=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.4959 OF 2006 NO.4959 OF 2006 NO.4959 OF 2006 Ichalkarangi Nagarpalika Adarsh Kamgar Union and anr. ...Petitioners v/s State of Maharashtra and others ...Respondents Mr M.S. Topkar for Petitioners. Mr C.R. Sonawane, AGP for Respondent Nos.1 and 2. Mr T.S. Ingale for Respondent Nos.3 and 4. CORAM CORAM CORAM : J.N. PATEL AND S.J. KATHAWALLA JJ. : J.N. PATEL AND S.J. KATHAWALLA JJ. : J.N. PATEL AND S.J. KATHAWALLA JJ. DATE DATE DATE : 12TH DECEMBER 2008 : 12TH DECEMBER 2008 : 12TH DECEMBER 2008 P.C.- P.C.- P.C.- 1. Rule. By consent, rule made returnable forthwith. Learned Advocates for respondents waive service. Heard learned Advocates for the parties. 2. The petitioners are trade unions representing the employees of the respondent No.3 - Ichalkaranji Municipal Council. The present petition is filed by the petitioners impugning the order passed by the respondent No.2 i.e. Director, Municipal Administration dated 9th =2= February 2006 rejecting all the contentions of the employees’ and after review, cancelling the earlier eleven orders granting personal pay-scales to the employees and restoring the pay-scales as per the IVth Pay Commission and further directing recovery of excess amount paid to the concerned employees. 3. The petitioners have alleged that right from 1966, the employees of respondent No.3 in Class IV have been drawing pay-scales which are one stage higher than the pay-scales drawn by the employees of other Municipal Council or the State Government in the same cadre. 4. On 20th July 1989, the State Government adopted and accepted the IVth Pay Commission recommendations for its employees with retrospective effect from 1st January 1986. The Chief Officer submitted his report to the respondent No.3 - Ichalkaranji Municipal Council for fixation of pay-scales for its employees on the lines of IVth Pay Commission, but one stage higher. The respondent No.3 accordingly passed resolution No.258 in its meeting held on 14th August 1990. In order to justify the higher pay-scales the respondent Nos.2 and 3, while passing the resolution, acknowledged variant needs of the city, its sound financial position and appreciated the efforts of the employees. =3= 5. On 1st January 1993, the respondent Nos.3 and 4 sought sanction from respondent No.2 to the said resolution as per section 76(2) of the Municipalities Act. The respondent No.2 issued orders dated 19th October 1991, 22nd April 1994, 17th June 1995 and 22nd April 1994 sanctioning pay-scales recommended for the respective posts in the IVth Pay Commission. Thus, the respondent No.2 refused to sanction higher pay-scales as resolved and recommended by the respondent No.3. The respondent No.3, vide resolution No.515 dated 30th March 1992 resolved to request the Government to review the said order dated 19th October 1991 under section 320 of the said Act. In the year 1996, the respondent No.2 exercised powers of review under section 320 read with 76(2) of the said Act and issued eleven orders between 24th June 1996 to 19th December 1996 to revise the pay-scales for the posts mentioned therein. The pay-scales were to be one stage higher than recommended in IVth Pay Commission and were to be sanctioned for respective posts as personal pay-scales to the employees working on the said posts. It was stated that the said pay-scales would not be applicable to new employees appointed after the existing employees retired or vacated the posts for any reason whatsoever and the new incumbent was to get the pay-scale as per IVth Pay Commission as sanctioned by earlier orders. =4= 6. In view thereof, some of the Councillors in August 1997 approached this Court by writ petition No.4483 of 1997 and sought cancellation of the orders passed by the respondent No.2 granting personal pay-scales on the ground of alleged illegality and burden on Council. Thereafter, on 10th October 1997, the respondent No.2 passed orders and revoked all sanctions granted by the aforesaid eleven orders and restored the pay-scales for the posts as per the IVth Pay Commission. The employees who were aggrieved by this order of revocation filed writ petition No.5097 of 1997 before this Court challenging the said order of revocation dated 10th October 1997 passed by the respondent No.2. This Court, by its order dated 28th April 2004 has set aside the impugned order dated 10th October 1997 and directed the respondent No.2 to hear the concerned employees, all other parties concerned and then pass appropriate orders. The respondent No.2, after issuing show-cause notice, reviewed all the eleven orders under section 320 of the said Act and on 9th June 2006 passed the order which is impugned herein, cancelling all the eleven orders granting personal pay-scales and ordering recovery of the excess amounts paid to the concerned employees. 7. An affidavit in reply is filed by the =5= Assistant Director, Directorate of Municipal Administration on behalf of the respondent No.3 in which he has pointed out that the contention of the petitioners that Pay Commission recommendations are not applicable to Municipal Council is incorrect and made only to mislead this Court. He has pointed out that the Maharashtra Civil Services Rules are made applicable to the municipal employees by the Directorate by its order dated 14th May 1984 under section 76 of the Maharashtra Municipal Councils, Nagarpanchayats and Industrial Townships Act 1965. The IVth Pay Commission recommendations are covered by the Maharashtra Civil Services (Revised Pay) Rules 1988. The pay-scales and allowances higher than the Government employees are not admissible to the municipal employees and theretofore, no higher pay-scales can be sanctioned to the petitioners. If it is done so, it will be in contravention to section 76 of the said Act. He has also submitted that under section 76 of the said Act, the Director is empowered to fix the pay-scales of the municipal employees and as per circular dated 14th May 1984, the pay-scales and allowances higher than Government employees are not admissible to the employees of the municipal employees. The Chief Officer is not a private party and under section 7 of the said Act, the Chief Officer is declared as municipal authority and is empowered with the execution and implementation of the =6= said Act. Therefore, the provision of limitation stated in section 320(iii) is not applicable. He has therefore contended that the review order dated 9th June 2006 impugned in the writ petition is passed according to the directions given by this Court in the said petition. It is further pointed out that special pay or higher pay-scale cannot be given to the members of the petitioner Union. There is a provision of special pay / allowances for additional responsibility but there is no provision of higher pay-scale for the same in the Act or Service Rules. None of the employees have been able to point out their eligibility or entitlement for higher pay-scale. 8. The aforesaid contentions raised by the respondent No.2 clearly points out that the higher pay-scales which were sanctioned in favour of the said employees is not in conformity with section 76 of the said Act. We are also satisfied that the order passed in review is in conformity with the provisions of the statute governing the pay-scales and conditions of service of municipal employees and is also passed according to the directions given by this Court in writ petition No.5097 of 1997. The learned counsel for petitioners has failed to point out any provision under which the employees who are members of the petitioners are entitled to the personal pay-scales which are higher =7= than the pay-scales provided under the IVth Pay Commission nor do they fall under any special category as having additional responsibility. The justification sought to be given whilst unanimously passing the resolution, based on various needs of the city, its sound financial position and appreciating the services of employees is untenable and baseless and cannot be upheld in law. We are therefore of the opinion that the grant of higher / personal pay-scales to the employees of the petitioner Union on the basis of resolution passed by the Council is illegal and bad-in-law. The same has been rightly set aside by exercising the power of review by the respondent No.2 by its order dated 9th June 2006 which is impugned before us. We therefore find no merits in the case of the petitioners and dismiss the writ petition. Writ petition stands dismissed. Rule is discharged with no order as to costs. ( J.N. PATEL J. ) ( S.J. KATHAWALLA J.)