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2018 DIGILAW 51 (GUJ)

Sanjay K Shah v. State of Gujarat

2018-01-10

A.S.SUPEHIA

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JUDGMENT : 1. In present petition, the petitioner seeks direction for quashing and setting aside the communication dated 08.04.2010 issued by the Deputy Director, Geology and Mines Department rejecting the proposal of fixing the pay-scale of the petitioner in the pay-scale of Rs.4500 – 7000. 2. The petitioner was appointed by the order dated 03.12.1999 as Librarian. He is possessing the degree of Master in Librarian. It is the case of the petitioner that by mistake he has been granted the pay-scale of Rs.4000-6000 from the very beginning and in fact, as per Gujarat Civil Services (ROP) Rules, 1998, he is entitled to the pay-scale of Rs.4500-7000. 3. Mr. Majmudar, learned advocate for the petitioner has pointed out that the petitioner is incorrectly granted the pay-scale of Rs.4000-6000 in view of the mistake committed by the Employment Exchange in not bifurcating the pay-scales of Rs.4000-6000 and Rs.4500-7000, respectively. He has stated that as per the Recruitment Rules issued under notification dated 18.11.1992, the petitioner possesses degree from a recognized University. He has placed reliance on the Gujarat Civil Services (ROP) Rules, 1998, wherein at item no.38 post of Librarian is mentioned having three qualifications i.e. (1) Rs.4500 – 7000 for graduates with degree or diploma in Library Science; (2) Rs.4500-7000 for graduates with Certificate of Library Science and (3) Rs.4000-6000 for others. He has submitted that the petitioner would fall in first category, as he is graduate with Library Science and he is entitled to pay-scale of Rs.4500-7000 instead of category (3) i.e. Rs.4000-6000 for others. 4. In view of the aforesaid submissions, he has submitted that the petitioner cannot be penalized for the action of the Employment Exchange in not bifurcating the pay-scale in accordance with law with the revision of pay rules and hence, he has urged that present petition may be allowed and the impugned communication dated 08.04.2010 may be quashed and set aside. 5. Mr.Chintan Dave, learned AGP for the respondent authorities while placing reliance on the affidavit filed by the respondent has state that the petitioner is not entitled to the enhanced pay-scale of Rs.4500-7000, since at the relevant time, he has accepted the appointment order in the pay-scale of Rs.4000-6000. In this view of the matter, he has stated that present petition may not be entertained, as the pay-scale prescribed in the appointment order will prevail. 6. In this view of the matter, he has stated that present petition may not be entertained, as the pay-scale prescribed in the appointment order will prevail. 6. The undisputed fact revealed from the documents of the present writ petition is that pay-scale of Librarian is bifurcated into three parts as per the Gujarat Civil Services (ROP) Rules, 1998 i.e. (1) Rs.4500 – 7000 for graduates with degree or diploma in Library Science; (2) Rs.4500-7000 for graduates with Certificate of Library Science and (3) Rs.4000-6000 for others. The respondent authorities are unable to dispute the fact that the petitioner is possessing master degree in Library Science. Hence, he would fall in first category. The petitioner, after his appointment on 03.12.1999 immediately approached the respondent authorities requested vide letter dated 02.02.2002 to rectify his pay-scale and place him in the pay-scale of Rs.4500-7000. Merely because the petitioner has accepted the appointment order prescribing the pay-scale of Rs.4000-6000, the respondents cannot shirk from the rule statutory rule which prescribe three pay-scales to the post of Librarian. On a perusal of the letter dated 11.08.1998 written by the Deputy Director, Industry and Mines, Gandhinagar to the Employment Exchange discloses that he has not bifurcated the aforesaid pay-scales as per the Pay Rules and has only prescribed pay of Rs.4000-6000 to the post of Librarian though in the column of required education qualification, he has mentioned a degree of recognized university and degree or diploma in Library Science of a recognized University or Institution and practical experience in Library work of about one year. Thus, while sending the aforesaid proposal to the aforesaid Employment Exchange and in issuing the appointment order of the petitioner, the respondents have totally ignored the Revision of Pay Rules, 1998 prescribing the pay-scales of Librarian in three categories. For the aforesaid inaction and remissness on the part of the respondent authority, the petitioner cannot be made to be suffer. 7. At this stage, it would be opposite to refer to the judgment of Hon'ble Apex Court rendered in the case of State of Madhya Pradesh & Ors. Versus Yogendra Shrivastava, reported in 2009(7) Supreme 163 , wherein it is observed that:- “10. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. Versus Yogendra Shrivastava, reported in 2009(7) Supreme 163 , wherein it is observed that:- “10. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail (See : K. Dayananda Lal vs. State of Kerala - 1996 (9) SCC 728 , T. N. Housing Board vs. N. Balasubramaniun - 2004 (6) SCC 85, State of Karnataka vs. K.G.S.D. Canteen Employees Welfare Association - 2006 (1) SCC 567 and Punjab National Bank vs. Astamija Dash - 2008 (14) SCC 370 ). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts.” Thus, as per law enunciated by the Hon'ble Supreme Court the contention raised by learned AGP does not merit acceptance. 8. The petition is allowed. The impugned communication dated 08.04.2010 is quashed and set aside. The respondent authorities are directed to revise the pay-scale of the petitioner from the date of appointment and grant all necessary benefits / arrears arising thereof. Necessary exercise shall be carried out within a period of two months and the consequential benefits shall be paid to the petitioner within a week thereafter. Rule is made absolute.