Municipal Corporation deserves to be quashed and set aside, being unjust, arbitrary, discriminatory and against the stipulations of the Government Resolution dated 16.08.1994. 18. It is, accordingly, quashed and set aside. The respondent-Corporation is directed to grant the benefits of the higher pay-scale of the next promotional post of Deputy Chief Auditor, namely, Rs. 8000-13500 to the petitioner, with effect from 01.08.2005. The respondent-Municipal Corporation shall grant the said benefit to the petitioner within a period of three months from the date of the receipt of a copy of this judgment. The difference of arrears of pay, if any, payable to the petitioner shall be paid to him with interest at the rate of 9% per annum from the date on which the benefit of the post of Deputy Chief Auditor was withdrawn till the date of payment. 19. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.