D G Thakore - Senior Assistant vs Managing Director - Gujarat Urja ...
2021 Latest Caselaw 18372 Guj

    C/SCA/16548/2010                                   CAV JUDGMENT DATED: 14/12/2021



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 16548 of 2010

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                         Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

================================================================ D G THAKORE - SENIOR ASSISTANT Versus MANAGING DIRECTOR -

GUJARAT URJA VIKAS NIGAM LIMITED & 2 other(s) =============================================================== Appearance:

MR BHARAT T RAO(697) for the Petitioner(s) No. 1 MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2 MR ADITYASINH JADEJA, AGP(1) for the Respondent(s) No. 3 ================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 14/12/2021 CAV JUDGMENT

1. By way of the present writ petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for the following reliefs:

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent Nos.1 and 2 to release increment to the petitioner as per revised pay scale @ 3% of revised pay scale as per the settlement with the Union on 30.6.2009 or as per the past practice prevailing in the erstwhile Gujarat Electricity Board as narrated in the Memo of Petition and give all consequential benefits and revised pay scale to the petitioner accordingly from 1.1.2006 till date and release all the monetary benefits consequent thereupon; OR

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IN THE ALTERNATIVE;

To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent Nos.1 and 2 to act as per the government notification dated 27.02.2009 whereby government has decided to implement the revised pay scale to all its employees w.e.f. 1.1.2006 and direct the respondent Nos.1 and 2 to give the benefit of the increment as per Rule-10 of the said Notification of Gujarat Civil Services (Revision of Pay) Rules, 2009 and accordingly direct the respondent Nos.1 and 2 to revise the pay scale granting benefit of increment and release all monetary benefits forthwith for the reasons stated in the Memo of Petition and in the interest of justice;

2. The petitioner was serving on the post of Senior Assistant at the Corporate and Registered Office of Uttar Gujarat Vij Company Limited (UGVCL) at Mehsana.

3. The Government of Gujarat setup a Committee for revision of pay-scales of the employees and after perusing the report, the Government of Gujarat decided to implement 6th Pay Commission w.e.f. 01.01.2006. Rules have been framed in this regard and Notification has been issued by the Government of Gujarat, which is known as the Gujarat Civil Services (Revision of Pay) Rules, 2009.

4. The respondents Nos.1 and 2 thereafter, in consultation with the respondent No.3, decided to implement a new pay-scale and issued G.S.O. No.1 of 2009 on 01.07.2009. G.S.O. No.1 of 2009 has been issued by the respondent No.1-UGVCL after entering

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into 2(p) settlement with the major union Akhil Gujarat Vidyut Kamdar Sangh, Rajkot.

5. Learned Advocate Mr.Bharat Rao appearing for the petitioner has submitted that the petitioner opted for the option as prescribed in G.S.O No.1 of 2009 and the petitioner's salary has been fixed considering the format given in G.S.O. No.1 of 2009 on 23.07.2009. It is the case of the petitioner that in implementing the new revised pay-scale, the petitioner got injustice because the increment has been given on the pre-revised scale. He has submitted that earlier the GSOs have been issued by the Gujarat Electricity Board (GEB) for the revised pay-scale, wherein the cut-off date for considering the salary is considered as 31st March because the new pay-scale has to come into effect w.e.f. 1st April. While referring to the earlier GSO's, he has submitted that there is consistent practice of the Board to grant increment on the revised pay. However, on issuing G.S.O. No.1 of 2009 injustice has been done to the petitioner. The petitioner filled in Grievance Redressal Form on 21.08.2009. Prior to that, the petitioner also made a representation on 22.07.2009. The petitioner also made a representation through proper channel on 24.08.2009.

6. It is submitted that the respondent No.1 has wrongly interpreted G.S.O. No.1 of 2009 and also

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ignored the settlement and the notification of revision of pay, which specifically deals with the issue of release of increment whose date of increment is 1st January.

7. Learned advocate Mr.Rao has submitted that when the Government has fixed the date of increment of all the employees as 1st July every year and the employees, whose increment falls in January, his pay will be fixed as per the pre-revised pay-scale and increment will be given as per pre-revised scale, but the said employees will get increment on 1st July again at 3% as per the Government policy and, therefore, he will not be subject to permanent loss and only loss to that employees has is from January to June and thereafter his pay will be fixed after releasing the increment on 1st July @ 3%.

8. It is submitted that the petitioner's salary is fixed as per the pre-revised pay-scale on 31.12.2005 and he will get increment as per the revised pay-scale @ 3%, which approximately comes to Rs.750/-, but due to incorrect fixation of the increment, the petitioner has to face the loss of approximately Rs.275/- which is loss of approximately Rs.475-500 per month. Thus, he has submitted that the respondents may be directed to fix the increment of the petitioner after revising his pay-scale.

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9. Per contra, learned Advocate Mr.Deepak Dave appearing for the respondents has submitted that they are not bound by the Government Notification dated 27.02.2009. The respondent Nos.1 and 2 are the companies constituted under the Companies Act, 1956, having different legal entities in eyes of law. The respondent Nos.1 and 2 are not bound by the Service Rules and Regulations of the State of Gujarat unless it is adopted by the respondent Nos.1 and 2. It is submitted that the Government Notification dated 27.02.2009 has not been adopted or accepted by the respondent Nos.1 and 2 and they have their independent Service Rules and Regulations and the respondent No.1 has entered into a settlement under the provision of section 2(p) of the Industrial Disputes Act, 1947 (the I.D. Act) with the representative Union. It is submitted that the 2(p) settlement entered into between the representative Union and the respondent No.1 is binding to all the employees, including the present petitioner.

10. It is submitted that the present petitioner has filled in Option Form and accepted GSO No.1 and 2(p) settlement and has taken its benefit. It is submitted that 2(p) settlement read with Section 12(3) of the Industrial Disputes Act, 1947 was entered into between GUVNL, Vadodara and Akhil Gujarat Vidhyut Kamdar Sangh and as per Clause-7 of the said settlement, fixation of initial pay in the

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revised pay structure was required to be governed by the revised pay structure on and from 01.01.2006. It is submitted that the criteria of fixation of initial pay has been mentioned in Clause-7 and accordingly, in case of all the employees pay structure was fixed.

11. Learned Advocate Mr.Deepak Dave has asserted that the existing practice for drawal of increment is on 1st of respective month as per Establishment Circular No.283 at the time of pay-fixation due to higher grade to promotion, etc. It is submitted that the first increment is released in the existing scale and thereafter the pre-fixation is made, since as per settlement of GSO No.1, the pay fixation has to be made as on 01.01.2006 and before such fixation the increment in the existing pre- revised scale is provided to be released.

12. It is also submitted that in order to deal with any grievance arising out of GSO No.1, it was provided in Clause-35 of GSO No.1 that a Grievance Committee was constituted by the respondent No.1 vide order dated 17.08.2009. The Grievance Committee met on several occasions and looked into total approximately 9400 of grievances of all different kinds. The Grievance Committee held meetings and discussed various grievances received which were classified into 25 broad categories. The grievance regarding release of increment on

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01.01.2006, after the pay fixation in the revised pay-scale was deliberated by the Grievance Committee at length and the Grievance Committee had recorded grievances with reasons and a copy of Minutes of Grievance committee made a circular issued dated 20.01.2010 in that regard.

13. It is submitted that the petitioner has retired from service with effect from 31.08.2011 and his date of increment was 1st January. The basic salary of the petitioner as on 01.01.2005 was Rs.10,100/- in the pay scale of Rs.6500-11750/-. As per the GSO No.1, pay fixation of the petitioner was done. It is submitted that the increment was released in favour of the petitioner on 01.01.2006 of Rs.275/- in the old pay-scale and accordingly his pay was revised to Rs.10,375/-. The petitioner was given increment in old pay-scale as per GSO No.1. It is submitted that thereafter as per GSO No.1, the petitioner was fixed in the pay-scale as under.

       Basic as on 01.01.2005                        =       Rs.10,100=00
       (Scale Rs.6500-11750)

       Increment as on 01.01.2006                    =       Rs.   275=00
       (in old pay-scale)                                    ____________
                                                             Rs.10,375=00
       Rs.10375 x 1.86                               =       Rs.19,298=00
                      (weightage)                            Rs. 5,200=00
                                                             ____________
                                                             Rs.24,498=00

       01.01.2006             -      Rs.24,500/- round figure
       01.01.2007             -      Rs.25,240/- after 3% increment






  C/SCA/16548/2010                                         CAV JUDGMENT DATED: 14/12/2021



       01.01.2008               -   Rs.26,000/- after 3% increment
       01.01.2009               -   Rs.26,780/- after 3% increment
       01.01.2010               -   Rs.27,590/- after 3% increment
       01.01.2011               -   Rs.28,240/- after 3% increment

It is submitted that thus, as per GSO No.1, the petitioner's pay-scale has been fixed after giving him increment of Rs.275/- in the old pay scale.

14. Learned Advocate Mr.Deepak Dave has submitted that while in earlier settlement dated 03.06.1998 and GSO No.325, it was specifically provided that an employee, whose normal increment in the existing scale is due on 01.01.1996 and pay is fixed on 01.01.1996, the employee will be allowed increment on 01.01.1996 in the revised scale. So far as GSO No.1 dated 01.07.2009 and 2(p) settlement dated 30.06.2009 are concerned, specifically the said provision has been omitted. In fact, it was conscious decision of GUVNL and Union not to allow release of such increment in the revised scale. It is submitted that in fact after GSO No.1, several grievances, including this grievance, were raised before the Grievance Committee and the Grievance Committee deliberated this issue, it has also noted the practice of GUVNL to release the increment first and thereafter to fix pay in the new pay- scale.

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15. Finally, it is submitted that the petitioner has not been discriminated in this matter but all such employees are treated at par. As per the practice of the GUVNL first increment has been released on 01.01.2006 and thereafter, the pay fixation has been made in respect of all such employees.

16. This Court has heard the learned Advocates appearing for the respective parties at length.

17. The core issue raised in the present writ petition is that whether the increment of the petitioner is required to be fixed on the old pay- scale or after revising his pay-scale. If it is fixed on the old pay-scale that is pre-revised pay- scale it will be less, but if it is fixed after revision of pay, the same will be more. It is the case of the petitioner that since the increment is given on pre-revised pay, he is put to loss of approximately Rs.475 to 700 per month.

18. After the State Government promulgated the Gujarat Civil Services (Revision of Pay) Rules, 2006 vide Notification dated 27.01.2009, the respondent-UGVCL entered into a settlement with the petitioner under section 2(p) of the Industrial Disputes Act, 1947. Pursuant to the same the respondent-UGVCL issued GSO No.1 dated 01.07.2009 with regard to the fixation of revision of pay

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w.e.f 01.01.2006. It is well settled proposition of law that a settlement under section 2(p) of the I.D. Act is applicable to all the members of the Union, irrespective of the fact that they have participated or not. Thus, the petitioner is bound by the settlement and GSO No.1. The petitioner cannot claim similar benefits akin to the Revision of Pay Rules issued by the State Government since the same are not directly applicable to the respondent-UGVCL. The respondent Nos.1 and 2 are the companies constituted under the Companies Act, 1956 having different legal entities in eyes of law and are not bound by the Service Rules and Regulations of the State of Gujarat, unless it is adopted by the respondent Nos.1 and 2.

19. The entire issue is focused on the interpretation of Clause-10 of GSO no.1, which reads as under:

"10.0 Date of next increment in the revised pay scale:

10.1 The next increment of an employee / officer whose pay has been fixed in the revised scale in accordance with para 7 above shall generally be granted on the date he would have drawn his increment had he continued in the existing pre-revised scale.

Provided that, the next increment of an employee whose pay is fixed on the 1st day of January 2006 at the same stage as the one fixed for another employee junior to him in the same cadre drawing pay at a lower stage in the existing scale, shall be granted on the same date as admissible to his junior, if the date of increment of the junior happens to be earlier."

20. The parties are ad idem that the date of fixation of increment is 1st of January of every

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year. The revision of pay has been made effective from 01.01.2006. It is the case of the petitioner that first his pay was required to be revised w.e.f 01.01.2006 and then on the revised pay his increment are required to be fixed. In the opinion of this Court, such notion of fixation of increment is ill-founded. It is well settled that an employee is entitled to increments after completion of one year of service and not prior thereto. The increment of the petitioner can only be fixed after he completes one year in the existing pay-scale (i.e. scale of Rs.6500-11750). In the present case, the petitioner became due to the increment of Rs.275/- on 01.01.2006 on completion of preceding one year, i.e from 01.01.2005. The petitioner is demanding the increment before he has completed one year in the existing pay-scale, which is not permissible. His increment can only be fixed after he completes one year from 01.01.2006, i.e. from 01.01.2007, which is already conferred to him. The petitioner is placing reliance on Clause-10 of the 2(p) Settlement which reads under:

"10. The existing practice for drawal of increment will continue."

Clause-10 only indicates of practice of drawal of increments to be continued. It is not in dispute that all the employees were paid the increments in the manner, as indicated above. The reading of the clause does not in any manner indicate that the

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grant of increment shall be followed after revised pay fixation. It can only be construed that the increments are required to be conferred on 1st January, 2006. Even if it is assumed in favour of the petitioner that the aforementioned Clause-10 of the 2(p) settlement means that the earlier practice of fixation of increment is continued, then also the increments are required to be fixed and paid as per GSO No.1. The petitioner has not challenged Clause-10 of the GSO no.1, hence he cannot claim any benefits on the practice, which was followed before the issuance of the GSO No.1.

21. For the foregoing reasons, the writ petition fails. RULE discharged. There shall be no order as to costs.

                                                                      Sd/-     .
                                                              (A. S. SUPEHIA, J)
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Bhavesh-[PPS]