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2024 DIGILAW 1589 (GUJ)

Sunil Kumar Chimanlal Vania v. State Of Gujarat

2024-07-19

VAIBHAVI D.NANAVATI

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ORDER : Vaibhavi D. Nanavati, J. 1. Issue RULE, returnable forthwith. Ms. Suman Motla, learned Assistant Government Pleader waives service of Rule for and on behalf of the respondents – State. 2. Heard Mr. Sahil M. Shah, learned advocate for Mr. Rushabh R. Shah, learned advocate appearing for the petitioners and Ms. Suman Motla, learned Assistant Government Pleader appearing for the respondents- State. 3. By way of the present petition, petitioners herein have prayed for issuance of directions to the concerned respondents to revise the entry level pay of the petitioners by stepping up of the pay, so as to make the same to the entry level pay of the direct recruits. 4.1. Briefly stated that petitioners were working as Deputy Mamlatdars in the establishment of State of Gujarat at Vadodara. It is the case of the petitioners that the entry level pay of the direct recruits as well as of the Promotees to the post of Deputy Mamlatdar was the same, i.e. Rs.9300/- with the grade pay of Rs.4400/- as per the Notification dated 27.02.2009 r/w. Government Resolution dated 14.10.2010. 4.2. It is the case of the petitioners that, subsequently, by government resolution dated 14.09.2011, the entry level pay of the direct recruits, in the grade pay of Rs.4400/- was revised to Rs.10,810/-. At the same time, the entry level pay of the promotees remained at Rs.9300/-. Accordingly, there is an apparent anomaly created between the entry level pay of the employees, who were promoted to the post of Deputy Mamlatdars, as against, those who were directly recruited to the said post, without there being any reasonable classification for the same. 4.3. In light of the aforesaid, the petitioners herein are constrained to approach this Court seeking the following reliefs, which reads thus: “(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the Government Resolution No. PGR/ 102010/64/Pay Cell (M) dated 14.09.2011 issued by the Finance Department, Government of Gujarat to the extent that it is not applicable to the employees who have been appointed by way of promotion (at Annexure A); Or in the alternative (B) Your Lordships may be pleased to read down the Government Resolution dated 14/09/2011 as if it is providing for the entry level pay of Rs. 10810/- for the promotees such as the present petitioners with effect from the date of their entitlement, as has been provided for the fresh recruits appointed on or after 01/01/2006 and be further pleased to direct the respondents to act accordingly in so far as the petitioners are concerned; (C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondents to step up the entry level of pay of the Petitioners to Rs. 10,810/- in the pay band of Rs. 9300-34,800/- alongwith grade pay of Rs. 4400/- with effect from the date of promotion of the Petitioners to the post of Deputy Mamlatdars, in parity with the pay of the direct recruits in light of the Government resolution dated 14/09/2011; D) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondents to grant arrears of difference of salary payable to the petitioners on removal of the anomaly alongwith interest @ 18 % per annum thereon and may further be pleased to direct the respondents to pay the periodical rise and all consequential benefits with effect from their date of entitlement; (E) Pending admission, hearing and final disposal of this petition Your Lordships may be pleased to direct the Respondents to step up the pay of the Petitioners to Rs. 10,810/- in the pay band of Rs. 9300-34,800 /- alongwith grade pay of Rs. 4400/- with effect from the next month as if the anomaly between the pay of the petitioners and their juniors were removed with effect from their date of entitlement; (F) Pass such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted; 5.1. Mr. Sahil M. Shah, learned advocate for Mr. Rushabh R. Shah, learned advocate appearing for the petitioners reiterates the aforesaid facts and submitted that the government resolution dated 14.09.2011 has created anomaly between the entry level pay of the direct recruits and the petitioners herein being promotees to the post of Deputy Mamlatdar. The resultant effect being that the junior - direct recruits are paid higher salaries than the senior promotees. The resultant effect being that the junior - direct recruits are paid higher salaries than the senior promotees. In view thereof, the direct recruitment to the post of Deputy Mamlatdar, when carried-out, has resulted into the fact that the salaries of the direct recruits was higher than the petitioners, who were promoted to the said post of Deputy Mamlatdar. 5.2. Mr. Shah, learned advocate submits that the identical issue has been considered by this Court in Special Civil Application No. 12207 of 2014 and allied matters, vide order dated 19.10.2015, wherein, the prayers as prayed for, were identically placed persons, were allowed. 5.3. Mr. Shah, learned advocate further submits that, the respondent – State being aggrieved by the said order preferred Letters Patent Appeal No. 652 of 2016 and allied matters, wherein, by order dated 05.10.2016, the order dated 19.10.2015 passed in Special Civil Application No. 12207 of 2014 was modified. 6. Ms. Suman Motla, learned Assistant Government Pleader appearing for the respondent – State is not in a position to controvert the aforesaid contentions raised by Mr. Shah, learned advocate appearing for the petitioners. 7. At this stage, it is apposite to refer to the order dated 05.10.2016 passed by the Hon’ble Division Bench in Letters Patent Appeal No. 652 of 2016 allied matters, relevant Paras-8 and 9 reads thus: “8. We have considered the submissions canvassed on behalf of the learned advocates appearing for the parties. We have also gone through the material produced on record. In the present appeals, the question involved is whether the learned Single Judge is right in directing the appellants to step up the pay of the original petitioners by placing them at Rs.12,540/- or Rs.10,810/- as the case may be, in the pay scale of Rs.9300- 34800 (PB-2) with arrears from 1.1.2006 and with interest @9% p.a. from the date of their entitlement? 8.1 It has emerged from the record that the original petitioners are appointed prior to 1.1.2006 and were placed in the pay scale of Rs.6500-10500 in the 5th Pay Commission. However, because of the implementation of the recommendation of 6th Pay Commission and on framing of Rules of 2009 by the State Government, the petitioners’ pay has been fixed at Rs.12,090/- with effect from 1.1.2006 after applying the factor of 1.86 (6500/-x1.86 = Rs.12,090/-) as per Rule 7 (A)(i) of Rules of 2009. However, because of the implementation of the recommendation of 6th Pay Commission and on framing of Rules of 2009 by the State Government, the petitioners’ pay has been fixed at Rs.12,090/- with effect from 1.1.2006 after applying the factor of 1.86 (6500/-x1.86 = Rs.12,090/-) as per Rule 7 (A)(i) of Rules of 2009. However, for the fresh recruited Stenographer Grade I appointed on or after 1.1.2006, the appellants have revised their entry level pay in the revised pay structure at Rs.12,540/- in view of Government Resolution dated 14.9.2011. Thus, the pay of the juniors to the petitioners was fixed higher than the pay of the petitioners. Rule 7 (A) of Rules of 2009 provides as under: “7. Fixation of initial pay in the revised pay structure: xxxxx (A) in case of all employees: (i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. Fixation of initial pay in the revised pay structure: xxxxx (A) in case of all employees: (i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. (ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale.” Clause (v) of 2.2.22 of the 6th Central Pay Commission Report reads as under: “2.2.22: Fixation of pay in the revised pay bands of existing employees as well as future recruits shall be done in the following manner: xxxxx (v) In case of promotion between identical posts in the same cadre, if a senior employee promoted to the higher post before 1.1.2006 draws less pay in the revised scale from his/her junior who is promoted to the higher post on or after 1.1.2006, the pay of the senior employee shall be stepped up to an amount equal to the pay of the junior in that higher post, provided the senior employees, at the time of promotion, had been drawing equal or more pay than his/her junior.” Rules of 2009 provides for explanation of the Rules in the form of various notes, wherein Note 4 of Rules of 2009 reads as under: “Note 4: Where in the fixation of pay under sub-rule (1), the pay of a Government servant, who, in the existing scale was drawing immediately before the 1st day of January, 2006 more pay than another Government servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped upto the same stage in the revised pay band as that of the junior.” 8.2 From the aforesaid relevant provisions of the Rules as well as the report, it can be said that if the minimum of revised pay band/pay scale is more than the amount arrived at as per Sub-Rule(i) of Rule 7(A), the pay shall be fixed at the minimum of the revised pay band/pay scale. In the case of the petitioners, the minimum revised pay band/pay scale is more than the amount arrived at as per 7(A)(i) and therefore in view of Rule 7(A)(ii) of the Rules of 2009, their pay is required to be fixed at the minimum of the revised pay band/pay scale which, in the present case, comes to Rs.12,540/- and Rs.10,810/- respectively. Further, sub-clause (v) of Clause 2.2.22 of the Report as observed hereinabove provides for stepping up of the pay if the senior employee promoted to the higher post before 1.1.2006 draws less pay in the revised scale than his junior who is promoted to the higher post on or after 1.1.2006, the pay of the senior employees shall be stepped up to an amount equal to the pay of the junior in that higher post. 8.3 Similarly, Note 4 of Rules of 2009 as discussed hereinabove provides that the stepping up of pay of a government servant who in the existing scale was drawing immediately before 1.1.2006 more pay than his junior in the same cadre is promoted, that means if the pay of the senior employee in the very cadre gets fixed in the revised pay band at a stage lower than that of his junior, his pay has to be stepped up to the same stage in the revised pay band as that of his juniors. Thus, in the present case, the petitioners who were appointed prior to 1.1.2006 and their juniors who were appointed on or after 1.1.2006, the pay band of juniors to the petitioners was fixed higher than that of the petitioners and therefore there is apparent anomaly in the salary being paid to the petitioners as against their juniors. 8.4 Learned Single Judge has considered the aforesaid aspects and after relying upon the decision rendered by this Court on 28.11.2011 in the case of Maganbhai Arjanbhai Vegda etc. V/s State of Gujarat and others in Special Civil Application No.12541 of 2011 and allied matters which was confirmed by the Hon’ble Division Bench vide order dated 8.1.2013 passed in Letters Patent Appeal No.1349 of 2012, given the direction to the appellants to step up the pay of the petitioners by placing them at Rs.12,540/- or Rs.10,810/-, as the case may be, in pay band of Rs.9300- 34800 (PB-2). We have gone through the reasoning given by the learned Single Judge while giving the aforesaid direction and we see no reason to interfere with the same. 8.5 However, learned AAG is right in submitting that by way of Government Resolution dated 14.9.2011, the employees appointed as fresh recruits on or after 1.1.2006 to a particular post getting a grade pay stated in the table provided in the said Government Resolution, their entry level pay was fixed in a particular band. However, by way of the said Government Resolution, the said pay from 1.1.2006 to 31.3.2010 and the difference of pay and allowances payable thereon was considered as notional at par with other government employees covered under Government Resolution dated 6.4.2010 and 14.10.2010 and therefore difference was not actually paid to such employees. It is further clarified in the said Government Resolution that the revised entry pay and allowances thereon shall be paid in cash from 1.4.2010. For ready reference, the relevant provision of the said Government Resolution reads as under: RESOLUTION The State Government has decided to revise the entry level pay, payable under Rule-8 of The Gujarat Civil Service (Revision of Pay) Rules, 2009, in the revised pay structure for direct recruits as shown below: PB-2 (9300-34800) Grade Pay Pay in the Pay Band Total 4400 10810 15210 4600 12540 17140 Employees appointed as fresh recruits on or after 1st day of January, 2006 to a particular post carrying above mentioned grade pays, their entry level pay shall be as shown above. These orders shall take effect from 01.01.2006. The pay from 01.01.2006 to 31.3.2010 and the difference of pay and allowances payable thereon shall be notional at par with the other government employees covered under Finance Department, Government Resolutions dated 6.4.2010 and 14.10.2010, and hence not payable. Further revised entry pay and allowance thereon shall be paid in cash from 01.04.2010. Subsequent amendment in the Gujarat Civil Service (Revision of Pay) Rules, 2009 shall be made hereafter.” Thus, in view of the above, we are of the considered view that learned Single Judge has committed an error by giving direction to the appellants to pay arrears from 1.1.2006. Similarly, learned AAG is right in submitting that the question involved in the petition was with regard to the interpretation of the Rules of 2009 and with regard to the 6th Central Pay Commission Report. Similarly, learned AAG is right in submitting that the question involved in the petition was with regard to the interpretation of the Rules of 2009 and with regard to the 6th Central Pay Commission Report. Hence, the direction given by the learned Single Judge to pay the interest @9% is also required to be set aside. 9. In view of the above discussion, these appeals are partly allowed by modifying the impugned judgment in the following terms: (1) The appellants-original respondent authorities are hereby directed to step up the pay of the petitioners of Special Civil Application No.12207 of 2014 by placing them at Rs.12,540/- in the pay band of Rs.9300-34800 (PB2) from 1.4.2010 with arrears and to pay periodical rise and with other consequential benefits as per Government Resolution dated 14.9.2011. (2) The appellants-original respondent authorities are hereby directed to step up the pay of the petitioners of Special Civil Application No.18619 of 2014, 2965 of 2015 and 4716 of 2015 by placing them at Rs.10,810/- in the pay band of Rs.9300-34800 (PB-2) from 1.4.2010 with arrears and to pay periodical rise and with other consequential benefits as per Government Resolution dated 14.9.2011. (3) The pay of the petitioners in the respective pay scales be calculated and accordingly they be paid such amounts on regular basis. (4) The said exercise of calculation of pay of the petitioners and payment of arrears shall be completed within a period of two months from the date of receipt of this order. (5) The original petitioners are not entitled to get the interest @9% p.a. from the date of their entitlement. The impugned order of the learned Single Judge qua grant of interest is set aside. Rule is made absolute to the aforesaid extent.” 8. Having heard the learned advocates appearing for the respective parties and in light of the aforesaid undisputed facts and the position of law as referred above, the prayers as prayed for by the present petitioners require consideration. Hence, the following directions are passed: (i) The respondent authorities are hereby directed to step up the pay of the petitioners by placing the petitioners at Rs.10810/- in the pay band of Rs.9300-34800 (PB-2) having grade pay of Rs.4400/- w.e.f. the respective dates of promotion of the respective petitioners. Hence, the following directions are passed: (i) The respondent authorities are hereby directed to step up the pay of the petitioners by placing the petitioners at Rs.10810/- in the pay band of Rs.9300-34800 (PB-2) having grade pay of Rs.4400/- w.e.f. the respective dates of promotion of the respective petitioners. (ii) The petitioners herein shall be entitled for the arrears and other consequential benefits, w.e.f. the respective dates of promotions, in accordance with the government resolution dated 14.09.2011. (iii) The aforesaid exercise shall be completed by the respondents within a period of four (04) weeks from the date of the receipt of this order. 8. With the above observations and directions, the present Petition stands ALLOWED. Direct service is permitted.