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2022 DIGILAW 1641 (GUJ)

Maganbhai Jethabhai Vankar v. State of Gujarat

2022-11-28

NIRZAR S.DESAI

body2022
JUDGMENT : 1. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 4.8.2017 passed by respondent No.3 and prayed to hold that the petitioners are entitled for second higher pay scale with continuity of service with pay protection w.e.f. 18.1.1993 and to declare that the petitioners are entitled for second higher pay scale on completion of 15 years of service after grant of first higher pay scale, except petitioner No.2 all other petitioners are entitled for second higher pay scale w.e.f. 15.11.2008 and petitioner No.2 is entitled to second higher pay scale w.e.f. 16.08.2006 as per the Government Resolution dated 2.7.2007. 2. Heard Mr. Gunvant Thakkar, learned advocate for the petitioners and Mr. Kurven Desai, learned Assistant Government Pleader for State respondents. 3. It is the case of the petitioners that all the petitioners, except petitioner No.2, were appointed as Police Constable (Armed) in the year 1984, whereas the petitioner No.2 was appointed as Police Constable (Armed) in the year 1982. The petitioner No.2 was granted first higher pay scale after completion of 9 years service in the year 1991, whereas the petitioner Nos.1, 3, 4 & 5 were granted first higher pay scale on completion of 9 years in the year 1993. In the meantime, on 18.1.1993, all the petitioners were posted from the cadre of Police Constable (Armed) to the cadre of Police Constable (Unarmed) with continuity of service and pay protection but without seniority of Police Constable. 3.1 After the petitioners got the benefit of first higher pay scale on completion of 9 years of service since they are placed from the cadre of Armed Police Constable to Un-armed Police Constable vide order dated 18.1.1993, the respondents not only placed them at the bottom of seniority in the cadre of Unarmed Police Constable but also did not grant them second higher pay scale and that is the grievance of all the petitioners. 3.2 In the meantime, vide Government Resolution dated 2.7.2007 the Scheme of time scale promotion on completion of 9-18-27 years of service was modified and instead of giving higher pay scale on completion of 9-18-27 years of service, higher pay scale was introduced after completion of 12-24 years of service. 3.2 In the meantime, vide Government Resolution dated 2.7.2007 the Scheme of time scale promotion on completion of 9-18-27 years of service was modified and instead of giving higher pay scale on completion of 9-18-27 years of service, higher pay scale was introduced after completion of 12-24 years of service. Clause 4(b) of the Government Resolution provides that when a person has received first higher pay scale on completion of 9 years, thereafter on completion of further 15 years, which comes to total 24 years of service, that person is entitled for second higher pay scale. According to the petitioners, as per the Government Resolution dated 2.7.2007, the petitioners are entitled for second higher pay scale upon completion of 15 years of service after the first higher pay scale was given to the petitioners. In spite of the aforesaid clear cut position in the Government Resolution, the petitioners are denied the second higher pay scale, and therefore, the petitioners have preferred this petition with the prayers, which are already referred to in the foregoing paragraph. 4. Mr. Thakkar, learned advocate for the petitioners, relied upon order dated 18.1.1993 whereby the petitioners were placed in Unarmed cadre of Police Constable from Armed cadre and submitted that as per the aforesaid order though the services of the petitioners were treated to be continuous and their pay was protected, what was not given to the petitioners was only the benefit of seniority as the petitioners were placed at the bottom of the seniority list of the concerned district and though the aforesaid order categorically provides that pay scale of the petitioners is protected by virtue of benefit of pay protection and continuous service, the respondent authorities have completely ignored the aforesaid order and treated the petitioners transfer from Armed to Unarmed cadre as change of cadre and without there being any justification denied the benefit of second higher pay scale to the petitioners, and therefore, the impugned order dated 4.8.2017 is required to be quashed and set aside and the respondent authorities are required to be directed to grant the benefit of second higher pay scale to the petitioners from the respective dates on which they have completed 15 years of service in their respective cadre after getting first higher pay scale on completion of 9 years. 4.1 Learned advocate for the petitioners by relying upon judgment of the Division Bench of this Court in the case of State of Gujarat vs. Mulchandbhai Lavjibhai Patel & Ors. reported in 2004 (1) GLR 536 and submitted that when the petitioners have rendered their services in a particular cadre in one district and are transferred to another district upon their request in the same cadre, in that case they will only lose their seniority and would be placed at the bottom of the seniority list, but for the propose of promotion and other benefits, the services rendered in the first district cannot be ignored. 4.2 Learned advocate for the petitioner further submitted that even if the petitioners have opted for their transfer from Armed cadre to Unarmed cadre, considering the language of the order dated 18.1.1993 as the services of the petitioners are treated to be continuous and benefit of pay protection is granted to the petitioners, the action of the respondent authority to deny the second higher pay scale on completion of 15 years in the cadre after getting first higher pay scale on completion of 9 years, is illegal and necessary directions are required to be issued to the respondent authorities to grant second higher pay scale to the petitioners from the date of their entitlement. 5. Mr. Desai, learned Assistant Government Pleader, vehemently opposed the petition and by relying upon the Government Resolution dated 2.7.2007, more particularly clause 9, submitted that even if the department remains the same, but once the cadre changes though the pay scale of both the cadres are same, the persons whose cadre changes would not be entitled to get the benefit of second higher pay scale. He further submitted that Police Constable (Armed) cadre and Unarmed cadre are two different cadres and though the pay scales are same, the benefit of second higher pay scale is not given to the petitioners in view of the language of condition No.9 of the Government Resolution dated 2.7.2007, and therefore, the petition is required to be dismissed. 6. I have heard learned advocates for the parties and perused the record of the case, including the judgment cited by learned advocate for the petitioners. 6. I have heard learned advocates for the parties and perused the record of the case, including the judgment cited by learned advocate for the petitioners. It is an undisputed fact that all the petitioners were placed in Unarmed Cadre upon their own request from the Armed Cadre in the year 1993 and they have been given the benefit of first higher pay scale on completion of 9 years of service. It is also undisputed fact that while passing the order dated 18.1.1993 whereby the petitioners were placed in Unarmed cadre, they were given the benefits of pay protection and continuity of service, and therefore, the case of the petitioners is required to be considered on the basis of the aforesaid undisputed facts. Now what is required to be seen is whether the petitioners are entitled to get the benefit of Government Resolution dated 2.7.2007 or not. Before Government Resolution dated 2.7.2007 is examined what is required to be considered is the view taken by the Division Bench of this Court in the case of Mulchandbhai Lavjibhai Patel & Ors. (supra). While deciding the aforesaid appeal, the Division Bench of this court in first paragraph while determining the question for consideration, observed as under : “…...The sole question, which has emerged for our consideration and adjudication in this Letters Patent Appeal under Clause 15 of the Letters Patent is, as to whether the requisite period of service in the same Grade / Scale for the purpose of earning benefit of Higher Grade / Scale is to be considered in the same district or the period of service in more than one district in the same cadre in the same scale is to be counted and clubbed in terms of the provisions of para 3 (2) of the Resolution of the Government dated 16-08-1994, to which our unambiguous and explicit answer is that the requisite period to be counted is not only of particular district in the same cadre and scale, but also the period spent in a district on transfer and even at the request of the employee.” 6.1 The Division Bench of this Court, in paragraphs 7 and 8 of the above decision observed as under : “7. It is found from the record that para-3 in the State Government Resolution is the outcome of several representations of the employees and anomalous situational realities in pay and perks of the Government employees and the recommendations made by the Finance Minister. The main design and desideratum of the provision incorporated in para 3 relatable to the ground for the benefit of Higher Grade Scale on completion of requisite period of 9, 18 and 27 years in the same cadre, has been, to see that the employee, who has not been able to earn a promotion for requisite period, does not become a victim of frustration and, also, to see that some incentive is enthused to one who has not been able to earn the promotion more than once in the same grade and cadre and is stuck up. Such provision appears to be to encourage the efficiency in the administration and discourage the frustration. 8. The interpretation of the appellant-authorities that the employees shall not have entitlement even on completion of the requisite period of 9 years, 18 years or 27 years, (which is later on revised) as the case may be, unless the employee has completed continuously the period of 9 years in the same cadre in the same district, is neither legal nor logical. It is, also, not compatible with the object of the said Resolution of the Government. It is not the place where the employee has served that counts. It is the total period, that may be in more than one districts even on his request transfer, that has to be taken into consideration. In our opinion, therefore, the employees are entitled to the benefit of Higher Grade Scale on completion of the requisite period of 9 years at the first stage, even by clubbing the period in the same grade, not seniority in the same district, even in case of transfer on request.” 6.2 Now, considering the fact that the Government Resolution dated 2.7.2007 is required to be interpreted or considered by keeping in mind the aforesaid observations. 6.3 A perusal of Government Resolution dated 2.7.2007, more particularly condition No.4, provides that before the date of Government Resolution if any Government employee has completed 9 years service, then he would be entitled to the benefit of higher pay scale as per the Government Resolution dated 16.8.1994. 6.3 A perusal of Government Resolution dated 2.7.2007, more particularly condition No.4, provides that before the date of Government Resolution if any Government employee has completed 9 years service, then he would be entitled to the benefit of higher pay scale as per the Government Resolution dated 16.8.1994. Condition No.4 further provides that a person who has received the first higher pay scale on completion of 9 years as per the Government Resolution dated 16.8.1994 would be given second higher pay scale on completion of 15 years after receipt of first higher pay scale on completion of 9 years service, meaning thereby on completion of 24 years of service. 6.4 Now, considering the fact that the the Division Bench also considered the issue related to Government Resolution dated 16.8.1994, the aforesaid Government Resolution can be said to be in continuation of the aforesaid Government Resolution. However, Government Resolution dated 16.8.1994 prescribes the higher pay scale benefits in respect of the scheme of three higher pay scales on completion of 9-18-27 years of service, which was subsequently discontinued and instead of that vide Government Resolution dated 2.7.2017 the same was replaced by two higher pay scales on completion of 12-24 years of service. 6.5 What has been submitted by the learned Assistant Government Pleader was that even if the pay scale is same when the cadre changes, earlier services rendered by the employee is not required to be counted while granting the benefit of second higher pay scale. The aforesaid submission cannot be accepted in view of the fact that the order dated 18.1.1993 as well as condition No.4(a) and 4(b) of the very Government Resolution dated 2.7.2007, cannot be ignored or overlooked. The order dated 18.1.1993 itself prescribes that the petitioners are granted benefits of pay protection as well as continuity of service and only disadvantageous position which the petitioners have accepted with open eyes was the fact that they were placed at the bottom of seniority, except that all the other benefits receivable by the petitioners were protected by virtue of order dated 18.1.1993. 6.6 Similarly, even Government Resolution dated 2.7.2007, more particularly condition No.4(a) and 4(b), prescribe that a person, who has received benefit under 9-18-27 years higher pay scale scheme and who has once availed the benefit on completion of 9 years is entitled to get the second higher pay scale on completion of 15 further years, in all after completion of 24 years of service. Once, the language of the order dated 18.1.1993 is very clear and Government Resolution dated 2.7.2007 itself clearly provides that a persons on completion of 15 years of service after getting benefit first higher scale on completion of 9 years service is entitled to second higher pay scale, the stand taken by the Government cannot be accepted. 6.7 Further, the observations of the Division Bench which are relied upon by Mr. Thakkar, learned advocate for the petitioner makes it abundantly clear that merely because the petitioners have been transferred from one cadre to another cadre on his own volition all that he has given up is only the seniority and no other benefits, and therefore, the case of the petitioners is required to be considered for the benefit of second higher pay scale. 6.8 Accordingly, in view of the above discussion, the respondents are directed to pay the benefit of second higher pay scale to tall the petitioners upon completion of their 15 years service after getting first higher pay scale on completion of 9 years of service. Such benefits are required to be calculated and given to the petitioners within a period of 12 weeks from today any period beyond 12 weeks in granting the above benefit shall incur interest @6% p.a. 7. With the aforesaid observations and directions, this petition is allowed. Rule is made absolute to the aforesaid extent only. However, there shall be no order as to costs.