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2003 DIGILAW 138 (GUJ)

USMAN KARIM CHUDESARA v. STATE

2003-03-07

K.A.PUJ

body2003
K. A. PUJ, J. ( 1 ) THE petitioner, in this petition made prayer for the same scale of pay as was given to a carpenter working in Ahmedabad Litho Press of Rs. 130 - 240 instead of Rs. 125 - 200 with effect from 01. 06. 1967 and Rs. 350 - 560 from 01. 01. 1973 and Rs. 1200 - 2040 from 01. 01. 1986. ( 2 ) THE facts giving rise to the present petition are that the petitioner was appointed as carpenter by Office Order dtd. 14. 06. 1962 in the pay scale of Rs. 55-3-85 with usual allowances. The said pay scale was revised to Rs. 125 - 200 with effect from 01. 06. 1967 as per the recommendations of Sarela Pay Commission. The petitioner has further submitted that Government Litho Press was started at Ahmedabad wherein a post of a carpenter was created and the carpenter at Ahmedabad was given the pay scale of Rs. 130 - 240 i. e. more than what was fixed for the post of carpenter at Rajkot. The petitioner has further submitted that as per the recommendation of the Desai Pay Commission under the Pay Revision Rules of 1975, the pay scales were revised and the post of carpenter at Rajkot was given the pay scale of Rs. 260 350 whereas the carpenter at Ahmedabad was fixed at Rs. 350 560. It was further stated by the petitioner that carpenters working not only at Ahmedabad Press but carpenters working in all other offices, viz. Director, Animal Husbandary, Director, Geology and Mining were given the pay scale of Rs. 350 - 560. The petitioner further submitted that the Desai Pay Commission was appointed only with a view to remove the anomaly which existed in different pay scales. However, anomaly in the petitioners pay scale was not removed even after the recommendations of the Desai Pay Commission. Hence, the petitioner has made representation on 1st March, 1983 and 29th October, 1985. However, the petitioner has not received any reply from the respondent authorities. Despite various representations made by the petitioner. The grievance of the petitioner was not redressed by the respondent authorities and the petitioner was, therefore, constrained to file the present petition before this Court. ( 3 ) THE petition was admitted by this Court on 18. 09. 1990 and affidavit-in-reply was filed by the respondent authorities on 01. 12. 2000. Despite various representations made by the petitioner. The grievance of the petitioner was not redressed by the respondent authorities and the petitioner was, therefore, constrained to file the present petition before this Court. ( 3 ) THE petition was admitted by this Court on 18. 09. 1990 and affidavit-in-reply was filed by the respondent authorities on 01. 12. 2000. The petition was opposed on the ground that the petitioner was not entitled to the same pay scale as given to the carpenter working in the Photo Litho Press, Ahmedabad. It was further submitted that though the petitioner was given appointment as carpenter with effect from 01. 01. 1962, the petitioner did not fulfill the conditions and was not entitled for the appointment as carpenter as per the recruitment rules of carpenter framed by the Government which are indicated in Serial No. 340 of the Printing and Stationery Manual Vol-II (Page No. 284 ). It was further submitted that the petitioner was not holding the post of junior carpenter but as per the requirement of rule 340 of the manual, he was entitled for the post of carpenter by promotion only and since he did not fulfil the same criteria, there was no question of considering his appointment as carpenter. It was further submitted that the junior carpenters appointment to the post shall be made by direct recruitment and shall be between 18 and 25 years age. Preference shall be given to those who have obtained the certificate of Craftsman Training Course in Carpentry. The other qualifications which are required are that the candidate studied upto V with English or IX Secondary School and ability to manufacture and repair furniture to mount rubber stamps and prepare boxes for packing. It was further submitted that in order to have smooth working of press of printing and stationery it should recruit and promote the persons who satisfy the prescribed education qualification. It was further submitted that the petitioner was not competent to discharge his duties in the capacity of carpenter till the date of his retirement i. e. 31. 03. 1997 as he was not holding the experience of carpenter as required by rules and hence, there was no question of any anomaly in the pay scale. It was further submitted that the petitioner was not competent to discharge his duties in the capacity of carpenter till the date of his retirement i. e. 31. 03. 1997 as he was not holding the experience of carpenter as required by rules and hence, there was no question of any anomaly in the pay scale. It is further submitted that the petitioner and the carpenter working at Photo Litho Press, Ahmedabad were not holding the equivalent qualification and experience and both were working in different section and discharging their different duties. The duties of the carpenter at Photo Litho Press, Ahmedabad is on its speciality printing work in comparison with the carpenter of Government press, Rajkot. On the basis of all these submissions, it was urged that there was no injustice to the petitioner in his pay scale on the principle of equal pay for equal work. ( 4 ) THE facts stated and averments made in the affidavit-in-reply were denied by the petitioner in the affidavit-in-rejoinder and all the issues raised by the respondent have been dealt with in the affidavit-in-rejoinder. Moreover, the petitioner has also attached the affidavits of three other persons who have also stated that the work at Ahmedabad as well as at Rajkot was of the same nature and there was no difference in the work of carpenter at both the places. It is, therefore, submitted by the petitioner that great injustice was done to the petitioner when he was doing the same work, inspite of the fact that nature of the work was same as well as there was settled position in law. The petitioner has filed further affidavit on 13. 02. 2001 alongwith a copy of Notification dtd. 30. 12. 1978. It was stated that the said Notification cannot be pressed into service as otherwise it would amount to retrospective effect of the said Notification. ( 5 ) THE respondents have also filed Affidavit-in-sur-rejoinder wherein it was made clear that the rules on which post of carpenter is based is rule No. G. R. I. and CD No. PST-7859-211644-PRS dtd. 29. 10. 1959 as corrected subsequently in November,1959 and the said rules were stated in Printing and Stationery Volume, Part-II, page No. 270 and 284. Thus, these rules are of 1959 and not of 1978 as contended by the petitioner. 29. 10. 1959 as corrected subsequently in November,1959 and the said rules were stated in Printing and Stationery Volume, Part-II, page No. 270 and 284. Thus, these rules are of 1959 and not of 1978 as contended by the petitioner. The affidavit of three persons on which reliance was placed were also dealt with in Affidavit-in-sur-rejoinder and it was stated that the said three persons have never worked at Government Photolitho Press at Ahmedabad and work of carpenter with knowledge of section of Printing Process at Ahmedabad cannot be taken into consideration. ( 6 ) THE petitioner has also filed further Affidavit-in-sur-rejoinder reiterating all these contentions and dealing with the issues raised by the respondents in their Affidavit-in-sur-rejoinder and made a specific prayer that the petitioner should be placed in the pay scale of Rs. 130 - 240 w. e. f 01. 06. 1967 and in the corresponding revised pay scales from time to time. ( 7 ) HEARD Mr. I. S. Supehia, learned advocate appearing for the petitioner and Mr. M. A. Bukhari, learned Assistant Government Pleader on behalf of respondents. ( 8 ) MR. I. S. Supehia, learned advocate for the petitioner has reiterated all his contentions and submissions which were made in the Petition as well as in the Affidavit, Affidavit-in-rejoinder and Affidavit-in-sur-rejoinder. He has further submitted that since the nature of work remains same both at Ahmedabad and Rajkot, the petitioner should not be denided the benefits of the same pay scale. He has further submitted that the benefit of Desai Pay Commission was given to all the carpenters working in different Governmental organizations. The petitioner working at Rajkot should have also been given such benefit of pay scale of Rs. 350 - 560. He has further submitted that the petitioners initial appointment was made as carpenter in the year 1962 and one Mr. L. S. Parmar was appointed as carpenter in the year 1966 and yet he was given the pay scale of Rs. 350 - 560. He has further submitted that with effect from 01. 01. 1973, all the carpenters working in different governmental organizations were paid the scale of Rs. 350 - 560 whereas the petitioner was given the pay scale of Rs. 260 - 350. This is absolutely discriminatory and results into gross violation of Articles 14 and 16 of the Constitution of India. He has further submitted that with effect from 01. 01. 1973, all the carpenters working in different governmental organizations were paid the scale of Rs. 350 - 560 whereas the petitioner was given the pay scale of Rs. 260 - 350. This is absolutely discriminatory and results into gross violation of Articles 14 and 16 of the Constitution of India. He has further submitted that his initial appointment was governed by the rules prescribed in the Saurashtra Civil Services Classification and Recruitment Rules wherein Clause 45 deals with carpenter and it seems that candidate for appointment should be skilled carpenter able to do all carpentry work, carry on repairs to all wood-work in the press, prepare rubber stamp mounts, manufacture crates for supply of types etc. , repair boxes required for despatch, nail and wire the boxes etc, and should be able to prepare wooden furniture for packing forms such as slopes, quions, space bars etc. Age limit should be 30 years. The petitioner was having this requisite qualifications and he was rightly appointed as the carpenter in the year 1962. The qualification and experience prescribed in the Rules of 1978 could not apply to the petitioner and hence, no reliance can be placed on the said Rules. He has, therefore, strongly submitted that the petitioner should have been given the benefit of pay scale of Rs. 130 - 240 with effect from 01. 01. 1967. ( 9 ) MR. M. A. Bukhari, learned Assistant Government Pleader on the other hand has submitted that the petitioner has challenged the pay scale which was given to him in the year 1962 after 28 years. He has further submitted that the work at Ahmedabad as well as at Rajkot was different and hence the same cannot be compared. He has further submitted that the petitioner was not possessing the requisite qualification and experience and he was not legible for the appointment of carpenter. Since his original appointment was also not in accordance with the rules and regulations, he cannot claim any further benefit on the basis of the said appointment. He has further submitted that the petitioner was not possessing the requisite qualification and experience and he was not legible for the appointment of carpenter. Since his original appointment was also not in accordance with the rules and regulations, he cannot claim any further benefit on the basis of the said appointment. He has further relied on the Rules 13 framed in the year 1959 and the same were reproduced in Printing and Stationery Manual, Volume II, 1969 which specifically states that the carpenter can be promoted from the Junior carpenter and hence, the original appointment of the petitioner is to be considered as the appointment of junior carpenter and since he was never appointed as carpenter, he cannot claim parity of pay scales on the basis of the pay scales of carpenter working at Ahmedabad. In any view of the matter, the petitioners prayer in the present petition for revision of pay scale is not justified and hence, no interference is called for by this Court by exercising the writ jurisdiction under Article 226 of the Constitution of India. ( 10 ) I have heard both the learned advocates appearing for the respective parties and I have also gone through the pleadings of the parties as reflected in the petition, Affidavit-in-reply as well as Affidavit-in-rejoinder and sur-rejoinder. I have also gone through the relevant documents attached with the said papers. After considering all these documents and submissions, I am of the humble view that the petitioner is entitled to reversed pay scale of Rs. 350 - 560 with effect from 01. 01. 1973. It is an admitted position that after the recommendations of Desai Pay Commission, all carpenters working in different places in governmental organizations are given this pay scale of Rs. 350 - 560. It is also an admitted position that the petitioner has made several representations, more particularly representation dtd. 01. 03. 1983 and 29. 10. 1985 and still the respondent authorities have not taken any decision. The petitioner is, therefore ventilating his grievance right from the beginning. However, no attention was paid to the said representation and when the petition was filed in the year 1990, it cannot be thrown on the ground that the same was filed after lapse of more than 28 years. 1985 and still the respondent authorities have not taken any decision. The petitioner is, therefore ventilating his grievance right from the beginning. However, no attention was paid to the said representation and when the petition was filed in the year 1990, it cannot be thrown on the ground that the same was filed after lapse of more than 28 years. It is further necessary to take note of the fact that the petitioners initial appointment is that of carpenter and hence, subsequently, it is not open for the respondents to states that the said appointment was that of junior carpenter and petitioner was not promoted to the post of carpenter and hence, he is not entitled to pay scale of carpenter. While, looking to the nature of the work of carpenter working at Rajkot and at Ahmedabad, it appears to the Court that there is no much difference in the nature of the said work. Even the petitioners appointment was also on the basis of the Rules which were in force at the relevant time, namely, The Saurashtra Civil Services Classification under Recruitment Rules and subsequent modification or enforcement of any rules cannot alter the position which was prevalent at the time of the appointment of the petitioner. When the persons working at Ahmedabad are given the benefit of the pay scales as per the recommendations of the Desai Pay Commission, persons working at Rajkot should not be denied that simply on the ground that there was a different nature of work and such plea cannot be tenable either on facts or in law. Looking to the facts and circumstances of the case and having regard to the settled legal position, I am of the view that the petitioner should be given the benefit of revised pay scale of Rs. 350 - 560 with effect from 01. 01. 1973 with all consequential benefits. The petition is, therefore, partly allowed. Rule is made absolute to the above extent with no order as to costs. ( 11 ) THE respondents authority are directed to give this effect within a period of three months and work out the pensionary benefits to which the petitioner is entitled to on the basis of this judgment. ( 12 ) DS Permitted. .