IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1064 of 2010 With SPECIAL CIVIL APPLICATION No. 1066 of 2010 To SPECIAL CIVIL APPLICATION No. 1075 of 2010 With SPECIAL CIVIL APPLICATION No. 10845 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA =========================================================
========================================================= BABULAL KANJI CHAUHAN & ORS. Petitioners Versus GUJARAT MARITIME BOARD Respondent ========================================================= Appearance :
MS HARSHAL N PANDYA for Petitioners, MS SEJAL K MANDAVIA for Respondent, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 23/03/2012 COMMON CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following main reliefs: “(A) quash and set aside the impugned order dated 19.12.2009, AnnexureA to this petition, and
(B) direct the respondent authorities to treat the petitioner on duty from 1.8.2003 with all consequential benefits, and
(C) award the cost of this petition,”
2. Facts necessary to be stated from the record of the petitions are as under:
2.1 The petitioner in Special Civil Application No.1064 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 10.9.1991.
2.2 The petitioner in Special Civil Application No.1066 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 1.7.2000.
2.3 The petitioner in Special Civil Application No.1067 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 6.1.1999.
2.4 The petitioner in Special Civil Application No.1068 of 2010 was working as Assistant Trademan in the respondent Board and retired on 31.7.2003. The petitioner on completion of 9 years as Khalasi was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 16.9.1990.
2.5 The petitioner in Special Civil Application No.1069 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 1.5.1998.
2.6 The petitioner in Special Civil Application No.1070 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 12.8.1995.
2.7 The petitioner in Special Civil Application No.1071 of 2010 was working as Assistant Trademan in the respondent Board and retired on 31.7.2003. The petitioner on completion of 9 years as Khalasi was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 5.9.1989.
2.8 The petitioner in Special Civil Application No.1072 of 2010 was working as Assistant Trademan in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 9.9.1987.
2.9 The petitioner in Special Civil Application No.1073 of 2010 was working as Khalasi in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 12.9.1991.
2.10 The petitioner in Special Civil Application No.1074 of 2010 was working as Assistant Trademan in the respondent Board and retired on 31.7.2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 3.12.1990.
2.11 The petitioner in Special Civil Application No.1075 of 2010 was working as Assistant Trademan in the respondent Board and retired on 31.12.1997. The petitioner on completion of 9 years as Khalasi was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 29.10.1989.
2.12 The petitioner in Special Civil Application No.10845 of 2010 was working as Khalasi in the respondent Board and retired in the year 2003. The petitioner was granted first higher grade scale of Rs.12002040 (then prevailing) with effect from 29.8.1993.
2.13 As the facts arising in this group of petitions are identical and as per the earlier order dated 4.2.2010 passed by this Court (Coram: D.H. Waghela, J.), the petitions are heard together and are disposed of by this common judgment taking the facts of Special Civil Application No.1064 of 2010 as basis.
2.14 The petitioners who were working in the cadre of Khalasi were given benefit of Revision of Pay Rules, 1998, whereby the pay scale of Rs.12002040 fixed, as aforesaid, came to be revised to Rs.4000 6000.
2.15 It further appears that the petitioners who were original Khalasis were also promoted to the post of Trademan from time to time. It is also averred by the petitioners that as the respondent Board came out with a circular dated 1.5.2003, some of the petitioners also opted for voluntary retirement on the basis of the promises of the benefits of the said circular as declared by the respondent Board. It is the case of the petitioners that on the basis of draft Rules of Public Works Department, the respondent Board abruptly after a long period of more than a decade and a half, on 17.11.2009, withdrew the benefits of first higher grade pay scale and the said decision of the respondent Board dated 17.11.2009 was also replied by the petitioners. However, by the impugned orders, the reduction in pay scale was applied retrospectively and even further recovery came to be ordered from the pension of the respective petitioners and the said decision is impugned in this group of petitions.
3. Ms. Harshal N. Pandya, learned advocate for the petitioners in all the petitions pointed out that in fact this Court (Coram : M.R. Shah, J.) in identical cases has examined this issue being Special Civil Application No.7391 of 2009 and allied matters and by a judgment and order dated 15.6.2010 were pleased to allow the said petitions. The said judgment and order passed in Special Civil Application No.7391 of 2009 and allied matters was challenged by the respondent Board by way of filing Letters Patent Appeal No.1868 of 2010 and other allied appeals which came to be dismissed by this Court (Coram: V.M. Sahai, J. and G.B. Shah, J.) vide judgment and order dated 10.5.2011 and confirmed the view taken by the learned Single Judge of this Court. Ms. Pandya further pointed out that the said judgments were challenged by the respondent Board by way of filing Special Leave to Appeal (Civil) No(s).23703–23738 of 2011 and the Hon'ble Supreme Court was pleased to dismiss the said group of SLPs vide order dated 27.1.2012. Ms. Pandya, therefore, submitted that the same ratio would apply in the present group of petitions and hence, the petitions deserve to be allowed.
4. Ms. Sejal K. Mandavia, learned advocate for the respondent Board is not in a position to dispute the said issue involved in the present petitions.
5. It is an admitted position that the case of the petitioners is governed by the draft Rules and Regulations as well as the Government Resolution dated 14.8.1998 which was subject matter of the aforesaid judgments. This Court (Coram : M.R. Shah, J.) in Special Civil Application No.7391 of 2009 and other allied matters observed as under: “25. Heard the learned advocates for the respective parties at length. In all these petitions, respective petitioners have challenged the impugned respective orders passed in the year 2008 withdrawing/canceling the benefit of first higher grade scale granted to the respective petitioners of the post of Tradesman which was granted to the respective petitioners since between 1991 to 1994 respectively w.e.f. the date on which the respective petitioners completed 9 years of service as Khalasi, on the ground that there was a mistake in granting the first higher grade scale to the respective petitioners of the post of Tradesman. Thus, the mistake, if any, is sought to be corrected by the respondent after a period of approximately 17 to 18 years and in the meantime the pay of the respective petitioners were refixed under Gujarat Civil Services (Revision of Pay) Rules, 1998 and the same came to be audited and no objection was raised even by the audit department. Whether in fact, there was a mistake on the part of the respondent in granting higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of service as Khalasi shall be dealt with hereinafter. At present this Court is considering whether assuming that there was a such mistake in granting the benefit of first higher grade scale to the respective petitioners of the post of Tradesman, can the respondent be permitted to rectify / correct the same after a period of approximately 17 to 18 years. As such for the reasons stated hereinafter there was no mistake committed by the officers of the respondent board at the relevant time granting the benefit of higher grade scale of Tradesman to the respective petitioners on completion of their 9 years of service on the post of Khalasi. As observed by the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd and Another (supra) when a mistake is not rectified for a long period, the same in law, may not be treated to be one. It is true that even in the said decision the Hon'ble Supreme Court has observed and held that mistake can be rectified, however, considering the peculiar facts and circumstances of this case when the respective petitioners were granted the benefit of first higher grade scale of post of Foreman between 1991 to 1994 respectively w.e.f. back date and /or retrospectively i.e. from the date on which the respective petitioners completed 9 years of service on the post of Khalasi and even thereafter there pay was refixed accordingly as per the Gujarat Civil Services (Revision of Pay) Rules, 1998 and even thereafter the some of respective petitioners have retired and their pension came to be fixed accordingly and they are getting the pension accordingly, respondent cannot be permitted to rectify and/ or correct the so called mistake after a period of 17 to 18 years. It is to be noted that even according to the respondent it was brought to the notice of the Board the so called mistake in July 2000 and even the Inquiry Officer handed over the inquiry report in the matter of sanctioning pay scale of various cadres and submitted his preliminary inquiry report in the year 2001 still the show cause notices came to be issued in the year 2008 only i.e. even after a period of 7 years from the date of submission of the report of preliminary inquiry. In the further affidavit in reply on behalf of the respondent board, respondent board has tried to explain the delay but considering the para 2, it cannot be said that the respondent board has explained the delay of 17 to 18 years in correcting so called mistake. Under the circumstances,in the aforesaid facts and circumstances of the case and the change circumstances from time to time, the respondent board cannot be permitted to rectify / correct the so called mistake after a period of 17 to 18 years upsetting the financial position of the respective petitioners.
26. Now, main question which is posed for consideration of this Court is whether was there any genuine mistake on the part of the respondent board in granting the benefit of first higher grade scale of the post of Tradesman to the respective petitioners at the relevant time ? It is the case on behalf of the respondent board that next promotional post from the post of Khalasi was to the post of Asst.Tradesman and then to the post of Tradesman and, therefore, the respective petitioners were entitled to the first higher grade scale of the post of Asst.Tradesman. However, it is to be noted that at least since 1975 the pay scale of Khalasi and Asst.Tradesman has become equivalent and / or become the same. It has also come on record that even in the year 199091 and/ or prior thereto the post of Khalasi and the Asst.Tradesman was interchangeable / transferable and some orders to that effect are also placed on record by way of affidavit in rejoinder. Even some orders of promotion promoting a Khalasi/ Asst.Tradesman to the post of Tradesman are also placed on record. Therefore, considering the above, when the respective petitioners who were serving as Khalasi were granted the first higher grade scale of the post of Tradesman on completion of their 9 years as Khalasi, it cannot be said to be mistake as sought to be contended on behalf of the respondent board now. It is to be noted that the learned advocate for the respondent board has relied upon one order, by which the some Khalasi were promoted to the post of Asst.Tradesman on ad hoc basis however as stated above, there are some orders with respect to the promotion to the post of Tradesman from the post of Khalasi also. Therefore, as such it cannot be said that it was severe mistake committed by the board in granting the first higher grade scale of the post of Tradesman to the respective petitioners, on completion of 9 years of service as Khalasi.
27. The respondent has heavily relied upon the Draft Recruitment Rules published by the State Government and according to the respondent board as per the Draft Recruitment Rules from the post of Tradesman the promotion can be given on the post of Mistry and from the post of Mistry promotion can be given on the post of Foreman. It is an admitted position that the said draft rules were not approved and were at the stage of draft rules. It is true that as per the decision of this Court in the case of Bhanmait Tapubhai Muliya (Supra) the draft rules can be treated as administrative instructions, however nothing is on record that the said draft rules were implemented by the board at any point of time. It is also required to be noted at this stage that the case on behalf respondent board with respect to the draft rules and under the draft rules, there was a provision to give promotion to the post of Tradesman from the post Mistry and from the post of Mistry to the post of Foreman was never brought to the notice of the respective petitioners and even there is no reference to the same in the impugned orders and for the first time, the same has been pleaded by the respondent board in the affidavit in reply to the present Special Civil Applications. Therefore, the reliance placed upon the draft rules to be treated as administrative instructions is nothing but an afterthought and even for which no opportunity has been given to the respective petitioners to meet with the same. As stated above, as such nothing is on record that the said draft rules even if to be treated as administrative instructions were acted upon and / or implemented by the respondent board earlier. If the attention of the respective petitioners would have been drawn to the aforesaid at the time of show cause notice in that case, respective petitioners could have pointed out that the same were not acted upon at all and / or at least the petitioners could have meet with same.
28. Considering the aforesaid facts and circumstances and totality of the facts narrated hereinabove, as such it cannot be said that there was any mistake committed by the respondent board in granting the benefit of first higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of their service as Khalasi, more particularly, when the pay scale of Khalasi and the Asst.Tradesman was same, right from 1975, therefore, as such there is no question of considering the post of Asst.Tradesman as promotional post from the post of Khalasi. Under the circumstances, as such there was no mistake committed by the respondent board at the relevant time in granting the benefit of higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of their service as Khalasi as sought to be contended now and which is sought to be corrected now.
29. Considering the affidavit in reply the respondent board has tried to explain the delay by submitting that in the year 2000 some complaint was received by the office of Hon'ble Chief Minister and thereafter the inquiry was directed to be conducted in the year 2000 and inquiry officer has submitted the preliminary inquiry report in the year 2001 and thereafter the board came to know about the mistake in granting the first higher grade scale to the respective petitioners of the post of Foreman, which gave rise to the recovery proceedings and the impugned orders. However, on considering the complaint dated July 2000 and the preliminary report submitted by the officer in the year 2001, it appears that the respondent board has not come with clean hands. The complaint made in the month of July 2001 and the preliminary inquiry conducted by the officer who submitted the report in the year 2001 was only with respect to some Khalasi at Navlakhi Port, who were alleged to have been granted the higher grade scale of Tradesman wrongly. No complain was made with respect to the petitioners and / or grant of higher grade scale of the post of Foreman to the petitioners. In view of the above, it is highly improper on the part of the respondent board to rely upon the aforesaid complaint and the preliminary inquiry report which has nothing to do with the grant of first higher grade scale given to the respective petitioners and the post of Foreman on completion of their 9 years as Tradesman. It appears that only for the purpose of explaining delay and/ or to get out of the delay and/ or without properly appreciating the fact, they have relied upon the aforesaid complaint and the preliminary inquiry report.
30. Considering the aforesaid facts and circumstances and the totality of the facts narrated hereinabove this Court is of the opinion that there was no mistake committed by the board in granting first higher grade scale to the post of Tradesman to the respective petitioners on completion of their 9 years of service as Khalasi as sought to be contended now which is now sought to be rectified and / or corrected, which can be permitted to be corrected now after a period of 17 to 18 years granting of such benefit. As stated above, after the respective petitioners were granted the benefit of first grade scale of the post of Tradesman, there was a revision of pay in the year 1998 and the salary of the respective petitioners was fixed as per the Gujarat Civil Service (Revision of Pay) Rules, 1998 as and even the same was verified and audited and the same was confirmed.
31. It is also required to be noted at this stage that as per the respondent board after the impunged orders, pay of the respective petitioners is to be fixed as per the Government Resolution dated 14.8.1998 the pay scale of Khalasi and the Asst.Tradesman was same. However, it is to be noted that the pay scale of Khalasi and the Asst.Tradesman was same since 1975 and the respective petitioners were granted the benefit of first higher grade scale of Tradesman on completion of their 9 years as Khalasi consdering the earlier Government Resolution dated 1987, 1991 and therefore, the respondent cannot rely upon the subsequent resolution of 1998 and / or respondent board cannot be permitted to rely upon the Government Resolution of 1998 retrospectively when the respective petitioners were already granted the benefit of first higher grade scale between 1991 to 1994 respectively.
32. Even otherwise and assuming that there was mistake committed by the board in granting the benefit of first higher grade from the post of Tradesman to the respective petitioners from the date of their completion of 9 years as Khalasi, in that case, also can the respondent board be permitted to have the recovery of the difference of amount paid by mistake in absence of any allegation of fraud and / or misrepresentation on the part of the respective petitioners. It is submitted that the mistake which is alleged was on the part of the department in wrong fixation and the petitioners were not at all responsible for such a mistake and, therefore, as held by the Hon'ble Supreme Court in the case reported in SHYAM BABU VERMA AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (1994) 2 SCC 521; SAHIB RAM VS. STATE OF HARYANA AND OTHERS reported in 1995 Supp (1) SCC 18; unreported judgment of the Division Bench of this Court in the case of I.C.PATEL VS. GUJARAT HOUSING BOARD dated 04.04.2001 in LPA No.578 of 2002 in SCA No.2196 of 1999 and the decision of the Hon'ble Supreme Court in the case of PURSHOTTAM LAL DAS AND OTHERS VS. THE STATE OF BIHAR AND OTHERS reported in 2006 AIR SCW 5325 and another decision in the case of COL.B.J.AKKARA (RETD.) VS.GOVERNMENT OF INDIA AND OTHERS reported in (2007) 1 SCC (L&S) 529, the impugned orders passed by the department to recover the amount of excess payment made due to wrong fixation/grant of higher grade deserve to be quashed and set aside.
33. Para 13 and 14 of Special Civil Application Nos. 7006 of 2009 to 7011 of 2009 are reproduced as under:
“13. It is not in dispute that the respective petitioners were not, in any way, responsible for such wrong fixation/grant of higher grade of which the recovery order is passed. It is not the case on behalf of the respondent that the respective petitioners made a wrong representation due to which the higher grade was granted to them. It appears that it was the mistake on the part of the department in wrong fixation/grant of higher grade of Trademan for which, the petitioners are not at all responsible.
14. The Hon'ble Supreme Court in the aforesaid decisions which are relied upon by the learned advocate appearing on behalf of the petitioner had occasion to deal with the facts where recoveries were effected from the employee concerned due to excess payments which were made wrongly and/or difference amount of salary which was paid to the employee concerned by mistake of department and for which it has been found that there was no fault on the part of the employee.
14.2 In the case of Purshottam Lal Das and others (supra), the Hon'ble Supreme Court, while dealing with the case of recovery of excess salary paid where the appellants were already promoted and had worked in promotional posts but the promotions were subsequently found to be improper and the appellants were found to be not at fault, directed that there shall be no recovery to be made from the amounts already paid in respect of the promotional posts.
14.3 Similarly in the case of P.H.Reddy and others, where it was found that the employees had been in receipt of a higher amount on account of erroneous fixation by the authority, the Hon'ble Supreme Court set aside the order of recovery against payment of salary on account of erroneous fixation by the authority on the ground that the employees were not at fault.
14.4 In the case of Col. B.J.Akkara (Retd.) (supra), the Hon'ble Supreme Court has laid down the following conditions while observing that if such conditions are fulfilled, there can be relief against recovery of excess wrong payment of emoluments/allowances from an employee.
(a) the excess payment was not made on account of any misrepresentation or fraud on the part of the employee;
(b) such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
14.5 Even in the case of I.C.Patel (supra) before the Division Bench, it was the case of recovery of excess amount paid to the employee by mistake committed by the Board and it was found that the recovery of the excess payment made to the appellant for no fault on his part as unjustified. Subsequently, the learned Single Judge of this Court in the case of Secretary, Finance Department vs. M.M.Patel and others (supra) relying upon the decision of the Division Bench in the case of I.C.Patel (supra) and the decision of Hon'ble Supreme Court in the case of P.H.Reddy (supra) set aside the order of recovery of excess payment made to the employee which was paid because of mistake committed by the department”.
34. It is to be noted that in the present case when there is no fraud and/or misrepresentation alleged against the respective petitioners, the impugned orders passed by the respondent so far as recovery of excess amount paid due to alleged wrong fixation / grant of higher grade scale is concerned, is even otherwise deserves to be quashed and set aside.
35. In view of the above and for the reasons stated above, all the petitions succeed and the impugned orders canceling / withdrawing the first higher grade scale of the post of Tradesman to the respective petitioners on completion of their 9 years of service on the post of Khalasi and to refix their pay as per the subsequent Government Resolution of 1998 and also the order with respect to recovery and the excess amount are hereby quashed and set aside. Rule is made absolute to the aforesaid extent in each of the petitions. No costs.”
6. The Division Bench of this Court (Coram: V.M. Sahai, J. and G.B. Shah, J.) in Letters Patent Appeal No.1868 of 2010 and allied matters while confirming the above judgment of the learned Single Judge also observed thus: “7. After creation of the board, three orders of the appellants have been filed by the employees, dated 7th November, 1989, 30th November, 1991 and 22nd December, 1993 were issued which demonstrate that Khalasis were transferred to the post of Assistant Tradesman. Throughout, the respondents have been accepting that posts of Khalasi/Assistant Tradesman were interchangeable and transferable post, with the same pay scale of Rs.200250 and the next promotional post of the Khalasi/Assistant Tradesman was Tradesman in higher grade pay scale of Rs.350560. Therefore, the argument of the learned counsel for the appellants that the post of Assistant Tradesman was the promotional post of Khalasi cannot be accepted.
8. We are of other considered opinion that Khalasi and Assistant Tradesman were interchangeable and transferrable posts with same pay scale. The next promotional post of Khalasi working under the Board was Tradesman.
9. So far as Draft Rules are concerned, learned counsel for the appellants has placed reliance on the Single Judge decision of this Court in S.H.Bhambhani v. State of Gujarat and others 2006(2) GLH 404, wherein in para6, the learned Single Judge has held as under:
"6. The plea that on the basis of Draft Rules, respondent Nos.3 and 4 could not have been promoted to the post of Deputy Executive Engineers, is devoid of merits. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Ors. (2003) 4 SCC 712, under Rules 2 and 3 of the Draft Recruitment Rules framed by the High Court which were pending approval of the Government, appointment on the post of President of Industrial Court was made. That was challenged before the High Court by way of filing petition under Article 226 of the Constitution. The petition was allowed by Full Bench of th High Court. One of the grounds, which weighed with the Full Bench, was that no action could have been taken on the basis of Draft Rules which were pending approval of the Government. While setting aside the decision of the Full Bench of the Gujarat High Court, the Supreme Court has held that appointment can validly be made under the rules even in their draft stage if there is a clear intention of the Government to enforce them in the near future "
7.1. Learned counsel for the appellant has further placed reliance on the Division Bench decision of this Court in Bhanumati Tapubhai Muliya v. State of Gujarat, 1995(2) GLH 228, wherein in para6, Division Bench of this Court has held as under:
"6.....The reason for this is that it is now wellsettled that in absence of statutory Rules, the Government can make recruitment on the basis of Administrative Instructions. The draft Recruitment Rules are no different from Administrative Instructions "
9.1. On the other hand, learned Counsel for the respondents have placed reliance on the decision of the Apex Court in Vimal Kumari v. State of Haryana and others, (1998) 4 SCC 114, the Apex Court has held as under:
"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regular the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them."
9.2. The Apex Court in another decision in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 has held in para27 as under:
"27. It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. (See Vimal Kumari vs. State of Haryana.)"
10. The Apex Court in Union of India through Government of Pondicherry and another v. V.Ramkrishnan and others and others (2005) 8 SCC 394 has held in para28 as under:
"28. Valid rules made under proviso appended to Article 309 of the Constitution operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principles in Abraham Jacob, Vimal Kumari and Gujarat Kishan Mazdoor Panchayat that draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."
11. From the aforesaid decision of the Apex Court, it is clear that if the Government had intention to notify the draft rules in near future, the draft rules could be treated to be an executive instructions, but where Government had no intention to notify the draft rules, in such cases, the draft rules could not be held to be executive instructions. In the case in hand, the employees were governed by the prevailing administrative/financial rules and regulations, circulars, instructions of the Government for the sake of administrative and financial convenience of the Board. It is necessary to extract the English translation of the circular dated 16.4.1982 issued by the Government as under:
"Regarding following the existing rules/regulations for the time being, of the Government for the sake of administrative and financial convenience of the Board upon formation of Gujarat Maritime Board.
Government of Gujarat Department of Ports and Fisheries Circular No. GMB/1082/G Sachivalaya, Gandhinagar.
Date: 16.4.1982 C I R C U L A R According to the provisions of Gujarat Maritime Board Act,1981, rules are to be framed by the Government and the said regulations are required to be drafted by the Board. According to the provisions of the Act, first regulations are to be framed by the Government. The act of framing and granting these rules and regulations may take time. Therefore, for the convenience of the Board, the Government has decided that the Board shall follow and continue the prevailing administrative/financial rules and regulations and about other matters, procedures, circulars, instructions, all schemes and approvals, subject to the provisions of Gujarat Maritime Board Act, 1981 from the date of formation of the Board, till the rules and regulations are framed for the administrative convenience. This arrangement shall be continued till the rules and regulations of administrative, financial and other affairs are issued by the Government under the provisions of the Gujarat Maritime Board.
By the order and in the name of Governor of Gujarat.
Sd/ A.F.Vyas Deputy Secretary Ports and Fisheries Department"
From the aforesaid circular, it is clear that the rules and regulations of the Government were applicable to the Board. Gujarat Maritime Board is a statutory body and had been established for the predominant purpose of development of minor ports within the State of Gujarat, the management and control of the Board is essentially with the State Government. (See Commissioner of Income Tax v. Gujarat Maritime Board (2007) 14 SCC 704). Therefore, the draft rules had no sanctity of law and could not be relied upon by the appellant nor could it be argued that draft rules would govern the service of the employees of the Board. Though the draft rules were drafted on 11th August, 1976, but the State Government had no intention to notify or accept the draft rules. This was the reason why the State Government had not notified these draft rules for a period of about 35 years and issued the circular dated 16.4.1982. Therefore, the argument of the learned counsel for the appellant that draft rules would apply to the service conditions of the employees of the Board cannot be accepted. The draft rules were neither a statutory direction nor it was a mandatory instruction. It had no force of law.
13. For appreciating the next argument of the learned counsel for the appellant, based on Government Resolution dated 5.7.1991 produced by the appellant and more particularly on paragraph (iii) and its first proviso, it is necessary to extract the relevant part of the said Government Resolution as under:
GOVERNMENT OF GUJARAT GOVERNMENT RESOLUTION No:AOP1091/3/M, FINANCE DEPARTMENTA Sachivalaya, Gandhinagar, July 5, 1991 R E S O L U T I O N: To deal with the problem of stagnation in many cadres due to absence or restricted chances of promotions, Government had announced the Scheme of higher grade scales vide Government Resolution of even number dated 20.2.1991. In supersession of this earlier scheme, Government is now pleased to introduce the following scheme of grant of higher grade scales;
i) This scheme shall be applicable to all posts with a pay or scale of pay the maximum of which does not exceed Rs. 3500 per month;
ii) The first higher grade scale shall be granted on completion of 9 years of service in the relevant scale provide that the employee has not received more than two promotions earlier. For the purpose of computation of 9 years service in the relevant scale, all service that counts for increment in that scale shall be taken into account;
iii) The first higher grade scale of pay shall be the scale of pay of the next promotion post provided that for employees in a post having more than one promotional post in different scales of pay, their first higher grade scale of pay shall be the lower promotion post's scale of pay;
Provided further that in case there is no promotion scale, the first higher grade scale shall be the higher grade scale corresponding to his existing scale as specified in the Schedule annexed to this Government Resolution.
14. The main emphasis of the learned Counsel is that in case where there is no promotional post, the first higher grade pay scale would be higher grade pay scale corresponding to its existing pay scale as specified in the schedule annexed to this Government Resolution. On the strength of the first proviso, learned counsel for the appellant has urged that the Government Resolution dated 5.7.1991 prescribes that for existing scale of Rs.7751025, the higher grade pay scale as per the schedule would be Rs.800 1150. Similar provisions were made in Government Resolution dated 16.8.1994 and 14.8.1998. This argument of the learned counsel is based on the assumption that from the post of Khalasi, a person is to be promoted on the post of Assistant Tradesman and Assistant Tradesman is to be promoted on the post of Tradesman. There is a fallacy in the argument of the learned counsel for the appellant. The pay scale of Khalasi and Assistant Tradesman being the same since the inception of Rules 1975 and the post of Assistant Tradesman and Khalasi were interchangeable and transferrable from one post to other. Therefore, in such situation, the next promotional post of Khalasi would be Tradesman. First proviso to paragraph (iii) and the schedule of the Government Resolution dated 5.7.91, and Government Resolutions dated 16.8.1994 and 14.8.1998 would not be applicable to the facts of the case. We have already held that the post of Khalasi and Assistant Tradesman were interchangeable therefore, the next promotional post of Khalasi was Tradesman.
15. From the facts of this case, it is clear that the appellants had given higher grade pay scale of Tradesman to the respondents which was next promotional post of Khalasi after completion of nine years of service. The benefit was granted by the appellant from the date each employee completed nine years service. There was no audit objection and the approval to the grant of higher grade pay scale was approved by the superior officers and the authorities of the Head Office of the Board. After 1718 years, the appellants are estopped from challenging that wrong pay scale was given to the respondents under a mistake. Moreover, we have held that the next promotional post of Khalasi was Tradesman, therefore, we are of the firm opinion that the Board did not commit any mistake in granting higher grade pay scale of the post of Tradesman to the respondents.
16. The Government Resolutions dated 5.7.1991, 16.8.1994 and 14.8.1998 do not help the appellants. The recovery could not have been effected by the appellants against the respondents with effect from 1994 or from the date when higher grade pay scale were granted to them.
17. For the reasons given above, we do not find any illegality or infirmity in the order passed by the learned Single Judge. The Appeals lack merit and are accordingly dismissed.”
7. As observed hereinabove, the aforesaid judgment and order dated 15.6.2010 passed in Special Civil Application No.7391 of 2009 and allied matters clearly applies to the present cases and in view of the reasons recorded therein, these petitions deserve to be allowed and are hereby allowed. The impugned orders are hereby quashed and set aside. The petitions are allowed in the above terms. Rule is made absolute to the aforesaid extent with no order as to costs.
mrpandya [R.M.CHHAYA, J.]