Gujarat High Court

S.V.Raval vs State Of Gujarat on 2 September, 2021

Bench: Biren Vaishnav

     C/SCA/63/2008                               JUDGMENT DATED: 02/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 63 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                              S.V.RAVAL
                                Versus
                     STATE OF GUJARAT & 3 other(s)
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR.MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
MRS VASAVDATTA BHATT(193) for the Respondent(s) No. 4
RULE SERVED(64) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 02/09/2021

                             ORAL JUDGMENT

1 The prayer in the petition is as under:

"7(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, quashing and setting aside the order passed by respondent no.3 dated 17.11.2007 by which

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the petitioner has been extended the benefit of higher pay scale of Rs.5500-9000 with effect from 08.06.2002 and be pleased to hold that the petitioner is entitled to get the higher pay scale of Rs.6500-10500 with effect from 3.5.1997 i.e. on completion of 9 years services from the date of his appointment."

2       The facts in brief are as under:

2.1     The petitioner was initially appointed as a Block Extension

Educator ("B.E.E" for short) on 03.05.1988 in Mehsana District

Panchayat in the pay scale of Rs.1640-2900/-. For the cadre of Block

Extension Officer, there were two pay scales, that of Rs.1400-2300/- and

Rs.1640-2900/-. The scale of Rs.1640-2900/- was for BEEs, who are

having a qualification of Post Graduation. On completion of nine years of

service, the petitioner was given the pay scale of Rs.5500-9000/- with

effect from 03.05.1997.

2.2 It appears that on 06.03.1999 the Commissioner of Health &

Medical Services issued a Circular reducing the pay scale of the

petitioner from Rs.1640-2900/- to Rs.1400-2300/-. That reduction was

challenged before the Gujarat Civil Services Tribunal. The Tribunal by an

order dated 16.03.2005 rejected the appeal of the petitioner.

2.3 Aggrieved by the order of the Tribunal, the petitioner preferred

Special Civil Application No. 7171 of 2005 before this Court. The Court,

by an order dated 26.04.2005, dismissed the petition and rejected the

submission of the learned counsel for the petitioner that since the

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petitioners were appointed after 1989, the pay scale could not be modified

to the disadvantage of the petitioner. The petition was dismissed and the

reduction of the pay scale was upheld.

2.4 The petitioner preferred Letters Patent Appeal No. 1129 of 2005

and an interim order was passed on 26.08.2005 restraining the

respondents from recovering any benefits pursuant to such reduction in

pay. Special Civil Application No. 12120 of 2007 was preferred by the

petitioner with a prayer that they are entitled to the pay scale of Rs.1640 -

2900/- and the consequential pay scale of Rs.6500 - 10,500/-. On the

basis of they not possessing qualification of M.S.W, the Court disposed

of the petition directing the petitioner to make a representation. By the

impugned order of 17.11.2007, the representation has been rejected on

the ground that since the petitioner was transferred inter district from

Mehsana to Gandhinagar, he cannot be given the benefit of the higher pay

scale of Rs.6500 - 10500/- and secondly it was the case of the Panchayat

that the Letters Patent Appeal no. 1129 of 2005 was still pending.

3 Heard Mr.N.K.Majmudar, learned counsel for the petitioner. He

would submit that by a Resolution dated 24.10.1989, the decision to grant

the pay scale of Rs.1640 - 2900/- only to the employees who are holding

the qualification of graduation with M.S.W and deny the pay scale to the

petitioner was bad. The petitioner was holding masters degree and he was

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rightly granted the pay scale of Rs.1640 - 2900/-.

3.1 Mr.Majmudar, learned counsel, would submit that now even by a

decision of the Division Bench of this Court rendered in Letters Patent

Appeal No. 1129 of 2005 dated 21.01.2020, reduction in pay from

Rs.1640 - 2900/- to Rs.1400-2300/- has been set aside and it has been

held that the reduction is bad and the petitioner is, therefore, entitled to

the consequential fixation of higher pay scale of Rs.6500 - 10,500/- w.e.f

03.05.1997.

3.2 Mr.Majmudar, learned counsel, would rely on a decision of this

Court rendered in Special Civil Application No.7634 of 2006 dated

07.12.2006 in the case of Basirbhai Umarbhai Shaikh vs. State of

Gujarat & ors., to contend that even otherwise, the impugned order

indicating that by virtue of transfer from one Panchayat to the other, the

petitioner would lose the benefit is contrary to the decision of this Court,

where this Court has considered the decision of the Supreme Court in the

case of Union of India and Another vs. V.N.Bhat reported in 2003 (8)

SCC 714. Para 12 of this judgment reads as under:

"12 Therefore, in view of the observations made by the Hon'ble Apex Court as well as this Court in number of decisions deciding identical question that on request transfer, employee is not losing length of service for the purpose of higher grade benefit, there may be adverse effect on the seniority or promotion right but for the grant of higher grade benefit, only requirement is that the employee concerned must have rendered nine years continuous service in one scale and one post (cadre) and in between, no promotion. Petitioner is satisfying this criteria from 7.11.85 to

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6.8.96 in District Panchayat, Ahwa Dangs in one scale, one post (cadre) and was not promoted in between though he remained absent from duty for the period as aforesaid but ultimately, said period was regularized by order dated 08.05.1998. Therefore, decision which has been taken by respondent No.1 and 2 for not granting higher grade benefit while considering earlier service rendered by him in District Panchayat is illegal and contrary to GR dated 16.8.94 and 15.7.2004."

4 Ms.Vasavdatta Bhatt, learned counsel for respondent No.4 -

Panchayat, would draw the attention of the Court to the affidavit in reply

filed on behalf of respondents Nos. 3 and 4. She would submit that as the

petitioner did not possess the post graduate qualification of M.S.W, the

petitioner was not entitled to the pay scale of Rs.1640 - 2900/- and that

further since he was transferred to the District Panchayat, Gandhinagar,

pay scale is not warranted. Ms.Bhatt, learned counsel for respondent

No.4, would further submit that the affidavit further states that the matter

of granting the benefit of pay scale of Rs.6500-10,500/- is sub- judice in

the letters patent appeal.

5 Mr.Meet Thakkar, learned Assistant Government Pleader, has

appeared for respondents Nos. 1 and 2 and supported the stand of the

respondent, authorities.

6 Having perused the papers and the subsequent oral judgment

passed in Letters Patent Appeal No. 1129 of 2005, the following prayers

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need reproduction:

"5. Mr.N. K. Majmudar, learned counsel for the appellants has submitted that the appellants are holding master degree and when they were appointed in the Government service, they were granted pay scale on the basis of their qualification of master degree and, thereafter, due to pay revision, the pay scale of the post held by the petitioners have been bifurcated and persons holding post of B.E.E. / Social Workers of Panchayat service having master degree in MSW were given higher pay scale, whereas, for others, the lower pay scale was prescribed. According to him, when the petitioners joined services, as they were holding master degree, they were given higher pay scale and, thereafter, they were also given pay scale meant for employees who are holding the post of B.E.E. / Social Worker. It is contended that the Government Resolution dated 10.06.1987, in its schedule, has specifically stated that the persons holding the post of B.E.E. / Social Workers, who are postgraduate degree were granted pay of Rs.1640 - Rs.2900, which was earlier Rs.550 - Rs.900. Whereas, for others, the revised pay scale was Rs.1400 - Rs.2300, which was earlier Rs.425 - Rs.700. He has submitted that the appellants were earlier drawing pay in the pay scale of Rs.550 - Rs.900 as if were holding the post graduate degree. He has submitted that now, by way of resolution dated 24.10.1989, the qualification of the post graduate in MSW is prescribed for entitlement of grade pay of Rs.1640 - Rs.2900, whereas, for others, the pay scale prescribed is Rs.1400 - Rs.2300. He has submitted that the respective petitioners were earlier granted higher pay scale which was meant for master degree and by way of revision of pay, they cannot be placed in a lower pay scale of Rs.1400 - Rs.2300 and no recovery could be initiated against them and the resolution can be made applicable only to the prospective effect and cannot be made applicable retrospectively. Mr.Majmudar, learned counsel has relied upon the decision of this Court in the case of State of Gujarat Vs. Dipti Anilkumar Somani rendered in Letters Patent Appeal No.85 of 2016 dated 29.02.2016. According to him, the fact of the present case is similar to the fact of Letters Patent Appeal No.85 of 2016 and in that case, this Court has upheld the contention of the petitioner and granted the higher pay scale meant for the postgraduate degree in MSW to the persons, who were appointed, earlier, prior to issuance of the resolution dated 24.10.1989. He has urged to allow the appeals.

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6. Per contra, Ms.Krina Calla, learned Assistant Government Pleader for respondent - State has vehemently submitted that the petitioners are not holding the post graduate master degree of MSW and they are holding the post graduate in other stream instead of MSW. According to her version, the action on the part of the respondent - State is legal and valid and the impugned judgment and order of the learned Single Judge is sustainable in the eyes of law. She has submitted that these appeals are meritless and the same may be dismissed.

7. Mr.Manish Patel, learned counsel for respondent No.4 has also submitted that the action on the part of the department cannot be termed as illegal as it has acted as per the Government Resolution and the impugned judgment and order of the learned Single Judge is sustainable in the eyes of law. He has urged to dismiss the present appeals.

8. Considering the contentions of learned counsel for the parties and the material placed on record, it is crystal clear that there is no dispute regarding the fact that the petitioners are holding master degree, of course, not of MSW. But, the fact remains that when the petitioners entered into the services, they were granted pay scale, which was meant for the post of B.E.E. with postgraduate degree. It is an admitted fact that earlier, for the post of B.E.E / Social Worker, the qualification of postgraduate degree was prescribed and the pay scale was to Rs.550 - Rs.900 and "for others", it was Rs.425 - Rs.700. It is also an admitted fact that the revision of pay scale was effected in the post in the District and Taluka of the Panchayat service vide resolution dated 10.06.1987, wherein also, the pay scale for B.E.E. / Social Workers was put into a cadre i.e. one for postgraduate degree holder for which Rs.1640 - Rs.2900 was prescribed against pre-revised pay scale of Rs.500 - Rs.900 and "for others", the pay scale of Rs.1400 - Rs.2300 was prescribed, which was earlier prescribed to Rs.425 - Rs.700.

9. It is also not in dispute that due to amendment in the pay scale vide Government Resolution dated 24.10.1989 for the post of B.E.E. / Social Worker, two different pay scales were prescribed as on the same line which were earlier made applicable. However, for pay scale of Rs.1640 - Rs.2900, the word MSW has been added.

10. Now, the respondents have undertaken the exercise putting the petitioners in lower pay scale of Rs.1400 - Rs.2300 though they are holding the master degree, of course, they are not holding the

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master degree of MSW. At this juncture, it is worthwhile to refer to the decision of this Court rendered in Letters Patent Appeal No.85 of 2016 dated 29.02.2016 wherein this Court has observed in paras 5, 5.1, 5.2, 5.3, 5.4 as under:-

5. Having heard learned counsels for the parties and on perusal of the record, including Revision of Pay Rules, 1975 and 1986 respectively for the post of Social Worker and qualification prescribed therein, it is not in dispute that that when the petitioner was appointed on the post of Social Worker in the year 1974 she did possess the qualification of Master of Arts in Sociology and thereby she was entitled to receive revised pay scale in the grade of Rs.550900. Relevant portion of the ROP1975 reads as under:

ROP1975 Sr Designation No. of Existing Recommen Remarks N Posts scale of ded scale o pay of pay 37 Social Worker [1] 2 250-420 550-900 Provided the holder has a post-

graduate degree in M.S.W or Sociology otherwise Rs.425-

5.1 The above pay scale was revised in ROP 1986, which reads as under:

ROP1986

36 Social Worker [1] [I] 550- [I] 1640- [I] For post graduate 900 2900 degree in M.S.W.

                           [ii] 425-      [ii] 1400-    [ii] For others.
                           700            2300

5.2 For the employees who possess Postgraduate degree in M.S.W.

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Were conferred with the pay scale of Rs.16402900 and for others Rs.14002300.

5.3 The above anomaly will not deter us from confirming the view taken by the learned Single Judge about availability of revised pay scale to the petitioner under ROP1986 in the pay scale of Rs.1640- 2900 irrespective of the fact that she was not holding qualification of postgraduate degree of Master of Social Welfare. Such revision of pay scale would be applicable at the most to those incumbents recruited and appointed after ROP1975 and having no qualification of postgraduate degree in Master of Social Welfare and not conferred benefit of revision of pay scale of Rs.550 - 900 under ROP, 1975. Once revision of pay scale is granted to the petitioner under ROP1975 on the strength of qualification of Master of Sociology, a legal and valid qualification, the same could not have been reduced on the ground that in the year 1986 as per ROP, she was not holding qualification of postgraduate degree in Master of Social Welfare.

5.4 Further, the decision taken in the year 1993 with concurrence of the Finance Department could not have been revised after a period of 13 years on the ground that the petitioner lacks qualification of postgraduate degree in Master of Social Welfare under the ROP1986. Therefore, extending such benefit to the petitioner till the retirement from the date of impugned order by learned Single Judge and to pay difference towards arrears of pay, etc. cannot be said to be contrary to law warranting any interference of this Court in exercise of clause 15 of the Letters Patent.

11. Thus, in view of the above observations of this Court in similar situated persons, the facts of the present Letters Patent Appeals are also same and identical. Under these circumstances, as this Court has held that the persons holding master degree prior to amendment in the revised pay scale whereby only words M.S.W for higher pay scale is added, that facts cannot disentitled the petitioners from getting benefit of pay scale of Rs.1640 - Rs.2900 for the post of B.E.E. / Social Worker. As such the action on the part of the authorities to place the petitioners in the lower pay scale of Rs.1400 - Rs.2300 is bad in law.

12. It appears that the learned Single Judge as well as the Tribunal have committed serious error of facts and law in dismissing the petitions and appeals of the appellants herein. The impugned

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judgment and order of the learned Single Judge as well as the order of the Tribunal are not sustainable in the eyes of law and deserves to be interference.

13. In view of the above, the Letters Patent Appeals are allowed. The order dated 16.03.2005 passed by the Gujarat Civil Services Tribunal, Gandhinagar and the judgment and order dated 25/26.04.2005 passed by the learned Single Judge are hereby quashed and set aside.

14. It is held that the action of the respondents - authority, by which, it has decided to reduce pay scale of the appellants from Rs.1640 - Rs.2900 to Rs.1400 - Rs.2300 is quashed and set aside. The appellants are entitled to receive salary in the pay scale of Rs.1640 - Rs.2900 with all consequential benefit. The concerned authorities are directed to place the petitioners in the pay scale of Rs.1640 - Rs.2900 with all consequential benefits and no recovery be made from the petitioners - appellants. If any, recovery is made, then, the concerned authorities shall repay it to the petitioners - appellants within three months from receipt of the writ of this Court. No order as to costs."

7 Apparently, therefore, from reading the order of the Division

Bench, the Division Bench has set aside the action of the respondents in

reducing the scale of the petitioner from Rs.1640-2900/- to Rs.1400-

2300/- and has directed that the petitioner is entitled to receive all

consequential benefits.

8 Admittedly, the correspondent pay scale of Rs.5500-9000/- was

granted to the petitioner on the basis of the reduced pay scale of Rs.1400

- 2300/-. Further, by the operation of the decision of the Division Bench

in the case of Shamalbhai (supra), the Court having decided that the

petitioner was entitled to the pay scale of Rs.1640-2900/- is entitled to the

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revision of pay in the corresponding pay scale of Rs.6500-10,500/-. The