S. A. JAFAI vs STATE OF GUJARAT - 2011 Supreme(Guj) 143

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Guj) 143

2011 (2) G.L.R. 1223
THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.J. MUKHOPADHAYA AND ANANT S. DAVE
S A JAFAI & 9 - Petitioner(s)
Versus
STATE OF GUJARAT & 2 - Respondent(s)
SPECIAL CIVIL APPLICATION No. 2274 of 2008 To SPECIAL CIVIL APPLICATION No. 2283 of 2008 With SPECIAL CIVIL APPLICATION No. 8059 of 2009
Decided on : 10/03/2011

Advocates Appeared:
MR GM JOSHI for Petitioners in SCA Nos. 2274 to 2283 of 2008. MR BIPIN I MEHTA for Petitioners in SCA No.8059 of 2009
MS TRUSHA K PATEL, AGP for Respondent(s): 1 - 2,
MR MB PARIKH for Respondent(s): 3,

Headnote:
Constitution of India, 1950, Article 14 - Gujarat Municipalities Act, 1963, 1964, Sections 47, 47A and 260 - New pay scales shall be approved only revenue income towards establishment expenses restrict their limit of 45% be eligible for grant as prescribed nicipalities - Director of Municipalities is vested with the powers to instruct to reduce remuneration persons who are employed officers and servants - Resolution of Government to grant pay-scales as per recommendations of 5th Pay Commission to employees of the Municipalities incorporated a precondition that benefit would be granted to only those Municipalitie revenue income towards establishment expenses - Held, Director of Municipalities included salaries employees appointed against posts which were not sanctioned as also daily wagers - Decision of Director as being non application that while computing establishment expenditure, salaries of employees only on sanctioned posts had to be taken into account - Directions given specifically framed by State Government for Municipalities and for giving effect to daily wage or contract employees - (Petition allowed )

JUDGMENT

(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)

In all these cases, as a common question of law is involved and similar prayer has been made, they were heard together and are disposed of by this common judgment.

2. The Regional Director of Municipalities, State of Gujarat, Rajkot, by order dated 9.10.2003 cancelled the pay and allowances as was granted to the employees of the Bagasara Municipality at par with the recommendations of the 5th Pay Commission and thereby the order of approval granted by order dated 9.11.1998 was set aside. Such order was passed in exercise of powers conferred under Section 260 of the Gujarat Municipalities Act, 1963. The order aforesaid having affirmed by the State of Gujarat, the employees of the Bagasara Municipality preferred these writ petitions challenging the aforesaid orders.

3. The brief facts of the case are as follows :

The State of Gujarat by its notification No. GN-2/PGR-1098-2-M dated 20.1.1998 issued the Gujarat State Service (Pay Revision) Rules, 1998 revising the scales of pay of the State employees as per the recommendations of the 5th Pay Commission. Subsequently by Resolution dated 2.6.1998, the State Government ordered to grant pay-scales as per the recommendations of the 5th Pay Commission to the employees of the Municipalities at par with the employees of the State Government. At Clause 4 therein, the condition was imposed, English version of which is quoted hereunder :-

(4) New pay scales shall be approved only in respect of such Nagarpalikas which do not spend more than 45% of their revenue income towards establishment expenses. Further, only those Nagarpalikas which restrict their establishment expenses within the limit of 45%, shall be eligible for grant as prescribed.

The Regional Director of Municipalities, Rajkot, thereafter, issued the order dated 9.11.1998 allowing the scales of pay as recommended by the 5th Pay Commission to the employees of the Bagasara Municipality, at par with the employees of the State Government with the following conditions :-

i. The Municipality will have to obtain option from the employees of the sanctioned establishment.

ii. The amount due on account of revision is to be made as under :

1. 25% of the difference and payable amount in cash without prior audit.

2. 50% of the difference and payable amount in cash after proper verification.

3. Balance 25% of the difference and total amount are to be deposited in the Provident Fund Account.

iii. There will be 10% deduction in the sanctioned posts as per the policy of the State Government.

iv. The pay-scales or the posts which have been created by the Municipality without permission of the competent authority, will not be entitled to get such benefits.

v. The dearness allowance on the new revised pay-scales will have to be paid as per the orders of the State Government.

vi. The sanctioned pay-scales will remain in consonance with the provisions of the Gujarat State Service (Pay Revision) Rules, 1998 and the orders as may be passed by the Government from time to time.

The employees were provided with the arrears of pay and pay in terms with the recommendations of the 5th Pay Commission, at par with the scales of pay as granted to the employees of the State.

4. From the record, it appears that a number of persons were appointed against no post with or without the approval of the Director of Municipalities. A large number of daily rated workmen were also engaged without following any procedure contrary to the decisions of the High Court and the Supreme Court. Therefore, the expenditure towards establishment exceeded more than 45% of the revenue generated for the Municipality. The Regional Director of Municipalities, Rajkot, therefore, by order dated 25.7.2002 withdrew the revised scale of pay as was granted as per the recommendations of the 5th Pay Commission from prospective effect.

5. At that stage, on behalf of the employees of the Bagasara Municipality, the Gujarat Pradesh Municip

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