Mudassir Aziz Ahmed Maniar vs State Of Gujarat
2022 Latest Caselaw 4756 Guj

    C/SCA/12824/2020                               CAV JUDGMENT DATED: 05/05/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12824 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 12516 of 2020

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 ?

================================================================ MUDASSIR AZIZ AHMED MANIAR Versus STATE OF GUJARAT ================================================================ Appearance:

HUNAIZA H QURESHI(8903) for the Petitioner(s) No. 1 MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1 MS SURBHI BHATI, AGP for the Respondent(s) No. 1, 2 ================================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 05/05/2022

1. Rule, returnable forthwith. Ms. Surbhi Bhati, learned

Assistant Government Pleader waives service of notice of

Rule for the respondents - State.

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2. With the consent of the learned advocates appearing for the

respective parties, both the petitions were taken up for its

final disposal.

3. In both these petitions, under Article 226 of the Constitution

of India, the petitioners have prayed for a direction that their

services, ad-hoc as well as regular on the diploma side

should be treated as continuous alongwith that of the

degree side for the purposes of pay, leave, pension and

other consequential benefits. The petitioners have also

prayed that their pay on being appointed on the degree side

as Assistant Professors be protected.

4. In SCA No.12824 of 2020, the respondents by

communication dated 19.3.2015, 13.2.2017 and 27.6.2019

have rejected the case of the petitioner for protection of pay

on the ground that since the petitioner was appointed from

the diploma side to the degree side, and he was availing

higher pay scale in his earlier post at the polytechnic side

and by virtue of his appointment in the degree side since he

is on lower pay scale post, the benefit of pay protection

C/SCA/12824/2020 CAV JUDGMENT DATED: 05/05/2022

cannot be granted.

5. For the purposes of this judgment, the facts of SCA

No.12824 of 2020 shall be considered.

5.1. The petitioner was appointed as lecturer Class II

(Electrical Engineer) at Government Polytechnic in the pay

scale of Rs.8,000-13,500/- by order dated 22.3.2002. He

was, thereafter, appointed as a regular lecturer Class-II

after being selected through the GPSC by order dated

23.5.2005. By an order dated 26.4.2007, the services of the

petitioner on ad-hoc basis was regularized and the pay was

fixed at Rs.8,825/-. The petitioner was granted senior scale

of Rs.10,000-15,200/- on completion of six years of service

by an order dated 16.10.2009.

5.2. The petitioner was by an order dated 12.3.2010

selected as lecturer Class II on the degree post and re-

designated as Assistant Professor Class II in the scale of

Rs.9,300-34800/- and grade pay of Rs.5,400/-. He was,

then, fixed in the grade pay of Rs.6,000/-.

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5.3. On the 6th pay commission being implemented

as per AICTE, the petitioner's pay fixation when he was

diploma side was fixed with his basic salary to be

Rs.20,610/- with grade pay of Rs.7,000/-. He attained the

degree side without any break with effect from 6.4.2010.

5.4. The petitioner made representations from time

to time since the petitioner was in the senior scale of

Rs.15,600-39,100/- with grade pay of Rs.7,000/- in the

diploma side, having got an appointment at the degree

side on 6.4.2010 in the scale of Rs.15,600-39,100/-, the

grade pay of Rs.6,000/-, is grade pay ought to be protected

of Rs.7,000/-. Representations were made by the petitioner

pointing out that his services as ad-hoc on the diploma side

from 4.4.2001 to 28.2.2005 and regular service on the

diploma side from 28.2.2005 to 5.4.2010 be treated as

continuous. It appears that by the impugned orders, the

representations of the petitioner for pay protection has

been rejected on the ground that since the petitioner was

appointed in the pay scale, initially, with a grade pay

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Rs.7,000/- and on being subsequently selected and

appointed on the degree side with the same pay scale but

with the grade pay of Rs.6,000/-, being an appointment

from the higher scale to the lower scale, he cannot get the

benefit of pay protection.

6. Mr. Ekrama H. Qureshi, learned counsel for the petitioners

would submit that initially both for the lecturers of diploma

as well as degree, the pay scales were the same. On

interpretation of the 6th pay commission, the AICTE came out

with regulation at the degree and diploma side and for the

first time, the concept of grade pay was introduced. The pay

scales for both; diploma and degree side was fixed that

Rs.15,600-39,100/- but the grade pay changed, inasmuch

as, for the diploma at the entry level, it was Rs.5,400/- and

at the degree side it remained Rs.6,000/-. The petitioner was

drawing the grade pay of Rs.7,000/- on diploma side and

when he was appointed on the degree side, he was granted

the entry level grade pay of Rs.6,000/-. Reliance on Rule 23

of the Gujarat Civil Services (Pay) Rules, 2002 by the

respondent is misconceived.

C/SCA/12824/2020 CAV JUDGMENT DATED: 05/05/2022

6.1. Mr. Qureshi would submit that apart from Rule

23, there are other Rules which also would be applicable

and merely because the Rule 23 uses the word pay scale of

the post would not itself dis-entitle the petitioner from pay

protection. He would submit that the concept of grade pay

was introduced after the 6 th pay commission and from the

pay fixation order of the petitioner, it is clear that as on

1.7.2019, the pay of the petitioner was Rs.20,610/- with

AGP Rs.7,000/- which became Rs.15,600/- after joining

degree side with grade pay of Rs.6,000/-.

6.2. Mr. Qureshi would submit that the Central

Government after the concept of introduction of grade pay

came out with an office memorandum dated 5.11.2012,

wherein, it was specifically provided that having been

implemented of the revised pay structures, the

government servants who were on posts carrying lower

grade pay will have their pay fixed in the pay band at a

stage equal to the pay in the pay band drawn by him prior

to his appointment. He will be granted the grade pay of a

C/SCA/12824/2020 CAV JUDGMENT DATED: 05/05/2022

lower post. Such amendment has not been made as far as

the State is concerned.

7. Ms. Surbhi Bhati, learned AGP for the respondent - State

would submit that the benefit of pay protection have been

granted to those who are getting grade pay of Rs.5,400/- to

put them in the grade pay of Rs.6,000/-. She would submit

that the petitioners are not entitled for counting their past

ad-hoc and regular services rendered in the polytechnic side

alongwith that of the degree side for the purposes of pay,

leave, pension and other consequential benefits. She would

submit that the petitioners were appointed as Assistant

Professors in the pay scale of Rs.15,600-39,100/- with grade

pay of Rs.6,000/-. Their initial appointment was in the grade

pay of Rs.7,000/-. The benefit of pay protection is rightly

denied because the petitioner was availing higher pay scale

in his earlier post at the polytechnic side and now the

petitioner is at lower pay scale post after selection through

GPSC on degree side. She would rely on Rule 23 of the

Rules, 2002.

7.1. Ms. Bhati would also rely upon the judgment of

C/SCA/12824/2020 CAV JUDGMENT DATED: 05/05/2022

the Honorable Supreme Court in the case of Divisional

Manager, Aravali Golf Club v. Chander Hass and

others reported in 2007(14) SCALE 1 on the ground

that once the literal interpretation of the Rule is

unambiguous, the decision taken be interpreted in any

other manner. She would also rely on the decision in the

case of CIT v. T.V. Sundaram Iyyengar reported in

1975(101) ITR 764 (SC).

8. Having heard learned advocates for the respective parties,

the case of the petitioners is that when they were appointed

on the diploma side, their pay scale was that of Rs.15,600-

39,100/- (Pay Band III) + Rs.7,000 Grade Pay. In that scale,

they were drawing basic pay of Rs.20,610/-. On being

appointed as Assistant Professors on the degree side, they

were in the pay scale of Rs.15,600-39,100/- (Pay Band III) +

Rs.6,000/- grade pay on appointment w.e.f. 6.4.2010. By

virtue of their appointment in the degree course, by virtue of

reduction of grade pay of Rs.6000/- their actual pay got

reduced. It was under these circumstances that a request

was made for pay protection.

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9. Prior to the introduction of the 6th pay commission, both in

the diploma as well as degree, the pay scale was the same.

It was only on the introduction of the 6 th pay commission and

the AICTE regulation that the concept of grade pay was

introduced. The post of Assistant Professor on the degree

side is not a post lower than the post of the lecturer at the

diploma side. Both are Class II posts, having the same pay

scales. The only difference is that the post of Assistant

Professor on the degree side is higher inasmuch as, the

qualification of Masters in Engineering is a pre-requisite and

mandatory. In the diploma side, the entry level grade pay is

Rs.5400/- and that on the degree side is Rs.6000/-. The

stand of the government that as per Rule 23 of the Pay

Rules, 2002 if service of an employee is from lower pay

scale to higher pay scale only then the pay can be protected

is misconceived. Rule 23 would apply only when it is for

appointment made on a higher post. The concept of pay

scale is not relevant as per Rule 23 of the Pay Rules. Rule 23

of the Gujarat Civil Services (Pay) Rules, 2002 reads as

under:

C/SCA/12824/2020 CAV JUDGMENT DATED: 05/05/2022

Rule 23: Pay on new appointment:

(1) Where the Government employee is selected for appointment to a service or cadre or post under the Government through the Gujarat Public Service Commission, Centralized Recruitment Scheme or any other method approved by the Government and if the service rendered prior to and after such selection is continuous and the appointment is on a higher post as compared to the pay scale of the post on which the employee was working prior to his appointment before selection; his pay shall be fixed as per rule-13.

Explanation : For this purpose the service shall be treated as continuous one even if there is a physical break not exceeding twenty four hours.

Note 1 : If the new appointment is in the same station, for the purpose of computing "physical break" (of more than twenty four hours), Sunday and/or a Public Holiday declared by the State Government shall be excluded.

Note 2 : If the new appointment involves movement from one station to another, for the purpose of computing "physical break" (of more than twenty four hours) the maximum period to cover actual journey inclusive of Sunday and/or a Public Holiday declared by the State Government shall be excluded.

(2) The provisions of sub-rule (1) shall not apply in the case of a Government employee who is so appointed after a physical break exceeding twenty four hours following resignation, removal, dismissal or discharge on reduction of establishment or after invalidation out of service. Such an appointment amounts to a fresh appointment."

. Pay is defined with the pay Rules under Rule 2(53) to

mean the basic pay the revised scales of pay prescribed

under the Gujarat Civil Services (Revision of Pay) Rules,

1994.

10. Rule 63 defines `Personal Pay' which reads as under:

"(63) "Personal Pay" means additional pay granted to a Government employee-

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(a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to a revision of pay or due to any reduction of such substantive pay otherwise than as a disciplinary measure; or

(b) in exceptional circumstances, on other personal considerations."

11. Pay fixation can be on first appointment, on an appointment

to another post involving assumption of duties or

responsibility of greater importance or fixation of pay of an

employee who held the same post or another post on the

same or identical pay scale.

12. Rule 16 of the Rules, 2002 reads as under:

16. Fixation of pay of a Government employee who had held the same post or another post on the same or identical pay scale:

Notwithstanding anything contained in rules-11 and 13, if a Government employee had previously held the same post or another post on the same or identical time-scale than save as provided in sub-rule (2) of rule-23, his initial pay shall not be less than the pay other than the special pay, personal pay, or emoluments classed as pay by Government under rule-9 (53) which he drew, on the last such occasion, and the period during which he drew that pay on such last and any previous occasion shall be counted for increments in the stage of the time-scale equivalent to that pay;

Note 1: Where a Government employee has held a post in the cadre or class prior to the introduction of a new scale, and has drawn during the period pay equal to a stage or intermediate between two stages, in the new scale, then such period may be counted for increment in the same stage, or if the pay was intermediate between two stages, in the lower stage of that scale.

Note 2: For the purpose of this rule and rule-24 a temporary post on a certain rate of pay (fixed or time-scale) which is converted into a permanent post on different rate of pay is not the "same post", even though the duties remain the same. In other words, in view of

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rule-9 (82), the temporary post is to be regarded as having ceased to exist and to have been replaced by the permanent post. The incumbent of the temporary post is thus entitled only to the pay of the permanent post if it is on a fixed rate of pay or to a minimum of the time-scale of the permanent post if it is on a time-scale unless his case is covered by this rule."

. Reading the Rule makes it clear that notwithstanding

Rule 23, benefit of pay protection to the petitioners can be

given under the said Rule read with Rule 11 and 13.

13. Mr. Qureshi, learned counsel for the petitioners is right in

contending that the concept of "grade pay" was never

defined under the Pay Rules, 2002. It is only after the

commencement of the 6th pay commission that the concept

of grade pay is involved. What is evident from the facts in

case of the petitioners is that as on 1.7.2009 the petitioners

were drawing pay to the tune of Rs.20610/- with AGP

Rs.7000/-, but after joining the degree side, their pay is

Rs.15600/- and it was only in the year 2016 that they

reached the pay of Rs.20620/-. It is under these

circumstances that the Central Government issued an office

memorandum on 5.11.2012 providing that consequent upon

implementation for the revised pay structure comprising

grade pays and running pay bands w.e.f. 1.1.2006 in cases

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of appointment of government servants to posts carrying

lower grade pay, the pay in the pay band of the government

servants will be fixed at a stage, equal to the pay in the pay

band drawn by him prior to his appointment against the

lower post. However, he will be granted grade pay of lower

post.

14. It is therefore clear that the Gujarat Government has not

come out with such an office memorandum and, therefore,

the stand of the respondent with regard to denying the

benefit of pay protection only on the ground that the

appointments were found from higher post to lower post is

misconceived.

15. Both these petitions are allowed. The respondents are

directed to consider the past ad-hoc services rendered by

the petitioners with regular services of the petitioners at

diploma side alongwith that of the degree side for all

purposes including purposes of pay, leave, pension and

other consequential benefits and pass necessary orders

considering their services as continuous and award pay

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protection to the petitioners as requested by them in the

representations made from time to time. Such exercise shall

be carried out within a period of ten weeks from the date of

receipt of copy of this order. Rule is made absolute to that

extent. No costs.

[BIREN VAISHNAV, J.] VATSAL S. KOTECHA