Gujarat Water Supply And Sewerage ... vs Rajesh Pravinchandra Rajyaguru

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== GUJARAT WATER SUPPLY AND SEWERAGE BOARD Versus RAJESH PRAVINCHANDRA RAJYAGURU ========================================================== Appearance:

MR HS MUNSHAW(495) for the Appellant(s) No. 1,2,3 MS NIYATI V VAISHNAV(6168) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 24/07/2020 CAV JUDGMENT Page 1 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI) [1] The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the Gujarat Water Supply and Sewerage Board - original respondents assailing the correctness of the judgment and order passed by the learned Single Judge on 15.10.2019 in Special Civil Application No.16470 of 2018.

[2] The background of the facts which has led present proceedings before us is that the respondent - original petitioner was engaged as a daily rated employee with the appellant - Board with effect from 31.12.1991 and claiming to have a requisite minimum educational qualification of SSC pass from the day of his appointment. Subsequently, with effect from 30.06.1992, the respondent - original petitioner was terminated from the service which has given rise to the reference before the Labour Court, Amreli and the said reference was registered as Reference Case No. 309 of 1998 (Old No.790 of 1993). After adjudication of the said reference, the learned Presiding Officer of the Labour Court was pleased to pass an award on 16.03.2000 whereby a direction was issued to reinstate the respondent - original petitioner to his post with continuity and 15% back wages. The said award was challenged by the appellant - Board unsuccessfully since Special Civil Application No.81 of 2000 was rejected vide order dated 12.07.2001.

[2.1] It is further the case of the respondent - original petitioner that despite the rejection of the said petition, no Page 2 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT reinstatement was effected and the award was not implemented which has constrained the respondent - original petitioner to prefer Misc. Civil Application No. 2265 of 2001 and only thereafter, the respondent - original petitioner came to be reinstated in service. The respondent - original petitioner has further submitted that pursuant to the Government resolution dated 17.10.1988, several benefits were conferred upon daily rated employees on their completion of respective period of 5, 10 and 15 years. The present appellant - Board stated to have admitted and adopted the said Government resolution vide circular dated 30.06.1989 and accordingly, the respondent - original petitioner was granted the benefit of fix pay of Rs.750/- and other concomitant benefits upon completion of five years' service. It is the case of the respondent - original petitioner that yet one another Government resolution in continuance of original Resolution dated 17.10.1988, was issued by the State Government on 01.05.1991 for providing some better benefits to the daily rated employees and pursuant to this resolution of 1991, those daily rated employees, who have completed seven years' service and having SSC qualification, are to be given the work of clerical cadre, Class-III and should be placed in the pay scale of Rs.950-1500/. The said resolution was later on replaced by a further resolution dated 15.02.1992 which has further incorporated that upon completion of ten years' service, such daily rated employees to be treated as a regular employees.

[2.2] The respondent has further came out with a stand that pursuant to such Government resolution, the benefits have been conferred upon several daily rated employees looking to their respective categories. However, since the appellant -

Board allegedly did not implement the said resolution uniformly, some of the employees have preferred a petition being Special Civil Application No.18158 of 2003 with Special Civil Application Nos. 759 to 772 of 2004 before this Court and the High Court thereafter, considering the said grievance of the respective petitioners, directed the authority to extend such benefits, and accordingly, the appellant - Board is said to have granted benefits to those employees vide order dated 21.07.2004.

[2.3] It is further the case of respondent - original petitioner that by virtue of order dated 13.08.2003, the respondent - original petitioner was granted benefits upon completion of five years with effect from 31.12.1996. A further order was also passed on 03.08.2004 qua the respondent - original petitioner wherein it was specifically recorded that respondent

- original petitioner had completed ten years on 01.01.2002. The respondent herein raised a grievance that despite the aforesaid situation, the appellant - Board did not grant benefits to him by placing him in the pay scale of Rs.950-1500/- (corresponding new pay scale of Rs.3050-4590/-) and granting him the pay scale of Rs.750-940/- (new pay scale of Rs.2550- 3200/-) which was contrary not only to their own orders, but was also contrary to the directions issued by the High Court and discriminatory treatment was meted out which has resulted into submission of several representations to the authorities to look into the grievance. It was the grievance of the original petitioner that those daily rated employees who were having the qualification of SSC pass, were required to be fixed in the pay scale of Rs.950-1500/- and corresponding revision ought to have been given. Having not considered this Page 4 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT legitimate grievance of the petitioner, despite numerous representation right from 2003 to 2016, the original petitioner made a last representation in the year 2017. The petitioner was also aggrieved by inaction on the part of appellant - Board that during passage of time, one further writ petition was preferred by daily rated employees of the appellant - Board through Union being Special Civil Application No.18160 of 2016 in which the case was decided by the High Court in favour of those employees and it was stated by the appellant that against the said decision delivered by the learned Single Judge, a Letters Patent Appeal No.587 of 2018 is pending and in this background of facts, left with no other alternate, the original petitioner has approached this Court by way of petition for seeking following reliefs:

"7. The petitioners respectfully pray that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to:-

(A) direct the respondent authorities to grant benefit of pay - scale of Rs.950-1500 with all concomitant benefits thereof to the petitioners upon his completion of ten years of service and (B) further be pleased to direct the respondent authorities to revise that pay scale as per 5 th, 6th and 7th Pay Commissions from respective dates of effect of pay commissions, and (C) direct the respondent authorities to pay arrears Page 5 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT flowing from the above prayer clauses with interest at the rate which the Honourable Court may consider as just and proper, and (D) award the cost of the petition, and (E) pending admission and final disposal of the petition, the Honourable Court may be pleased to direct the respondent authorities to fix the pay of petitioner in pay scale of Rs.950-1500 forthwith from the date on which he completed ten years of service and start paying pay in that scale after appropriate revision thereof, and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case."

[2.4] The aforesaid petition was stoutly contested by the appellant - Board by submitting a detailed reply reflecting on page 76 of appeal compilation and a detailed rejoinder also was filed at page 125 and opposed the petition by submitting certain material. However, after hearing both the learned advocates appearing for the respective parties, the learned Single Judge was pleased to allow the petition vide judgment and order dated 15.10.2019 by issuing following directions:

"6. As a result of the above discussion, the petition succeeds. The respondents are directed to grant the benefits of pay scale of Rs.950-1500 to the petitioner with all consequential benefits upon completion of 10 years of service and revise the pay scale of the petitioner as per 5th, 6th and 7th Pay Commission scales on such basis. The arrears payable by virtue of present order, shall be Page 6 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT paid to the petitioner within a period of eight weeks from the date of receipt of the present order.

7. The petition is accordingly allowed. Rule is made absolute in the aforesaid terms."

[2.5] It is this order passed by the learned Single Judge is made the subject matter of present Letters Patent Appeal, in which, we have heard Shri H. S. Munshaw, learned advocate for the appellants - Board and Ms. Niyati V. Vaishnav, learned advocate for the contesting respondent.

[3] Mr. H. S. Munshaw, learned advocate appearing for the appellants - Board has vehemently contended that the order passed by the learned Single Judge not only suffers from the vice of non-application of mind, but the same is not in consonance with the relevant record. It has been submitted that in the writ petition in an ingenious method, a relief is sought as if the original petitioner wants an equal treatment but then the record indicates that the Board has by a detailed affidavit clarified as to why the original petitioner is not entitled to the relief. In fact, it is the policy of the Board that whenever any Government resolution is published, it cannot automatically be made applicable but will have to be adopted. Here is the case in which the benefit which is based upon the Government resolution is not adopted by the Board by way of policy measure. Further it has been submitted that when original Government Resolution dated 17.10.1988 is pronounced by the Government, the same was adopted by passing a specific circular dated 08.06.1989 whereas the subsequent resolutions which have been issued by the State Page 7 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT Government for different departments namely resolution dated 01.05.1991 as well as resolution dated 15.02.1992 have not been adopted and with this specific stand taken by the learned advocate Shri Munshaw, a grievance is raised that though it was specifically pointed out before the learned Single Judge, the Court did not consider the same and has observed that there shall be automatic application of successive resolutions. This is a serious error committed by the learned Single Judge, having far reaching implications upon the appellants - Board, and therefore, the order deserves to be corrected.

[3.1] Shri Munshaw, learned advocate for the appellants - Board has further submitted that here is the case in which the original petitioner was appointed as an unskilled daily rated employee and undisputedly he was granted benefits as unskilled workman. It has been further submitted that, as on date also, it is an admitted position that respondent - original petitioner is still working as unskilled workman. Resultantly, he is not entitled to the benefits which are meant for skilled workmen i.e. a scale of Rs.950-1500/-. Shri Munshaw, learned advocate for the appellants - Board has submitted that whatever due benefit is available to the respondent has been extended at the rate of Rs.750/- onwards and since he is not falling within the criteria, such benefit is not amenable and the learned Single Judge has not minutely examined this material aspect. Hence, the order in question deserves to be corrected.

[3.2] Shri Munshaw, learned advocate for the appellants - Board has further submitted that on the contrary through inadvertence some offices under the Board have extended the benefits to some of the daily rated employees by mistake and Page 8 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT placed them in the pay scale of Rs.950-1500/- but after close scrutiny of such instances, the head of the department of appellant - Board at Gandhinagar addressed a communication on 05.06.2015 i.e. much prior to filing of petition to all the Chief Engineers of all five Zones of appellant - Board instructing that such benefit should not been granted and on the contrary a recovery is also sought. Apart from that, it has been submitted that even respondent No.3 was solicited advised from the State authority and the proposal dated 09.01.2014 was addressed but the same was pending without taking any decision. Hence, by submitting this, a contention is raised that unless and until, the decision dated 05.06.2015 is challenged in the petition, no relief can be extended and that decision was much prior in point of time.

[3.3] By drawing attention to several such communications, precisely a communication dated 05.06.2015, reflecting on page 94, a contention is reiterated. Shri Munshaw, learned advocate has further submitted by placing reliance upon the affidavit-in-rejoinder filed in the present Letters Patent Appeal and has canvassed the submission that even in past also, on 29.08.1991, administrative instructions were issued to all the Chief Engineers and other Engineers that benefit pursuant to the Government resolution dated 01.05.1991 are not to be granted to daily rated employees of the appellant - Board. Similar such circular also came to be issued on 29.08.1991 and further a circular dated 12.12.1991. As a result of this, a contention is reiterated that no such instance of automatic application. It has further been contended that in past by mistake the said pay scale of Rs.950-1500 was given towards, the actions have been taken for recovery by way of Page 9 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT withdrawing the pay scale, but the same has resulted into filing of petitions before this Court and the same are pending for final hearing. The said petitions are Special Civil Application 2055 of 2007 and Special Civil Application No.22296 of 2006.

[3.4] Shri Munshaw, learned advocate for the appellants - Board has simultaneously submitted that denying the said benefit of Rs.950-1500/-, on the basis of aforesaid stand has resulted into filing of petition being Special Civil Application No.15517 of 2004 and by a reasoned order, the learned Single Judge has opined clearly that the Boards as well as Corporations being the statutory bodies and legal entities are not bound by the Government resolutions and the same are not automatically applicable to them. Against the said decision, delivered by the learned Single Judge, the workman had preferred Letters Patent Appeal (Stump) No. 681 of 2005 which came to be withdrawn on 02.08.2005 and as such by citing such decision delivered by the learned Single Judge which is not disturbed by the Division Bench, a contention is reiterated that there is no automatic application of the Government resolutions without they being adopted by a conscious decision by the Board. Hence, the order passed by the learned Single Judge, without considering these issues, deserves to be corrected.

[3.5] By referring to the said contents from the affidavit and ultimate stand is taken by the appellant - Board that mistake even if crept in, the same cannot be allowed to be perpetuated and there is no concept of negative equality which ought to have been considered by the learned Single Judge. The brief Page 10 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT reasons, which are assigned by the learned Single Judge, are not sufficient enough to substantiate the ultimate conclusion. That being so, the order passed by the learned Single Judge requires to be corrected by granting relief as prayed for in the petition.

[3.6] To substantiate the stand, two decisions delivered by the Apex Court have been pressed into service by Shri Munshaw, learned advocate for the appellants - Board, one of which is in the case of State of U.P. And others versus Rajkumar Sharma and others reported in (2006) 3 SCC 330 and another in the case of Kulwinder Pal Singh and another versus State of Punjab and others reported in (2016) 6 SCC 532.

[4] As against this, Ms. Niyati V. Vaishnav, learned advocate for the contesting respondent on caveat has submitted that the learned Single Judge has considered every aspect of the matter and based upon admitted position prevailing on record, the petition came to be allowed. According to Ms. Vaishnav, learned advocate for the respondent - original petitioner, the main Government resolution dated 17.10.1988 once having been adopted, all successive amended resolutions ought to have been implemented in the right spirit since the appellant - Board is nothing but a creature of statute, fully aided by the State Government and as such, according to Ms. Vaishnav, learned advocate for the respondent - original petitioner, further Government resolutions, which are issued from time to time, are as such of benevolent in nature and as such once such benevolent schemes are being implemented by the Government, the Board being a statutory body has to adopt in Page 11 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT the same manner in which the basic resolution is adopted and as such the reason which has been assigned by the learned Single Judge cannot be said to be erroneous in any form.

[4.1] Ms. Vaishnav, learned advocate for the respondent - original petitioner has further submitted that on the contrary there are several employees who have been granted such benefit and the original petitioner cannot be discriminated on account of any hyper technicality. In fact, reading the whole judgment has clearly considered that basic resolution has already been adopted by the appellant - Board and subsequent resolution of 1991 has also been implemented by extending such benefit to several employees. Hence, to deprive the present petitioner from such benefit would be nothing but a clear example of arbitrariness which violates Articles 14 and 16 of the Constitution of India. Ms. Vaishnav, learned advocate for the respondent - original petitioner has further submitted that at the time when the original petitioner came to employee, he was having a qualification of SSC pass, and therefore, upon completion of period ought to have been extended such benefit upon completion of a requisite period and this having been clearly examined by the learned Single Judge at length, there is hardly any case made out by the appellants to interfere with the discretion exercised by the learned Single Judge. Accordingly, the present appeal being meritless, the same being dismissed in the interest of justice.

[5] Having heard learned advocates appearing for the respective parties and having gone through the material on record, before examining the correctness of order passed by the learned Single Judge, few circumstances are not possible Page 12 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT to be unnoticed by us.

[6] The record of the present Letters Patent Appeal indicates that a substantial contention of appellant - Board is that though the appellant - Board is under administrative and supervisory control of the government of Gujarat, but still, it has autonomy in applying the Government resolutions, issued from time to time, for various departments under the Government. The appellant - Board is a statutory Board, duly constituted under the provisions of the Gujarat Water Supply and Sewerage Board Act, having its own rules and regulations and takes its own policy decisions in respect of matters related to service conditions and labour matters and the decisions are always subject to the approval of the Government of Gujarat in case of contingency whether to extend the benefit flowing from the Government resolution dated 01.05.1991 is to apply or not is a matter of discretion of the Board and as a policy measure so far the same was not adopted unlike the earlier resolution dated 17.10.1988 and further a clear communication is issued on 05.06.2015 addressed to all the Chief Engineers of all five Zones by the head office that such benefit of 1991 resolution may not be granted and this decision has already been communicated to all concerned in the appellants - Board and same is not under challenge in the petition. And further concept of equal pay would not arise here in this peculiar background. Equal pay is at the best a constitutional goal but this principle is not possible to streach here.

[7] Now to test this basic contention, few circumstances are required to be referred to. First of all, the prayer which has Page 13 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT been made in the petition is in simpliciter form to grant benefit of pay scale of Rs.950-1500/- with all concomitant benefits upon completion of ten years and consequential pay scale as per the 5th, 6th, and 7th Pay Commission and there appears to be no challenged to the earlier decision which has been taken by the Board in the month of June, 2015.

[8] In the context of this prayer which has been sought, what has been claimed is based upon the Government resolution dated 01.05.1991, reflecting on page 25(A), a typed copy which is made applicable to Roads and Building Division of the Government and its all sections. No doubt this Government resolution dated 01.05.1991 is giving a pay scale of Rs.950- 1500/- to the daily wager category as stipulated therein, but then in emphatic terms, it has been canvassed before us by the Board that the said resolution has not been adopted by the appellant - Board. On the contrary, it has been found from the record that the Board has come out with a clear stand that this resolution and the subsequent resolution dated 15.02.1992 have not been made automatically applicable since the Board being statutory body, it has to take its own administration decision. This stand which is reflected in affidavit-in-reply, in clear terms, we would like to reproduce the same since the issue involved is a centre of controversy:

"4. The respnt.no.3 most respectfully submits that Govt. of Gujarat through its Roads & Bldg. Dept. has issued a resolution dated 1.5.91 resolving to grant a benefit of post in Class-III clerical cadre to those daily wagers who are holding qualification of SSC and have put in service of seven years and a copy of the Page 14 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT resolution is annexed as ANNEXURE-C. It is submitted that accordingly such beneficiaries were to be placed in the pay scale of Rs.950-1500. It is submitted that Govt. of Gujarat through its Narmada and Water Resources Dept. also issued a resolution on 15.2.92 and a copy of the resolution is annexed as ANNEXURE- D. It is pertinent to note that such resolution is not automatically applicable to Gujarat Water Supply and Sewage Board as it is a statutory body and it has to take its own administrative decision considering various aspects including financial restrains.

The respnt.no.3 submits that Gujarat Water Supply and Sewage Board, a statutory Board has not taken any policy decision to grant such benefits available to skilled workmen to the beneficiaries of Govt. Resolution dated 17.10.88 who are as such originally employed as unskilled daily wager and granted benefits accordingly and are still working as unskilled workmen. It is submitted that even it is an admitted position the petitioners are working as unskilled workmen but only on the basis of govt. policy referred to hereinabove are seeking the benefits of pay scale available to skilled workmen i.e. 950-1500.

5. The respnt.no.3 submits that in past some of such unskilled workmen were inadvertently granted benefits of pay scale of Rs.950-1500 available to skilled workmen in absence of policy at the Division or Sub- Division level but since it came to the notice of Head Office at Gandhinagar, a communication dated 5.6.15 addressed to all the Chief Engineers of all five Zones of Gujarat Water Supply and Sewage Board instructing that such benefits should not be granted and a copy thereof is annexed as ANNEXURE-E. It is submitted that such benefits are subject to the policy decision of Page 15 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT Gujarat Water Supply and Sewage Board.

6. The respnt.no.3 submits that the issue in question with regard to grant of such benefits to SSC pass daily wagers is yet not finalized at the end of State Govt. It is submitted that a proposal is addressed to the Narmada Water Resources and Water Supply and Kalpsar Dept. of the Govt. of Gujarat on 9.1.14 and subsequently a further correspondence is entered in to between the Govt. of Gujarat and respnt. Board but appropriate decision is yet to be taken."

[9] Thus, a clear stand has been taken by the appellants - Board before the learned Single Judge since the same is also deduced in writing in affidavit-in-reply referred to above.

[10] Page 94 of present compilation requires that a conscious decision is to be taken not to apply this pay scale of Rs.950/- and with immediate effect, the Member Secretary of the Board has informed all divisions vide communication dated 05.06.2015 and as such there was a clear resistance by the appellant - Board in respect of implementation of pay scale of Rs.950/-

[11] Yet another assertion in clear form is that in some division, through inadvertence, in past, some unskilled workmen have been inadvertently granted the pay scale of Rs.950-1500/- which is otherwise not amenable and taking note of such situation, the recovery steps have also been initiated by the Board by withdrawing the said benefit. This aspect was already referred to in paragraph No.5 of earlier affidavit filed by the Board before the learned Single Judge, but Page 16 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT in more clarificatory terms on oath, the Board has stated before us in the form of affidavit-in-rejoinder reflecting on page

125. In the said affidavit-in-rejoinder, in paragraph 1 in the later part, it is pointed out that some mistake has been crept in, in extending the pay scale of Rs.950-1500/-, but then administrative instructions have been issued on 29.08.1991 and on 01.05.1991, a copy whereof is also attached along with the said affidavit-in-rejoinder. To be more precise, we deem it proper to reproduce the said relevant portion which reflects the stand of the Board, as contained in paragraph 1:

"It is categorically stated that the subsequent Government Resolution dated 01.05.1991 issued by Government of Gujarat through its Roads & Building Department granting benefits of the pay scale meant for Class-III i.e. Rs.950-1500/- is not adopted by the Board and therefore, the beneficiaries of Government Resolution dated 17.10.1988 are not entitled to the benefits of Government Resolution dated 01.05.1991.

The Appellant No.1 submits that as such no discriminatory treatment is given to the Respondent or similarly situated beneficiaries of Government Resolution dated 17.10.1988 due to non-grant of benefits of Government Resolution dated 01.05.1991. It is submitted that through inadvertence in all 476 beneficiaries of Government Resolution dated 17.10.1988 are granted benefits of pay scale of Rs.950- 1500/- at divisional or sub-divisional level though the policy decision is not taken by the Board in that regard. It is submitted that as on today 474 such beneficiaries of Government Resolution dated 17.10.1988 are not granted pay scale of Rs.950-1,500/-. It is submitted that as soon as the said error committed at grass root level came to notice of Head Office, the instructions are Page 17 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT issued to the effect that no such benefits be granted. It is submitted that as such on 29th August, 1991, administrative instructions were issued to all the Chief Engineers and other Engineers that the benefits of Government Resolution dated 01.05.1991 is not to be granted to the daily wagers of Gujarat Water Supply & Sewerage Board."

[12] Yet another stand which is also worth to be taken note of is that undisputedly attempts were made to make a recovery of withdrawing pay scale of Rs.950-1500/- but then the said withdrawal is under challenge before this Court in the form of Special Civil Application No.2055 of 2007 and Special Civil Application No.22296 of 2006 which are yet pending before the Court. So it is clearly visible from the stand of the appellant - Board that unlike adoption of 17.10.1988 resolution, the subsequent resolutions are not adopted by the appellant - Board and instead steps have been taken to withdraw the benefits by effecting recovery. Since the subject matter of recovery is pending before this Court, we are not inclined to offer any comment, but taking note of such stand of the appellant - Board, we have seen that this aspect appears to have not been visible from the order passed by the learned Single Judge.

[13] Apart from that, in past, it seems that this issue was very much agitated somewhere in the year 2004 wherein while dealing with almost similar issue in Special Civil Application No.18158 of 2003 with Special Civil Application Nos.759 to 772 of 2004, the learned Single Judge in his order dated 24.02.2004 left the said issue open to the authority for taking Page 18 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT appropriate decision. The relevant observation contained in the said judgment is reproduced hereinafter reflecting in paragraph No.8. Of course, the petitions came to be disposed of by observing principles of natural justice, but the aforesaid conclusion since cannot be unnoticed, we have reproduced the same hereinafter:

"8. In view of the aforesaid, I find that the other aspects regarding granting of pay scale of Rs.950/- was by mistake or not, the applicability of Govt. Resolution, dated 17.10.1988 and 13.10.1991 and other aspects incidental thereto should be left open to the authority for appropriate decision, but the impugned decision can not be sustained on the ground of breach of principles of natural justice as the opportunity of hearing has not been given to the concerned petitioner before withdrawing the benefit of payscale."

[14] Simultaneously, yet another decision, which has been taken by the learned Single Judge on 17.03.2005 while deciding Special Civil Application No.15517 of 2004 with Special Civil Application Nos.15521 and 15527 of 2004 in which also these very contentions have been dealt with by the learned Single Judge and in no uncertain terms, it has been observed that automatic applicability of Government resolution is not possible to be accepted. The relevant observations contained in the said decision reflecting from page 140, we deem it proper to reproduce the same hereinafter:

" For want of any material regarding the discrimination vis a vis employees in other districts of the Board, it is not possible for this Court to come to the conclusion that there has been discrimination meted out to the Page 19 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT petitioners. It would, however, be open for the petitioners to point out with proper material that in other districts and other employees under identical situation, the Board employees are being paid higher wages and in such case it will be duty of the Board to examine this aspect of the matter. If the petitioners make a representation in this regard the same shall be considered in accordance with the rules.

6. The last contention of the counsel for the petitioners that under section 68 of the Gujarat Water Supply and Sewerage Board Act, 1978 the Board is bound by the directions of the policy decision issued by the Government and that therefore all Government circulars prescribing higher pay scale should also be followed by the Board. I am afraid, this submission cannot be accepted. Section 68 provides that the Board will follow the directives of the Government from time to time in policy decision in discharge of its duties. Of course, the Board is required to follow the Government directives with respect to policy decision if so issued. However, I do not find any directive of the Government to the Board to prescribe a particular pay scale which would govern the situation of the present petitioners and in absence of such directive, it is not possible to accept the contention of the learned counsel for the petitioners that the Board ought to have adopted the higher pay scale as prescribed by the Government for its employees.

7. In the result, subject to the above observations, the petitions are rejected. Notice discharged with no order as to costs."

By observing the aforesaid conclusion, the petition came to be rejected.

[15] It further appears from the record that this very decision was assailed by the petitioner of that petition by way of preferring Letters Patent Appeal (Stump) No.681 of 2005 in which on 02.08.2005, the Division Bench was since not possibly found in favour of the appellants, the said Letters Patent Appeal was dismissed as withdrawn with a liberty. This indicates that stand of the Board is quite reasonably accepted and concluded by a decision taken in past.

[16] This observation contained in the aforesaid decision is dismantling the reason which has been assigned by the learned Single Judge that once the main resolution dated 17.10.1988 is accepted by the Board, the incidental resolution and attendant resolution would have to be applied automatically. Hence, we reasonably find that the stand of Board is justified and there appears to an error committed by the learned Single Judge.

[17] Apart from that, in addition to the aforesaid circumstance prevailing on record, yet another material circumstance which is not possible to be unnoticed by us is that before the learned Single Judge, the Board has pointed out in paragraph 6 in affidavit-in-reply on page 79 that the correspondence between the Government and the Board is awaiting a final decision. Now, Mr. Munshaw, learned advocate for the appellants - Board has submitted that pending the aforesaid proceedings even this very Government authority has clearly opined in a communication dated 09.09.2019 reflecting on page Nos. 134 and 135 of appeal compilation that the benefit of pay scale of Rs.950/- has been erroneously extended to some 378 daily Page 21 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT rated employees and for correcting the same, appropriate steps are suggested and in clear terms, it has been opined by the State authority that there is no question of extending the pay scale of Rs.950/- to other 283 daily rated employees. Now, this decision is taken in the month of September 2019 well before the order passed by the learned Single Judge. Hence, unless and until, the said decision is questioned by either the petitioner or any other employee, it is always open for the Board to take a corrective measure.

[18] From the overall circumstances, which are visible from the record, we see that there is a discretion left with the Board either to apply the pay scale or not depending upon its own policy and the said view has been confirmed in the earlier proceedings as stated above and we see that the learned Single Judge has committed an error in just observing that when parent policy in the form of Government resolution dated 17.10.1988 is adopted, the other attendant resolutions are to be applied automatically which reason sounds an irregularity. Additionally, while going through the decision delivered by the learned Single Judge much emphasis appears to have been given on the stand of original petitioner that other similarly situated nine employees have been extended such benefits. But we have seen from the record that by way of corrective measure, the Board has initiated proceedings of withdrawal of such pay scale and steps have been effectively taken and as such, we see no reason to allow the original petitioner to claim the said benefit by way of negative equality as has been pointed out earlier even now the Government has also in clear terms taken a decision not to extend such benefit and if extended take corrective measure, we see no reason to allow Page 22 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT the conclusion arrived at by the learned Single Judge to stand in the eye of law. The attending circumstance, reflecting from the record, is giving an impression in clear terms that there shall be no automatic application of the other subsequent resolutions issued for various departments in the government unless specifically applied by mandate and by the Board, being a statutory body, is free to take its own decision in respect of this particular pay scale.

[19] This, we have observed in the context of the present controversy only and in peculiar background of present facts and circumstances and looking to past orders as well. Resultantly, the challenge in the simpliciter form and the claim made by the original petitioner is not possible to be accepted.

[20] Normally, the view taken by the learned Single Judge is not to be interfered with but here is the case in which the conclusion which is arrived at is in conflict with the record and the proposition which has been pointed out before us in past decisions delivered by the learned Single Judge in respect of proceedings initiated against the very appellants - Board and in one case, it has been confirmed by the Division Bench of this Court. So overall material on record is indicating that case is strongly made out by the appellants - Board which constrained us to grant the relief as prayed for in the appeal [21] In view of aforesaid circumstances, we are of the clear opinion that concept of negative equality is not recognized in the law, but at the same time, once mistake is committed, the same cannot be allowed to be perpetuated and the said view is well recognized by the decision cited before us by the learned Page 23 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020 C/LPA/82/2020 CAV JUDGMENT advocate for the appellant - Board and since we are not in conflict with the observations, we deem it proper not to incorporate the observation of the said decisions just to avoid unnecessary burden of the present order and as such in close conformity with the said proposition of law laid down by the decision delivered by the Apex Court, we see that this is a fit case in which the appeal of the appellant - Board is allowed and the original petitioner's stand is not possible to be accepted unless and until there is a specific challenge to the decision of the Board. We also do not recognize this omnibus prayer which is made in the petition. Resultantly, the order passed by the learned Single Judge is hereby quashed and set aside. The appeal stands allowed.

[22] Since the appeal is allowed, connected Civil Application also stands disposed of.

(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) Vahid/DHARMENDRA KUMAR Page 24 of 24 Downloaded on : Mon Jul 27 20:34:07 IST 2020