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2016 DIGILAW 1982 (GUJ)

J. R Dave v. State of Gujarat

2016-09-06

J.B.PARDIWALA

body2016
JUDGMENT : J.B PARDIWALA, J. By this writ-application under Article 226 of the Constitution of India, the writ-applicant serving as a Medical Officer, Class-II (Ayurvedic) with the Jamnagar Municipal Corporation has prayed for the following reliefs:- 12(A) Admit this petition and quash and set aside order dated 27.10.2005 of Respondent Corporation as well as the order of Director of Municipalities at Annexure-I and direct the respondent to implement the recommendation of Tiku Commission with effect from the date on which it was implemented by State Government and be further pleased to direct respondent to give all consequential monitory benefits to the petitioner with interest thereon at the rate of 12% p.a from the date of entitlement of the petitioner. (B) Pending admission, hearing and final disposal of this petition, to grant interim relief in terms of para (A) above in the larger interest of justice. (C) Grant such other and further reliefs deemed just and proper in the interest of justice. 2. It appears from the materials on record that the writ-applicant joined the services of the respondent-Corporation in the year 1980. He is serving in one of the Health Centers run and managed by the Corporation. It is his grievance that he is not being given the benefits of the recommendations made by the Tiku Pay Commission. It is his case that he is eligible and entitled to get the benefits of the higher pay-scale on completion of the prescribed period of service, according to the various Government Resolutions, Circulars and Notifications. It is also his case that he is eligible and entitled to get the benefits of the higher pay-scale at par with the one extended to the similar situated Medical Officer serving as a Insurance Medical Officer under the Employees State Insurance Scheme. 3. The Tiku Committee was constituted with a view to providing the best of the incentives to the doctors working under the Central Government and necessary modification in the cadre including time bound promotion system for the doctors. It appears that the writ-applicant first came before this Court by filing the Special Civil Application No. 8809 of 2004 which came to be disposed of by a learned Single Judge vide order dated 09/03/2005. It appears that the writ-applicant first came before this Court by filing the Special Civil Application No. 8809 of 2004 which came to be disposed of by a learned Single Judge vide order dated 09/03/2005. The order reads as under:- In this petition, the petitioners who are employed as Medical Officers by the Jamnagar Municipal Corporation have made a grievance regarding not being granted the benefits of Tiku Commission recommendations with effect from 14.11.99 It is the case of the petitioners that the Government had set up Tiku Commission for making recommendations for granting proper pay and higher scale in favour of the medical officers. It is the case of the petitioners that though Rajkot Municipal Corporation has accepted and implemented the recommendations made by the Tiku Commission in favour of the medical officers employed by the Rajkot Municipal Corporation, Jamnagar Municipal Corporation has so far not implemented the same. 2. In the affidavit in reply, it is stated by the Corporation that the Corporation has not decided to give the benefits of Tiku Commission recommendations to its employees. There is no dispute about the fact that Jamnagar Municipal Corporation has not yet taken a formal decision to implement the recommendations of the Tiku Commission in favour of its employees. Direction to give benefits of such recommendations to the petitioners, therefore, cannot be granted. 3. The petitioners, however, point out that the Standing Committee had passed a resolution on 20th November, 1999 recommending the implementation of the Tiku Commission recommendations. It is stated that after the said resolution was passed, no formal decision has been taken by the Corporation either to implement or not to implement the recommendations. Therefore, while disposing of this petition, the Jamnagar Municipal Corporation is directed to take a decision with respect to the question of grant of benefits of Tiku Commission recommendations to its medical officers. Such a decision shall be taken within a period of three months from the date of receipt of a copy of this order. If the decision is to implement the recommendations, further procedure for permission from the authorities of the Government to implement the same shall be initiated by the Corporation. 4. With the above observations and directions, the petition is disposed of. Notice is discharged. 4. If the decision is to implement the recommendations, further procedure for permission from the authorities of the Government to implement the same shall be initiated by the Corporation. 4. With the above observations and directions, the petition is disposed of. Notice is discharged. 4. It also appears that thereafter one another writ-application came to be filed being the Special Civil Application No. 19587 of 2006 which came to be disposed of by a learned Single Judge vide order dated 14/09/2006. The order reads thus:- 1. Heard learned Advocate Mr. H.H Joshi for the petitioner. Learned Advocate Mr. Joshi submits that the Regional Director of Municipalities, Rajkot is necessary party to this petition and he may be permitted to join said authority as party respondent No. 2. Leave is granted. Regional Director of Municipalities, Rajkot is ordered to be joined as party respondent No. 2. Learned Advocate Mr. Joshi appearing for the petitioner is directed to supply copy of the present petition with all annexures thereto to the learned AGP Mr. Dabhi, who will appear on behalf of Regional Director of Municipalities, Rajkot, newly added party-respondent No. 2. 2. Grievance of the petitioner is to the effect that the petitioner is serving as Medical Officer, Class-II in respondent Corporation since 13.5.80 There are no promotional avenues in so far as the post of Medical Officer in the Corporation is concerned. According to the petitioner, in case of Medical Officers, recommendations made by Tiku Commission have been accepted by Central Government vide Memorandum dated 14.11.1991 According to the recommendations made by Tiku Commission, General Medical Officers who are appointed in the pay scale of Rs. 2200-4000 should be upgraded in the pay scale of R.3000-4500 after completion of six years service continuously and such post has to be treated as senior medical officer. According to the petitioner, in 1994, Rajkot Municipal Corporation has also accepted such recommendations made by Tiku Commission for its Medical Officers as stated in the memo of petition and in the year 1999, in view of the efforts made by the petitioner and such other similarly situated medical officers who are suffering injustice with the petitioner, Corporation for the first time passed resolution for acceptance of the recommendations of Tiku Commission but was not implementing the same and petitioner was suffering loss which cannot be compensated in terms of money. Therefore, Special Civil Application No. 8809 of 2004 was filed which was disposed of by this Court (Coram: Hon'ble Mr. Justice Akil Kureshi, J) by order dated 9.3.2005 without examining matter on merits and with a direction to respondent No. 2 to decide the matter. Corporation by order dated 27.10.2005, rejected prayer of the petitioner and, therefore, petitioner filed this petition before this court. According to Mr. Joshi, the Corporation has not assigned any reason for rejecting the prayer of the petitioner. 3. On the other hand, learned AGP Mr. Dabhi submits that in case of Corporation, Respondent No. 2 Regional Director of Municipalities is the authority who can consider the grievance of the petitioner and if respondent No. 2 is satisfied, then, he can forward the same to the Director of Municipalities with his opinion and, therefore, petitioner ought to have approached respondent No. 2 before filing of this petition. 4. Considering the averments made in the memo of petition and also considering the submissions made by both the learned Advocates, without expressing any opinion on merits of the matter, it is observed that it will be open for the petitioner to approach respondent No. 2 Regional Director of Municipalities Rajkot by way of some suitable detailed representation in the subject matter of this petition within one month from the date of receipt of copy of this order. 5. As and when such representation made by the petitioner is received by the Regional Director of Municipalities, Rajkot, it is directed to the Regional Director of Municipalities, Rajkot to consider the same in view of the fact that similarly, recommendations made by Tiku Commission have been accepted by Rajkot Municipal Corporation and examine it and if he is satisfied, then, to forward the same before the Director of Municipalities, for his decision in accordance with law, within two months from the date of receipt of such representation from the petitioner and to communicate decision to the petitioner immediately thereafter. 6. With these observations and directions, this petition is disposed of at this stage without observing anything on merits and also with a liberty in favour of the petitioner to challenge the orders that may be passed by the respondent No. 1 and 2 before the appropriate forum in accordance with law, if such orders are adverse to the petitioner. Direct Service of this order is permitted. 5. Direct Service of this order is permitted. 5. The Regional Director of Municipalities, State of Gujarat vide communication dated 08/11/2006 addressed to the writ-applicant informed that although this Court had issued directions as regards the claim of the benefits of the Tiku Pay Commission yet taking into consideration that the writ-applicant was an employee of a Corporation, the Regional Director of Municipalities had no role to play. Besides that the writ-applicant was also informed that there was no proposal at the end of the Rajkot Municipal Corporation to extend the benefits of the Tiku Pay Commission Recommendations to the Medical Officers. 6. Since till this date the writ-applicant has not been granted the benefits as prayed for, he has come up with this writ-application. 7. Mr. Joshi, the learned counsel appearing for the writ-applicant vehemently submitted that his client has retired from service without the benefits which had already accrued in his favour in view of the Division Bench judgment of this Court rendered in the Letters Patent Appeal No. 295 of 2013 decided on 17/01/2014. He further pointed out that the State of Gujarat being dissatisfied with the judgment and order passed by this Court in the Letters Patent Appeal No. 295 of 2013 had preferred the Special Leave to Appeal before the Supreme Court. The Supreme Court granted the Leave and admitted the Appeal filed by the State of Gujarat. He further pointed out that the Supreme Court declined to stay the operation of the judgment and order passed by this Court and while declining such relief directed the State of Gujarat to disburse 50% of the arrears towards the benefits of the Tiku Pay Commission. He submitted that there is no good reason for the Jamnagar Municipal Corporation to deny such benefits to the Ayurvedic Medical Officers. He submitted that few other corporations in the State of Gujarat have accepted the recommendations Pursuant to the order passed by the Division Bench referred to above and the benefits have already been granted. 8. He further pointed out that the Jamnagar Municipal Corporation is receiving the financial aid from the State Government and therefore, in such circumstances, the Corporation is obliged to take an appropriate decision as regards the grant of the benefits of the Tiku Pay Commission Recommendations. 9. On the other hand, this writ-application has been vehemently opposed by Mr. 8. He further pointed out that the Jamnagar Municipal Corporation is receiving the financial aid from the State Government and therefore, in such circumstances, the Corporation is obliged to take an appropriate decision as regards the grant of the benefits of the Tiku Pay Commission Recommendations. 9. On the other hand, this writ-application has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the Jamnagar Municipal Corporation and Mr. Parikh, the learned AGP appearing for the State of Gujarat. 10. At the outset, the learned AGP clarified that the financial aid which is being given by the State Government to the Corporation is a lumpsum amount. It is within the discretion of the Corporation how to utilize the aid. He clarified that there is no financial aid provided by the State of Gujarat so far as the salary of the employees is concerned. 11. Mr. Munshaw, the learned counsel appearing for the Jamnagar Municipal Corporation submitted that the issue as regards the grant of the benefits of the Tiku Pay Commission was considered by the General Board of the Corporation and a policy decision was taken not to grant such benefits having regard to the various circumstances. Mr. Munshaw submitted that as on date the Medical Officers (Ayurvedic) in service are receiving the salary at par with the Medical Officers (M.B.B.S). He pointed out that there is no disparity so far as the salary is concerned. He pointed out that even the writ-applicant was paid his retiral dues in accordance with the 6th Pay Commission. According to Mr. Munshaw, it is not obligatory for his client to adopt the recommendations of the Tiku Pay Commission. 12. Mr. Munshaw as well as the learned AGP tried in their own way to distinguish the judgment of the Division Bench on which strong reliance has been placed on behalf of the writ-applicant. According to both the learned counsel, the issue before the Division Bench was as regards the doctrine of “equal pay for equal work”. To put it in other words, the doctors holding the M.B.B.S degree, were being granted the benefits of the Tiku Pay Commission, whereas, the Ayurvedic doctors by and large performing the same duties, were being denied the salary in accordance with the Tiku Pay Commission. To put it in other words, the doctors holding the M.B.B.S degree, were being granted the benefits of the Tiku Pay Commission, whereas, the Ayurvedic doctors by and large performing the same duties, were being denied the salary in accordance with the Tiku Pay Commission. This issue was looked into by the Division Bench and ultimately, by applying the doctrine of ‘equal pay for equal work’, this Court ruled that the Ayurvedic doctors were also entitled to receive the benefits of the Tiku Pay Commission. According to both the learned counsel appearing for the respondents, there being no merit in this application, the same be rejected. 13. 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 writ-applicant is entitled to any of the reliefs as prayed for in this writ-application. 14. It is not in dispute that as on date, none of the Medical Officers be it allopathy doctors possessing the degree of M.B.B.S or Ayurvedic doctors, are receiving the salary in terms of the Tiku Pay Commission. There is no discrimination in this regard. The writ-applicant is insisting that the Corporation should take a policy decision to adopt the recommendations of the Tiku Pay Commission and give effect to the same. As pointed out earlier the Corporation did consider this issue and took the decision that it was not possible to give effect to the Tiku Pay Commission Recommendations. 15. On behalf of the Corporation an affidavit-in-reply has been filed interalia stating as under:- 1. I say that the petitioner has no right to invoke the extraordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India and prayed for the reliefs directing the respondent Corporation to implement the recommendations of Tiku Commission with effect from the date on which it was implemented by the State Government and to give all consequential monetary benefits to the petitioner. I say that the adoption of the recommendations of the Tiku Commission which was established by the Central Government is a matter of discretion of the Corporation and that any recommendations by the Tiku Commission which may have been accepted by the Central Government vide memorandum dated 14/11/1991 are not applicable to the Jamnagar Municipal Corporation and it is for the Jamnagar Municipal Corporation to decide whether the recommendations of Tiku Commission should be applied to the petitioner or not. I say that Jamnagar Municipal Corporation is a distinct, independent legal entity and has power and authority to lay down the conditions of service for its employees and it is a matter of its discretion to apply the recommendations of Tiku Commission to the Jamnagar Municipal Corporation and that the petitioner cannot pray for writ of mandamus to any other writ directing the Jamnagar Municipal Corporation to adopt and implement the recommendations of Tiku Commission as claimed by him. I say that the petition deserves to be dismissed on that preliminary ground only. 2. Referring to para 2, 3, 4 and 5, I crave leave to refer to and rely upon the relevant recommendations of Tiku Commission and the resolution of the Government dated 17/10/1994. I say that service conditions of Medical services in Central and State Government are different from the conditions of medical services in Jamnagar Municipal Corporation and, therefore, the recommendations adopted by the Central and State Governments cannot be implemented by the respondent Corporation as a matter of course as alleged by the petitioner. 3. Referring to para 6 and 7 of the petition, I say that the petitioner cannot rely upon the resolution of Rajkot Municipal Corporation dated 19/6/1997 and contend that the respondent Corporation also should adopt such a resolution. I say that the rajkot Municipal Corporation has passed the resolution dated 19/6/1997 having regard to the nature of service performed by the medical services in Rajkot Municipal Corporation and their condition of service laid down by them. I say that Municipal Corporation having regard to the nature of service and the conditions of service and other relevant factors decided not to adopt or implement the resolutions of Tiku Commission and the petitioner has no right to file the petition and prayed for the relief which is merely a matter of discretion of Jamnagar Municipal Corporation. I say that Municipal Corporation having regard to the nature of service and the conditions of service and other relevant factors decided not to adopt or implement the resolutions of Tiku Commission and the petitioner has no right to file the petition and prayed for the relief which is merely a matter of discretion of Jamnagar Municipal Corporation. I crave leave to refer to and rely upon the Annexure C, D, E and F of the petition. 10. Referring to para ground (4) of the petition, I say that having regard to the nature of service performed and conditions of services laid downs, the petitioner is not the benefit of Tiku Commission and it is a matter of discretion of the respondent Corporation to adopt and implement the recommendations of Tiku Commission. 16. There is one additional affidavit-in-reply filed on behalf of the Corporation interalia stating as under:- 2. I say that Jamnagar Municipal Corporation is totally independent body which is constituted under the provisions of Gujarat Provincial Municipal Corporations Act, 1949. Likewise Rajkot Municipal Corporation and Vadodara Municipal Corporations and other Municipal Corporations are also constituted under the provisions of Gujarat Provincial Municipal Corporations Act. The pay scales of employees and their officers are fixed by the all the Corporation independently. I say that in the Rajkot Municipal Corporation and Vadodara Municipal Corporation, the officers in the rank of different categories or work load is different and therefore, that pay scales of Jamnagar Municipal Corporation employees cannot be compared with other Corporations. I say that in all Corporations posts and cadres are different as per the Gujarat Provincial Municipal Corporations Act. Therefore, example of other corporation of the employees cannot be considered with Jamnagar Municipal Corporation. 3. I say that the pay scale of employees, the nature of the work also is required to be seen depending on the area of the Corporation. Rajkot and Vadodara Municipal Corporations are having more area than the Jamnagar Municipal Corporation. I say that fixation of the pay scale is entirely discretion of the Corporation and in some Corporation, benefit has been given and other Corporations may not grant the said benefit. I say that regarding the grievance is made by the petitioner about granting of benefit of Tikoo Pay Commission. I say that fixation of the pay scale is entirely discretion of the Corporation and in some Corporation, benefit has been given and other Corporations may not grant the said benefit. I say that regarding the grievance is made by the petitioner about granting of benefit of Tikoo Pay Commission. I say that when the petitioner was in service, he had got the pay scale as per the resolution of the General Board of the Corporation on the basis of Award of the Industrial Tribunal. I say that the Jamnagar Municipal Corporation is an industrial establishment and their officers' and employees' pay scales have been fixed as per the award passed by the Industrial Tribunal in Refit/No. 227/1987. 4. I say that thereafter 4th Pay Commission was accepted by the Corporation and petitioner filled in option forms from time to time to receive the benefit of revised pay scales. I say that the Industrial Tribunal passed award in Ref.IT/No. 227/1987 fixing the pay scales of all the employees and officers of the Jamnagar Municipal Corporation which includes the post of Medical Officer also. I say that petitioner has not disclosed either in the petition or in the Civil Application that he has filled in the option forms and undertaking to get the revised pay scales from time to time. 5. I say that the petitioner was working as Deputy Health officer, he was not working as Medical Officer of Health. I say that regarding revise pay scale, petitioner has submitted option form time to time. 6. I say that the circular of the Government dated 17.10.1994 is not applicable in the present case, I say that the said circular is pertaining to the Health and Medical Department and Employees State Insurance Scheme and it does not apply to the persons appointed in the Jamnagar Municipal Corporation. Therefore, the said circular is not relevant in the present matter. 7. I say that the petitioner has relied upon the decision of Division Bench of this Hon'ble High Court rendered in case of State of Gujarat v. Dr. P.A Bhatt in LPA No. 295 of 2013 decided on 171.2014, I say that the said decision is not applicable to the petitioner and it in regards with the Medical Officers holding degree of BAMS (Ayurved) serving under Health and Family welfare Department of the State Government. P.A Bhatt in LPA No. 295 of 2013 decided on 171.2014, I say that the said decision is not applicable to the petitioner and it in regards with the Medical Officers holding degree of BAMS (Ayurved) serving under Health and Family welfare Department of the State Government. I say that the petitioner was working under the Jamnagar Municipal Corporation and not under State Government so the decision relied by the petitioner is not applicable in the present case. 8. I say that the services of the petitioner cannot be compared with other Corporations and he cannot claim parity with other Corporations. I say that in one of the matter of Commissioner v. Bharatkumar P. Chauhan in SCA No. 2781/2004 has taken the view that the principle of equal pay for equal work cannot be applied in abstract and simply because some other Corporations have posts which carry the same nomenclature, that by itself is not the relevant factor which can permit the court of law to direct the pay parity in favour of an employee. 9. In view of this, the petitioner is not entitled to pay scale on the basis of the report of Tikoo Pay Commission and the petition deserves to be dismissed. 17. Having regard to the specific stance of the Corporation, it is difficult for this Court to issue any mandamus to the Corporation to implement and give effect to the recommendations of the Tiku Pay Commission. 18. In view of the above, this writ-application fails and is hereby rejected. Rule is discharged. Civil Applications, if any, are also disposed of.