LAWS(SC)-2001-10-59

STATE OF MAHARASHTRA Vs. R N GANGWANI

Decided On October 17, 2001
STATE OF MAHARASHTRA Appellant
V/S
R N Gangwani Respondents

JUDGEMENT

(1.) This appeal by the state government is directed against the impugned judgment of the division bench of the Bombay high Court disposing of a writ petition filed by two of the municipal employees granting the relief contained in clauses (b) , (c) , (d) , (e) and (f) of prayer in the writ petition filed. From the impugned order, it transpires that on the very first day, the High Court made the rule returnable forthwith and after hearing the counsel appearing for all parties concerned, allowed the writ on a finding that the case is fully covered by the government resolution dated 16.4.1984. Having examined the resolution dated 16 4.1984, we find that that resolution deals with the service conditions of the government employees which has got nothing to do with the municipal employees. There appears to be a notification of the directorate of municipal administration purported to have been passed under section 76 (2) of the Maharashtra municipalities Act, 1965 dated 14/05/1984 which deals with the service conditions of municipal employees. Clause (3) thereof is relevant for the purpose, which reads as under:

(2.) The aforesaid clause puts an embargo on the municipal council hot to sanction the pay scale to a municipal employee exceeding the pay scale and allowance prescribed by the Maharashtra Civil services (Revision of Pay) Rules, 1978. But ipso facto it would not tantamount to hold that it does provide that the pay scale of a municipal employee should be the same as that of a government servant. On the other hand, any resolution of a municipal council granting any pay to an employee of the municipality on the assumption that the holder of the post in question discharged the similar duties as a corresponding post in the government service will be subject to the approval of the authority declared to be competent under section 76 of the maharashtra Municipalities Act. Subclause (5) of the aforesaid order, no doubt, states that the service conditions and benefits of the Maharashtra Civil service Rules modified from time to time issued in that behalf by the government would mutatis mutandis apply to a municipal employee. Therefore, it would be logical to hold that if a municipal employee is discharging the same duties in respect of the post of a corresponding employee of the government, then the municipal council would be entitled to grant him the pay scale as is available to his counter part in the government. But that requires certain determination of facts and on the basis of circular ipso facto the relief could not have been granted. In that view of the matter, we set aside the impugned order of the High Court and direct that the High court may re-hear the writ petition filed before it being W. P. no. 250/94, after giving opportunity of hearing to the state government. The state government is directed to file its counter affidavit within six weeks from today. Failure on the part of the state government to file its counter affidavit within the said period, will entitle the High Court to dispose it of on the materials available on record. The high Court would do well in disposing of the matter within three months.

(3.) The appeal stands disposed of accordingly. C. A. No. 649/97