M. K. JANI v. STATE — 1984 DIGILAW 115 (GUJ)

I. C. BHATT, J. ( 1 ) THE petitioner was appointed as Works Manager by order dated 29-3-68 in the pay scale of Rs. 250 which has subsequently amended. The appointment was on probation for a period of one year. According to the petitioner though he successfully completed his probation period and though the probation period was to be over in month of April 1969 and although the petitioner was working upto October 1972 as Works Manager Class III the petitioner received no letter regarding completion of probation. According to the petitioner the post of Works Manager Class III at the time when he was appointed was an isolated post. By an order dated October 27 1972 the petitioner was transferred and posted in the same pay scale as Stores officer. By this very order dated 27-10-1972 (Annex. B) one T. B. Bhatti who is junior to the petitioner was promoted to the post of Works Manager in the pay scale of Rs. 325-575 vice M. K. Jani works Manager transferred. The petitioner is a direct rectruit to the post of Works Manager Class III. Petitioners case is that his substantive appointment was as Works Manager Class III and his lien was on the post of Works Manager Class III. Thereafter it seems that by order dated May 31 1977 (Annex. B) the petitioner was temporarily appointed to officiate as Works Manager Class II in the pay scale of Rs. 650-1200 on the upgraded post for a period of not exceeding one year in the first instance from the date he assumed the charge of the upgraded post of Works Manager. Shri T. B. Bhatti who was working as Works Manager Class III was transferred and posted as Store Officer Class III vice Mr. M. R. Jani -the petitioner. Pursuant to the above order the petitioner has been working as Works Manager Class II. ( 2 ) NOW according to the Gujarat Civil Services (Revision of Pay) Rules 1975 the pay scale of Store Officer Class III was revised to Rs 500-900 from Rs. 325-575 with effect from 1-1-1973. The post of Works Manager Class III was upgraded to Class II in the scale of Rs. 650-1200 vide Health and Family Welfare Department Government Resolution dated 1-4-1977 with effect from 1-4-1977. 325-575 with effect from 1-1-1973. The post of Works Manager Class III was upgraded to Class II in the scale of Rs. 650-1200 vide Health and Family Welfare Department Government Resolution dated 1-4-1977 with effect from 1-4-1977. The grievance of the petitioner was that though the appointment of the petitioner was made against the substantive post of Works Manager Class III and he held a lien on the said post and though the petitioner actually worked from 1-4-1968 to October 1972 and subsequently started working as Works Manager Class II from June 1977 onwards the benefit of the arrears of pay from 1-1-1973 to 31 has not been awarded to the petitioner. On the other hand the benefit of higher payscale of Rs. 650-1200 is given to Shri T. B. Bhatti who is admittedly junior to the petitioner working as junior Foremen. His further grievance is that his pay is notionally fixed in the present pay scale as per order dated 9-12-1981 Annexture F to the petition but the petitioner is not being paid the arrears of pay even pursuant to that order from 1977 onwards. According to petitioner Special Civil Application No. 60/80 was filed by Shri T. B. Bhatti and in that matter a statement was made on behalf of the Government that the pay of Shri Bhatti would be fixed from 1973 to 31-5-1977 in the payscale of Rs. 650-1200 and he would be paid arrears. Petitioners further contention is that his substantive post was Works Manager Class III and his services were transferred in public interest. He submitted that the fact that Mr. Bhatti was appointed as Store Officer Class III and the petitioner was appointed as Works Manager Class II on upgradation of the post goes to show that Mr. Bhatti was not substantively appointed Works Manager. ( 3 ) LEARNED Advocate appearing for the respondents has submitted that the petitioner is not entitled to any arrears prior to 1-6-1977 as petitioner has not worked in the payscale of Rs. 650-1200 as Works Manager and that the order dated 9-12-1981 was not implemented as it was not accepted by the Assistant Examiner Local Funds Accounts Ahmedabad. ( 4 ) THE respondent No. 2 has filed affidavit-in-reply wherein in para-3 the deponent has given the particulars regarding the dates of appointment and transfer of the petitioner at different period. 650-1200 as Works Manager and that the order dated 9-12-1981 was not implemented as it was not accepted by the Assistant Examiner Local Funds Accounts Ahmedabad. ( 4 ) THE respondent No. 2 has filed affidavit-in-reply wherein in para-3 the deponent has given the particulars regarding the dates of appointment and transfer of the petitioner at different period. In para-4 it has been stated that persons were being posted from Works Manager to Stores Officer as the pay scales of both the posts were same prior to the upgrading of the post of Works Manager to Class II post. In para 7 of the Affidavit-in-Reply it has been stated that no recruitment rules for the post of Works Manager Class III or Glass II or for the post of Stores Officer III are notified. It has been further stated that the transfer of petitioner from Works Manager Class III to Store Officer Class III in the same scale was in public interest. In paragraph 9 of the affidavit-in-reply it has been stated that as per instructions from the Health and Family Welfare Department issued under letter dt. 20-11-1981 the department issued pay fixation order dt. 9-12-1981 fixing the pay of the petitioner in the payscale of Rs. 650-1200 from 1 notionally with the date of his next increment 1-4-1974 raising his pay to Rs. 680/- and the pay of the petitioner was fixed at Rs. 810 from i. e. 1977 in the gazetted pay scale of Works Manager Rs. 650-1200 and ordered to make payment of arrears from 1-6-1977 onwards as petitioner worked actually on the post of Works Manager Class II from 1-6-1977 in the pay scale of Rs. 650-1200. It has been further stated that the petitioner is not entitled to any arrears prior to 1 as he has not worked in the pay scale of Rs. 650-1200 as Works Manager. The deponent has further stated that the order dated 9-12-1981 was not accepted by Assistant Examiner Local Fund Accounts Ahmedabad as per his letter dated 1 It has been further stated that since the pay of the petitioner is fixed notionally as per order dated 9-12-1981 the question of pay fixation as per B. C. S. R. does not arise. ( 5 ) THE petitioner has filed Rejoinder to the Affidavit-in-reply wherein he has stated that the respondents admit the pay fixation order Annex. ( 5 ) THE petitioner has filed Rejoinder to the Affidavit-in-reply wherein he has stated that the respondents admit the pay fixation order Annex. F under which his pay has been fixed notionally from 1 and they have also addmitted that the arrears should be paid from 1-6-1977 onwards on the pay to be fixed at Rs. 810/- with effect from 1 Therefore according to the petitioner part of his prayer in para 15 (a) is satisfied whereas prayer found in 15 (b) is fully satisfied. It is important to note that while dealing with the averments of para 3 and 4 of the petition the respondents have not denied the specific averments and in particular the averment that the petitioner has right to hen over his substantive appointment to the post namely Works Manager Class III. The petitioner has further stated that merely because the pay scales are the same it cannot be gainsaid that he lost his lien over his substantive appointment in Works Manager Class III. The petitioner in his rejoinder to the Affidavit-in-reply has further stated that there is no denial made by the respondents that the petitioner was sub-stantively appointed as Works Manager Class III and that his original hen goes to the post of Works Manager Class III. The petitioner also stated that merely because the order was not accepted by the Assistant Examiner Local Fund Accounts Ahmedabad the petitioner cannot be refused or denied the benefit of the arrears. The petitioner received order dated 9 stating that in view of the Government letter dated 20-11-1981 the pay of the petitioner was notionally fixed on 1-1-1973 as Rs. 650/- which is minimum pay scale. It is further stated that the pay of the petitioner should be fixed as on 13-5-1977 at Rs. 810/- and that the petitioner would be entitled to get Rs. 810/- plus other admissible allowances. A certificate has been issued that had Shri M. K. Jani (petitioner) not been transferred he having been appointed directly as Works Manager would have continued as Works Manager. In view of this position the petitioner has claimed arrears of his salary and other consequential benefits accordingly. He submitted that it is immaterial for the petitioner to know whether any one also has been given the benefit of arears or not. In view of this position the petitioner has claimed arrears of his salary and other consequential benefits accordingly. He submitted that it is immaterial for the petitioner to know whether any one also has been given the benefit of arears or not. Learned Advocate for the petitioner submitted that the only ground for not giving the petitioner the benefit of order dated 9-12-1981 (Annexure-P to the petition) as per the affidavit-in-reply appears that it was not accepted by the Assistant Examiner Local Fund Accounts Ahmedabad which is absolutely illegal and improper in view of the Act that the petitioner was sub-stantively appointed as Works Manager Class III and he has his lien on that post. He therefore submitted that the petitioner cannot be refused the benefit of arrears of salary. He requested that the petition should be allowed in view of the fact that as per order at Annexure-F his prayer 15 (b) is totally admitted and prayer 15 (a) is partly admitted. ( 6 ) NOW from the record it is clear that the peti ioner us initially recruited as Works Manager in the pay scale of Rs. 250-370 on probation for one year by order dated 29-3-1968. Thereafter by order dated 27-10-1972 the petitioner was transferred and posted as Store Officer in the same pay scale and Mr. Bhatti was transferred vice the petitioner. The post of Works Manager Class III was upgraded to Class II vide resolution dated 1 with effect from 1-4-1977. The petitioner was there-fore appointed temporarily to officiate as Works Manager Ahmedabad on the upgraded post vide Shri Bhatti who was transferred as Store Officer in place of the petitioner vide order dated 31-5-1977. Since then the petitioner has been working on the said post of Works Manager Class II. ( 7 ) FROM the facts on record it is clear that the respondents have treated the petitioner as having his lien on the substantive post of Works Manager Class III and that appears to be the reason why pay of the petitioner has been fixed notionally by the respondent in the scale of Rs. 650-1200 with effect from 1-1-1973. Thus the pay of the petitioner has been fixed at Rs. 810/- on 31 as per order dated 9-12-1981 (Annexure F ). 650-1200 with effect from 1-1-1973. Thus the pay of the petitioner has been fixed at Rs. 810/- on 31 as per order dated 9-12-1981 (Annexure F ). At the time when the petitioner was transferred as Store Officer the pay scales for both the posts were same and secondly the transfer was made in public interest and not at the request of the petitioner. Therefore when the post of Works Manager Class III was upgraded to that of Works Manager Class II the petitioner was rightly brought back to his substantive post of Works Manager Glass III which was upgraded to Class II post. This clearly shows that the petitioner has been treated by the respondent as having lien on his substantive post of Works Manager Class III and Class II. This fact can be substantiated from the specific averments made in the petition that the petitioner has a right of lien over his substantive appointment namely Works Manager and the specific averments made by the particulars in the petition have not been denied by the respondents. It is pertinent to note that if the petitioner was not holding the substantive post of Works Manager Class III there was no reason to transfer the petitioner to the post of Works Manager Class II and to transfer Shri Bhatti to the post of Store Officer vice the petitioner. Secondly if the petitioner was not holding the substantive post of Works Manager Class III there was no reason even to fix his notional pay by the respondents from 1-1-1973. This leads to the conclusion that the respondents have treated the lien of the petitioner in the post of Works Manager Class III which was his substantive post. Therefore there is no reason or justification for not giving to the petitioner the benefits of higher pay in the grade of payscale of Rs. 650 from 1-1-1973. ( 8 ) IT may also be noted here that Mr. Bhatti filed a writ petition in this court being Special Civil Application No. 60/80. challenging the order dated 6-12-1977 passed by the Government whereby his pay was fixed in the pay scale of Rs. 500-900 from 1-1-1973. In the said petition learned Advocate appearing for the Director of Health made a statement that the petitioner (Mr. Bhatti) was entitled to draw salary in the pay scale of Rs. challenging the order dated 6-12-1977 passed by the Government whereby his pay was fixed in the pay scale of Rs. 500-900 from 1-1-1973. In the said petition learned Advocate appearing for the Director of Health made a statement that the petitioner (Mr. Bhatti) was entitled to draw salary in the pay scale of Rs. 650 for the period from January 1 1973 to May 31 1977 and that his pay will be fixed accordingy and payment due will be made to him in accordance with Government rules and regulations within a period of three months from February 28 1980 As a result of the above statement being made Mr. Bhatti withdrew the said petition. It may further be noted that the present petitioner was made a party to the said petition. Now the benefit accruing to the petitioner who had the lien on the post of Works Manager III and whose substantive appointment was made on that post cannot be denied to the petitioner simply because of the fact that he had not worked on the said post and simply because the suit objection has been taken by the concerned officer i. e. Assistant Examiner Local Fund Accounts Ahmedabad. In view of the certificates given by the order dated 9 to the effect that Shri M. K. Jani having been directly appointed as Works Manager had he not been transferred as Store Officer he would have continued as Works Manager the petitioner would be deemed to be working on the post of Works Manager Class III from the date of his transfer i. e. from 27-10-1972. Even according to the respondent authorities it seems that they have treated the lien of the petitioner on the post of the Works Manager Class III on which the petitioner was directly appointed otherwise such a certificate would not have been given. The respondents have passed an order dated 9-12-1981 (Annexure F) by which the pay of the petitioner has been fixed at Rs. 810/- on 31-5-1977 and it has been ordered to pay the petitioner arrears of salary and other allowances. By the very order the notional pay has been fixed at Rs. 650/- on 1 The learned Advocate for the petitioner made a statement that the said order dated 9 has not been implemented and the petitioner has not been given the difference of arrears. By the very order the notional pay has been fixed at Rs. 650/- on 1 The learned Advocate for the petitioner made a statement that the said order dated 9 has not been implemented and the petitioner has not been given the difference of arrears. The petitioner was brought back on his substantive post on which Mr. Bhatti at that time was working and Mr. Bhatti was transferred as Stores Officer by order dated 31-5-1977. If the respondents were not treating the petitioner having his lien on the said post they would have promoted Mr. Bhatti as Works Manager Class II which post he was at that time holding and which post was upgraded. This was not done because on the said post of Works Manager Class III which was upgraded as Glass II the petitioner must be having his lien and therefore the petitioner was promoted on the said post and said Shri Bhatti was transferred as Store Officer in place of the petitioner. Thus by their own action the respondents have accepted the lien of the petitioner on the said post and the specific averments as stated earlier have not been denied by the respondents. Now having recognised the lien of the petitioner on the said post the respondents cannot deny the benefits of higher payscale of Rs. 650-1200 from 1-1-1973. The respondents have not denied that the petitioner is not having his lien on the said post and no other reason has been shown to me for not conferring upon the petitioner the benefit accruing to him except the fact that the petitioner has not actually worked on that post prior to 1-6-1977. In the facts and circumstances of the case I am of the opinion that the petitioner should be given the benefit of fixation of pay as on 1-1-1973 in the payscale of Rs. 650 and would also be entitled to the arrears of pay from 1-1-1973. ( 9 ) IN the result I pass the following order-THE respondents are directed to fix the petitioners pay at Rs. 650/- as on 1-1-1973 in the payscale of Rs. 650-1200 and pay all the arrears of pay and other consequential benefits from 1-1-1973. The respondents are further directed to implement the order dated 9-12-1981 (Annexure-F) and to pay arrears and other consequential benefits to the petitioner for the period from 1-6-1977 onwards. 650/- as on 1-1-1973 in the payscale of Rs. 650-1200 and pay all the arrears of pay and other consequential benefits from 1-1-1973. The respondents are further directed to implement the order dated 9-12-1981 (Annexure-F) and to pay arrears and other consequential benefits to the petitioner for the period from 1-6-1977 onwards. The arrears for both the above periods will be paid to the petitioner within three months from the receipt of writ of this court. The petition is therefore allowed. Rule is made absolute with no order as to costs. Rule made absolute. .