In this special appeal, the Municipal Council challenged a single judge's order granting Gardeners a revised pay scale based on a 1995 State Government notification. The Division Bench held that the notification was valid and the subsequent circular limiting its scope could not abrogate it, dismissing the appeal.
Appeal dismissed; no costs.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
D.B.Civil Special Appeal (Writ) No.800/2009
Municipal Council V/s Ishaq Mohd. & ors.
Date of Judgment:-
9.1.2013
PRESENT
Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice P.K.Lohra
Mr.Kailash Joshi for the appellant. Mr.Ravi Bhansali for the respondents
JUDGMENT
BY THE COURT (Per Hon'ble Amitava Roy, CJ)
The challenge laid in the instant appeal is against the judgment and order dated 16.12.2008 passed in S.B.Civil Writ Petition No.2891/2007 partially granting reliefs as sought for by the respondents-herein. Thereby, the appellant was directed to allow to the respondents pay in the scale of 8001250 as Gardeners as per notification dated 15.11.1995 referred to soon hereafter and subsequent thereto in the pay scale of 2650-4000 with effect from 1.9.1996. They were also declared to be eligible for benefits consequential to the fixation of their pay as above.
We have heard Mr.Kailash Joshi, learned counsel for the appellant and Mr.Ravi Bhansali, learned counsel for the respondents.
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Briefly stated, the facts relevant for the purpose of instant adjudication are that the respondents-herein had been serving as Gardeners under the appellant-Council being appointed in that capacity during 1978 to 2000. According to them, they are permanent and regular employees of the Council and their pay as Gardeners was revised by it in the year 1990. It was in between that revision in the pay scale of equivalent posts had been effected by the State Government in terms of the Rajasthan Civil Services (Revised Scale) Rules, 1989 (hereafter referred to as “the 1989 Rules”). The respondents and others equally placed having raised a demand for according further revision in their pay scale to be brought at par with their counter-parts in the State service, following an examination of the claimed anomalies in such pay scales, the Local Self Department of the State Government vide notification dated 15.11.1995 in exercise of the power under Section 297(1) of the Rajasthan Municipalities Act, 1959 (in short, hereinafter referred to as “the Act”) prescribed the revised pay scales for the posts as referred to therein. Admittedly, at that point of time, the respondents as Gardeners with the Council have been receiving the pay scale of 750-940. The three posts relevant for the present purpose as mentioned in the list of posts in the notification dated 15.11.1995 are quoted as under:-
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............................................................................
| S.No. ....... |
Name of post Revised pay scale on the basis of 1.9.88 ................................................. |
Amended pay scale .................... |
|---|---|---|
| 1. | Ward Boy 750-940 |
800-1250 |
| 2. | Helper 750-940 |
800-1250 |
| 3. | Other Grade-IV 750-940 employees. |
800-1250 |
The circular dated 27.11.1995 followed was also issued by the same Department referring to a doubt with regard to the applicability of the pay scale mentioned in the Notification dated 15.11.1995 to Class-IV employees. The Circular purportedly clarified that revision in the pay scale of Class-IV employees referred to in the notification dated 15.11.1995 would apply only to unclassified posts of Class-IV servants not included in the staffing pattern of the Municipalities and would be inapplicable to other Class-IV servants.
Situated thus the respondents approached this Court being aggrieved by the possiblity of being denied the benefit of revised pay scale in terms of the notification dated 15.11.1995. Whereas they sought for a direction to the appellant-Council to release/sanction pay in the scale of 8001250 (further revised to 2650-4000 with effect from 1.9.1996) with arrears of salary with interest at the rate of 24% p.a.
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thereon, it was pleaded on behalf of the Council that in view of the clarification provided by the circular dated 27.11.1995 to the notification dated 15.11.1995, their claim for pay in the aforementioned scale was wholly untenable and misconceived.
The learned Single Judge, after scrutiny of the pleaded facts, documents on records and the arguments advanced, partially allowed the petition with the following operative direction:-
“Accordingly, this petition for writ deserves acceptance, therefore, the same is allowed. Respondent Municipal Council, Bhilwara is directed to allow the pay scale of Rs.800-1250 to the Gardeners working with it as per the notification dated 15.11.1995 and further to allow them the pay scale of Rs.2650-4000 w.e.f. 1.9.1996. The petitioners are also declared entitled fro all benefits consequential to fixation of their pay in the pay scales aforesaid.”
Mr.Joshi has vehemently aruged that as the pay scales of the employees of the Council are to be essentially fixed under the Rajasthan Municipalities (Class-IV Service) Rules, 1964 (for short, hereinafter referred to as “the 1964 Rules”), the learned Single Judge ought not to have relied on the notification dated 15.11.1995 to award the revised pay scale of 800-1250 to the respondents. Even otherwise, according to
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him, in terms of the clarification as per circular dated 27.11.1995, the respondents as Gardeners encadered in the services of the Council, were not entitled to revised pay scale of 800-1250. Mr.Joshi has urged on the basis of first principles of salutary interpretation that the clarification provided by the circular dated 27.11.1995 being clear, disentitling the respondents to the revised pay scale of 800-1200, the direction to the contrary as contained in the impugned judgment and order ought to be interfered with. He has sought to impress upon us that the decision of this Court rendered in Kishan Singh & ors. V/s State of Rajasthan & anr. (S.B.Civil Writ Petition No.829/99 decided on 16.10.2003) is a decision per incuriam as the same did not take note of in particular the circular dated 27.11.1995. He relied on the decision of the Apex Court in State of U.P. & anr. V/s Synthetics and Chemicals Ltd. & anr. ((1991) 4 SCC 139) to underline the implication of the doctrine of per incuriam.
In reply, Mr.Bhansali has urged that not only the decision of this Court in the case of Kishan Singh (supra) has laid down the law in rem, a perusal of the notification dated 15.11.1995 and the circular dated 27.11.1995 renders the stand of the appellant-Council wholly frivolous. Apart therefrom, the notification dated 15.11.1995 had been issued in exercise of the power under Section 297(1) of the Act and that the
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circular dated 27.11.1995 having regard to the author thereof, cannot have any over-riding effect on the former. The learned counsel has contended that in the facts and circumstances of the case, no interference with the impugned judgment and order is called for. As the respondents are admittedly encadered Gardeners in the service of the Council, having regard to the background of the notification dated 15.11.1995, there was no justification whatsoever to deny the benefit of revised pay scale of 800-1250 (as revised subsequent thereto), he urged.
We have considered the pleaded facts, documents on records and the arguments advanced. To start with, there is no wrangle at the Bar that at all relevant times, the respondents had been encadered as Gardeners with the appellant-Council.
Section 297 of the Act empowers the State Government to make rules for the purpose of carrying into effect the provisions thereof. Sub-section (2) thereof authorizes the State Government amongst others to make rules or orders for regulating the methods of recruitment, conditions of service, pay, allowances, leave etc. of the executive officers or secretaries of boards. This power, however, is without prejudice to the generality of the power vested in it to carry out the provisions of the enactment. It is apparent from a
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plain reading of the notification dated 15.11.1995 that the same had been issued in exercise of the power under section 297(1) of the Act. It has not been and rightly so disowned by the appellant-Council to be in valid exercise of such power. The recital contained in the said notification clearly reveals that the revised pay scales as referred to therein vis-a-vis the posts corresponding thereto had been following a scrutiny with regard to the projected anomalies in the pay scales thereof. The extract from the notification dated 15.11.1995 enumerating the posts and the pay scales, according to us, would clearly reveal that the entry in serial no.16 is inclusive in nature to enfold within its ambit all Gr.IV employees in addition to the Ward Boy and Helper named in S.No.14 and 15. The clarification in the circular dated 27.11.1995 that the notification dated 15.11.1995 so far as it relates to Gr.IV employees would cover only unclassified posts of Class IV servants not included in the staffing pattern and not to any Class-IV servants, to say the minimum, is unintelligible apart from being illogical in the attendant facts and circumstances. The concerned authorities in exercising the power under Section 297(1) of the Act having consciously decided to accord revised pay scales to the Gr.IV employees of the Council, in our view, they could not have made a further classification between them. The materials on records also do not
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substantiate any such classification far less the criteria on the basis whereof the same had even been contemplated. In that view of the matter, according to us, the circular dated 27.11.1995 does not in any manner supersede or abrogate the notification dated 15.11.1995 more particularly with regard to the respondents' claim for revised pay scale of Rs.800-1250. We see no ambiguity in the notification dated 15.11.1995 so far as it provides for the revised pay scale to the Gr.IV employees of the appellant-Council. True it is that under the Rules of 1964, the pay scales of its employees had earlier been fixed, but in view of the power exercised under Section 297(1) of the Act, we are left unpersuaded by the plea that even in the teeth thereof, the pay scale awarded under the Rules of 1964 would prevail.
We have perused the decision of this Court in Kishan Singh (supra) and find ourselves in agreement with the reasonings and findings recorded therein. The plea that the decision does not refer to circular dated 27.11.1995 and is thus of no relevance, in view of the determination made hereinabove, does not weigh with us.
In the above view of the matter, the pronouncement of the Apex Court in State of UP & anr. V/s Synthetics and Chemicals Ltd. & anr. (supra) also is of no avail to the appellant-Council.
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On a cumulative consideration of all above, we find no
merit in the appeal and the same is dismissed. No costs.
(P.K.Lohra)J. (Amitava Roy)CJ
Parmar
3 issues framed by the court
Whether a clarification circular dated 27.11.1995 can supersede a subsequent notification dated 15.11.1995 regarding revised pay scales for Class-IV municipal employees.
Whether the Revised Pay Scale applicable to State service Class-IV employees must be applied to municipal council Gardeners.
Whether the earlier Rules of 1964 prevent the application of the State Government's revised pay scale notification.
Colour shows how this judgement treated each authority
Kishan Singh & ors. V/s State of Rajasthan & anr.Referred¶27
Kishan Singh & ors. V/s State of Rajasthan & anr. (S.B.Civil Writ Petition No.829/99 decided on 16.10.2003)
State of U.P. & anr. V/s Synthetics and Chemicals Ltd. & anr.Referred¶27
State of U.P. & anr. V/s Synthetics and Chemicals Ltd. & anr. ((1991) 4 SCC 139) · Who else cites this
1 provisions across 1 enactments
Municipal Council
Ishaq Mohd.
Amitava Roy
P.K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
