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2024 DIGILAW 1776 (GUJ)

Darshak Natvarlal Antani v. State Of Gujarat

2024-08-28

VAIBHAVI D.NANAVATI

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JUDGMENT : Vaibhavi D. Nanavati, J. 1. The petitioners herein are the employees of the Bhuj Municipality; their services having regularized by the award of the Labour Court. The petitioners herein are constrained to approach this Court in view of the decision dated 05.04.2016 passed by the respondent No.3 and have prayed for the following reliefs: “A. Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate, writ order or direction, and to quash and set aside the decision dated 05.04.2016 passed by Respondent No.3 and further direct the respondents to grant the benefit of Sixth pay Commission to the Petitioners- employees sanctioning the same expeditiously within time frame which may be prescribed by this Hon’ble Court and further be pleased to grant interest over delayed payment of benefit of Sixth Pay Scale w.e.f. 1.1.2006 till realization of such payment. B. Pending admission, hearing and final disposal of this petition, Your Lordships be pleased quash and set aside the decision no.3 and direct the Respondents to pay the salary according to the Sixth Pay Commission. C. Any other that are necessary in the interest of justice be passed. CC. Your Lordships may be pleased to issue a writ of mandamus or in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside resolutions dated 14.10.2022 issued by Respondent No.1; and to give benefits of the Sixth Pay Scale w.e.f. 1.01.2006 and further declare that the all the petitioners including those petitioners whose services are to be regularized by labour Court Award, are entitled for the Sixth Pay Scale w.e.f. 01.01.2006. EE. Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to stay the implementation, operation and execution of resolution dated 14.10.2022 issued by Respondent No.1.” 2. Heard Mr. Gautam Joshi, learned Senior Counsel appearing with Mr. Bhavin B. Thaker, learned advocate appearing for the petitioners, Ms. Nidhi Vyas, learned AGP appearing for the respondent Nos.1 to 4 and Mr. B.Y. Mankad, learned advocate appearing for the respondent No.5. 3. Mr. Gautam Joshi, learned Senior Counsel appearing for the petitioners, submitted that the petitioners herein are employees of the respondent No.5 – Bhuj Municipality; their services having regularized by the award of the Labour Court, which is undisputed. B.Y. Mankad, learned advocate appearing for the respondent No.5. 3. Mr. Gautam Joshi, learned Senior Counsel appearing for the petitioners, submitted that the petitioners herein are employees of the respondent No.5 – Bhuj Municipality; their services having regularized by the award of the Labour Court, which is undisputed. It is submitted that in-spite of the aforesaid, though the petitioners herein are extended the benefits of the 5th pay commission, the petitioners herein are declined the benefits of the 6th pay commission. It is submitted that the respondent No.5 has moved a proposal wherein, the expenditure of the Municipality is 61% in the year 2013 and in view thereof, the said proposal stands rejected. It is submitted that vide Resolution dated 03.09.2010, the State Government resolved that the limit of the establishment expenditure has been increased from 45% and the Municipalities whose establishment expenditure does not exceed 48%, shall grant the benefits of 6th pay commission as per the conditions mentioned in the Resolution. 3.1 Reliance is placed on the expenditure incurred by the Bhuj Municipality wherein, the said expenditure is less than 48%. It is submitted that the expenditure for the year 2016 is shown as 61% however, the expenditure of the respondent No.5 – Municipality is required to be considered in line with the ratio laid down by the Hon’ble Division Bench in case of S.A. Jafai vs. State of Gujarat reported in 2011 (2) GLR 1223 wherein, the Hon’ble Division Bench in paragraph 20 has categorically held that only the expenditure incurred upon the sanctioned posts can be taken into consideration while computing the expenditure and in view thereof, it is submitted that the aforesaid calculation is erroneous. It is however, submitted that the petitioners herein are concerned with the extension of the benefits of the 6th pay commission in line with the order dated 14.10.2022, duly produced at Annexure – A2 whereby, the benefits of 6th pay commission is extended to the employees who are included in the said sanctioned setup of the respondent No.5. Placing reliance on the aforesaid, it is submitted that irrespective of the fact that whether the petitioners herein are included in the sanctioned setup or not, they are regular employees; having been regularized by the award of the Labour Court and the said benefits of 6th pay commission is required to be extended to the petitioners herein. 4. Ms. Placing reliance on the aforesaid, it is submitted that irrespective of the fact that whether the petitioners herein are included in the sanctioned setup or not, they are regular employees; having been regularized by the award of the Labour Court and the said benefits of 6th pay commission is required to be extended to the petitioners herein. 4. Ms. Nidhi Vyas, learned AGP appearing for the respondent Nos.1 to 4, submitted that the proposal that may be extended by the respondent No.5, would be considered by the respondent authorities with respect to the sanctioning of the posts, in accordance with law. 5. Mr. B.Y. Mankad, learned advocate appearing for the respondent No.5, is not in a position to controvert the fact that the petitioners herein are regularized by the award of the Labour Court. Mr. Mankad, learned advocate, also submitted that the expenditure of the respondent No.5- Bhuj Municipality for the years 2012-13, 2013-14 and 2014-15 is less than 48% and that, the aforesaid is also communicated to the respondent authorities for extending the benefits of 6th pay commission and according the approval. It is submitted that with respect to the expenditure for the year 2013-14 wherein, the expenditure is held to be 61%, it is clarified by the respondent No.5 that the expenditure is less than 48%. In view thereof, it is reiterated that the expenditure is less than 48% and the respondent No.5 falls within the ambit of the Government Resolution dated 03.09.2010 to extend the benefits of the 6th pay commission if, the expenditure is less than 48%. 6. Mr. Gautam Joshi, learned Senior Counsel appearing for the petitioners, in rejoinder, reiterated the submissions advanced earlier and relied upon the additional affidavit placed on record by the petitioners herein wherein, the list of employees of Bhuj Municipality along with the name of employees, posts, joining date, retirement date etc. are mentioned. Reliance is also placed on the Government Resolution dated 04.02.2004 in which it is described that the terminal benefits can not be count in the expenditure of the Municipality/Nagarpalika. are mentioned. Reliance is also placed on the Government Resolution dated 04.02.2004 in which it is described that the terminal benefits can not be count in the expenditure of the Municipality/Nagarpalika. Placing reliance on the aforesaid submissions, it is contended that the prayers, as prayed for, in the present petition be allowed and the petitioners herein be extended the benefits of the 6th pay commission as granted by order dated 14.10.2022 with respect to those employees of the respondent No.5 – Municipality, who are included in the sanctioned setup. Analysis:- 7. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioners herein are the employees of the Bhuj Municipality; their services having been regularized the award passed by the Labour Court. On perusal of record, it is also not in dispute that the expenditure of the respondent No.5 – Municipality is less than 48% for the period 2012-13, 2013-14 and 2014-15 and in light of the aforesaid, the petitioners are entitled to the benefits of the Government Resolution dated 03.09.2010 which provides that if the expenditure of the Municipality is less than 48% than the benefits of 6th pay commission would be extended to such Municipality by the respondent – State. 8. At this stage, it is apposite to refer to the ratio laid down in Special Civil Application No.8040 of 2017, dated 13.12.2019. Relevant paragraphs of the said decision read thus: “5. Having considered the merits of rival case and the contentions, what is clinching is the decision of this Court in Hiteshbhai Bhimjibhai Patel v. State of Gujarat being Special Civil Application No.3060 of 2015 decided on 28th June, 2017. It was the petition filed by the similarly situated employees of the Mahuva Municipality who were granted the payscale and salary as per the Fourth Pay Commission from 01st January, 1986 as also were granted the Fifth Pay Commission benefits. Their prayer for sanctioning of Sixth Pay Commission benefits and to pay the arrears. 5.1 Noticeably, the very ground was raised by the Mahuva Municipality to contest the petition by stating that appointment of those petitioners were not as per the Rules. This may be extracted from paragraph 4 of the order. “4. This petition has been contested by the respondent by filing reply; wherein, it has been stated that Mahuva Municipality has total sanctioned set up of 341 posts. This may be extracted from paragraph 4 of the order. “4. This petition has been contested by the respondent by filing reply; wherein, it has been stated that Mahuva Municipality has total sanctioned set up of 341 posts. As against the sanctioned set up, 191 employees have been appointed without seeking prior approval of the Regional Director of Municipalities. Therefore, practically, all the appointments are made dehors the provision. As appointments of the petitioners are not as per rules, petitioners are not entitled to benefits of the 6th Pay Commission. Further, it has been averred that proposal sent by the Municipality has been returned back by the deponent on 19.2.2013 and as such, petition is liable to be dismissed.” 5.2 The Court in no uncertain terms negatived the contention in the following observations. “6. This Court has considered the submissions made by both the sides. There is no dispute that the petitioners are employees of the Municipality since more than past 20 years. Further, they have been granted benefits of the 4th and 5thPay Commissions at the relevant time. The proposal sent by Municipality has been further approved by the Collector and forwarded to the concerned Authorities for release of benefits of the 6th Pay Commission. However, the same has been denied by the respondents on the ground that the initial appointments of the employees are not as per law.” 5.3 It was then stated and ruled, “7. This Court has considered the submissions of learned counsels. Once the benefits of the 4th Pay and 5th Pay Commissions have been granted to the petitioners, the benefits of the 6th Pay Commission cannot be withheld on the ground that there were defects in the initial appointments. No doubt, the respondent- authorities have sufficient machinery to fight luxurious litigation. However, there should be a limit to unfettered powers. Respondents cannot be permitted to waste money aimlessly for the rightful cause of its employees. This is particularly so, when case for release of benefits of the 6th Pay Commission has been recommended by the Collector.” 5.4 Petitioners of Mahuva Municipality were similarly situated and they were finally held to be entitled to get the Sixth Pay Commission benefits, the present petitioners could not be treated differently. This is particularly so, when case for release of benefits of the 6th Pay Commission has been recommended by the Collector.” 5.4 Petitioners of Mahuva Municipality were similarly situated and they were finally held to be entitled to get the Sixth Pay Commission benefits, the present petitioners could not be treated differently. Mere aspect of delay may not come in the way of the petitioners when their case is squarely covered by the decision of this Court in Hiteshbhai Bhimjibhai Patel (supra), more particularly when the same was rendered in the backdrop of very contention which was sought to be raised by the Municipality in the present case. The mandate of Article 14 of the Constitution reinforced by above-mentioned decisions of this Court requires to give to the present petitioners similar treatment placing them at par. 5.5 It deserves to be mentioned that the decision in Hiteshbhai Bhimjibhai Patel (supra) came to be confirmed in Letters Patent No.235 of 2018 which was not entertained by the Court by not condoning the delay. 6. In view of the aforesaid discussion and the reasons, the present petitioners are entitled to succeed, the respondents are directed to extend to the petitioners the benefits of Fifth and Sixth Pay Commission by revising their salary as well as retirement benefits of the petitioners on the basis of such revision. 6.1 The arrears shall be paid within ten weeks from the date of receipt of the present order. 6.2 It is observed that if the arrears is not paid within the time limit specified as above, the amount shall carry interest at the rate of 6% from the date of filing of the petition, that is 11th April, 2017. 7. The petition stands allowed as above. Rule is made absolute in the aforesaid terms.” 8.1 The aforesaid decision was subject matter of challenge in Letters Patent Appeal No.535 of 2020, wherein the Hon’ble Division Bench vide order dated 13.06.2024, confirmed the order passed in Special Civil Application no.8040 of 2017. It is apposite to refer to the relevant paragraphs of the said decision: “10. The first contention, which is raised before this Court is that Learned Single Judge has not considered the aspect that the respondents- Employees were not appointed on the sanctioned setup. It is apposite to refer to the relevant paragraphs of the said decision: “10. The first contention, which is raised before this Court is that Learned Single Judge has not considered the aspect that the respondents- Employees were not appointed on the sanctioned setup. In our considered opinion, such contention is too late for the day, since all the three Original Petitioners, after rendering their services, have retired after they were extended to the benefits of 4th Pay Commission and they are also being paid pension, however, the issue only remains that even after the sanctioning of 5th and 6th Pay Commission by the Director of Municipality i.e., the State Government, such benefits are not extended to the Original petitioners. After conferment of benefits of 4th Pay commission, the Appellant-Nagarpalika, who was under an obligation to extend further benefits to them so that their pension could have been revised. During their entire service tenure, the Appellant has not raised any objection regarding their appointment. Such objection is untenable in wake of the fear that after their retirement, they are also granted all pensionary benefits on the basis of regular pay scale. 11. We have noticed that the judgment on which the reliance has been placed by the Learned Single Judge has been confirmed by the Division Bench and thereafter, it was assailed by Mahuva Municipality before the Hon’ble Supreme Court in an identical situation and facts and the Special Leave Petition (Civil) Diary No. 3766 of 2019 was rejected vide order dated 01.04.2019 by condoning the delay and observing that the Apex Court was not inclined to interfere with the impugned order. 12. So far as the aspect of delay, which is contended before us, it is no more res integra that the non payment of pensionary benefits or pay scale would be recurring cause and hence, such claim cannot be frustrated on the ground of delay. The Appellant-Nagarpalika should have extended the benefits as directed by the Learned Single Judge, after they were retired from services and were also granted the benefit of 4th Pay Commission. 13. Thus, the present Letters Patent Appeal is inconceived and the same is rejected. 14. The Appellant-Nagarpalika shall pay the benefits as directed by the Learned Single Judge within a period of 6 weeks from the date of receipt of the judgment. 15. At this stage, learned Advocate Mr. 13. Thus, the present Letters Patent Appeal is inconceived and the same is rejected. 14. The Appellant-Nagarpalika shall pay the benefits as directed by the Learned Single Judge within a period of 6 weeks from the date of receipt of the judgment. 15. At this stage, learned Advocate Mr. Deep D. Vyas has requested that the present directions may be stayed as this is a policy decision, we do not subscribe to the request made by learned Advocate Mr.Deep D. Vyas and the same is rejected. Benefits shall be paid as directed by this Court.” 9. In light of the undisputed facts, as stated above, the petitioners herein are extended the benefits of 5th pay commission and are similarly situated to those, who are extended the benefits of the 6th pay commission. The petitioners herein are employees of the respondent No.5 – Municipality; their services having been regularized by the award of the Labour Court, the petitioners herein would also be eligible for the benefits of 6th pay commission in line with the order passed by the respondent – State extending the benefits of 6th pay commission dated 14.10.2022. A proposal is sent by the respondent No.5 – Municipality to the respondent – State for further approval for extension of benefits of the 6th pay commission. 9.2 Further, upon perusal of the list of employees; having been granted the benefit of the 6th pay commission by order dated 14.10.2022, those who are in the sanctioned setup, whereby, by the said order, notional pay fixation is directed to be done in respect of such employees under sanctioned setup from 01.01.2006 to 31.12.2010 with approval of the Competent Authority of permanent setup as part of implementation of the order. The amount of difference shall not have to be paid for the aforesaid period. The benefit of 6th Pay Scale with effect from 01.01.2011 shall have to be paid in cash along with other conditions as stated in the aforesaid order. The petitioners herein though, regularized by the award of the Labour Court, as referred above, are not included in the said list of the sanctioned setup and in view thereof, are deprived of the benefits of the said order dated 14.10.2022. The petitioners herein though, regularized by the award of the Labour Court, as referred above, are not included in the said list of the sanctioned setup and in view thereof, are deprived of the benefits of the said order dated 14.10.2022. 9.3 It is pertinent to note that the beneficiaries of the order dated 14.10.2022 are not before the Court and in view thereof, no interference is called for in the said order dated 14.10.2022. 10. For the foregoing reasons, the present petition is succeeds in part. 10.1 The respondents herein are directed to extend the benefit of the 6th pay commission to the petitioners by revising their salary as well as any consequential benefits for those petitioners who are superannuated, upon proper verification in line with the order dated 14.10.2022. The aforesaid exercise be undertaken by the respondent authorities within a period of eight weeks from the date of receipt of this order. 10.2 Proposal that is forwarded by the respondent No.5 to the respondent – State seeking approval of 6th Pay Commission for the employees of Bhuj Municipality, be decided within a period of six weeks from the receipt of this order. 11. The present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.