Gujarat High Court
Kiranbala Rajeshkumar Oza vs State Of Gujarat on 2 March, 2022
Bench: Biren Vaishnav
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7065 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7778 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7064 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17555 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
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 ?
==========================================================
KIRANBALA RAJESHKUMAR OZA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 02/03/2022
ORAL JUDGMENT
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
1 Rule returnable forthwith. Mr.Meet Thakkar, learned Assistant
Government Pleader waives service of rule on behalf of the State-
respondents.
2 In all these petitions under Article 226 of the Constitution of India,
the prayer of the petitioners is to extend the benefit of the first higher pay
scale of Rs.8,000-13,500/- (5th Pay Commission) from their due dates
with all consequential benefits, including appropriate revision of pay. The
petitioners have retired in the year 2016, therefore, the additional prayer
would be to revise their pensionary benefits accordingly. For the purposes
of this order, the facts of Special Civil Application No.7064 of 2021 are
taken into consideration.
3 After a due process of selection through the Gujarat Public Service
Commission, the petitioners came to be appointed as Employment
Officers, Class-II, under the Labour and Employment Department in the
then prevailing pay-scale of Rs.2,000-3,200/- . The petitioners have been
appointed on various dates as Employment Officers. Their dates of
appointment are as under:
Sr. SCA No. Name of Date of Due date of Date of
No. petitioner joining & 1st Higher promotion as
Pay-Scale Pay-Scale Sub-Regional
Employment
Officer &
Pay-Scale
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
1 7064/2021 Nitinkumar 14.10.1988 14.10.1997 19.12.2000
Kantilal Patel 2000-3200 6500-10500
" Chandubhai 08.02.1990 08.02.1999 03.03.2001
Manilal Patel 2000-3200 6500-10500
" Bharatkumar 23.09.1988 23.09.1997 03.03.2001
Vakshibhai 2000-3200 6500-10500
Modhiya
" Kamalhusen 28.06.1996 28.08.2005 -
Gulamhusen 2000-3200
Shaikh
2 7065/2021 Kiranbala 16.09.1988 23.09.1997 03.09.1998
Rajeshkumar 2000-3200 6500-10500
Oza Appointed as
Section
Officer in
GAD
(past service
treated as
continuous)
3 7778/2021 Surjibhai 16.09.1988 23.09.1997 04.01.1999
Dhuljibhai 2000-3200 6500-10500
Ninama Appointed as
Administrativ
e Officer
(past service
treated as
continuous)
4 17555/2021 Hemant 23.09.1988 28.09.1997 -
Ramanlal 2000-3200
Purohit
4 It is the case of the petitioners that during their entire period of
service, they have not been granted the benefits of the first higher grade
scale. Even on their promotion to the next promotional post of Sub
Regional Employment Officer, they did not receive enhanced pay-scale.
Prior to the 6th Pay Commission, the pay-scale of the Employment Officer
was Rs.2,000-3,200/- and that of the promotional post of Sub Regional
Employment Officer, Class-II, it was Rs.2,000-3,500/-. On the 5 th Pay
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
Commission recommendations coming into force, the pay-scale of the
petitioners of Rs.2,000 - 3, 200/- of the Employment Officer, Class-II,
came to be revised and to that of Rs.6,500 - 10,500/-. The pay-scale of
the promotional post of Sub Regional Employment Officer, Class-II, also
was in the same scale of Rs.6,500 - 10,500/-.
5 Ms.Harshal Pandya, learned counsel for the petitioners, would
submit that when a situation like the present would occur, inasmuch as,
the post i.e. the feeder cadre post and the promotional post would have
the same pay-scale, the government would merge the posts by taking
action under the appropriate recruitment rules. She would draw support
from the resolution of the government dated 18.11.1999. It is the case of
the petitioners that while they were serving as Employment Officers and
having completed nine years of service, their cases were to be put before
the Departmental Promotion Committee for consideration of granting the
benefit of the first higher pay-scale. Five file notings are on record.
Perusal of such notings, specially one at page 47(A) of the paper book
would indicate that for the pay-scale of Rs.6,500 - 10,500/-, in
accordance with the resolution of the Finance Department dated
14.08.1998, the relevant pay-scale for the higher grade would be Rs.8,000
- 13,500/-, which was recommended for the petitioners. Even the
subsequent Departmental Promotion Committee recommended the pay-
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
scale of Rs.8,000 - 13,500/- as is evident from the minutes of the
Departmental Promotion Committee.
5.1 Attention of the Court is drawn to the resolution dated 16.08.1994
and particularly Clause 3(3) thereof to submit that when there is no pay-
scale prescribed for the promotional post, pay fixation on the higher pay-
scale has to be done in accordance with the schedule.
5.2 The consequent resolution dated 14.08.1998 would also indicate
that as per the schedule, in accordance with the clause, against the pay-
scale of Rs.6,500 - 10,500/-, the higher pay-scale would be that of
Rs.8,000 - 13,500/-. The issue whether the petitioners were entitled to the
pay-scale of Rs.8,000 - 13,500/- evident it is from the file notings that it
did not see the light of the day, inasmuch as, the issue of amending the
recruitment rules was pending consideration before the department,
namely, the Finance Department and the competent authorities. The
petitioners were then informed by a communication dated 23.09.2002 that
the issue of amending the recrutiment rules is under consideration, and
therefore, it is not possible for the department to extend the benefit of the
pay-scale of Rs.8,000 - 13,500/-.
5.3 By an order dated 05.02.2016, the petitioners were granted the first
higher pay-scale of Rs.6,500 - 10,500/- of the Sub Regional Employment
Officers, which in fact, was the same pay-scale as that of the feeder cadre.
This would obviously not answer the petitioners grievance of granting the
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
higher pay-scale in accordance with the schedule of the resolution dated
14.08.1998. Hence, the present petition. It is pointed out that all the
petitioners have since retired on various dates.
Sr. SCA No. Name of petitioner Date of
No. retirement
1 7064/2021 Nitinkumar Kantilal 31.01.2016
Patel
" Chandubhai Manilal 31.08.2011
Patel
" Bharatkumar 30.11.2016
Vakshibhai Modhiya (VRS)
" Kamalhusen 23.05.2013
Gulamhusen Shaikh (VRS)
2 7065/2021 Kiranbala 30.04.2020
Rajeshkumar Oza
3 7778/2021 Surjibhai Dhuljibhai 30.06.2013
Ninama
4 17555/2021 Hemant Ramanlal 31.05.2007
Purohit (VRS)
6 Mr.Meet Thakkar, learned Assistant Government Pleader for the
State, would submit that since the petitioners were appointed
approximately in the year 1988, they have completed nine years of
service in the year 1997, they were granted the benefits of the higher pay-
scale and were then given promotion to the post of Sub Regional
Employment Officers then they were entitled to the second higher pay-
scale in the year 2012. The petitioners have retired in the year 2016, and
therefore, the petition is belated.
6.1 On merits, Mr.Thakkar, learned AGP, would submit that in view of
the resolution dated 18.11.1999, the pay-scale "Feeder cadre and the
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
proportional cadre are to be considered as merged". That would
necessitate that the petitioner got the promotional avenue. The demand of
the first higher pay-scale in accordance with Clause3(3) of the resolution
dated 16.08.1994 is not tenable. Even otherwise, according to
Mr.Thakkar, learned AGP, the resolution of 18.11.1999 stood cancelled
by a subsequent resolution dated 30.04.2013. The arguments of
Mr.Thakkar, learned AGP, would be that since the posts have been
merged, the arguments of Ms.Pandya, learned counsel for the petitioners,
relying on the resolution of 18.11.1999 would not stand the test of
legality. It is in view of this that by an order dated 03.11.2020 on the
abolition of posts of the Sub Regional Employment Officer, the benefit of
the scale cannot be granted from the due date of their entitlement on
completion of nine years of service as employment officers.
7 From the factual history reproduced hereinabove, what is evident is
that prior to the 5th Pay Commission, the pay-scale of an Employment
Officer was Rs.2,000 - 3,200/- and that of the Sub Regional Employment
Officer was Rs.2,000 - 3,500/-. As per the schedule No.5th, pay revision
at serial No.18, in accordance with Clause 3(3) of the resolution of
16.08.1994, the corresponding higher pay-scale to that of Rs.2,000 -
3,200/- was Rs.2,200 - 4,000/-, which on adoption of the 5 th Pay
recommendations, the petitioners were drawing the pay-scale of Rs.6,500
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
- 10,500/- became the corresponding higher pay-scale of Rs.8,000 -
13,500/-.
7.1 By granting the first higher pay-scale of Rs.6,500 - 10,500/-, by
the order dated 05.02.2016, the two test of the benefits and the purposes
of grant of the higher pay-scale were not satisfied. Clause 3(3) of the
resolution dated 16.08.1994 when read, indicates that the higher pay-scale
is the scale available on a promotional post and if there are separate pay-
scales for the post, then the minimum of the two scales is to be granted.
That is clarified by the proviso inasmuch as, if there is no pay-scale of
promotional post, then the fixation has to be in the scale as provided in
the schedule.
7.2 Obviously, therefore, though the scheme of higher pay-scale is to
ameliorate stagnancy in matters of promotion, granting the same pay-
scale of Rs.6,500 - 10,500/- of the Sub Regional Employment Officer
would fail the test, inasmuch as, it would not be in effect a higher pay-
scale in the feeder cadre i.e. of Rs.6,500 - 10,500/-.
7.3 It was in light of all these circumstances that when the minutes of
the Departmental Promotion Committee are considered, the
recommendation was so rightly made that the petitioners should get the
benefit of the pay-scale of Rs.8,500 - 13,500/- . Even if the arguments of
the State that the merger of posts by virtue of the resolution of 18.11.1999
stands abolished by virtue of subsequent resolution of 30.04.2013, based
C/SCA/7065/2021 JUDGMENT DATED: 02/03/2022
on the schedule appended to the resolution of 16.08.1994 and 14.08.1998
would indicate that the petitioners are entitled to the first higher pay-scale
of Rs.8,000 - 13,500/- on completion of nine years of service from their
date of initial appointment as Employment Officers.
8 It appears that by a subsequent orders, the petitioners have secured
promotions to the post of Sub Regional Employment Officers. It is,
therefore, clarified that the benefit of the higher pay-scale of Rs.8,000 -
13,500/- shall be available to the petitioners on completion of nine years
of service from their respective dates of initial appointments.
Consequential revision of pay of the petitioiners and pensionary benefits
shall be computed on the basis of entitlement of the petitioners to the
scale of Rs.8,000 - 13,500/- on completion of nine years from their date
of initial appointment.
The entire exercise shall be carried out within a period of 15 weeks
from the date of receipt of copy of this order. The petitions are allowed
accordingly with no orders as to costs. Rule is made absolute accordingly
to the above extent.
(BIREN VAISHNAV, J)
Bimal
