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2020 DIGILAW 109 (GUJ)

Shamalbhai Keshabhai Patel v. State of Gujarat

2020-01-21

A.P.THAKER, S.R.BRAHMBHATT

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JUDGMENT : A.P. THAKER, J. 1. The present Letters Patent Appeals have been taken out under Clause 15 of the Letters Patent by the original petitioners – appellants herein against the common judgment and order dated 26.04.2005 passed by the learned Single Judge in captioned Special Civil Applications, whereby, the learned Single Judge has dismissed the petitions and confirmed the order passed by the Gujarat Civil Services Tribunal, Gandhinagar. 2. As common question of facts and law involved in all the Letters Patent Appeals, the facts narrated in Special Civil Application No.7171 of 2005 from which the Letters Patent Appeal No.1129 of 2005 is arisen is treated as lead matter and factual aspect thereof is referred to. 3. Brief facts of the present case of the appellants – petitioners herein is that they were appointed to the post of Block Extension Educator (“B.E.E.” for short) in the set up of the District Panchayat, Sabarkantha. It is contended that the pay scale attached to the said post of B.E.E., was Rs.1640-2900 for those candidates, who possessed post graduation degree and for other incumbents pay scale of Rs.1400 - Rs.2300 was prescribed. It is contended that the appellants were holding qualification of post graduation and, therefore, they were granted pay scale of Rs.1640 - Rs.2900 as per the resolution passed by the State Government dated 10.06.1987. It is contended that thereafter, the resolution came to be passed by the State Government dated 24.10.1989 by which it has been decided to grant pay scale of Rs.1640 - Rs.2900 to the employees who were holding the qualification of post graduation with MSW and other employees who were holding the qualification of post graduation without MSW would be entitled to the pay scale of Rs.1400 - Rs.2300 i.e. the pay scale earlier meant for others. It is further contended that the authorities tried to give effect to the said resolution with retrospective effect and despite the appellants were appointed before 24.10.1989, pursuant to the resolution dated 24.10.1989 passed by the State Government and subsequently, it was made applicable to the Panchayat Department, the authorities have decided to reduce the pay scale of the petitioners from Rs.1640 - Rs.2900 to Rs.1400 - Rs.2300. It is contended that the action of the respondents – authority of reduction of the pay scale of the petitioners is not sustainable. It is contended that the action of the respondents – authority of reduction of the pay scale of the petitioners is not sustainable. Therefore, the petitioners have moved the Gujarat Civil Services Tribunal, Gandhinagar challenging the action of respondents – authority of reduction of their pay scale. The Tribunal rejected their appeals and, thereafter, they have approached this Court by filing captioned Special Civil Applications which came to be dismissed by the learned Single Judge vide order dated 25/26.04.2005. 4. Heard Mr. N.K. Majmudar, learned counsel for the appellants, Ms. Krina Calla, learned Assistant Government Pleader for respondent No.1 – State and Mr. Manish Patel, learned counsel for respondent No.4 and perused the material placed on record. 5. Mr. N.K. Majmudar, learned counsel for the appellants has submitted that the appellants are holding master degree and when they were appointed in the Government service, they were granted pay scale on the basis of their qualification of master degree and, thereafter, due to pay revision, the pay scale of the post held by the petitioners have been bifurcated and persons holding post of B.E.E. / Social Workers of Panchayat service having master degree in MSW were given higher pay scale, whereas, for others, the lower pay scale was prescribed. According to him, when the petitioners joined services, as they were holding master degree, they were given higher pay scale and, thereafter, they were also given pay scale meant for employees who are holding the post of B.E.E. / Social Worker. It is contended that the Government Resolution dated 10.06.1987, in its schedule, has specifically stated that the persons holding the post of B.E.E. / Social Workers, who are postgraduate degree were granted pay of Rs.1640 - Rs.2900, which was earlier Rs.550 - Rs.900. Whereas, for others, the revised pay scale was Rs.1400 - Rs.2300, which was earlier Rs.425 - Rs.700. He has submitted that the appellants were earlier drawing pay in the pay scale of Rs.550 - Rs.900 as if were holding the post graduate degree. He has submitted that now, by way of resolution dated 24.10.1989, the qualification of the post graduate in MSW is prescribed for entitlement of grade pay of Rs.1640 - Rs.2900, whereas, for others, the pay scale prescribed is Rs.1400 - Rs.2300. He has submitted that now, by way of resolution dated 24.10.1989, the qualification of the post graduate in MSW is prescribed for entitlement of grade pay of Rs.1640 - Rs.2900, whereas, for others, the pay scale prescribed is Rs.1400 - Rs.2300. He has submitted that the respective petitioners were earlier granted higher pay scale which was meant for master degree and by way of revision of pay, they cannot be placed in a lower pay scale of Rs.1400 - Rs.2300 and no recovery could be initiated against them and the resolution can be made applicable only to the prospective effect and cannot be made applicable retrospectively. Mr. Majmudar, learned counsel has relied upon the decision of this Court in the case of State of Gujarat Vs. Dipti Anilkumar Somani rendered in Letters Patent Appeal No.85 of 2016 dated 29.02.2016. According to him, the fact of the present case is similar to the fact of Letters Patent Appeal No.85 of 2016 and in that case, this Court has upheld the contention of the petitioner and granted the higher pay scale meant for the postgraduate degree in MSW to the persons, who were appointed, earlier, prior to issuance of the resolution dated 24.10.1989. He has urged to allow the appeals. 6. Per contra, Ms. Krina Calla, learned Assistant Government Pleader for respondent – State has vehemently submitted that the petitioners are not holding the post graduate master degree of MSW and they are holding the post graduate in other stream instead of MSW. According to her version, the action on the part of the respondent – State is legal and valid and the impugned judgment and order of the learned Single Judge is sustainable in the eyes of law. She has submitted that these appeals are meritless and the same may be dismissed. 7. Mr. Manish Patel, learned counsel for respondent No.4 has also submitted that the action on the part of the department cannot be termed as illegal as it has acted as per the Government Resolution and the impugned judgment and order of the learned Single Judge is sustainable in the eyes of law. He has urged to dismiss the present appeals. 8. Manish Patel, learned counsel for respondent No.4 has also submitted that the action on the part of the department cannot be termed as illegal as it has acted as per the Government Resolution and the impugned judgment and order of the learned Single Judge is sustainable in the eyes of law. He has urged to dismiss the present appeals. 8. Considering the contentions of learned counsel for the parties and the material placed on record, it is crystal clear that there is no dispute regarding the fact that the petitioners are holding master degree, of course, not of MSW. But, the fact remains that when the petitioners entered into the services, they were granted pay scale, which was meant for the post of B.E.E. with postgraduate degree. It is an admitted fact that earlier, for the post of B.E.E / Social Worker, the qualification of postgraduate degree was prescribed and the pay scale was to Rs.550 - Rs.900 and “for others”, it was Rs.425 - Rs.700. It is also an admitted fact that the revision of pay scale was effected in the post in the District and Taluka of the Panchayat service vide resolution dated 10.06.1987, wherein also, the pay scale for B.E.E. / Social Workers was put into a cadre i.e. one for postgraduate degree holder for which Rs.1640 - Rs.2900 was prescribed against pre-revised pay scale of Rs.500-Rs.900 and “for others”, the pay scale of Rs.1400-Rs.2300 was prescribed, which was earlier prescribed to Rs.425-Rs.700. 9. It is also not in dispute that due to amendment in the pay scale vide Government Resolution dated 24.10.1989 for the post of B.E.E. / Social Worker, two different pay scales were prescribed as on the same line which were earlier made applicable. However, for pay scale of Rs.1640 – Rs.2900, the word MSW has been added. 10. Now, the respondents have undertaken the exercise putting the petitioners in lower pay scale of Rs.1400 – Rs.2300 though they are holding the master degree, of course, they are not holding the master degree of MSW. At this juncture, it is worthwhile to refer to the decision of this Court rendered in Letters Patent Appeal No.85 of 2016 dated 29.02.2016 wherein this Court has observed in paras 5, 5.1, 5.2, 5.3, 5.4 as under:- 5. At this juncture, it is worthwhile to refer to the decision of this Court rendered in Letters Patent Appeal No.85 of 2016 dated 29.02.2016 wherein this Court has observed in paras 5, 5.1, 5.2, 5.3, 5.4 as under:- 5. Having heard learned counsels for the parties and on perusal of the record, including Revision of Pay Rules, 1975 and 1986 respectively for the post of Social Worker and qualification prescribed therein, it is not in dispute that that when the petitioner was appointed on the post of Social Worker in the year 1974 she did possess the qualification of Master of Arts in Sociology and thereby she was entitled to receive revised pay scale in the grade of Rs.550-900. Relevant portion of the ROP1975 reads as under: ROP1975 Sr. No. Designation No. of Posts Existing Scale of Pay Recommended Scale of Pay Remarks 37 Social Worker [1] 2 250-420 550-900 Provided the holder has a post-graduate degree in M.S.W. Or Sociology otherwise Rs.425-700 5.1 The above pay scale was revised in ROP1986, which reads as under: ROP1986 1 2 3 4 5 36 Social Worker [i] 550-900 [ii] 425-700 [i] 1640-2900 [ii] 1400-2300 [i] For Post-graduate degree in M.S.W. [ii] For others. 5.2 For the employees who possess Postgraduate degree in M.S.W. Were conferred with the pay scale of Rs.1640-2900 and for others Rs.1400-2300. 5.3 The above anomaly will not deter us from confirming the view taken by the learned Single Judge about availability of revised pay scale to the petitioner under ROP1986 in the pay scale of Rs.1640-2900 irrespective of the fact that she was not holding qualification of postgraduate degree of Master of Social Welfare. Such revision of pay scale would be applicable at the most to those incumbents recruited and appointed after ROP1975 and having no qualification of postgraduate degree in Master of Social Welfare and not conferred benefit of revision of pay scale of Rs.550-900 under ROP, 1975. Once revision of pay scale is granted to the petitioner under ROP1975 on the strength of qualification of Master of Sociology, a legal and valid qualification, the same could not have been reduced on the ground that in the year 1986 as per ROP, she was not holding qualification of postgraduate degree in Master of Social Welfare. Once revision of pay scale is granted to the petitioner under ROP1975 on the strength of qualification of Master of Sociology, a legal and valid qualification, the same could not have been reduced on the ground that in the year 1986 as per ROP, she was not holding qualification of postgraduate degree in Master of Social Welfare. 5.4 Further, the decision taken in the year 1993 with concurrence of the Finance Department could not have been revised after a period of 13 years on the ground that the petitioner lacks qualification of postgraduate degree in Master of Social Welfare under the ROP1986. Therefore, extending such benefit to the petitioner till the retirement from the date of impugned order by learned Single Judge and to pay difference towards arrears of pay, etc. cannot be said to be contrary to law warranting any interference of this Court in exercise of clause 15 of the Letters Patent. 11. Thus, in view of the above observations of this Court in similar situated persons, the facts of the present Letters Patent Appeals are also same and identical. Under these circumstances, as this Court has held that the persons holding master degree prior to amendment in the revised pay scale whereby only words M.S.W for higher pay scale is added, that facts cannot disentitled the petitioners from getting benefit of pay scale of Rs.1640 – Rs.2900 for the post of B.E.E. / Social Worker. As such the action on the part of the authorities to place the petitioners in the lower pay scale of Rs.1400 – Rs.2300 is bad in law. 12. It appears that the learned Single Judge as well as the Tribunal have committed serious error of facts and law in dismissing the petitions and appeals of the appellants herein. The impugned judgment and order of the learned Single Judge as well as the order of the Tribunal are not sustainable in the eyes of law and deserves to be interference. 13. In view of the above, the Letters Patent Appeals are allowed. The order dated 16.03.2005 passed by the Gujarat Civil Services Tribunal, Gandhinagar and the judgment and order dated 25/26.04.2005 passed by the learned Single Judge are hereby quashed and set aside. 14. 13. In view of the above, the Letters Patent Appeals are allowed. The order dated 16.03.2005 passed by the Gujarat Civil Services Tribunal, Gandhinagar and the judgment and order dated 25/26.04.2005 passed by the learned Single Judge are hereby quashed and set aside. 14. It is held that the action of the respondents – authority, by which, it has decided to reduce pay scale of the appellants from Rs.1640 – Rs.2900 to Rs.1400 – Rs.2300 is quashed and set aside. The appellants are entitled to receive salary in the pay scale of Rs.1640 – Rs.2900 with all consequential benefit. The concerned authorities are directed to place the petitioners in the pay scale of Rs.1640 – Rs.2900 with all consequential benefits and no recovery be made from the petitioners – appellants. If any, recovery is made, then, the concerned authorities shall repay it to the petitioners – appellants within three months from receipt of the writ of this Court. No order as to costs.