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Gujarat High Court · body

2019 DIGILAW 826 (GUJ)

Ahmedabad Municipal Corporation v. Kusum G. Nayak

2019-09-30

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. Though served, the respondent No. 1 has chosen not to appear before this court. 2. Learned advocate Mr. Vikas Nair appears for the learned advocate Mr. V.D. Nanavaty for the respondent authority. 3. In the present writ petition, the petitioners have challenged the judgment and order dated 21.02.2006 passed by the Gujarat Affiliated Collages Service Tribunal at Ahmedabad in Application No. 126 of 1997 filed by the respondent No. 1 seeking benefits of revision of pay. 4. Learned advocate Mr. H.S. Munshaw for the petitioners has tendered that the main affected party would be the respondent No. 1 in favour of whom, the Gujarat Affiliated Collages Service Tribunal at Ahmedabad vide judgment and order dated 21.02.2006 had issued the direction upon the petitioners herein in the Application No. 126 of 1997 filed by the respondent No. 1. 4.1. Learned advocate Mr. Munshaw has submitted that the directions issued by the Tribunal are erroneous and illegal since the Ahmedabad Municipal Corporation has not accepted recommendation of 4th Pay Commission and hence, the said benefits cannot be straight way conferred to the respondent No. 1. He has submitted that recommendation of the State Government with regard to the acceptance of the 4th Pay Commission report is not applicable to the Ahmedabad Municipal Corporation as the Corporation takes appropriate decision depending upon its administrative and financial exigencies. He has placed reliance on the provision of the Gujarat Provincial Municipal Corporations Act, 1949 (GPMC Act). He has further submitted that the Tribunal has erred in not appreciating that the notification dated 20.03.1991 issued by the Government of Gujarat, through which the pay-scales of certain categories of officers and employees were revised with effect from 01.01.1986, are not automatically applicable and binding to the Corporation qua its employees. He has further submitted that the Tribunal ought to have appreciated that subsequent to the said notification, a resolution No. 1302 was passed on 01.11.1996 by the Standing Committee of the Corporation and was confirmed by the General Board on 26.11.1996, through which it is resolved that the said notification be implemented the benefits are to be granted w.e.f. 01.04.1996. In other words, the revision of pay notified by the Government of Gujarat was adopted w.e.f. 01.04.1996 as per the administrative exigencies of the Ahmedabad Municipal Corporation. In other words, the revision of pay notified by the Government of Gujarat was adopted w.e.f. 01.04.1996 as per the administrative exigencies of the Ahmedabad Municipal Corporation. He has submitted that the Tribunal has erred in not assigning any cogent reason and forcing it to implement the revision of pay with effect from 01.01.1986 was uncalled for. Mr. Munshaw has submitted that the Tribunal ought to have appreciated that even the said resolution and implementation of the revised pay-scales through the notification was subject to the approval of the State Government. He has further submitted that the respondent No. 1 and others have accepted the benefits granted w.e.f. 01.04.1996 and also given an undertaking to accept the same w.e.f. 01.04.1996 subject to final orders of the State Government. 4.2. Learned advocate Mr. Munshaw has submitted that the Tribunal has erred in not appreciating that so far as Sheth V.S. General Hospital Trust is concerned, it is not getting any grant or fund from University Grant Commission or the State Government. He has submitted that the Trust is getting 100% grant from the Ahmedabad Municipal Corporation for it multifarious activities and the Board of Management has taken various decisions through resolutions to the effect that it should follow the policy of Ahmedabad Municipal Corporation on various aspects pertaining to the pay-scale, revision of pay, terms and conditions of the services, disciplinary rules and regulations and even the rules and regulations and more particularly, the pay-scales adopted and implemented by the State Government are also not applicable directly or automatically to the Ahmedabad Municipal Corporation and on such aspects, the policy decisions are taken by the General Board of Ahmedabad Municipal Corporation as per its requirement and suitability. Further, it is submitted that in view of this, when the respondent No. 1 is not an employee of the State Government or Ahmedabad Municipal Corporation, the rules and regulations and the policy decision of the Board of Management of Sheth V.S. General Hospital Trust are applicable and binding to her. He has submitted that the Ahmedabad Municipal Corporation has taken a decision to implement the revised pay-scale for the Assistant Professors, Associate Professors and Professors w.e.f. 01.04.1996 though the State Government has taken different policy decision. He has submitted that the Ahmedabad Municipal Corporation has taken a decision to implement the revised pay-scale for the Assistant Professors, Associate Professors and Professors w.e.f. 01.04.1996 though the State Government has taken different policy decision. He has submitted that on the identical line, the Board of Management has resolved to implement the policy of the Ahmedabad Municipal Corporation w.e.f. 01.04.1996 and the benefits are conferred accordingly by the petitioner No. 2. It is submitted that the Tribunal has overreached its jurisdiction by directing the petitioners to confer benefit of revision of pay to the respondent No. 1. 5. Learned advocate Mr. Vikas Nair for Mr. V.D. Nanavaty for the respondent No. 2 has submitted that the Tribunal has issued directions to the petitioner No. 1 for conferring the benefits of revision of pay and hence, since the directions are not issued against the respondent No. 2, he is unable to raise any contention about illegality of the judgment and order of the Tribunal. 6. Heard the learned advocates for the respective parties. 7. The Tribunal in Application No. 126 of 1997 filed by the respondent No. 1 has issued following directions: "12. it is the submission of L.A., Mr. V.H. Desai on behalf of L.A., Ms. N.M. Anand that in policy decision up to some extent, the Court can not interfere. But, herein in the case of the Respondent authority, there is no reason for the authority to take policy decision, except financial condition of the Corporation. It is not an excuse that the financial condition is very weak and so, employees would not be able to get revision of pay scale from the decided date, but it can be changed and Corporation can take a decision to give revision of pay scale from the date of their wish. So, I do not agree with the submissions of L.A., Mr. V.H. Desai as there is no reason for the Respondent authority not to consider the case of the Applicant and to give revision of pay scale w.e.f. 1-1-1996 instead of 1-1-1986 to the employees of the Respondent college of course, this can be considered by this Tribunal also that the Corporation should not suffer considering the weak financial position, if the Applicant is entitled to get revision of pay scale and it is legal, then it should be given to the Applicant. But, here, considering the financial position of the Corporation, I hereby give direction to the Respondents authorities to grant revision of pay scale of Applicant w.e.f. 1-1-1986 notionally instead of 1-4-1996 within three weeks after the receipt of this order, but the Applicant would not be entitled to increment considering this date as 1-1-1986 the increment should be considered w.e.f. 1-4-1996. so, I hereby allow the application of the Applicant and to put the Applicant in place in the pay scale of respondent-State. 4500-7500 w.e.f. 1-1-1986 notionally and accordingly, she should be entitled to be placed at appropriate stage on the basis of said pay fixation. So, in view of above, the matter stands disposed of as allowed." 8. It is not in dispute that the Pay Commission report of the State Government or Central Government is not applicable to the petitioner-Municipality until and unless the same are accepted by them by passing appropriate resolution in this regard. The Standing Committee of the Corporation, which is formed under the provision of GPMC Act, has taken appropriate decision by passing appropriate resolution accepting the recommendation of the pay commission. The same are implemented and given benefit w.e.f. 01.04.1996. The Tribunal has failed to appreciate such vital aspect and without examining provisions of the GPMC Act, the directions are issued to the petitioners to confer the benefits of revision of pay w.e.f. 01.01.1986. The Tribunal, without appreciating the provision of notification dated 20.03.1991 issued by the State Government, which provides for grant of pay-scale to certain categories of officers and employees, has straightway directed the petitioners to confer such benefits to the respondent No. 1. The Tribunal should have appreciated the facts that pursuant to the aforesaid notification, the Standing Committee of the petitioner No. 1 passed the resolution No. 1302 on 01.01.1996, which was also confirmed by the General Board on 26.11.1996, wherein it was resolved that the aforesaid notification is to be implemented by giving benefit from 01.04.1996. The Tribunal has overreached its jurisdiction in directing the petitioners to implement the pay-scale w.e.f. 01.01.1986 despite the fact that the same was adopted by the petitioner in the General Board Meeting held on 26.11.1996, which specifically held that the notification of revision of pay is to be implemented w.e.f. 01.04.1996 looking to the financial implication. The Tribunal has overreached its jurisdiction in directing the petitioners to implement the pay-scale w.e.f. 01.01.1986 despite the fact that the same was adopted by the petitioner in the General Board Meeting held on 26.11.1996, which specifically held that the notification of revision of pay is to be implemented w.e.f. 01.04.1996 looking to the financial implication. The decision of the petitioner Corporation was subject to approval by the State Government, which is subsequently approved. 9. Since, the respondent No. 1 have chosen not to appear, the averments made in the writ petition stands uncontroverted. 10. In this view of the matter, the present petition succeeds. The impugned judgment and order dated 21.02.2006 passed by the Gujarat Affiliated Collages Service Tribunal at Ahmedabad in Application No. 126 of 1997 is hereby quashed and set aside. Rule is made absolute.