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2024 DIGILAW 1664 (GUJ)

HEMANT M. PANDYA v. BHAVNAGAR MAHANAGARPALIKA

2024-08-06

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. The present appeals emanate from the judgment and order dated 09.06.2020 passed in the captioned writ petitions, whereby the learned Single Judge has partly allowed the petitions, except the writ petition being Special Civil Application No. 15419 of 2017, which has been rejected on the ground of delay and latches. 2. All the writ petitions, were filed by the appellants-original petitioners challenging the action of the respondents by passing the orders dated 21.11.2009, 28.02.2013 and 15.06.2013 affecting the recovery from them. The petitioners had also sought directions for grant of pay-scale of Rs.1100-1600 w.e.f. 03.10.1974 and the pay-scales of Rs.3000-4500, Rs.10500-15000 and Rs.15600-39100 revised from time to time as per the 4th Pay Commission, 5th Pay Commission and 6th Pay Commission to the petitioners. All the petitioners were serving as Executive Engineers in the respective divisions of the respondent-Corporation and they had also retired from service on attaining the age of superannuation, except the petitioner of Special Civil Application No. 12414 of 2013. 3. As the prayer clause would suggest, the petitioners-appellants are claiming pay-scale right from the year 1974 and they are accordingly praying for revision of such pay-scale. The learned Single Judge, after threadbare analysis of the dispute with regard to the claim of pay-scale and the orders passed by the State Government, has rejected the writ petition so far as the claim of pay-scale is concerned however, the learned Single Judge has set aside the recovery arising out of the impugned orders. 4. Mr. D.G. Shukla, learned advocate for the appellants has submitted that the appellants, who were serving as Executive Engineers at the relevant time, are entitled to the pay-scale at par with the Executive Engineers, who were serving in the Junagadh Nagarpalika. He has referred to the order dated 12/13/05/2005 passed by the State Government regard conferring the pay-scale of Rs.10,000-15200 to Jamnagar Nagarpalika In case of Jamnagar Nagarpalika, he has submitted that by the said order the Executive Engineers were confirmed the pay-scale of Rs.10,000-15,200 however, no such order has been passed in favour of the employees of the Bhavnagar Nagarpalika. 5. Mr. Shukla, learned advocate for the appellants at the outset submitted that the learned Single Judge has not dealt the issue, on the principle of ‘equal pay for equal work’. 5. Mr. Shukla, learned advocate for the appellants at the outset submitted that the learned Single Judge has not dealt the issue, on the principle of ‘equal pay for equal work’. It is submitted that the appellants, who are identically situated to the Executive Engineers, Jamnagar Junagadh, and Surat Corporation, are also entitled to the same pay-scale. Learned advocate has further submitted that the respondent-Corporation in fact, had passed the resolution of conferring the aforesaid pay-scale however, the State Government has not approved and the respondent-Corporation in anticipation of such approval had granted the pay-scale however, subsequently when the State Government did not approve the pay-scale of Rs.10,000-15,200 for the post of Executive Engineers, the recovery has been sought. 6. It is submitted that the appellants are entitled to the pay- scale, as prayed by them from the year 1974, as they were serving as Executive Engineers in the respondent-Corporation and have been conferred less pay-scale. Thus, it is urged that the respondent - Nagarpalika as well as the State Government may be directed to confer the pay-scale at par with other employees of the Nagarpalika conferred to the Executive Engineers. 7. Per contra, learned AGP Ms. Shruti Dhruve has submitted that the impugned judgment and order may not be interfered with, as the same is precisely passed by the learned Single Judge. It is submitted that in fact, the appellants at the relevant time in the year 1993 did not challenge the action of the respondent-Nagarpalika when various posts were merged and one pay-scale was conferred of Rs.2500-4200 and all of them have accepted the action of the Nagarpalika in merging the various posts and designating them as Executive Engineers and Assistant Commissioners-CPO-Vigilance Officer and accordingly, their pay-scales were revised subsequently in view of the different revision of pay Rules. It is submitted by learned AGP that the learned Single Judge, after examination of the Government Resolution dated 31.05.1993, which has been issued under the provisions of sub-section (2) of Section 40 of the Corporation Act, 1949 has categorically held that the State Government has the power to confer the particular pay- scales to the employees of the Corporation. It is submitted that the appellants cannot equate their case to the case of the Executive Engineers of the other Nagarpalikas as the duties prescribed to the Executive Engineers of particular Nagarpalika would depend on the requirement of the work. It is submitted that the appellants cannot equate their case to the case of the Executive Engineers of the other Nagarpalikas as the duties prescribed to the Executive Engineers of particular Nagarpalika would depend on the requirement of the work. She submitted that in fact, the pay-scales are to be fixed as per the financial burden of a particular Nagarpalika and hence, an employee working in one Nagarpalika cannot claim as a matter of right a particular pay-scale. Thus, it is submitted by learned AGP that the judgment and order passed by the learned Single Judge may not be interfered with. 8. Mr. Munshaw, learned advocate for the respondent-Nagarpalika has adopted the arguments advanced by learned AGP. 9. We have heard the learned advocates appearing for the respective parties. As narrated herein above in the captioned writ petitions, the appellants-original petitioners had prayed for grant of pay-scale of Rs.1100-1600 w.e.f. 03.10.1974 and accordingly they are praying for revision of pay. Thus, in the writ petitions filed in 2013, they are claiming the pay-scales from 1974. 10. The vital aspect, which is established from the pleadings, is that the respondent-Corporation had appointed the appellants in various posts like Building Engineers, Water Works Engineers, Drainage Engineers, Road Engineers, Electrical Engineers (Department Engineers). Thus, the present appellants were originally appointed on such posts. It appears that thereafter on the request made by the association, in the year 1994, the nomenclature of the aforesaid posts was changed by the respondent-Corporation vide order dated 02.01.1995 and all the persons working on the said posts, were re-designated as the Executive Engineers and accordingly, the pay-scale of Rs.700-1300 were given in view of 3rd Pay Commission and subsequently, in view of revision of pay of 1986, which came into force from 01.01.1986, the pay-scale of Rs.700-1300 was revised to Rs.2200-4000. 11. Thus, though the revised pay-scale of the appellants after their posts was re-designated was Rs.2200-4000, the Corporation conferred the pay scale of Rs.2500-4200 to the Executive Engineer without permission of the State Government vide Resolution dated 28.02.1991. Subsequent proposals were also sent by the respondent-Corporation for approving the said pay-scale, however, it was never approved by the State Government. 11. Thus, though the revised pay-scale of the appellants after their posts was re-designated was Rs.2200-4000, the Corporation conferred the pay scale of Rs.2500-4200 to the Executive Engineer without permission of the State Government vide Resolution dated 28.02.1991. Subsequent proposals were also sent by the respondent-Corporation for approving the said pay-scale, however, it was never approved by the State Government. In the year 1993, the State Government rejected the proposal sent by the respondent-Corporation sanctioning the aforesaid pay-scale and it was observed by the order dated 31.05.1993 that the employees were receiving more salary of pay-scale other than the revision of Pay Rules, 1997. The same is required to be recovered. Thus, way back in the year 1993, the State Government rejected the conferment of the pay-scales to the Executive Engineers. Again an approval was sought by the respondent-Corporation from the State Government however, despite the aforesaid rejection of proposal the Nagarpalika did not take any action of recovery of pay-scale and the pay-scale was not changed from Rs.2500- 4200 to Rs.2200-4000. Again in the year 2008 w.e.f. on 03.11.2008, the State Government i.e. the Under Secretary of Urban Development and Urban Housing Department informed the respondent-Corporation about the rejection of the proposal. Thus, in anticipation of grant of approval by the State Government, the respondent - Corporation conferred the aforesaid pay-scale of Rs.2500-4200 to the Executive Engineers which was subsequently revised. 12. The pay-scale of Rs.2200-4000 was revised to Rs.8500-14000 by way of 5th Pay Commission and in 6th Pay Commission it was revised to Rs.9300-34800. The appellants are claiming parity to the pay-scale of Executive Engineers who are conferred the pay-scale of Rs.10500-15000 to that of the Municipal Corporation of Jamnagar on the principle of ‘equal pay for equal work’. Such submission requires to be rejected since, it is not denied that the nomenclature of the appellants were changed by the Nagarpalika and the principle of ‘equal pay for equal work’ will not apply to the facts of the case since, it is also not in dispute that each Nagarpalika is governed by its own set of Rules and the Nagarpalika has to maintain their staff as per their financial constraints. It is in the absolute domain of the State Government to approve the pay-scales as proposed by the individual Corporation. It is in the absolute domain of the State Government to approve the pay-scales as proposed by the individual Corporation. Merely because, the State Government has approved the pay-scales of one set of employees of a given Corporation, the same cannot give rise to claim made by the other set of employees working in other Corporation, unless the State Government in its wisdom thinks it appropriate. The recruitment, promotion, fixation of pay-scales and other service conditions of the employees are governed by the set of Rules and Regulations of the respective Corporations, hence the benefit of a particular pay-scale cannot be extended to the employees working in different Corporations on the principal of ‘equal pay for equal work’. 13. The learned Single Judge, after threadbare examination of the aforesaid facts, has precisely rejected the case of the appellants so far as the claim of pay-scales right from 1974 is concerned, we are not inclined to interfere with the observations recorded by the learned Single Judge. With regard to the recovery of the excess payment to the appellants is concerned, the learned Single Judge has set aside the said directions and the respondents have not assailed the same by filing Letters Patent Appeal. However, we have noticed that one of the writ petitions being Special Civil Application No. 15419 of 2017 is rejected on the ground of delay and latches by recording that though the petitioner has retired in the year 2004 however, the writ petition has been filed in the year 2017. In our considered opinion, the learned Single Judge has fell in error in rejecting the writ petition on the ground of delay since the occasion to file the writ petition only arose after the recovery orders were passed in the year 2013. Moreover, the reduction of pay and recovery is a continuous cause of action and hence, we partly allow the writ petition being Special Civil Application No. 15419 of 2017 by setting aside the action of recovery from the said appellant-petitioner. 14. Except Letters Patent Appeal No. 15419 of 2017 in Special Civil Application No. 897 of 2020, which is partly allowed, all the other Letters Patent Appeals fail and the same are dismissed.