Gujarat High Court
Kanubhai Ravjibhai Padhiyar vs State Of Gujarat on 26 August, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8465/2022 ORDER DATED: 26/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8465 of 2022
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KANUBHAI RAVJIBHAI PADHIYAR
Versus
STATE OF GUJARAT
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Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 26/08/2022
ORAL ORDER
1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP waives service of notice of rule on behalf of respondent State.
2. The petitioner by way of this petition under Article 226 of the Constitution of India prays for a direction that the pay of the petitioner be put at par with his juniors who are appointed or or after 01.01.2006 and to place the petitioner at the stage of Rs.10810 in the pay band of Rs.9300-34800 (PB2) with effect from 01.01.2006.
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3. The petitioner was appointed as a Shikshan Sahayak on 02.08.2000 and placed on a fixed salary of Rs.4500 for a period of five years. As on August 2005, the petitioner was in the pay-scale of Rs.5500-9000. By the coming into force of the 6th Pay Commission, his pay-scale came to be revised and implemented with effect from 01.01.2006 and he was placed in the pay-scale of Rs.9300-34800 with the grade pay of Rs.4200. Thereafter, the State through the Finance Department came out with a resolution dated 14.09.2011 by which the entry level pay was revised with effect from 01.01.2006. As per the said government resolution, the basic pay was fixed at Rs.10810 with grade pay of Rs.4400 as a result of which employees junior to the petitioner got more basic pay than the petitioner.
4. Mr. R.D. Kinariwala, learned advocate appearing for the petitioner would by way of demonstration draw the court's attention to the pay fixation order of one Patel Page 2 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 Brijeshkumar Shantilal, an Assistant Teacher who was appointed in the year 2003 and post five years was placed in the regular pay scale in the year 2008. He was given the benefit of the government resolution dated 14.09.2011 inasmuch as he drew a basic pay of Rs.10810 whereas the petitioner's basic pay was Rs.10230 as on 01.01.2006. Mr. Kinariwala would submit that though the petitioner is senior to said Brijeshkumar Patel, he was getting less basic pay and less salary due to the anomaly.
4.1 Mr. Kinariwala, submitted that an identical issue came up for consideration before this court in Special Civil Application No. 12207 of 2014 and this court allowed the petition and directed the authority to step up the pay of the petitioners therein by placing them at the pay band with arrears from 01.01.2006 and to pay periodical rise and all consequential benefits.
5. Admittedly, when it is a matter of record that the petitioner was appointed much prior to the other Page 3 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 employee Shri Patel Brijeshkukmar, the essential ingredient of 'stepping up of pay' in favour of the petitioner who was otherwise drawing less pay in the basic of Rs.10230 would apply. Both the employees namely the petitioner and Shri Patel Brijeshkumar belong to the same cadre/post. Time scale of pay is too the same and said Brijeshkumar Patel is junior to the petitioner.
6. This court in Special Civil Application No. 12207 of 2014 and allied matters has considered the very issue and observed accordingly:
"20. Here in the present case also, the petitioners were appointed prior to January 01, 2006 and their juniors were appointed on or after January 01, 2006, however, the pay in pay band of the juniors of the petitioners was fixed higher than that of the present petitioners and, thus, there is apparent anomaly in the salary being paid to the petitioners as against their juniors.
21. So far as the issue in question is concerned, it depends upon the applicability of the principle of stepping up. Admittedly, the petitioners had been appointed earlier to the category of Private Secretary, Grade-I, and some of their juniors got their pay fixed at a higher level than the petitioners on Page 4 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 implementation of the Sixth Central Pay Commission in view of Rules, 2009. To remove the anomaly of a Government servant promoted or appointed to a higher post earlier drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to the higher post, the principle of stepping up of the pay is applied. In such cases the pay of the senior officer in the higher post is required to be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer. On refixation of the pay of the senior officer by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the refixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This being the principle of stepping up contained in the Fundamental Rules and admittedly the petitioners being seniors and having been appointed earlier than many of their juniors who were appointed later to the posts in question, the principle of stepping up should be made applicable to the petitioners with effect from the date their juniors in the same cadre get appointed and their pay was fixed at a Page 5 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 higher slab than that of the petitioners. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the same category would be removed and the pay of the seniors like the petitioners would be stepped up to a figure equal to the pay as fixed for their junior officers. In fact, such anomaly ought to have been removed at the end of the respondent- authority itself in view of the provisions of Rule 7(1)(A)(ii) as well as also taking into consideration Note 4 as enumerated in Rules, 2009. Hence, this Court is of the opinion that the impugned Government Resolution dated September 14, 2011, deserves to be read down insofar as it provides for the entry level pay of the employees appointed as fresh recruits on or after January 01, 2006 in the Pay-band 2 (Rs.9300-34800), having Grade Pay of Rs.4600/- at Rs.12540/- and having Grade Pay of Rs.4400/- at Rs.10810/-, without taking into consideration the fact that the senior appointed prior to January 01, 2006, in the same cadre like the petitioners are placed at the pay in pay band of Rs.12090/- and Rs.9300/- respectively and thereby, resulting into patent anomaly and discrimination. The question is answered accordingly.
22. Reference is also required to be made of the decision of this Court rendered on November 28, 2011 in the case of Maganbhai Arjanbhai Vegda, etc. v. State of Gujarat and others, while dealing with Special Civil Application No.12541 of 2011 to Special Civil Application No.12598 of 2011. It would Page 6 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 be profitable to reproduce the relevant observations and findings of the said decision, which read as under :
12. However, the Government Resolution dated 08.05.1970 of the Finance Department with regard to pay fixation and removal of anomaly was authorized by clause prescribed in the method of stepping up to be followed and conditions laid down therein may not be fulfilled. The conditions enumerated in para 3 of the said Government Resolution, read as under:
3. The method of stepping up' shall be employee subject to the following conditions, all of which must be satisfied:
[a] the Government Servants concerned should belonging to the same cadre and the posts in which they have been promoted should be identical and in the same cadre;
[b] The time-scale of the pay of the lower and higher posts in which they are entitled to draw pay should be identical.
[c] But for his promotion to post earliest the Government Servant concerned would have been eligible to draw pay in the lower post, at a stage not lower than that admissible to the Junior person Page 7 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 immediately prior to the latter's promotion to highest post;
[d] The anomaly is directly attributable to the provision of the Government Resolution, Finance Department No.Pay- 1264/463, dated the 5th January, 1965 The above conditions reveal that Government servants concerned should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre and time scale of the pay of the lower and higher posts in which they are entitled to draw pay should be identical.
13.The above two conditions viz. 3(a) and
(b) if read together with the purpose of issuing the said Government Resolution are to remove heartburning and dissatisfaction amongst senior employees, who are receiving lower pay scale than the juniors or at least in the same pay scale as given to the juniors. The facts of the case would reveal that merger of two cadres was effected to remove anomalies pursuant to the directions given by the High Court in earlier round of litigation and Government Resolution of 10.10.2007 was issued. However, clause Nos.6 & 7 of the said Government Resolution instead of removing anomaly has complicated the pay band receivable by the petitioners discriminating them and the very purpose Page 8 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 of removing heart burning is frustrated. If the above Government Resolution is seen in the context of Revision of Pay Scale Rules, 1998 and subsequent revision of rules it transpires that clause 6 of Government Resolution dated 10.10.2007 is contrary to condition No.4 of the Government Resolution and also conditions Nos.3(13) of Government Resolution dated 16.08.1994. In case of Gurcharan Singh Grewal in paras 17 and 18 of the said judgment held as under:
17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2.
18. We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of Appellant 1 on a par with that of his Page 9 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 junior. We are clearly of the opinion that the reasoning of the High Court was erroneous and Appellant 1 was also entitled to the same benefit of pay parity with Shri Shori as has been granted to Appellant 2.
14. That similar was the case decided by the Division Bench of this Court when the Laboratory Assistants working under the Directorate of Higher Education, Directorate of Technical Education and non-government colleges affiliated to the Gujarat University were denied parity in the pay scale and wages. Relying on doctrine of equal pay for equal work, the Division Bench directed the State authorities to treat Lab Assistant of non-
grant Government colleges at par with Lab Assistants of Directorate of Higher Education working with Government Department. However, the case of the petitioners herein is on a better footing inasmuch as they are working under the same directorate and there is no dispute about merger of post and cadre on which they are now working and receiving less salary than their juniors. Such discrimination on the face of it is violative of Article 14 of the Constitution of India and respondents are duty-bound to give the pay scale of the petitioner at par with those employees who are junior to the petitioners working on the same cadre and post. Even seniority list relied and placed Page 10 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 on record by the petitioners is also not in dispute.
The aforesaid decision was also confirmed by the Division Bench of this Court vide order dated January 08, 2013 while dealing with Letters Patent Appeal No.1349 of 2012 preferred by the State of Gujarat. It would be beneficial to regurgitate the relevant observations and findings of the said decision, which read as under :
4. As such, it is not a matter where the parity in the pay-scale is to be considered between two separate and independent cadres which normally is to be considered and examined by the expert body. But in the present case, the question to be considered as considered by the learned Single Judge was for stepping up of the pay-scale on account of circumstance that the junior to the petitioner due to revision in the pay-scale has been granted higher pay-scale or junior to the petitioner has been found entitled for higher pay-scale, which should be granted to petitioner. Further, the entitlement of stepping up of the pay-
scale is within the same cadre and same post and not in different post of different cadre.
5.It is an admitted position that Shri.M.N.Chauhan is junior to the Page 11 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 petitioner. It is also an admitted position that he has been granted higher pay-scale of Foreman after revision from 1996 since he had completed 9 years of service after whereas in case of the petitioner they were granted higher pay-scale for the post of Supervisor Instructor on 02.03.1993 with effect from 01.06.1987.
6.It is also an admitted position that in the revision of pay-scale of 1996, the pay-scale for the post of Craft Instructor (which was lower post) and the post of Supervisor Instructor has been merged and one pay- scale is fixed i.e. 1400-2300. Under this circumstance, the only higher pay-scale, if any, employee is to receive would be to the post of Foreman if considered eligible and granted after 01.01.1996. It is not case of the appellant that Shri.M.N.Chauhan-junior to the petitioner has been wrongly granted higher pay- scale of Foreman from the post of Supervisor Instructor but the contentions are that since the benefit of higher pay- scale already granted prior 01.01.1996 is not to be reopened and it is to be deemed that the higher pay-scale is already granted to the petitioner prior to 01.01.1996 and second time higher pay- scale would not be available.
7.The contention may prima-facie appear to be attractive, but upon close scrutiny, it appears that it is not a matter of granting of higher pay-scale, but it is a matter of stepping up of the pay-scale on account of Page 12 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 circumstance that the junior is drawing higher pay-scale in comparison to the senior. As per the Government Resolution dated 10.10.2007, in the clause no.5, stepping up is made permissible.
Therefore, Clause No.5 would be applicable in the present case and not Clause No.6 as sought to be canvassed on behalf of the appellant, since, it is not for grant of higher pay-scale, but is of stepping up of pay-scale on account of circumstance that the juniors were drawing higher pay-scale in comparison to the seniors. The decision of the Apex Court upon which reliance has been placed by learned Government Pleader Mr.P.K.Jani is ill-founded inasmuch as in both the cases, the Apex Court was not considering the issue of stepping up of the pay-scale on account of juniors receiving higher pay-scale. Moreover, the entitlement of the junior for higher pay- scale is not under question or under challenge in the preset proceedings nor it is the stand of the State Government that the juniors were granted higher pay-scale wrongly. Therefore, we find that both the decisions are of no help of the appellant.
The Division Bench relying upon the decision of the Apex Court held as to how stepping up is a means for those sailing in the same cadre.
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23. On a conspectus of the legal and factual scenario discussed above, the following order is passed :
1.All the petitions are hereby allowed.
2.Insofar as the petitioners of Special Civil Application No.12207 of 2014 are concerned, the respondent-authority is directed to step up their pay by placing them at Rs.12,540/- in the Pay-band of Rs.9300-34800 (PB-2) as prayed for, with arrears from January 01, 2006 and to pay periodical rise and with all consequential benefits.
3.So far as the petitioners of Special Civil Application Nos.18619 of 2014, 2965 of 2015 and 4716 of 2015 are concerned, the respondent-authority is directed to step up the pay of the petitioners by placing them at Rs.10,810/- in the Pay-band of Rs.9300-
34800 (PB-2) as prayed for, with arrears from January 01, 2006 and to pay periodical rise and with all consequential benefits.
4.The pay of the petitioners in the respective pay-scales be calculated and accordingly, they be paid such amounts on regular basis. Such exercise of calculation of pay of the petitioners be completed within a period of three months from today.
Insofar as the amount of arrears is concerned, the petitioners be paid the same within a period of three months from the date of receipt of a copy of this order with interest at the rate of Page 14 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022 C/SCA/8465/2022 ORDER DATED: 26/08/2022 9% per annum from the date of their entitlement.
Rule is made absolute accordingly. There shall be, however, no order as to costs."
7. In view of the above, the petition also deserves to be allowed and is accordingly allowed. The respondents are directed to step up the pay of the petitioner at the stage of Rs.10810 in the pay band of Rs.9300-34800 with effect from 01.01.2006 and pay all consequential benefits in light of the revision of pay accordingly. The entire exercise to be completed within a period of 12 weeks from the date of receipt of the writ of the order of this court. Rule is made absolute. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 15 of 15 Downloaded on : Tue Aug 30 20:35:27 IST 2022