Gujarat High Court
M D Parmar Junior Clerk vs Pay And Accounts Officers & 2 on 26 February, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/18952/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18952 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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M D PARMAR JUNIOR CLERK....Petitioner(s)
Versus
PAY AND ACCOUNTS OFFICERS & 2....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
Mr. Ronak Raval, AGP for the Respondent State Authority.
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 26-/02/2014
CAV JUDGMENT
Page 1 of 13
C/SCA/18952/2011 CAV JUDGMENT
1. The question falls for consideration of this Court is, whether an employee, who has got benefit of first higher grade pay scale on completion of nine years of service is after his promotion, again entitled to the benefit of first higher grade pay scale on completion of nine years of service in higher cadre (promotional) post?
2. The case of the petitioner is that he was appointed as peon in Class IV Cadre in the office of the Gujarat Secondary Education Tribunal ["the Tribunal" for short] on 2.4.1975 and on completion of nine years of service in the said cadre, he was granted first higher grade pay scale of Rs.775-1025 with effect from 1.6.1987 in accordance with Government Resolution dated 16.8.1994. He was then promoted as Junior Clerk in Class III Cadre on 11.4.1991 and was placed in the pay scale of Rs.950-1500 which was then revised to Rs.3050-4590. It is the case of the petitioner that in the higher cadre of Junior Clerk, he completed nine years of service on 10.4.2000 and thus, became entitled to the first higher grade pay scale of Rs.5000-6000. The Tribunal sanctioned such first higher grade pay scale to him with effect from 11.4.2000. The Pay and Accounts Officer - the respondent No. 1 raised objection that once the first higher grade pay scale was granted to the petitioner, unless the petitioner reached to maximum of higher Page 2 of 13 C/SCA/18952/2011 CAV JUDGMENT pay scale, his case could not be considered. It is the further case of the petitioner that since the first higher grade pay scale was given to him with effect from 1.6.1987 when he was in Class IV Cadre, after his promotion to the post of Junior Clerk in Class III Cadre, he would become entitled to first higher grade pay scale and second higher grade pay scale on completion of nine years and eighteen years of service as per the Government Resolution dated 16.8.1994 in the cadre of Junior Clerk. Therefore, the respondent authorities were not justified in denying such benefits. The petitioner has averred that he had requested that if the petitioner cannot be made entitled to the benefit of first higher grade in the Class III Cadre on the ground that the petitioner was already granted first higher grade pay scale in the cadre of peon, the benefit of first higher grade pay scale given to him in the cadre of peon be withdrawn and the benefit of first higher grade in Class III Cadre of Junior Clerk in the pay scale of Rs.4000-6000 may be given to him. However, such request of the petitioner was declined by the respondents. The petitioner has given the instance of one Ratansinh Joravarsinh Rathod who was one of the staff member and who has been given the benefit of first higher grade pay scale even in the cadre of Junior Clerk.
3. The petition is opposed by affidavit in reply filed on Page 3 of 13 C/SCA/18952/2011 CAV JUDGMENT behalf of respondent no.1 stating that as per para 3 of the Government Resolution dated 16.8.1994, an employee is eligible to get benefit of first higher grade pay scale on completion of nine years of service in the cadre in which he is eligible to get promotion. After that, he could be considered for the benefit of second higher grade pay scale. It is further stated in the affidavit in reply that as per the Government Resolution,Finance Department dated 1.5.2002, an employee who has got first higher grade on completion of nine years of service in one cadre and thereafter appointed in new cadre by virtue of his selection under direct recruitment, then, such employee can be given the benefit of first higher grade pay scale in the new cadre provided forgoes the benefit of first higher grade pay scale received by him in the earlier cadre. It is further stated that the petitioner since promoted from the post of Peon and not appointed by direct recruitment to the post of Junior Clerk, the Govt. Resolution dated 1.5.2002 is not applicable to his case. It is lastly stated that the benefit of first higher grade pay scale is available to an employee once in his service tenure and thereafter, case of such an employee could be considered only for 2nd higher grade pay scale.
4. I have heard the learned advocates for the parties.
5. Learned advocate Mr. Pujara appearing for the petitioner Page 4 of 13 C/SCA/18952/2011 CAV JUDGMENT submitted that the stand taken by the respondent is on wrong interpretation of the Government Resolution dated 16.8.1994. Mr. Pujara submitted that as per Clause 3 of the Government Resolution dated 16.8.1994, an employee becomes entitled to first higher grade pay scale in every cadre on completion of nine years service from the date of his appointment in such cadre. Mr. Pujara submitted that since an employee gets into a new cadre on promotion, he becomes entitled to first higher grade pay scale benefit in respect of such new cadre. Mr. Pujara submitted that the only embargo is that the employee should not have received more than two promotions or more than two higher grade pay scales. Mr. Pujara submitted that the Government Resolution dated 16.8.1994 clearly provides that an employee who completes nine years of service as on 1st June, 1987 or thereafter in the concerned cadre shall be entitled to receive the first higher grade in such cadre. Mr. Pujara submitted that since on promotion, the cadre is changed, the employee would become entitled to the benefit of first higher grade pay scale in such cadre. Mr. Pujara submitted that there is no difference between the case of the promotee and the case of direct recruit who gets in to another cadre from his earlier cadre. In both the cases, there is change in the cadre and, therefore, if the direct recruit on the change Page 5 of 13 C/SCA/18952/2011 CAV JUDGMENT of cadre is entitled for first higher grade pay scale benefit on completion of nine years, promotees also can be said to be entitled for such benefit of first higher grade pay scale benefit. Mr. Pujara submitted that the petitioner has, therefore, offered in the petition itself that his case may also be considered for giving him first higher grade pay scale benefit in promotional post by withdrawing first higher grade pay scale granted to him for his lower cadre. Mr. Pujara thus urged to allow the petition and grant the relief prayed for in the petition.
6. Learned A.G.P. Mr. Raval appearing for the respondents submitted that the benefit of first higher grade pay scale is available to every employee only once during his service tenure. Mr. Raval submitted that the purpose for which the Government was required to replace and substitute earlier higher grade scheme of 1991 was to see that those employees who have no chances of promotion or limited chances of promotion, may not be stagnated at the maximum level in their pay scale. However, by experience, the Government noticed that the employees who got regular promotions and not stagnated at the maximum level of their pay scale, they were still getting benefits of first and second higher grade pay scale which was not the intention of the Government. Mr. Raval submitted that the Government therefore ab-initio amended Page 6 of 13 C/SCA/18952/2011 CAV JUDGMENT earlier scheme of higher grade pay scale dated 16 th July, 1991 and replaced it by the Government Resolution dated 16.8.1994 according to which the employees will now be entitled to benefit of first higher grade only once on completion of nine years as on 1st June, 1987 or thereafter in any cadre where he is serving and will become entitled to 2 nd and 3rd higher grade pay scale after he completes 18 and 27 years of service or reaches to maximum level in higher grade pay scale or in the pay scale of promotional post and complete one year thereafter and remains stagnated, whichever is later. Mr. Raval submitted that there is clear provision in the Government Resolution that if the employee gets first higher grade scale and promotion, he shall be treated to have received only first higher grade pay scale or promotion. Mr. Ravl submitted that since the scheme provides for only first higher grade pay scale on completion of more than nine years i.e. 18 years or 27 years of service in the concerned cadre, the Government clearly intended that the benefit of 2nd and 3rd higher grade pay scale is to be considered in changed cadre if the employee complies with the other conditions of the scheme. Mr. Raval submitted that since the petitioner has not complied with the conditions of the scheme, the petitioner is not entitled to the benefit of first, or second higher grade pay scale for the Page 7 of 13 C/SCA/18952/2011 CAV JUDGMENT promotional post and, therefore, on correct interpretation of Government Resolution dated 16.8.1994 and 1.5.2002, respondents have committed no error in rejecting the claim of petitioner. Mr. Raval thus urged to dismiss the petition.
7. Having heard the learned advocates for the parties and having considered the facts of the case with the Government Resolution dated 16.8.1994, it appears that after the petitioner got benefit of first higher grade pay scale on completion of nine years in Class IV Cadre, he came to be promoted to the post of Junior Clerk vide order dated 1.4.91 in the pay scale of Rs.950-1500. It further appears that on completion of nine years of service on the post of Junior Clerk, the Tribunal made office order dated 15.5.2000 sanctioning first higher grade pay scale of Rs.4000-6000.00. However, respondent No.1 drew attention of the Registrar of the Tribunal that since the petitioner did not comply with condition No.3 of the Government Resolution dated 16.8.1994, he was not entitled to first higher grade pay scale in the cadre of Junior Clerk. The Registrar of the Tribunal then wrote letter dated 18.5.2001 pointing out that the objection raised by respondent No.1 was not in consonance with the Government Resolution and requested to sanction the first higher grade pay scale to the petitioner. However, the respondent No.1 asked the Registrar Page 8 of 13 C/SCA/18952/2011 CAV JUDGMENT of Tribunal to take action for grant of benefit of higher grade pay scale to the petitioner only as per the conditions of the Government Resolution dated 16.8.1994. Thereafter also, communications between two authorities continued. It appears that the Government through its Education Department then addressed communication dated 4th June, 2005 to the Registrar, Tribunal pointing out that the petitioner was not entitled to benefit of first higher grade pay scale in the cadre of Junior Clerk and asked him to cancel the order made in favour of the petitioner. The Registrar , Tribunal then requested to reconsider the matter but the Government informed the Registrar that no change in its earlier order was called for. The petitioner was then informed by the Registrar that the Government had not approved the order made by the Tribunal for the grant of first higher grade pay scale in the cadre of Junior Clerk.
8. As could be seen from the scheme of the Government Resolution dated 16.8.1994, the Government brought this scheme in replacement of earlier scheme. Reasons for substitution of earlier scheme are stated in the G.R. dated 16.8.1994. It is stated in the resolution that there was heavy financial burden on the exchequer of the State Government on account of operating the scheme dated 5th July, 1991 and those Page 9 of 13 C/SCA/18952/2011 CAV JUDGMENT employees who were getting regular promotion and not stagnated were getting the benefit of higher grade pay scale. Such was not its intention while introducing earlier scheme for higher grade pay scale. The intention was that those employees who had no chances of promotion and who remained stagnant at the maximum level in the concerned pay scale could be given benefit of first higher grade pay scale on completion of nine or more years of service as on 1 st July, 1987 and subject to satisfying other conditions.
9. Clause 3 of the Resolution dated 16.8.1994 provides that those employees who have completed nine years of service as on 1st June 1987 or thereafter in the concerned cadre and pay scale shall be entitled to receive the first higher grade pay scale. It is further provided that even if an employee has completed more than nine years of service as on 1.6.1987, such employee shall remain entitled only to first higher grade pay scale. The benefit of second and third higher grade pay scale are to be given only to those employees who either completes 18 years and 27 years of service after 1 st June, 1987 in their cadre or after one year of their reaching the maximum level in higher pay scale or in the pay scale of promotional post and remains stagnant whichever is later. Such benefit of 2 nd and 3rd higher grade pay scale are available to the employee Page 10 of 13 C/SCA/18952/2011 CAV JUDGMENT only when he has not received two promotion or two higher grade benefits. It is further clarified that an employee getting promotion after getting benefit of higher grade scale shall be treated and considered as having received one higher grade scale and promotion.
10. From the above provisions made in the Government Resolution dated 16.8.1994, it appears that the Government clearly intended to confer benefit of only 1 st higher grade pay scale to an employee on his completing nine years of service or more including 18 years and 27 years as on 1 st June, 1987 whereas second and third higher grade pay scale are intended to be given either on completion of 18 years and 27 years of service after 1.6.1987 in the pay scale of concerned cadre or after one year of his reaching to the maximum of higher pay scale or the pay scale of promotional post and stagnated whichever is later. Therefore, if an employee has got benefit of 1st higher grade pay scale on completion of nine years of service as on 1st June, 1987, case of such employee would be considered only for 2nd and 3rd higher grade pay scale on his completing 18 and 27 years of service after 1 st June, 1987 in the pay scale of concerned cadre or after one year of his reaching to the maximum level of higher pay scale whichever is later. Thus, an employee who has got first higher grade pay Page 11 of 13 C/SCA/18952/2011 CAV JUDGMENT scale on completion of nine years or more years service on 1 st June, 1987 are to be conferred benefit of 2 nd and 3rd higher grade pay scale only in which ever cadre he is if he is complying with the conditions for such 2 nd and 3rd higher grade pay scale. Therefore, the employee completing nine years service on his promotional post does not become entitled to first higher grade scale but could be conferred benefit of 2 nd and 3rd higher grade pay scale only if he is complying with the conditions for such benefits.
11. In view of the above construction and interpretation of the scheme, I find no error in the decision taken by the respondents in denying benefit of 1st higher grade pay scale to the petitioner in the cadre of junior clerk.
12. The petitioner has however made alternative claim for benefit of first higher grade scale on promotional post by withdrawing such benefit for the post of peon. Such claim is denied by the respondents in para 7 of the affidavit in reply stating that such claim could be considered only of an employee while serving in particular cadre gets into a new cadre by virtue of selection as direct recruit and it is not available to a promotee under the Resolution of the Finance Department dated 1.5.2002. Since the above said Government Resolution is only for the direct recruits, the petitioner cannot Page 12 of 13 C/SCA/18952/2011 CAV JUDGMENT be made entitled to benefit of first higher grade pay scale in the cadre of junior clerk by permitting him to forgo the benefit of first higher grade pay scale received by him in the earlier cadre of class IV employee. The petitioner thus cannot be made entitled to any relief.
13. For the reasons stated above, the petition is dismissed. Rule is discharged.
(C.L.SONI, J.) anvyas Page 13 of 13