1. The petitioner has challenged an order dated 8.2.2002 passed by the Chief Officer, Morbi Nagarpalika as also the consequential office order dated 2.3.2002 passed by the same authority. By such orders the respondents re- fixed the pay of the petitioner by withdrawing the benefit of higher pay scale granted to him by the Morbi Municipality with effect from 30.12.1992 as also downgrading his pay fixation with effect from 1.10.1987. To appreciate the controversy, it would be necessary to take note of the facts in some detail. 2. The petitioner holds the degree of B.Sc. (Chemistry). He also holds the degree of LL.B. From a communication dated 29.7.2003 made by the Director of Municipalities to the petitioner in response to his representation one gathers that in Morbi Municipality in the set up of posts which was sanctioned by the State Government in the year 1952, the post of Chemist-cum-Filter Supervisor was not there. In the year 1973, the water works scheme on the basis of Marchu dam reservoir was handed over to the Municipality. Pursuant to such development, the Municipality set up a modern filter plant. Upon set up of such filter plant, the Municipality required the services of a qualified employee. Necessary qualification was B.Sc. with Chemistry. Since the petitioner possessed such qualifications, he was engaged on daily wage basis with effect from 7.2.1975. He worked in such capacity till 30.9.1978. Thereafter, as per the award of the Labour Court, the Municipality in its general board meeting passed a resolution on 3.10.1978 and created a post of Chemist-cum-Filter Supervisor and granted regular appointment to the petitioner on such post. The revised set up of Morbi Municipality was sanctioned by the Government by an order dated 13.7.1990. In such order, the post of Chemist-cum-Filter Supervisor was sanctioned with pay scale of Rs.425-800.
3. From such order of sanctioning the revised set up produced by the petitioner at Annexure-G to the petition, it can be noted that the proposal for sanctioning such set up was made by the Morbi Municipality pursuant to its resolution dated 31.1.1987 indicating the individual position with suggested pay scales and educational and other qualifications required.
4. The petitioner after discharging his duties as daily wager between 7.2.1975 till 30.9.1978, was placed in regular scale by the Municipality with effect from 1.10.1978 in the pay scale of Rs.330-
560. Case of the petitioner was that such assignment of scale of Rs.330-560 was not proper. In other Municipalities such as Jetpur and Rajkot Municipality which also had created a similar post of Chemist-cum-Filter Supervisor with similar educational qualifications, the post carried the scale of Rs.425-700. Accepting such representation of the petitioner, Morbi Municipality placed the petitioner in the pay scale of Rs.425-700(pre-revised) with effect from 1.5.1987. On 19.6.1988, the petitioner was placed in the scale of Rs.1400-2300(revised) (corresponding to pre-revised scale of Rs.425- 700) pursuant to the 4th pay commission recommendations. The benefit of such pay fixation was granted with retrospective effect from 1.1.1986.
5. It is not very clear what happened thereafter. However, from a representation of the petitioner dated 9.11.1992 as at Annexure-I to the petition and the corresponding order passed by the Morbi Municipality on the basis of such representation on 30.12.1992 as at Annexure-J to the petition and the order passed by the Director of Municipalities dated 29.7.2003 as at Annexure-S to the petition, it can be gathered that the petitioner was granted benefit of next higher pay scale by the Municipality by passing resolution presumably implementing the scheme of the government for granting higher pay scale to the employees after stagnation in the same scale for more than nine years. With effect from 30.12.1992 thus the petitioner was placed in the scale of Rs.1640-2900. It is undisputed that the government had never authorised the Morbi Municipality to given such benefit to its employees at that time.
6. On 20.2.1991, the Government of Gujarat had come up with comprehensive scheme for granting higher pay scale to its employees upon completion of certain number of years of service without any promotion. Since number of representations were received and the Government also desired to make major changes in such scheme, a fresh resolution dated 16.8.1994 was issued promulgating a new scheme for granting higher pay scale upon completion of 9/18/27 years of service in the same scale without promotion. Essentially it envisaged granting next higher scale to an employee who had for nine years not received any promotion. The benefits of such scheme was made available with effect from 1.6.1987 and to all employees who had either completed nine years on such date or who would complete nine years thereafter, the benefit of higher pay scale was made available. Such scheme covered only Government employees and not the employees of other Corporations such as present respondent no.4 Municipality. Under a resolution dated 15.10.2001, the Government implemented such scheme for higher pay scale to the Morbi Municipality. The employees were held entitled to benefits of such a scheme with effect from 1.6.1987.
7. It is not in dispute that pursuant to such resolution of the Government, the petitioner did not get any benefit of higher pay scale though he otherwise fulfilled the necessary conditions, perhaps because even before such resolution the Municipality had already granted him the benefit of higher pay scale under its resolution dated 30.12.1992. In consequence of implementation of 5th pay commission recommendations, the petitioner's pay got revised to Rs.5500-9000 with effect from 1.1.1996 which scale corresponded to the pre-revised scale of Rs.1640-2900.
8. The Chief Officer of Nagarpalika on audit objection to the pay fixation of the petitioner passed impugned order dated 8.2.2002 and revised his pay fixation from time to time as under :
1520 1.5.90 1560 1.5.91
9. The basis of doing so is found in the order itself, according to which, the petitioner who was employed in the regular scale with effect from 1.10.1978 was granted benefit of 4th pay commission with effect from 1.1.1996. the Government sanctioned the post of Chemist-cum- Filter Supervisor in the year 1990 in the scale of Rs.1400-2300. With effect from 1.1.1996, new pay scale came into force, according to which the revised pay was Rs.4500-7000. Since the was already placed in the higher pay scale of Rs.1640-2900(pre-revised); upon implementation of 5th pay commission recommendations with effect from 1.1.1996, he was placed in the revised scale of Rs.5500-9000. It is however, not in dispute that the higher pay scale corresponding to the revised scale of Rs.4500-2000 was Rs.5000-8000. The respondents believing that fixation of the petitioner's pay in the scale of Rs.1640-2900 with effect from 30.12.1992 was erroneous, in the impugned order it was provided that his pay should be re-fixed accordingly by withdrawing such benefits. Therefore, in the above-noted portion of the impugned order, the petitioner's pay was re-fixed. He was placed in the lower scale of Rs.1200-2040 between 1.10.1987 to May 1990 when the Government sanctioned the post in the scale of Rs.1400-2300. From 1.5.1990, his pay was fixed in such scale. The benefits of fixation in the scale of Rs.1640-2900 with effect from 30.12.1992 was withdrawn. His pay pursuant to Revision of Pay Rules 1998 i.e. 5th pay commission recommendations, was re-fixed in the scale of Rs.4500-7000 with effect from 1.1.1996. Upon completion of nine years of service, starting from 1.5.1990 i.e. the date when the Government sanctioned his post, the petitioner was granted benefit of higher pay scale. His pay in the scale of Rs.5000-8000 was fixed with effect from 1.5.1999. Further office order dated 2.3.2002 was passed directing the recovery of excess payment made pursuant to order dated 8.2.2002 re-fixing the pay of the petitioner.
10. The petitioner made representations against such order. Under an order dated 1.10.2002 passed in Special Civil Application No.9819/2002, the respondents considered such representations. By speaking order dated 29.7.2003, however, the Director of Municipalities turned down the petitioner's representations. Hence the petition.
11. Counsel for the petitioner submitted that the petitioner had discharged his duties right from the year 1975 till he superannuated with effect from 31.3.2008 on one single post since there were no promotional avenues. His services were regularised pursuant to award of the Labour Court. As per the impugned orders passed by the respondent, he would not get the benefit of higher pay scale till 1999 i.e. more than 20 yeas after his initial appointment on regular basis in the year 1978 and 23 years from the date he was initially appointed on daily wage basis.
11.1) Counsel pointed out that the petitioner was qualified and regularly appointed by the Municipality. The post of Chemist-cum-Filter Supervisor was absolutely essential looking to the nature of work. Simply because the Municipality delayed making the proposal to the Government to sanction the post, the petitioner cannot be made to suffer.
11.2) Counsel further submitted that the pay fixation which was made way back in the year 1992 and onwards was sought to be disturbed in the year 2002 under audit objection. The petitioner has since filing of the petition already superannuated. His benefits flowing from the original pay fixation have been withheld and recovery is sought to be made.
12. On the other hand learned AGP Ms. Maithili Mehta for the State opposed the petition and contended that the petitioner was engaged by the Municipality without a sanctioned post. Such sanction was granted by the Government only on 13.7.1990. In the year 1992, the petitioner was wholly erroneously granted the benefit of higher pay scale when no such scheme was applicable to the Municipality. She submitted that subsequent pay fixations therefore, carried such error. It should be permitted to be rectified.
13. Learned counsel Shri Ravani for the Municipality supported the orders.
14. Having thus heard learned counsel for the parties and having perused the documents on record, facts emerge as more or less undisputed. The petitioner possessed the qualification of B.Sc. Chemistry. In the year 1973 when the water works was handed over to the Municipality, it set up a modern water filter plant. Such plant required a qualified person to look after the same. The Municipality therefore, engaged the petitioner initially on daily wage basis in the year 1975. On 1.10.1978 pursuant to award of the Labour Court, his service was regularised. There was no other sanctioned post of Chemist-cum-Filter Supervisor. The petitioner was only employee looking after such work. The Municipality passed a resolution on 31.1.1987 and decided to seek sanction from the Government not only of this post but large number of other posts. All such posts were sanctioned by Government on 13.7.1990. The petitioner's post was sanctioned in the pay scale of Rs.425-700. The Government passed an order dated 15.10.2001 implementing the scheme for higher pay scale in Morbi Municipality with effect from 1.6.1987.
15. From the record, it further emerges that after having placed the petitioner in the scale of Rs.330-560 on 1.10.78, on his representations that similar posts in other Municipalities
scale was revised to Rs.1400-2300 upon implementation of 4th pay commission recommendations.
16. To this extent, I do not see any error on part of the Municipality. The Municipality required the services of a qualified person to look after its modern water plant for its water works. The petitioner being qualified was engaged. His services were regularised pursuant to award of the Labour Court. The Municipality granted him scale of Rs.425-700 on the basis that all other Municipalities such post carried such scales. The action of the respondents withdrawing the benefit of pay scale of Rs.1400-2300 (pre-revised Rs.425-700) for period between 1.10.1987 to 1.5.1990 was thus not in order. The Municipality granted such scale on the basis of scales prevailing in other Municipalities. The Government downgrading such pay in the scale of Rs.1200-2040(pre-revised Rs.330-560) for aforesaid period has no logic. The real error, according to me, was committed by the Municipality by granting higher pay scale of Rs.1640-2900 to the petitioner after fixing his pay in the scale of Rs.1400-2300 in terms of 4th pay commission recommendations. This was done in my view; wholly unauthorisedly. The Government had never sanctioned any scheme for granting higher pay scale to the employees of Municipality. Such schemes issued by the Government under different resolutions was confined to the Government employees only. Therefore, the action of the Municipality in fixing the pay of the petitioner in scale of Rs.1640-2900 with effect from 30.12.1992 was totally erroneous. The action of the respondents in re-fixing the petitioner's pay by correcting such an error, therefore, cannot be faulted.
17. The crucial question that still remains is from which date the petitioner should receive the benefit of higher pay scale in terms of Government scheme which by an order dated 15.10.2001 was implemented for the employees of the Morbi Municipality with effect from 1.6.1987
18. The respondents have taken such completion of nine years on 1.5.1999 on the basis of the logic that the post itself was sanctioned by the Government in its order dated 13.7.1990. Accordingly, in the impugned order after re- fixing the pay of the petitioner by withdrawing the benefit of fixation in scale of Rs.1640-2900 with effect from 30.12.1992, the benefit of higher pay is granted with effect from 1.5.1999.
19. In my view, such an approach is erroneous for the following reasons. Firstly, I do not understand how the respondents have adopted 1.5.1990 as the date on which the sanctioned strength in the Morbi Municipality got revised. The order granting such revision is dated 13.7.1990. Such order does not envisage any specific date from which the revised sanctioned strength will be effective. Such revision in sanctioned strength was granted pursuant to resolution of the Municipality dated 31.1.1987. It is true that ordinarily it would not be possible to relate to such sanction of the set up to date of such resolution of the Municipality. However, there are peculiar reasons why in the present case the date insofar as the petitioner's post is concerned should be treated to have been sanctioned with effect from 31.1.1987.
19.1) As already noted, the petitioner was discharging important duty of looking after water filter plant which was set up after the Municipality was handed over the task of water work in the year 1973. He had necessary qualifications of B.Sc. Chemistry. The Municipality therefore, engaged him on the post on which he was regularised with effect from 1.10.1978 pursuant to the award of the Labour Court. Prior thereto he had discharged such duties on daily wage basis for more than three and half years. It cannot be disputed that there was absolute necessity to create such a post in the sanctioned strength of the Municipality. The entire work for providing potable clean water to the residents of Municipality rested on the petitioner. It can be easily imagined that without an employee looking after such works, the task of providing clean drinking water to the residents of the Municipal area would be impossible. There was no other post in the same cadre nor was there any other sanctioned post in the set up of the Municipality, the incumbent of which could have performed such duties. Such post was thus absolutely essential for Municipality to discharge its essential function of providing drinking water to the residents. Even though the Labour Court passed an award requiring the Municipality to regularise the petitioner and the Municipality having actually regularised the petitioner in the year 1978, no approach was made to the State Government seeking formal sanction for the post in question. For the first time, by passing a resolution dated 31.1.1987 the Municipality decided to approach the Government for granting sanction to the said post along with large number of other posts in the revised set up.
19.2) The Government thereafter, took considerable time in considering such a proposal and granting its approval by order dated 13.7.1990. Thus only on account of considerable delay on part of the Municipality in approaching the Government and thereafter, the Government in considering such a proposal along with other posts that the actual sanction came to be issued on 13.7.1990. Considering the fact that the petitioner had been discharging the duties right from the year 1975 and on regular basis from 1978 and that the post he held was absolutely indispensable for the Municipality, it must be seen that the order dated 13.7.1990 passed by the Government must be treated to have sanctioned the post of Chemist-cum-Filter Supervisor in Morbi Municipality with effect from 31.1.1987. Any other view would lead to anomalous situation. The Municipality which required the service of the petitioner for providing drinking water to the residents and without whose service it would not be possible to run the water works even for a day would pay lower salary to the petitioner only on the ground that the post was not sanctioned earlier. The Municipality ought to have applied for sanction immediately. The Government ought to have considered such a request promptly. Even the Director in his order dated 29.7.2003 while rejecting the petitioner's representation for granting sanction to the post with retrospective effect from 1.10.1978 stated that no such sanction can be granted from a date earlier to the date of the proposal by the Municipality.
19.3) It is clarified that the effect of this would be given in favour of the petitioner only for the purpose of granting higher pay scale on completion of nine years of service and for no other benefits including the pensionary benefits on the strength of the same because the petitioner has after retirement not taken up any such issue. Counsel for the petitioner candidly pointed out that the petitioner's pension is fixed on the basis of his length of service counted from 1.5.1990.
20. In view of the above discussion the action of downgrading petitioner from the scale of Rs.1400- 2300 to Rs.1200-2040 for period between 1.10.1987 to 1.5.1990 is not approved. Original position of pay fixation of the petitioner for this period shall be restored. The action of the respondents in withdrawing the benefit of placing the petitioner in the higher pay scale of Rs.1640-
2900 with effect from 30.12.1992 is upheld. The respondents shall thereupon re-fix the pay of the petitioner in the scale of Rs.1400-2300 with consequential effect. However, the action of the respondents in granting higher pay scale to the petitioner of Rs.5000-8000 with effect from 1.5.1999 is not approved. The petitioner shall get the benefit of such higher pay scale upon completion of nine years of service from 31.1.1987. Accordingly, the petitioner shall get the benefit of higher pay scale from 1.2.1996. Such re-fixation shall be with all consequential effect.
21. The respondents and in particular respondent no.4 Morbi Municipality shall carry out the entire exercise of re-fixation of the petitioner's pay at different stages in terms of the directions contained here-in-above. After this exercise is carried out, which shall be done within a period of four weeks from the date of receipt of a copy of this order, it would be open for the respondents to seek recovery from the petitioner if any found due. However, if the petitioner is found to be entitled to arrears, the same shall be paid to him within three months thereafter. It is clarified that the effect of such revised pay fixation shall also be granted for the purpose of pensionary benefits including DCRG, however, without modifying the total length of pensionable service of the petitioner.
22. Petition is disposed of. Rule made absolute to above extent. No cost.
(Akil Kureshi,J.) (raghu)