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SCA/5590/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5590 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5591 of 2010
To
SPECIAL
CIVIL APPLICATION No. 5592 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
KIRANKUMAR
B PATEL - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATION - Respondent(s)
=========================================================
Appearance
:
MR
PARESH UPADHYAY for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
1,
MRHAMESHCNAIDU for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/07/2011
ORAL
JUDGMENT
1. Heard
learned advocate Mr. Paresh Upadhyay appearing on behalf of
petitioner and learned advocate Mr. Himesh Naidu appearing for
respondent in all petitions.
2. In
all three petitions, prayer made by petitioner is to quash and set
aside order/action of reducing pay of petitioner and further
meanwhile interim relief is also prayed by petitioner. Against
present petitions, affidavit in reply is filed by respondent against
which rejoinder is also filed by petitioner. There is some
history/background in these matters because initially notice has been
issued by this Court on 4/5/2010 and thereafter on 28/6/2010
following order is passed by this Court granting interim relief in
favour of petitioner in terms of para-7(c) which is quoted as under:
“Rule.
Learned advocate Mr. H.C.Naidu waives service of notice of Rule on
behalf of the respondent. Heard learned advocates for the parties.
2. The
question is whether the directions while applying the benefit of 6th
Pay Commission the applicant’s case treating the same as a direct
recruit would be applicable to the present case in light of the fact
that the benefit of 6th Pay Commission came to be applicable from 1st
January 2006 when undisputedly the petitioner was working as
Technical Supervisor and came to be appointed as Assistant Engineer
with effect from 3rd October, 2006 and whether anomaly created can be
resolved by resorting to provisions of stepping up in the GCSRs. The
downward revision in the petitioner’s remuneration has been effected
as if the petitioner is working on the post of Assistant Engineer as
on 1st January, 2006 or prior thereto which, prima facie does not
seem to be correct. Undisputedly the persons junior to him in both
the cadres are getting more remuneration than the petitioner. Hence,
interim relief in terms of para 7(c).”
3. Aforesaid
order passed by this Court has been challenged by respondent
Corporation before Division Bench of this Court while filing Letters
Patent Appeal No.263 of 2011, 264 of 2011 and 265 of 2011 wherein
Division Bench of this Court has passed an order on 27/4/2011 which
is quoted as under:
“Heard
learned counsel for the parties. All these appeals have been
preferred by the Ahmedabad Municipal Corporation against common
interim order dated 28th
June 2010 passed by the learned Single Judge in Special Civil
Application Nos.5590 of 2010, 5591 of 2010 and 5592 of 2010. By the
said order, learned Single Judge granted interim relief, after
hearing the parties as per prayer made in paragraph 7(C) whereby the
appellant Corporation was directed to continue to pay to the
respondent petitioners the pay which was being paid to them up to
March 2010 with all consequential benefits.
We have
heard learned counsel for the appellant Corporation and the counsel
appearing for the respondent writ petitioners.
From the
writ petition it will be evident that the petitioners have not
enclosed copy of any decision whereby the Corporation decided to
reduce the pay of the writ petitioners. In absence of any such
order, there is no question to set aside the decisions.
However,
from the impugned interim order dated 28th June 2010
passed by the learned Single Judge as we find that the interim order
as was sought for in paragraph 7(C), having granted amounts to grant
of final relief, as prayed in writ petition at paragraph 7(A), and
the same is not permissible, the common order dated 28th
June 2010 passed by the learned Single Judge in Special Civil
Application Nos.5590 of 2010, 5591 of 2010 and 5592 of 2010 is set
aside.
It
is ordered to list these writ petitions before appropriate Court on
14th
June 2011 within five cases. Appeals
and Civil Applications stand disposed of. No costs.”
4. In
light of this background, the question which has been raised by
petitioners is that petitioners were initially appointed on the post
of Technical Supervisor in grade of Rs.4500-7000 on 8/7/2003.
Thereafter on 6/6/2006 respondent corporation invited application
from persons working with corporation for post of Assistant Engineer
and in response to that advertisement all petitioners had filed
applications which were considered by corporation and accordingly all
three petitioners were appointed on post of Assistant Engineer with
effect from 3/10/2006 in pay scale of Rs.6500-10500. Page-45 of
present petition is produced by respondent corporation being a Staff
Selection Committee Resolution No.11 dated 3/10/2006. The name of
Mr. Brijesh Prabhudas Dave is on waiting list and all three
petitioners were selected in post of Assistant Engineer in direct
selection. It is necessary to note that Mr. Brijesh Prabhudas Dave
is not higher on merits then petitioners. Subsequently as per
Annexure-E page-15 of present petition Mr. Brijesh Prabhudas Dave was
promoted in post of Assistant Engineer from Technical Supervisor by
order dated 13/10/2008. Now a real controversy arrised between both
parties because up to January, 2010 salary of petitioner was
Rs.13,610/- as reflected in monthly salary slip which has been
subsequently in March, 2010 has been reduced by Rs.10,970/-. Whether
such reduction is right or wrong. For that no specific reasoned
order has been passed by respondent corporation as well as before
passing such order or taking such decision reducing salary of present
petitioner no reasonable opportunity of hearing is given by
respondent corporation to petitioner. Therefore in light of this
background according to my opinion let this confusion or
dissatisfaction may be removed. For that all petitioners may make
detailed representation to respondent corporation within a period of
one month from date of receipt of copy of present order. As and
when respondent corporation receives such representation from each
petitioner it is directed to respondent corporation to consider such
representation and examine issue whether salary of present petitioner
is required to be reduced or not and if it is required to be reduced,
under what provision of law or rules. For that let respondent
corporation may give a reasonable opportunity of hearing to
petitioners and thereafter pass appropriate reasoned order within a
period of two months from receipt of such representation from each
petitioner and thereafter communicate decision immediately to each
petitioner. In case if representation of petitioner is rejected or
any adverse order if it is to be passed then it is open for each
petitioner to challenge same by way of filing appropriate proceedings
before appropriate forum in accordance with law so long and
thereafter two weeks if such decision is taken by respondent
corporation let respondent corporation may maintain status quo in
respect to salary which has been received by petitioners on January,
2010.
5. It
is made clear by this Court that while disposing of all these three
petitions this Court has not expressed any opinion on merits and this
order has been passed by this Court without prejudice to rights and
contentions of all parties.
6. In
view of above, all these three petitions are disposed of by this
Court without expressing any opinion on merits. Rule discharged
accordingly in each petition. Direct service is permitted.
(H.K.RATHOD,
J.)
(ila)
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