Gujarat High Court
Gitaben Narottamdas Solanki vs State Of Gujarat & 2 on 17 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14320/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14320 of 2014
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GITABEN NAROTTAMDAS SOLANKI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DP JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, serving as a Training Officer (Female), Class-II, has prayed for the following reliefs :
"(A) This Honourable Court be pleased to admit and allow this petition.
(B) This Honourable Court be pleased to issue appropriate writ, order or direction including the writ in the nature of mandamus and present petitioner be held entitled for all promotional avenues after the post of Training Officer (Female, Class-II) and respondent authorities be directed to promote present petitioner for the next promotional post after the last promotion dated 28.9.1988 from the post of Training Officer (Female, Class-II).
(C) This Honourable Court be pleased to issue Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Mar 20 02:20:59 IST 2016 C/SCA/14320/2014 ORDER appropriate writ, order or direction and present petitioner be awarded benefit of higher pay-scale as per the Policy of Government which is applicable in the case of present petitioner as per Annexure-H to the petition.
(D) During the pendency, hearing and/or final disposal of this petition this Honourable Court be pleased to direct the respondent authority to promote present petitioner at the next promotional post after the post of Training Officer (Female, Class-II).
(E) This Honourable Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and circumstances of the case."
The facts of this case may be summarised as under :
The petitioner was appointed as the Supervisor (Female), Class-III at the Farmer Training Centre, Khedbrahma, District Sabarkantha. She came to be promoted on 28th September 1988 as Class-II officer and was appointed as the Training Officer (Female) in the office of the Deputy Director of Agriculture (Training) at the Farmer Training Centre, Dahod, District Panchmahals.
The petitioner was appointed as the Training Officer in the pay-scale of Rs.2200-4000. The Agriculture, Forest and Cooperation department framed rules dated 6th January 1975 for the post of Training Officer (Female) in the Gujarat Agriculture Service, Class-II. The Government, by resolution dated 27th May 1980, fixed the pay-scales for different posts falling under the Director of Agriculture.
It appears that the post of the Training Officer is now Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Mar 20 02:20:59 IST 2016 C/SCA/14320/2014 ORDER known as the "Assistant Director of Agriculture (Training - Female)". The grievance of the petitioner is that she has got stagnated in one post since couple of years. There are no promotional avenues. According to the learned counsel appearing for the petitioner, if there are no promotional avenues, then atleast there should be some provision for the higher grade scale.
The State Government has filed a short reply, inter alia, stating as under :
"5. The petitioner is promoted as Training Officer (Female) vide Government Resolution dated 28th September 1988. So far as feeder cadre of the "Deputy Director" is concerned, rules have not been changed after 28.09.1988. The petitioner cannot be governed according to the pre-dated rules.
6. I respectfully say and submit that the Government Resolution dated 10.06.1959 submitted by the petitioner is not related to the Training officer (Female).
I further say and submit that so far as higher pay scale is concerned, the first higher pay scale is given to an employee who fulfills the conditions of the Government Resolution of Finance Department dated 16.08.1994 or
02.07.2007 whichever is concerned. The copy of Government Resolution dated 16.08.1994 and 02.07.2007 is annexed herewith and marked as ANNEXURE R-III. In this case petitioner is promoted to the higher post (Training officer, Female) before she became entitled for first higher pay scale. Thus, she has availed the benefit of promotion before she became entitled for first higher pay scale. Therefore, she cannot be given the double benefit. Moreover, according to the Government Resolution, Finance Department dated 02.07.2007, Second Higher Pay Scale cannot be sanctioned to the posts having last stage of pay or pay scale of Rs.10,500 (ROP 1998). The pay scale of the petitioner is 8000- 13500 (ROP 1998). Therefore, the petitioner cannot be Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Mar 20 02:20:59 IST 2016 C/SCA/14320/2014 ORDER sanctioned the higher pay scale. However, this is to draw an attention to the fact that the first promotional pay scale/higher pay scale of Training Officer (Female) is greater than other pay scales of the first promotion/higher pay scales of other posts. A copy of the statement is annexed herewith and marked as ANNEXURE R-IV. Thus, though the higher pay scale/promotion to the training officer (female) and demonstrators are not given, they get greater pay scale at the first stage. Therefore, the demand of the petitioner for the higher pay scale cannot be considered."
Mr.Sharma, the learned AGP appearing for the State, submitted that although the petitioner may not be in a position to seek promotion in accordance with the rules, yet she can always participate in a direct selection process in accordance with law.
In the affidavit-in-rejoinder, the petitioner has, inter alia, stated as under :
"5. It is admitted fact that the present petitioner is governed by the Recruitment Rules of Training Officer Female. It is also admitted fact that there are no promotional post after the post of Training Officer Female. It is also admitted in the reply affidavit filed by Shri Kanubhai Bariya, Assistant Administrative Officer of Director of Agriculture that Training Officer Female is not feeder cadre of Dy. Director and, therefore, present petitioner cannot be promoted. Hence it is a clear case of gender bias. There cannot be a feeder cadre for the post of "Training Officer Female" for promotional post of Dy. Director of Agriculture. Not prescribing the criteria for the post of Training Officer Female at the promotional post of Dy. Director of Agriculture itself is illegality. The same action is unconstitutional. The same action being violative of Articles 14, 16 and 21 of the Constitution of India. The present petitioner humbly submits that present petitioner be given all consequential benefits which are arising out of promotional post of Dy.Director of Agriculture.Page 4 of 6
HC-NIC Page 4 of 6 Created On Sun Mar 20 02:20:59 IST 2016 C/SCA/14320/2014 ORDER
6. It is humbly submitted that present petitioner has nowhere claimed that as there are no promotional avenues the present petitioners be granted higher pay- scale. It is humbly submitted that present petitioner is even otherwise eligible for the benefit of higher pay- scale. The policy of Government which is applicable to all employees is also applicable to present petitioner. The present petitioner has not reached at the stage of stagnation. The present petitioner is in the pay-scale of Rs.8,000-13,500 and has not reached the stage of pay i.e. Rs.10,500 (ROP 1998). Therefore, the earlier affidavit- in-reply being vague, illegal and unjust and hence requires to be rejected in limine.
7. The reply affidavit does not answer para-wise averments made in the petition.
8. It is humbly submitted that there can never be an employment without any promotion. The present petitioner was first promoted in the year 1998 as admitted in the reply affidavit i.e. on 16.10.1988 and till date working at the same post which is contrary to the basic principles of service jurisprudence and hence Honourable Court may grant the relief as prayed for in the petition.
9. It is humbly submitted that present petitioner relies on the Resolution dated 1.3.1988. The same resolution pertains to the guidelines which are required to be taken into consideration at the time of framing the Recruitment Rules. The deponent craves leave to annex copy of Resolution dated 1.3.1988, it is annexed hereto and marked as ANNEXURE-I to this rejoinder.
It is humbly submitted that Item No.4 it is specifically mentioned with regard to promotional avenues that no cadre be excluded at the time of framing the rules for the promotional post. Here in the present case the post of Training Officer Female has no promotional avenues till retirement and present petitioner is working since 1988. It is even otherwise contrary to Articles 14, 16 and 21 of the Constitution of India and hence there is clear Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Mar 20 02:20:59 IST 2016 C/SCA/14320/2014 ORDER admission on the part of the respondent authority and, therefore, present petitioner's petition may please be allowed and the prayers made in the petition may please be granted in favour of the present petitioner."
I expect the State Government to immediately look into this issue as it assumes importance. I am at one with Mr.Joshi, the learned counsel appearing for the petitioner that there cannot be a feeder cadre for the post of "Training Officer (Female)" for the promotional post of Deputy Director of Agriculture. No criteria has been prescribed for the post of Training Officer (Female) at the promotional post of Deputy Director of Agriculture. It seems that nobody has drawn the attention of the State Government so far in this regard.
In such circumstances referred to above, the respondent no.2 - Secretary, Agriculture and Cooperation Department, is directed to look into this issue at the earliest, and take an appropriate decision in that regard within a period of three months from the date of the receipt of the writ of the order.
If any committee is to be constituted for this purpose, the same may be constituted at the earliest.
With the above, this writ-application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Mar 20 02:20:59 IST 2016