(1.) By this writ application under Article 226 of the Constitution of India, the petitioners, serving with the Bhuj Nagarpalika, have prayed for the following reliefs;
"(A) Your Lordship be pleased to issue an order, direction, writ in the nature of mandamus, and/or certiorari or any other appropriate writ, order or direction, declaring the impugned action on the part of the respondent to deprive the petitioner employees of the time scale of pay payable to the regular clerk of the Nagarpalika as arbitrary, illegal and unconstitutional and be pleased to direct the respondent Nagarpalika to extend the benefits of time scale of pay payable to the regular clerk in the respondent Nagarpalika, to the petitioner employees at Annx.'A' to the petition, from the date on which they are working on the post of clerk.
A. It is further submitted that the respondent No.2 is the authority to sanction the various posts as per the requirement of the respondent No.1. That as stated in petition, the population, income, area of the respondent No.1 has increased and as per the information of the petitioner, respondent No.2 has time and again required the respondent No.2 to sanction the posts and give grant. That as the respondent No.2 is not either sanctioning the posts as per uncrease in population, area etc. of respondent No.1, respondent No.1 express his helplessness to extend benefits of equality of pay to the petitioner employees. Thus due to inaction on the part of the respondent No.2 also, the employees are deprived of the benefits available to the regular employees. Therefore, it is a fit case to direct respondent No.2 to sanction the grant.
(B) Be pleased to declare that the petitioner employees at Annx.A are entitled to get all the consequential benefits available to the permanent employees working as Clerk and direct the Nagarpalika to extend the same with 18% interest.
(C ) Be pleased to direct the Nagarpalika to consider the petitioner employees as regular clerks from the retrospective date, since when they are working on the posts of clerk and grant all consequential benefits.
(D) Pending admission and final disposal of the petition be pleased to restrain the respondent Nagarpalika from terminating, discharging and/or discontinuing the present situation of the employees at Annx.A and further direct to pay them the salary payable to the regular clerk of the Nagarpalika regularly.
(E) Any other relief to which the Court deem fit and proper in interest of justice together with cost.
A) Be pleased to direct the respondent No.2 to sanction the requisite number of posts to unable the respondent no.1 to extend benefits of equality of pay to the employees.
B) Be pleased to correct the word as respondents instead of respondent."
(2.) The case of the petitioners may be summarized as under;
2.1 According to the petitioners, although they are working on the post of the clerk, yet they are not granted the time scale of pay and the other benefits available to the clerical staff. Their initial appointment was as the Class -IV, but due to administrative exigencies, clerical work is being taken up from them past couple of years.
(3.) The first affidavit -in -reply filed on behalf of the Nagarpalika, duly affirmed by the Chief Officer, reads as under;
". With reference to para 1 and 2 of the petition l say and submit that the contentions are not true. That so far the claim of the petitioner employees to extend the benefits of time scale of pay of Rs 950 -1500 cannot be accepted. I say that the petitioner employees are not working in the sanctioned post of clerk. Moreover, the overall percentage of establishment expenditure exceeds 45% which is not permissible under the law. I say that the Bhuj Nagarpalika is having sanction of post of year 1984. That the new posts are required to be sanctioned by the Directorate of Municipalities in light of the expansion of the workload, population and area of the Nagarpalika. That on sanctioning of the required posts only the petitioner employees can be granted the scale of pay as they have asked for. It is not true that the Nagarpalika is acting in arbitrary manner as stated in the petition.
. With reference to para 2 of the petition, i say that it is true that the petitioner employees are regular class IV employees working as Warder but as stated in the earlier para, due to expansion of the area of the Nagarpalika, increasing population and looking to the burden of work, these employees are directed to perform the duty of clerk. It is not true that the Nagarpoalika is exploiting the petitioner employees. It is also not true that the petitioners are working on the permanent vacant post. That the Nagarpalika has no objection to grant the scale of pay of clerk to the petitioner employees if the Director of Municipalities sanction the post and also sanction the grant for the same. I say that the difference of wages between the permanent employees working as Clerk and present petitioner employees is due to non availability of sanctioned post and non -availability of fund because in no circumstances the Nagarpalika is permitted to exceed the expenditure more than 45% and therefore in absence of sanctioned post by the director of Municipalities. the petitioner cannot be extended the benefits of time scale of pay. It is not true that the Nagarpalika has adopted such practice of exploitation and not granting the benefits of equality of pay.
5. With reference to para 3 of the petition.. l deny the contentions and it is not true that the Nagarpalika has adopted discriminatory treatment between the two sets of similarly situated employees. That as stated in the earlier para, the petitioners are not working on the sanctioned post and therefore, they cannot demand the scale of pay as stated. That there is no differential treatment by the Nagarpalikai and the duties are allotted to the petitioner employees as per vacancies and work available. I say that the petitioner employees are not entitled to get the scale of pay of clerk and therefore the same is not extended from 14.3.92. So far the nature of duties of warder and clerk on the octroi nake are concerned. are the same. It is true that most of the Octroi Nakas, there are three shifts. That the duties of Warder and Clerk are to collect the octroi to give receipts of the same and to check the vehicles. That the amount which is collected is required to be deposited with the Municipality and in case of any shortage or misconduct. the employees are responsible for the some. The petitioner cannot claim the benefits of scale of pay and they cannot be permitted to compare them with the work of clerk because they are not Working on the sanctioned posts. That so far the vacancies of clerk are concerned, the same are required to be adjusted by the persons who are given the posting by the award of the competent authority. Copy of the award is annexed and marked as Annexure -l to the reply. That the beneficiary of the award, some of them are working on the shadow post and therefore the petitioners cannot be granted the benefits of equality of pay. It is not disputed that the employees working as Clerk are later - transferable. It is not true that there is no justification available to the respondents to pay less salary to the petitioners than payable to the regular clerical cadre employees. .. With reference to para 4 of the petition, I say that so far the nature of work etc are concerned, Al have dealt with in the earlier para and the facts are not disputed. The petitioner employees are adjusted and utilized on the work as per the requirement and therefore they were transferred from the department to another, but it is not true that they are entitled for the benefits of scale of pay payable to the regular karkoon. So far the duties of warder and clerk on the octroi naka are concerned, as stated above, is similar but the petitioner employees are not given posting on the sanctioned post and therefore, they cannot claim any right from the Nagarpalika. .. With reference to para 5 of the petition, l deny the contentions of the petition. it is not true that the post of Karkoon are available vacant. That the Nagarpalika has time and again requested the Director of Municipalities to sanction the further posts in light of increase of the Workload and expansion of the city. I say that the petitioner employees cannot claim the benefits of time scale of pay because for performing the duties of Karkoon and shouldering the responsibility they are granted extra allowance of 5% of basic scale of pay as an Acting Allowance. That the amount which is required to be paid to the petitioner employees on the basis of scale of pay are not grantable as the posts are not sanctioned and therefore, the petitioner employees are granted the acting allowance. That there is no intention, of the Nagarpalika to exploit the employees as stated in the petition. There is no dispute about nature of Work and the contents of the affidavit of Octroi Inspector at Annx.D. it is not true that the Nagarpalika has adopted discriminatory treatment and is violative of Art 14 and 16 of the Constitution of India.
. With reference to para 6 of the petition, I say that the judgments quoted by the petitioners are not applicable. In the present case as well as the petition nos which are quoted are also not applicable in the case of the petitioners and therefore they cannot ask any relief relying on those orders. The fact of the case is different than the fact in those cases.
. With reference to para 7 of the petition, I reiterate that the petitioners are not performing their duty on the vacant post and in absence of availability of vacant posts, the Nagarpalika cannot be directed to grant the scale of pay of clerk to the petitioner employees. I reiterate that l have stated in earlier para about increasing of population etc but till the director of Municipalities sanction the post, it is not possible for the Nagarpalika to extend the benefits of equality of pay to the petitioner employees and therefore, the petitioners are not entitled to get any relief and therefore, the same is required to be rejected.
. With reference to para 8 of the petition, I say that the petitioners are not having any prima facie case and the balance of convenience is also not in favour of the petitioners. I say that the petitioners are not performing their duty on the vacant posts but they are performing the duty of clerical nature and for shouldering the responsibility of clerical cadre employees, they are granted the acting allowance. I say that the Nagarpalika is not going to terminate the service of any of the petitioner employees and therefore, they are not entitled to get any relief from this Hon'ble Court. I say that granting of the time scale of pay to the petitioner employees will create great hardship to the Nagarpalika because the Nagarpalika cannot bear such expenditure before the posts are sanctioned and grant is available from the Director of Municipalities. ;