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Gujarat High Court · body

2020 DIGILAW 24 (GUJ)

Girishchandra G. Punjani v. State of Gujarat

2020-01-08

A.S.SUPEHIA

body2020
JUDGMENT : 1. By the present writ petition, the petitioners have, inter alia, prayed for the following relief;- (B) Quash and set aside the order dated 04.05.2007 passed by the respondent No. 4 (Annexure-A) as well as order dated 29.10.2007 passed by the respondent No. 2 (Annexure K) by declaring them as illegal, unjust, improper, contrary to GR dated 16.08.1994 and 05.07.1991 as well as the law laid down by the Hon'ble Apex Court and this Hon'ble Court as well as other High Courts from time to time by declaring that the petitioners are eligible and entitled to get the first higher pay scale in the scale of Rs. 5000-8000/- for the post of Head Clerk cum Accountant in the Nagar Prathmik Sikshan Samiti at Jamnagar run by the Jamnagar Municipal Corporation. 2. The case of the petitioner is that the petitioners are working in the office of the Nagar Prathmik Shikshan Samiti, Jamnagar run by the Jamnagar Municipal Corporation, Jamnagar. Initially, they were appointed as Junior Clerks. Thereafter, the respondent No. 4 extended the benefit of Higher Pay scale to the petitioners in the cadre of Head Clerk-cum-Accountant in the pay-scale of Rs.950-1500/-(revised to Rs.5000-8000/-) by the order dated 06.07.2000. Thus, the petitioners were granted the first higher pay-scale in view of the Government Policy of Rs.5000-8000/-. It appears that thereafter the said higher pay scale was withdrawn, which was subject matter to filing of the writ petition being Special Civil Application No.23435 of 2006 and allied matters. After the said matters were disposed of by the order dated 17.11.2006 by directing the respondents to consider the representation of the petitioner, the respondent passed the order dated 04.05.2007 reducing the higher pay-scale of the petitioner from Rs.4500-8000 to Rs.4000-6000/-. The petitioners, thereafter, filed the Special Civil Application No. 12616 of 2007 and allied matters, challenging the order dated 04.05.2007. The aforesaid writ petition was disposed of vide order dated 25.07.2007 by issuing direction to the respondent No. 2 Director of Primary Education to decide the representation dated 27.12.2006 made by the petitioners and also to reconsider the order dated 04.05.2007 passed by the respondent No. 4 and then passed a reasoned order. The aforesaid writ petition was disposed of vide order dated 25.07.2007 by issuing direction to the respondent No. 2 Director of Primary Education to decide the representation dated 27.12.2006 made by the petitioners and also to reconsider the order dated 04.05.2007 passed by the respondent No. 4 and then passed a reasoned order. Thereafter, the petitioners were heard by the respondent authorities and by the impugned order dated 29.10.2007, the request of the petitioners was rejected by the respondent authority on the ground that since there is no promotional post of Senior Clerk and as per the provisions of the resolution dated 11.01.1994, the post of Head Clerk is only required to filling up by way of promotion by considering the seniority, hence, the petitioners are not entitled to the higher pay scale of Rs.5000-8000/- meant for the post of head clerk. By the order dated 04.05.2007, the respondent Nagar Palika, while taking the aforesaid stand, has rejected the case of the petitioner for grant of higher pay scale of Rs.5000-8000/-. 3. Learned advocate Mr. Hasit Joshi appearing for the petitioners has submitted that the petitioners are being denied the higher pay scale of Rs.5000-8000/- since the promotional post of Junior Clerk is Head Clerk and as per the provisions of the resolution dated 16.08.1994, more particularly paragraph nos. 3 (2) and 3(3), the petitioners are entitled to higher pay scale of the promotional post. 4. Learned advocate Mr. Hasit Joshi for the petitioners has invited the attention of this Court to the provisions of the Resolution dated 11.01.1994, which was considered by the respondents while cancelling the higher pay scale, which was earlier granted to the petitioners. Thus, he has submitted that the earlier orders, granting the higher pay scale dated 06.07.2000 may be restored. 5. Learned advocate Mr. Hasit Joshi for the petitioners has further submitted that all the petitioners have cleared the departmental examinations and hence, they were rightly granted the higher pay scale of Rs.5000-8000/-, after completion of 9 years of services. Thus, he has submitted that the impugned orders may be set aside. 6. Per contra learned advocate Mr. 5. Learned advocate Mr. Hasit Joshi for the petitioners has further submitted that all the petitioners have cleared the departmental examinations and hence, they were rightly granted the higher pay scale of Rs.5000-8000/-, after completion of 9 years of services. Thus, he has submitted that the impugned orders may be set aside. 6. Per contra learned advocate Mr. Premal Joshi appearing for the respondent No. 4 has submitted that the impugned orders may not be set aside as the petitioners are not entitled to the higher pay scale of Rs.5000-8000/-, which is meant for the post of Head Clerk but are not entitled to the higher pay-scale of Rs. 4000-6000/- meant for the post of the Senior Clerk, which is a lower post. He has submitted that there is no sanctioned post of Senior Clerk in the respondent No. 4 Committee and hence, the impugned orders are rightly passed. He has submitted that since the objection was raised by the local fund for the higher pay scale of Rs.5000-8000/- meant for the post of Head Clerk, the petitioners are granted the higher pay-scale of Rs.4000-6000/- meant for the post of Senior Clerk, which is not a sanctioned post. Thus, he has submitted that the impugned orders may not be set aside. 7. Learned Assistant Government Pleader Mr. Sahil Trivedi while adopting the arguments advanced by the learned advocate Mr. Premal Joshi, has invited the attention of this Court to the paragraph no. 3(3) of the resolution dated 16.08.1994 and has submitted that the petitioners would be entitled to the higher pay-scale as per the appendix attached to the resolution and hence, they are entitled to the higher pay scale of Rs.4000-6000/- instead of 5000-8000/-. Thus, he has submitted that the impugned orders may not be interfered with. 8. I have heard the learned advocates for the respective parties. The established facts are that all the petitioners are working as Junior Clerks in the respondent Committee and they were appointed between the year 1974 to 1993. The petitioners have also cleared the departmental examination, which is meant for the promotion and accordingly after completion of 9 years of service, they were granted the higher pay scale of Rs.5000-8000/-. The aforesaid higher pay scale was granted was of the post of post of Head Clerk cum Accountant as per the set up of the respondent No. 4 Committee. The aforesaid higher pay scale was granted was of the post of post of Head Clerk cum Accountant as per the set up of the respondent No. 4 Committee. After the aforesaid higher pay-scale was granted, the same was cancelled by the order dated 04.05.2007. It appears that aforesaid order granting the higher pay scale was canceled since the Local Fund office had taken the objection. The same was subject matter of challenge in Special Civil Application No. 12616 of 2007 and allied matters before this Court and by the order dated 25.07.2007, the writ petitions were disposed of by directing the respondent to reconsider the case and representation of the petitioners. Thereafter, the petitioners were heard by the respondent authorities and by the impugned orders dated 04.05.2007 and 29.10.2007, the earlier stand taken by the respondent authorities was maintained. A perusal of the orders reveal that the higher pay scale of Rs.5000-8000/-, which was granted to the petitioners, has been canceled on the ground that there is no post of Senior Clerk, and the post of Head Clerk is required to be filled in as per the resolution dated 11.01.1994, hence the petitioners are not entitled to the higher pay scale of Rs.5000-8000/- i.e. pay scale of Head Clerk cum Accountant but the pay scale of Rs.4000-6000/ meant for the post of Senior Clerk. 9. At this stage, it would be apposite to refer to the provisions of paragraph No. 3(3) of the resolution dated 16.08.1994. The entire controversy of conferring the higher pay-scale in the case of the petitioner’s rests on the interpretation of Clause 3(3) of the Government Resolution dated 16.08.1994. In order to appreciate the rival contentions, it will be necessary to have a close look at Clause 3(3) with a view to ascertaining its true nature and import. The same reads thus:- “3(3). Higher pay scale means the next immediate pay scale of the promotional post to the current post, but if there are different promotional posts available for the employees, then the lowest pay scale of such promotional post shall be considered as their first higher pay scale. But, if there is no pay scale prescribed for promotional post, then first higher pay scale shall be granted corresponding to the present pay scale as per the appendix-(1) attached to the present resolution. But, if there is no pay scale prescribed for promotional post, then first higher pay scale shall be granted corresponding to the present pay scale as per the appendix-(1) attached to the present resolution. But, for the feeder cadres having different pay scales, instead of fixing the higher pay scale of their promotional post, the higher pay scale shall be fixed as specified in appendix-(1) annexed to present resolution.” 10. A careful scrutiny, of Clause 3(3), reveals that three categories are prescribed therein– (1) for different promotional posts available for employees, (2) if there is no promotional pay scale prescribed; and, (3) where there are feeder cadres having different pay scales. Thus, the provisions of clause 3(3) reveal that there are three categories prescribed therein for being entitled to the higher pay scale. Para 3(3) of the resolution dated 16.08.1994 begins with the statement that “higher pay scale means the pay scale of the promotional post.” In the present case, it is not in dispute that the post of Head Clerk/Accountant is sanctioned by the State Government and the respondent no. 4 Committee has also not denied the existence of the promotional post of Head Clerk for the clerical cadre. The impugned orders refer to the resolution dated 11.01.1994. By the resolution dated 11.01.1994, the State Government has regulated the procedure of filling up the post of non-teaching staff of the various administrative committees in the State. 11. In the said resolution, the provisions with regard to the filling up of the post of Head Clerk /Accountant is stipulated wherein it revealed that the Head Clerks/Accountants in the Nagar Prathmik Sikshan Samiti are to be filled in from the clerical staff on the basis of seniority. It is specifically referred that such seniority of the clerk working in the clerical cadre shall be regulated by the concerned committee and accordingly, the post of Head Clerk/Accountant is required to be filled in. Thus, from the analysis of the provisions of the resolution as well as the impugned orders and the submissions advanced by the learned advocate for the respondent, it is established that no post of Senior Clerk is sanctioned in the respondent No. 4 Nagar Palika. The learned advocates appearing for the respondent Samiti has admitted that there is no post of Senior Clerk available in the respondent no. 4 Nagar Prathmik Sikshan Samiti. The learned advocates appearing for the respondent Samiti has admitted that there is no post of Senior Clerk available in the respondent no. 4 Nagar Prathmik Sikshan Samiti. Reverting to the provisions of clause 3(2) of the resolution dated 16.08.1994, which is applicable to the present petitioners, it is evident that the higher pay scale means the pay-scale, which is prescribed for the next promotional post and if there are no promotional posts in existence, then such higher pay scale is required to be fixed as per appendix attached to the resolution dated 16.08.1994. Hence, the higher pay scale of the petitioners is required to be fixed by considering the pay-scale of the next promotional post of “Head Clerk/Accountant” since there is no post of “Senior Clerk”. The respondent authorities cannot fix or grant the higher pay-scale of such a post, which is not in existence. Learned advocate for the respondents are unable to point out any provisions from the entire scheme that the higher pay scale is required to be fixed ignoring the promotional post. It can only be done if there is no promotional post in existence and in such circumstances the higher pay scale is required to be fixed as per the appendix attached to resolution dated 16.08.1994. 12. In the present case, the petitioners, who were working as Junior Clerks are entitled to be promotion to the post of Head Clerk/Accountant as per the provisions of resolution dated 11.01.1994. Thus, as per the Scheme of the higher pay scale, the respondent authorities cannot fix their pay scale at Rs.4000-6000/- of the post of Senior Clerk as no such post exists in the set up of the respondent No. 4Samiti. The only promotional post, which is available to the present petitioners as per the set up is the post of Head Clerk/ Accountant and hence, the earlier orders dated 06.07.2000, by which the petitioners were granted the higher pay scale of Rs.5000-8000/- of the post of Head Clerk were legal and valid. 13. In this view of the analysis and facts, the present writ petition succeeds. The impugned orders dated 04.05.2007 and 29.10.2007 are hereby quashed and set aside and the respondents are hereby directed to grant the first higher pay scale of Rs.5000-8000/- to the petitioners meant for the post of Head Clerk/Accountant, which was earlier conferred to them. 14. 13. In this view of the analysis and facts, the present writ petition succeeds. The impugned orders dated 04.05.2007 and 29.10.2007 are hereby quashed and set aside and the respondents are hereby directed to grant the first higher pay scale of Rs.5000-8000/- to the petitioners meant for the post of Head Clerk/Accountant, which was earlier conferred to them. 14. Necessary orders in terms of the direction issued by this Court shall be passed within a period of two months from the date of receipt of writ of this Court and the arrears shall also be paid to the petitioners. Rule is made absolute.