[Cites 4, Cited by 0]
Gujarat High Court
Harishchandra Dayalji Lad vs Director Of Agriculture on 4 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6268 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HARISHCHANDRA DAYALJI LAD
Versus
DIRECTOR OF AGRICULTURE & ORS.
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Appearance:
MR SAMIR GOHIL WITH MR GUNVANT B SHAH(3859) for the Petitioner(s)
No. 1
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MS. FORUM B. SUKHADWALA, AGP for the Respondent(s) No. 1,2,3-
STATE
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/12/2025
ORAL JUDGMENT
1. Heard Mr. Samir Gohil, learned advocate with Mr.
Gunvant B. Shah, learned advocate for petitioner and
Ms. Forum B. Sukhadwala, learned Assistant Government
Pleader for the respondents-State, at length.
2. The present writ petition is filed under Articles 14,
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16, and 226 of the Constitution of India, inter alia,
seeking the following reliefs:
"A) Quashing and setting aside order dt.18.1.2011 and
letter dt. 5.9.2018 and further directing the respondents to
grant 2nd higher pay scale w.e.f 1.6.2002 and further
directing them to benefits accordingly along revise
pensionary with consequential benefits and pay the arrears
with 10% interest.
B) Directing the respondents to restore order dt.2.2.2009
granting 2nd higher pays scale w.e.f. 1.6.2002.
C) In the alternative respondent may be directed to grant
benefit of stepping up and fix 2nd higher pay scale w.e.f.
1.6.2002 with
all consequential benefits as per Rule 21 of G.C.S (Pay)
Rules, 2002.
D) During the pendency and final disposal of this petition
the respondents may be directed to pay the benefits of
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principal amount on the baisis of original order dt.2.2.2009
from the date of filling this petition.
E) To grant such and further relief as may be deemed fit
and proper."
3. SUBMISSIONS ON BEHALF OF PETITIONER:
3.1 Mr. Samir Gohil, learned advocate, for petitioner
would respectfully submit that impugned order dated
18.01.2011 requires to be quashed and set aside only on
the ground that impugned order passed without giving
any opportunity of hearing to petitioner. It is submitted
that petitioner was correctly granted benefit of second
higher grade pay scale w.e.f. 01.06.2002 vide order dated
02.02.2009 passed by the respondent pursuance to
Government Resolution dated 02.07.2007 issued by the
Finance Department, State of Gujarat.
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3.2 Mr. Gohil, learned advocate, would further submit
that when aforesaid G.R. dated 02.07.2007 came into
existence, till that time, petitioner was not actually
granted any benefit of second higher grade pay scale
though completed nine years of service from the receipt
of first higher grade pay scale, which was received on
01.06.1987. It is submitted that vide said order dated
02.02.2009, such benefit of second higher grade pay scale
granted to petitioner w.e.f. 01.06.2002 is neither
erroneous nor contrary to aforesaid G.R. dated
02.07.2007.
3.3 Mr. Gohil, learned advocate, for petitioner would
respectfully submit that there was great injustice caused
to the petitioner by the respondents having not granted
the relief of stepping up of his pay scale to par with his
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junior. It is submitted that petitioner worked as an
Agriculture Supervisor with the respondents, having been
appointed in the year 1975 and retired from service on
reaching the age of superannuation on 30.06.2010 from
the post of Assistant Agriculture Director. It is further
submitted that before his retirement, he was given the
benefit of second higher pay scale and thereby, received
pay scale of Rs. 8000-13,500/- vide respondent order
dated 02.02.2009, given w.e.f. 01.06.2002.
3.4 Mr. Gohil, learned advocate would respectfully
submit that the benefit of the second higher pay scale
was given to the petitioner vide order dated 02.02.2009
w.e.f. 01.06.2002, but later on vide impugned
communication dated 18.01.2011, the respondent-State has
given such benefit with effect from 01.03.2006 instead of
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01.06.2002, thereby his junior to the petitioner is getting
a higher pay scale and consequently, received a higher
pension than petitioner. It is submitted that such
decision would not sustainable in law, inasmuch as, as
per Rule 21 of the Gujarat Civil Services (Pay) Rules,
2002 (hereinafter referred to as " the Pay Rules, 2002"),
the benefit of stepping up of pay to the petitioner ought
to have been granted.
3.5 Mr. Gohil, learned advocate would respectfully
submit that as soon as the petitioner came to know
about such discrimination meted out to him by the
respondents, by way of representation dated 16.03.2015,
he requested the respondent authority to grant the
benefit of stepping up of pay of petitioner w.e.f. where
his junior received second higher grade pay scale. It is
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submitted that petitioner had, in his representation, cited
instances of his junior, who were granted the benefit of
higher pay scale w.e.f. 20.01.2003 and 23.02.2003
respectively, but on an erroneous premise, the
representation of the petitioner was rejected vide
impugned communication dated 05.09.2018. It is
respectfully submitted that the ground on which the
aforesaid representation of the petitioner was turned
down by the respondent is unsustainable as Clause 3(2)
of the Government Resolution dated 16.08.1994 issued by
the Finance Department of the State would not be
applicable to the facts of the case; as such, the
respondent authority requires to consider Clause 3(13) of
the aforesaid Government Resolution whereby, it could
have granted the benefit of stepping up of pay to the
petitioner.
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3.6 Learned advocate Mr. Gohil would respectfully
submit that petitioner is fulfilling all criteria of Rule 21
of Pay Rules, 2002; as such, the impugned decision of
denying such benefit to the petitioner is arbitrary,
unjustified and violative of Articles 14 and 16 of the
Constitution of India, which requires to be quashed and
set aside by this Court.
3.7 Making the above submissions, learned advocate for
the petitioner would request this Court to allow the
present writ petition.
4. SUBMISSIONS ON BEHALF OF RESPONDENTS:-
4.1 Per contra, Ms. Forum Sukhadwala, learned
Assistant Government Pleader would respectfully submit
that there is no violation of principles of natural justice
when the impugned order passed by respondent on
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18.01.2011. It is submitted that no actual benefit of
second higher grade pay scale passed on to petitioner
pursuant to the said order dated 02.02.2009 till the time
the impugned order came to be passed on 18.01.2011. It
is respectfully submitted that due to aforesaid, there was
no occasion arose for respondent to recover any amount
from petitioner, thereby, it was not felt by respondent to
give any opportunity of hearing to petitioner.
4.2 Ms. Sukhadwala, learned Assistant Government
Pleader would respectfully submit that petitioner would
not entitle to receive benefit of second higher grade pay
scale as per aforesaid Government Resolution dated
02.07.2007, inasmuch as, he actually reached to
maximum pay of Rs.9000/- in pay scale of Rs.5500-9000/-
(first higher grade pay scale). It is respectfully submitted
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that Finance Department of State of Gujarat vide its
letter dated 17.12.2007 gave clarification for
implementation of aforesaid G.R. dated 16.08.1994 and
02.07.2007 issued by Finance Department of State of
Gujarat. It is further submitted that as per said
clarification, if employee is entitled to receive the benefit
of first, second and third higher grade pay scale before
02.07.2007, such employee would entitle to receive such
benefits as per G.R. dated 16.08.1994, whereas those who
are not entitled to receive second or third higher grade
pay scale as per G.R. dated 16.08.1994, than as per
Clause No. 2 (4) (b) of G.R. dated 02.07.2007, such
employee would entitle to receive benefit of second higher
grade pay scale on completion of fifteen years from date
of receipt of first higher grade pay scale.
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4.3 Ms. Sukhadwala, learned Assistant Government
Pleader would respectfully submit that the petitioner
reached the maximum pay i.e. Rs. 9000 of the first
higher pay scale (Rs.5500-9000) on 01.03.2005, then in
terms of the Government Resolution dated 16.08.1994, he
was entitled to receive the benefit of the second higher
grade pay scale w.e.f. 01.03.2006. It is further submitted
that in the case of the junior of the petitioner, namely
Mr. V.K. Bhatt, who reached the maximum pay i.e. Rs.
9000 of the first higher pay scale (Rs. 5500-9000) only
on 01.12.2009, therefore, as per said clarification, he was
given the benefit of aforesaid G.R. dated 02.07.2007. So,
the petitioner would not entitle to get any benefit under
aforesaid G.R. dated 02.07.2007.
4.4 Ms. Sukhadwala, learned Assistant Government
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Pleader would respectfully submit that the respondent
authority, having found that the benefit of the aforesaid
subsequent Government Resolution dated 02.07.2007 is
not applicable to petitioner and that his case would fall
in the aforesaid Government Resolution dated 16.08.1994,
passed the impugned order dated 18.01.2011, thereby the
effect of the second higher pay scale was given to the
petitioner w.e.f. 01.03.2006 instead of 01.06.2002. It is
respectfully submitted that as such, there is no error on
the part of the respondents to grant the benefit of the
second higher pay scale to the petitioner considering the
aforesaid Government Resolution dated 16.08.1994 instead
of Government Resolution dated 02.07.2007, which was
inadvertently granted vide its order dated 02.02.2009.
4.5 Ms. Sukhadwala, learned Assistant Government
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Pleader, would respectfully submits that if due to getting
the benefit of the aforesaid G.R. dated 02.07.2007 by the
junior to the petitioner, if there is any pay anomaly
persist, thereby the junior getting a higher pay scale
than the senior, Rule 21 of the Pay Rules, 2002 requires
to be taken note of by the Authority.
4.6 Lastly, Ms. Sukhadwala, learned Assistant
Government Pleader under the instruction of one Mr.
Anant Joshi, Head Clerk, Office of Director of
Agriculture, Gandhinagar, who is present before the
Court, would candidly state that the petitioner senior to
Mr. V.K. Bhatt and worked on the same cadre and post,
so also in the same pay scale prior to the grant of the
second higher pay scale. It is stated that after re-
appreciating the facts of the case of the petitioner, the
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impugned communication dated 05.09.2018 requires to be
revisited; thereby, the claim of the petitioner for stepping
up needs to be reviewed by the the respondent and
accordingly, if the claim of the petitioner will be found
eligible, the effect of stepping up will be given to the
petitioner as claimed.
4.7 Accordingly, Ms. Sukhadwala, learned AGP would
pray that impugned order dated 18.01.2011 may not be
disturbed by this Court.
5. No other and further submissions are being made
by any of learned advocates.
POINTS FOR DETERMINATION:
6. Having heard the learned advocates for the
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respective parties. The following two issues mainly
germane for consideration of this Court:
(i) Whether the impugned order dated 18.01.2011
passed in contravention of Government Resolution
dated 02.07.2007? And as such, the petitioner
entitled to receive benefit of second higher grade
pay scale as per Government Resolution dated
02.07.2007 instead of Government Resolution
dated 16.08.1994?
(ii) Whether claim of petitioner to grant benefit
of stepping up of his pay to get par with his
junior, as per Rule 21 of the Pay Rules, 2002
would sustainable? And whether impugned
communication dated 05.09.2018 requires
interference of this Court?
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ANALYSIS:-
POINT NO. (i)
7. It is not in dispute that impugned order dated
18.01.2011 passed by respondent without affording any
opportunity to petitioner. Nonetheless, it also remain
undisputed on record that no amount has been recovered
from petitioner though granted benefit of second higher
grade pay scale vide respondent order dated 02.02.2009
by giving its effect from 01.06.2002.
8. Be that as it may, as can be seen from the
affidavits of the respondents dated 14.10.2022 and
17.11.2025, it would hardly remain in dispute that
petitioner entitled to receive the second higher grade pay
scale only w.e.f. 01.03.2006 instead of 01.06.2002 as the
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petitioner reached to maximum pay i.e. Rs. 9000 of first
higher pay scale (Rs.5500-9000) on 01.02.2006, i.e., prior
to the aforesaid Government Resolution dated 02.07.2007.
Whereas his junior Mr. V.K. Bhatt was eligible to
receive the second higher grade pay scale having reached
the maximum pay i.e. Rs. 9000 of first higher pay scale
(Rs.5500-9000) only on 01.12.2009, then naturally Mr.
Bhatt would entitle to receive aforesaid benefit of second
higher grade pay scale as per aforesaid G.R. dated
02.07.2007.
8.1 Furthermore, aforesaid aspect has been clarified by
Finance Department, State of Gujarat vide its aforesaid
letter dated 17.12.2007, wherein it clearly observed that
if an employee is entitled to receive the benefit of first,
second and third higher grade pay scale before
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02.07.2007, such employee would entitle to receive such
benefits as per G.R. dated 16.08.1994. It has been
further clarified that those who are not entitled to
receive second or third higher grade pay scale as per
G.R. dated 16.08.1994, than as per Clause No. 2 (4) (b)
of G.R. dated 02.07.2007, such employee would entitle to
receive benefit of second higher grade pay scale on
completion of fifteen years from date of receipt of first
higher grade pay scale.
8.2 Thus, in view of the aforesaid facts, claim of the
petitioner to get the second higher pay scale would not
be governed by the aforesaid Government Resolution
dated 02.07.2007, but he would entitle to receive second
higher grade pay scale as per Government Resolution
dated 16.08.1994.
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8.3 It further appears from the respective affidavits of
the respective parties that no amount has been recovered
by the respondent authority from the petitioner pursuant
to the impugned order dated 18.01.2011, as the actual
benefit of the second higher pay scale was not given to
the petitioner till the time of passing of the said
impugned order by the respondent. Thus, question of
recovery of any amount from petitioner is out of place.
In view of the aforesaid observation, the so-called
violation of principle of natural justice would not be
sustainable.
9. In this view of the matter, this Court would not
find any error in the impugned decision dated
18.01.2011, whereby the petitioner was granted the
benefit of the second higher grade pay scale w.e.f.
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01.03.2006 instead of 01.06.2002, inasmuch as, vide order
dated 02.02.2009, the respondent authority has
erroneously taken into account the aforesaid Government
Resolution dated 02.07.2007 when granted the benefit of
the second higher pay scale to the petitioner w.e.f.
01.06.2002. Point No. (i) is answered accordingly.
POINT NO. (ii)
10. The matter would have rest there when impugned
order dated 18.1.2011 passed, but it is not so, rather
after passing of impugned order, following controversy
begun.
10.1 When two different aforesaid Government
Resolutions are given its effect to same set of employees
of respondents, it would result into, rather leads to a
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pay anomaly vis-a-vis pay difference between them,
whereby, the junior gets higher pay than his senior. If
such situation arose, the respondent authority requires to
take note of Rule 21 of the Pay Rules, 2002, to remove
such anomaly in pay.
10.2 At this stage, it would be apt to refer to Rule 21
of the Pay Rules, 2002 which reads thus:
"21. Stepping up of a pay of a Government employee on the basis of
the pay of his junior:
(1) Where on regulating initial pay of a Government employee under
above rules-11, 13, 15 to 17 & 19 or on his appointment to a higher
post if his pay is fixed at a lower rate of pay in that cadre than another
Government employee junior to him in the lower grade but promoted
or appointed subsequently in such another identical cadre; the pay of
the senior Government employee on the higher post shall be stepped
up to the figure equal to the pay as fixed for the junior Government
employee in that higher post with effect from the date of promotion of
the junior Government employee and it shall be subject to the
following conditions viz :-
(i) both, the junior and the senior Government employees belong to
one and the same cadre and the posts to which they have been
promoted or appointed, shall be identical and in the same cadre and in
the same line of promotion;
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(ii) the time-scales of pay of the lower posts held by the senior and the
junior Government employees shall be identical;
(iii) the time scales of the higher posts to which the Government
employees are promoted or appointed shall be identical;
(iv) the senior Government employee had he not been appointed to the
higher post earlier than his junior, he would have been eligible to
draw pay at a stage not lower than that admissible to his junior in the
lower post immediately prior to the appointment of the junior
Government employee to the higher post;
(v) the anomaly so caused must be the direct result of the application
of this rule. For example, if even in the lower post the junior
Government employee draws from time to time a higher rate of pay
than the senior by virtue of fixation of pay under the normal rules or
by grant of advance increment(s) for any reason, these provisions
shall not be applicable to step up the pay of the senior Government
employee.
(vi) the pay of the senior Government employee so increased due to
stepping up of pay shall not be reduced on reversion of the junior
Government employee nor shall it be increased again with reference to
the pay of the same officer.
(2) After the re-fixation of pay of the senior Government employee
with reference to the pay of his junior, the next increment shall occur
to him only after he has rendered the qualifying service which is
necessary for drawing such increment from the stage at which his pay
had been re-fixed."
10.3 It is not in dispute that due to giving effect of
two different aforesaid Government Resolutions dated
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16.08.1994 and 02.07.2007 to the petitioner and Mr. V.K.
Bhatt, his junior respectively, there appears difference of
pay between them, which resulted into a situation,
whereby the junior to the petitioner received higher pay
than the petitioner. This being undisputed fact, this
Court would not like to elaborate anything more on
actual pay anomaly etc..
11. The petitioner having come to know about the
anomaly of pay between him and his junior, and having
so found that his junior is actually getting more pay
than him due to giving effect of the second higher pay
scale at different points of time, made a representation
dated 16.03.2015 by requesting the respondent authority
to take note of such anomaly and to give effect of
stepping up of his pay; thereby, he would get pay at par
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with his junior.
12. Unfortunately, the competent authority of the
respondent, without appreciating the effect of aforesaid
Rule 21, ignoring the facts of the present case,
erroneously rejected such representation of the petitioner
vide its impugned communication dated 05.09.2018, by
placing reliance upon Clause 3 (2) of the aforesaid
Government Resolution dated 16.08.1994.
13. When this Court has minutely examined the
aforesaid Clause 3 (2) of the aforesaid Government
Resolution dated 16.08.1994, it appears that such clause
is not at all applicable to the facts of the present case
as it would be applicable in the cases where an
employee is shifted from one cadre to another cadre in
public service, and/or there is a change of name of
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cadre, as the case may be. None is the situation on
hand as it is not in dispute that the petitioner as well
as his junior, Mr. Bhatt, worked on the same cadre and
post in the same department, id est, the Agriculture
Department, also drawing similar pay by getting benefit
of first higher pay scale, albeit at different point of time.
14. It appears that Clause 3 (13) of the aforesaid
Government Resolution dated 16.08.1994 escaped from the
notice of the respondent authority, wherein it has been
so provided that on application of the higher pay scale,
if any senior employee gets lesser pay than his junior,
the "principle of stepping up" would come into effect and
all such cases can be scrutinized and regularized
accordingly.
15. Having so discussed and observed hereinabove, the
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petitioner and Mr. V.K. Bhatt, who happens to be his
junior, worked on the same cadre and post, drawn same
time scale of pay, albeit, given the benefit of the second
higher pay scale at different point in time due to
applicability of said Government Resolutions, id est,
16.08.1994 and 02.07.2007 respectively; whereby,
petitioner received the second higher pay scale w.e.f.
01.03.2006, whereas his junior received it w.e.f.
20.01.2003/23.02.2003 respectively; thus, definitely the
petitioner, though senior, received lesser pay than his
junior.
16. At this stage, it would be apt to refer to the
decision of the Co-ordinate Bench of this Court in the
case of Maganbhai Arjanbhai Vegda vs. State of Gujarat
and Others rendered in Special Civil Application No.
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12541 of 2011 and allied matter dated 28.11.2011 ,
wherein after taking note of almost identical factual
situation and considering the law laid down by the
Hon'ble Supreme Court in the case of Gurcharan Singh
Grewal vs. Punjab State Electricity Board reported in
(2009) 3 SCC 94, more particularly observed in
paragraph 12 to 14 thereof, held thus:
"12. However, the Government Resolution dated 08.05.1970 of the
Finance Department with regard to pay fixation and removal of
anomaly was authorized by clause prescribed in the method of
stepping up to be followed and conditions laid down therein may not
be fulfilled. The conditions enumerated in para 3 of the said
Government Resolution, read as under:
3. The method of "stepping up' shall be employee subject
to the following conditions, all of which must be satisfied:
[a] the Government Servants concerned should belonging
to the same cadre and the posts in which they have been
promoted should be identical and in the same cadre;
[b] The time-scale of the pay of the lower and higher
posts in which they are entitled to draw pay should be
identical.
[c] But for his promotion to post earliest the Government
Servant concerned would have been eligible to draw pay
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in the lower post, at a stage not lower than that
admissible to the Junior person immediately prior to the
latter's promotion to highest post;
[d] The anomaly is directly attributable to the provision
of the Government Resolution, Finance Department No.
Pay- 1264/463, dated the 5th January, 1965"
The above conditions reveal that Government servants
concerned should belong to the same cadre and the posts in which they
have been promoted should be identical and in the same cadre and
time scale of the pay of the lower and higher posts in which they are
entitled to draw pay should be identical.
13. The above two conditions viz. 3(a) and (b) if read together with the
purpose of issuing the said Government Resolution are to remove
heartburning and dissatisfaction amongst senior employees, who are
receiving lower pay scale than the juniors or at least in the same pay
scale as given to the juniors. The facts of the case would reveal that
merger of two cadres was effected to remove anomalies pursuant to
the directions given by the High Court in earlier round of litigation
and Government Resolution of 10.10.2007 was issued. However,
clause Nos.6 & 7 of the said Government Resolution instead of
removing anomaly has complicated the pay band receivable by the
petitioners discriminating them and the very purpose of removing
heart burning is frustrated. If the above Government Resolution is
seen in the context of Revision of Pay Scale Rules, 1998 and
subsequent revision of rules it transpires that clause 6 of Government
Resolution dated 10.10.2007 is contrary to condition No.4 of the
Government Resolution and also conditions Nos.3(13) of Government
Resolution dated 16.08.1994. In case of Gurcharan Singh Grewal in
paras 17 and 18 of the said judgment held as under:
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"17. Something may be said with regard to Mr. Chhabra's
submissions about the difference in increment in the
scales in which Appellant 1 and Shri Shori are placed, but
the same is still contrary to the settled principle of law
that a senior cannot be paid a lesser salary than his
junior. In such circumstances, even if there was a
difference in the incremental benefits in the scale given to
Appellant 1 and the scale given to Shri Shori, such
anomaly should not have been allowed to continue and
ought to have been rectified so that the pay of Appellant 1
was also stepped up to that of Shri Shori, as appears to
have been done in the case of Appellant 2.
18. We are unable to accept the reasoning of the High
Court in this regard or the submissions made in support
thereof by Mr. Chhabra, since the very object to be
achieved is to bring the pay scale of Appellant 1 on a par
with that of his junior. We are clearly of the opinion that
the reasoning of the High Court was erroneous and
Appellant 1 was also entitled to the same benefit of pay
parity with Shri Shori as has been granted to Appellant
2".
14. That similar was the case decided by the Division Bench of this
Court when the Laboratory Assistants working under the Directorate
of Higher Education, Directorate of Technical Education and non-
government colleges affiliated to the Gujarat University were denied
parity in the pay scale and wages. Relying on doctrine of equal pay for
equal work, the Division Bench directed the State authorities to treat
Lab Assistant of non-grant Government colleges at par with Lab
Assistants of Directorate of Higher Education working with
Government Department. However, the case of the petitioners herein
is on a better footing inasmuch as they are working under the same
directorate and there is no dispute about merger of post and cadre on
which they are now working and receiving less salary than their
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juniors. Such discrimination on the face of it is violative of Article 14
of the Constitution of India and respondents are duty-bound to give the
pay scale of the petitioner at par with those employees who are junior
to the petitioners working on the same cadre and post. Even seniority
list relied and placed on record by the petitioners is also not in
dispute."
(emphasis supplied)
17. As a matter of record, it is also required to be
noted here that the aforesaid decision was also confirmed
by the Division Bench of this Court vide its judgment
dated 08.01.2013 passed in Letters Patent Appeal
No.1349 of 2012 preferred by the State of Gujarat.
17.1 It would be profitable to refer the judgment
dated 08.01.2013 passed in said Letters Patent Appeal
No.1349 of 2012 by the Division Bench of this Court;
some pertinent observations and findings of the aforesaid
decision read thus:
"4. As such, it is not a matter where the parity in the pay- cale is to be
considered between two separate and independent cadres which
normally is to be considered and examined by the expert body. But in
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the present case, the question to be considered as considered by the
learned Single Judge was for stepping up of the pay-scale on account
of circumstance that the junior to the petitioner due to revision in the
pay-scale has been granted higher pay-scale or junior to the petitioner
has been found entitled for higher pay-scale, which should be granted
to petitioner. Further, the entitlement of stepping up of the pay-scale is
within the same cadre and same post and not in different post of
different cadre.
5. It is an admitted position that Shri.M.N.Chauhan is junior to the
petitioner. It is also an admitted position that he has been granted
higher pay-scale of Foreman after revision from 1996 since he had
completed 9 years of service after whereas in case of the petitioner
they were granted higher pay-scale for the post of Supervisor
Instructor on 02.03.1993 with effect from 01.06.1987.
6. It is also an admitted position that in the revision of pay-scale of
1996, the pay-scale for the post of Craft Instructor (which was lower
post) and the post of Supervisor Instructor has been merged and one
pay-scale is fixed i.e. 1400- 2300. Under this circumstance, the only
higher pay-scale, if any, employee is to receive would be to the post of
Foreman if considered eligible and granted after 01.01.1996. It is not
case of the appellant that Shri.M.N.Chauhan-junior to the petitioner
has been wrongly granted higher pay- scale of Foreman from the post
of Supervisor Instructor but the contentions are that since the benefit
of higher pay-scale already granted prior 01.01.1996 is not to be
reopened and it is to be deemed that the higher pay-scale is already
granted to the petitioner prior to 01.01.1996 and second time higher
pay-scale would not be available.
7. The contention may prima-facie appear to be attractive, but upon
close scrutiny, it appears that it is not a matter of granting of higher
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pay-scale, but it is a matter of stepping up of the pay-scale on account
of circumstance that the junior is drawing higher pay-scale in
comparison to the senior. As per the Government Resolution dated
10.10.2007, in the clause no.5, stepping up is made permissible.
Therefore, Clause No.5 would be applicable in the present case and
not Clause No.6 as sought to be canvassed on behalf of the appellant,
since, it is not for grant of higher pay-scale, but is of stepping up of
pay- scale on account of circumstance that the juniors were drawing
higher pay-scale in comparison to the seniors. The decision of the
Apex Court upon which reliance has been placed by learned
Government Pleader Mr.P.K.Jani is ill-founded inasmuch as in both
the cases, the Apex Court was not considering the issue of stepping up
of the pay- cale on account of juniors receiving higher pay-scale.
Moreover, the entitlement of the junior for higher pay-scale is not
under question or under challenge in the preset proceedings nor it is
the stand of the State Government that the juniors were granted higher
pay-scale wrongly. Therefore, we find that both the decisions are of no
help of the appellant."
(emphasis supplied)
18. Having considered the aforesaid facts and
circumstances and keeping in mind the ratio decidendi of
the aforesaid decisions, so much so Rule 21 of the Pay
Rules, 2002 squarely apply to the present case, whereby
petitioner being senior to Mr. V.K. Bhatt, having worked
on same cade and post, drawn similar time scale of pay,
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still received lesser pay/pension then his junior, in this
background of facts and circumstance, entitled to receive
the benefit of stepping up of his pay, thereby petitioner
also requires to get similar pay/pension from the date on
which Mr. V.K. Bhatt has been given effect of second
higher grade pay scale. Point No. (ii) is answered
accordingly.
19. The petitioner prayed for interest on amount to be
recovered from respondent, but considering the fact that
the impugned order passed by the respondent on
18.01.2011, and petitioner submitted his representation on
16.03.2015, which was turned down by the respondent on
05.09.2018; as such the present petition came to be
filed on 27.03.2019; thus, considering the aforesaid facts
and circumstances and having not found any malice on
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the part of the respondent authority in not granting the
benefit of stepping up to the petitioner at given point of
time, this Court would not like to grant interest on
arrears amount payable to the petitioner; except, the
petitioner will be entitled to receive simple interest at
the rate of 9% per annum on failure of payment of
amount by the respondent within the stipulated time as
observed by this Court hereinbelow.
20. Before parting with, it is necessary to observe that
when this Court has, examined the merits of the present
case, have gone through the impugned order dated
18.01.2011, whereby it found from the list appended
thereto that there are several other employees of the
respondent-Agriculture Department, including the
petitioner (in all, 15 employees), appears to be similarly
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affected by the revision of the date for grant of the
second higher pay scale, which had earlier been fixed as
per the order dated 02.02.2009. Thus, in the cases of
those employees as well, an anomaly might arise
whereby they might be drawing a lesser pay than their
juniors. Since this Court is inclined to accept the
petitioner's submissions regarding to grant the benefit of
stepping up of his pay by the respondents, in such
circumstances, this Court would fail in its duty as a
Constitutional Court, if appropriate directions are not
issued in respect of those similarly situated employees
like petitioner as well, although not approached this
Court by way of separate petition.
CONCLUSIONS:
21. In view of the foregoing reasons, the present
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petition deserves to be partly allowed and inescapable
conclusion thus:
21.1 The impugned order dated 18.01.2011 passed
by respondent not requires any interference of this Court
except the impugned communication dated 05.09.2018
issued by respondent No. 1 requires to be quashed and
set aside.
21.2 As held above, petitioner entitled to receive benefit
of second higher grade pay scale only as per aforesaid
Government Resolution dated 16.08.1994 not Government
Resolution dated 02.07.2007, thus, granting him such
benefit w.e.f. 01.03.2006 instead of 01.06.2002 is just and
proper.
21.3 The petitioner, being senior to Mr. V.K. Bhatt, is
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drawing lesser pay/pension than his junior - Mr. Bhatt,
on account of the grant of the benefit of the second
higher grade pay scale as per the aforesaid Government
Resolution dated 16.08.1994 instead of 02.07.2007. So, the
claim of the petitioner as aforesaid for stepping up of his
pay requires to be allowed by respondent, and having
not done so by way of impugned communication dated
05.09.2018 resulted into violation of Articles 14 and 16
of the Constitution of India and contrary to Rule 21 of
Pay Rules, 2002 as well.
22. In view of the forgoing conclusion, following
order/directions are passed:
22.1 The respondents are directed to fix the pay
and pay scale of petitioner at par with his junior, Mr.
V.K. Bhatt, by granting all the consequential benefit of
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stepping up in accordance with Rule 21 of the Pay
Rules, 2002, read with Clause 3 (13) of the aforesaid
Government Resolution dated 16.08.1994 by paying
arrears amount of difference of pay on or before
31.03.2026.
22.2 Consequently, after giving the aforesaid effect
of pay and pay scale, revise the pension of the
petitioner, then pay arrears of revise pension and start
paying revise pension to petitioner. Such exercise also be
completed as soon as possible but not later than
31.03.2026.
22.3 Likewise, the respondents are also directed to
consider the cases of other similarly situated persons like
petitioner, who are shown in the list appended with the
impugned order dated 18.01.2011 [Annexure-F], (15
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employees in total, including the petitioner). Thereby if,
their cases are also found similar to the petitioner and
they are also entitled for the benefit of stepping up, the
same shall be granted to them as well with all
consequential benefits, including revision of pension, at
the earliest but not later than 30.04.2026.
22.4 The aforesaid entire exercise of
computing/paying all benefits be completed by the
respondents as early as possible, in any case not later
than 31.03.2026 as aforesaid. All consequential benefits,
i.e., pay and pension be paid to petitioner and to other
similarly situated persons within aforesaid period, failing
which, the respondents shall be liable to pay such
amount (all benefits) with simple interest at the rate of
9% per annum interest from 01.04.2026 & 01.05.2026
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respectively till its realization.
22.5 As observed earlier, no interest is granted on
any arrears amount till 31.03.2026, except interest to be
granted in a case of default as observed hereinabove.
23. In view of the aforesaid, present writ petition is
partly allowed. Rule is made absolute to the aforesaid
extent. No order as to cost.
(MAULIK J.SHELAT,J)
DIWAKAR SHUKLA
