Gujarat High Court
R.J.Thakore & 4 vs State Of Gujarat & on 13 October, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9315/2004 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9315 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 or any order made thereunder ?
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R.J.THAKORE & 4....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR YH VYAS, ADVOCATE for the Petitioner(s) No. 1 - 5
MR. SWAPNESHWAR GAUTAM, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/10/2017
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT following reliefs;
"(A) The Honourable Court may kindly be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or direction holding and declaring that the action on the part of the respondent of not taking any decision on the representations of the petitioners dated 15.09.1999-
22.11.99-3.4.2001 and merits is arbitrary, illegal, contrary to law and in breach of public duty cast upon the respondents to adjudicate and decide fairly and justly the claim of the litigants as state authority /Model Employer.
(AA) The Hon'ble Court 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 extend the benefits of revision of pay of Rs.425-700 w.e.f. 1-1-1973 upto 31.12.1985 for the post of statistical Assistants and to pay all the arrears and other consequential benefits as a result of revision of pay in the pay scale of Rs.425-700.
(B) Pending admission, hearing and final disposal of the petition, the Honourable Court may kindly be pleased to pass the suitable an appropriate order direction directing the respondents to take an appropriate and suitable decision on the representation dated 15.9.1999- 22.9.1999 and 3-4-2001 and to communicate the same to the petitioners as per the directions given earlier by this Honourable Court vide an Order dated 28.7.1999- 25.6.2002 and 2nd May, 2003 within the stipulated time that may be fixed by the Court. The respondents may be directed to take a decision as above on merits.
(C ) The Honourable Court may be pleased to grant such other and further reliefs as may be deemed fit in the interest of justice."
2. It appears from the materials on record that this is a second round of litigation. The genesis of this litigation lies in the judgment and order passed by this Court dated 28 th July, 1999 passed in the Special Civil Application No.5345 of 1995 Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT and connected petition. By a common order, both the petitions, referred to above, were disposed of in the following terms;
" 1. Heard learned counsel for the parties.
2. In both these Special Civil Applications identical issues have been raised and the same are taken up together for hearing and are being disposed of by the common order.
3. In pursuance of the recommendations of the High Power Committee appointed by the Government, the Government vide its Resolution No.PGR-3097-75-M dated 20.11.1997 of the Finance Department has constituted pay anomaly committee to examine representations of pay anomaly and allied matters of the employees of the State Government.
4. Petitioners are originally appointed as Statistical Assistants on different dates in the Education Department, Government of Gujarat. Thereafter, some of them have been promoted to the next higher post. The pay-scale of Statistical Assistant came to be revised to Rs.425-700 as per the recommendations of the Desai Pay Commission w.e.f. 1.1.1973.
5. It is the grievance of the petitioner in these Special Civil Applications that the benefits of revised pay-scale were restricted only to the Statistical Assistants working in the Directorate of Economics and Statistics and Panchayat Department. The say of the petitioners are that they are similarly situated and are performing the same duties and they should have been given the benefit of this revised pay-scale also. That has not been done. Hence, these Special Civil Applications before this court.
6. The grievances of petitioners pertain to anomaly in the pay-scale which is given to them and what it has been given to the Statistical Assistants of Directorate of Economics and Statistics and Panchayat Department. Whether these two posts are identical and the persons holding them are similarly situated or performing the same duties etc. are primary facts, questions and Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT grounds which are to be considered and if it is found to be correct then only claim of the petitioners can be accepted. For this the committee constituted is the best authority to decide the same. The committee has already been constituted and it is working. Petitioners may take up these matters before this committee by filing representation.
7. These writ petitions in view of these facts are not appropriate remedy at this stage.
8. In the result, both the Special Civil Applications are dismissed. Rule discharged. Interim relief if any granted by this court stands vacated without any order to costs. However, petitioners are at liberty to file detail representation in respect of the grievances to the Committee constituted under the Government Resolution No.PGR-3097-75-M dated 20.11.1997 of the Finance Department. If such representation is filed the Committee may consider the same in accordance with law."
3. Pursuant to the liberty reserved by this Court in the above referred order, the writ applicants filed their representations dated 15th September, 1999, 22nd November, 1999 and 3rd April, 2001 respectively before the Pay Anomaly Committee as well as before the Secretary, Finance Department. It appears that the writ applicants, once again, came before this Court by filing the Special Civil Application No.5740 of 2002, which came to be disposed of vide order dated 25th June, 2002 in the following terms;
"1. The petitioners were aggrieved by the pay anomaly and asserted their right for equal pay for equal work by preferring Special Civil Application No.5345 of 1995. This Court, by order dated July 28, 1999, dismissed the said petition by observing that whether the two posts in question are identical and the persons holding them are similarly situated or are performing the same duties or not are primary facts, questions and grounds which needed consideration and if they are found to be so, the Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT claim of the petitioners needed acceptance. For that purpose, a Committee was already constituted and, therefore, the Court said that the petitioners may take up the matter before that Committee by filing representation. The Court observed that the writ petitions were not the appropriate remedy in light of those facts and dismissed the petitions. Following the order, it is the say of the petitioners that they have made various representations to the Committee, but the Committee has not taken a decision on the representation and/or has not communicated the same to the petitioners.
2. Accepting the case of the petitioners at face value, the Committee ought to have considered the representation and communicated its decision to the petitioners one way or the other. If that is not done, a direction in that regard would meet the ends of justice HC-NIC Page 1 of 2 Created On Tue Sep 26 13:20:27 IST 2017 and this petition can be disposed of with appropriate directions.
3. The present petition stands disposed of as dismissed with a direction to respondent No.4 to consider and take appropriate decision on the representations made by the petitioners following the directions of this Court in Special Civil Application No.5345 of 1995 by order dated July 28, 1999, if the Committee has not yet taken a decision on those representations. Respondent No.4 shall communicate its decision to the petitioner on the presentation of the petitioners at the earliest.
4. Direct service is permitted."
4. As no decision was being taken as regards the representations filed by the writ applicants, a Misc. Civil Application No.1535 of 2002 was filed for contempt. The said application came to be disposed of by an order dated 2nd May, 2003 by a Division Bench in the following terms;
"1. In this application, the allegation is of contempt of Court. However, in the course of hearing Mr.Y.H.Vyas, learned advocate for the applicants, the main grievance, which is voiced before us, is that as per the directions of Page 5 of 10 HC-NIC Page 5 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT the Court, the Pay Anomoly Committee headed by a retired High Court Judge, Justice N.B.Patel, has already submitted its Report, and it is noticed from the record that the Report is under examination and scrutiny of the Government. It is also noticed from the record that a Higher Level Committee is again reconstituted for the purpose of consideration of the Report, as evidenced by the letter dated 09-07-2002 and the Resolutions dated 31-01-2001 and 27-11-2001.
2. What is the present position and status as regards the issue, which was taken to the Pay Anomoly Committee, and thereafter the submission of Report by the Pay Anomoly Committee, and the reconstituion of a Higher Level Committee for the purpose of consideration of the said Report are not known from the record. The applicant HC-NIC Page 1 of 2 Created On Tue Sep 26 13:25:46 IST 2017 states that since long, no intimation or any information is made available, despite giving a notice for contempt.
3. In view of the aforesaid discussion and factual profile, we deem it expedient to direct the petitioner to approach the Government by a representation within ten days from today, and on being so moved, and upon receipt of such a representation, the respondent no.1- Secretary Finance, shall intimate about the pendency or of any decision taken to the applicant within a period of one month. With these observations, the application shall stand disposed of at this stage."
5. The State Government has filed its reply, inter alia, stating as under;
"3. I respectfully say that the demand of the Statistical Assistants cadre working in the Director of Technical Education under the Education Department of the State Government is to grant them from 1.1.1973 the pay- scale of Rs.425-700, but the same being not within the purview of the Pay Anomaly Committee, no recommendation has been made in this behalf. However, for the period from 1.1.1986 the Pay Anomaly Committee has recommended the pay-scale of Rs.1400-2300. It is further respectfully stated that since the issue involved Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT for the period from 1.1.1973 is sub-judice, the Cabinet Sub-Committee has not taken any decision and has recommended to await the outcome of the pending petition. It is further respectfully stated that for the period from 1.1.1986 the Cabinet Sub-Committee has not accepted the recommendation of the Pay Anomaly Committee. It may be noted that by virtue of the Finance Department Notification No.(GN-41)- AOP-1091-18-M, dated 29.7.1992 the pay scale of Rs.1400-2300 has been granted with effect from 29.7.1992."
6. On 24th July, 2012, one another reply came to be filed on behalf of the respondent No.1-State as under;
"2. I say and submit that the Government constituted a Pay Anomaly committee with a view to removing anomalies arising out of recommendations of IV & V Pay Commissions vide Finance Department Resolution dated 20.5.98 which was headed by the retired Hon'ble Mr. Justice N.B. Patel.
3. I say and submit that the aforesaid Pay Anomaly Committee submitted its report to the State Government on 15.5.2000. It is submitted that after examining the recommendations of the report. of the Pay Anomaly Committee the State Government has constituted Cabinet Sub-Committee under the Chairmanship of Hon. Finance Minister. Cabinet Sub Committee has submitted its report on 25.5.2005.
4. It is submitted that the aforesaid report dated 25.5.2005 submitted by Cabinet Sub-Committee was further placed before the State Government for further consideration in the Cabinet.
5. The State Government accepted recommendations of the 6th Pay commission effective from 1.1.2006 and the orders were issued on 12.2.2009. Then after the state Government in the Cabinet decided not to accept the recommendations of Pay Anomaly Committee as well as Cabinet Sub Committee. The orders in this regard were issued by Finance Department G.R. dated 23.11.2011 which is annexed herewith as Annexure-R1.Page 7 of 10
HC-NIC Page 7 of 10 Created On Sat Oct 14 00:10:37 IST 2017 C/SCA/9315/2004 CAV JUDGMENT
6. It may be said that with the acceptance of the recommendations of the 6th Pay Commission in regard to the new pay scales there hardly remains anomalies in view of the merger/clubbing of the various pay scales."
7. The Pay Anomaly Committee, in its report, observed as under so far as the issue raised by the writ applicants herein is concerned;
"Gujarat State Employee's Federation and Association of the Employees of Class-III had made submission to grant pay scale of Rs. 1640-2900 to the cadre of Statistical Assistant in stead of their pay scale of Rs. 1400-2300 w.e.f. 01/01/1986. In this regard, the Association had submitted that the pay scale of Statistical Assistant of Bureau cadre has been made Rs.425-700 by revising the same w.e.f. 01/01/1973. Whereas, the pay-scale of Statistical Assistant serving in the office of Health Commissioner has been revised w.e.f. 01/01/1986 and since then, both these cadres have equal pay-scale. Hence, such was submitted that Statistical Assistant of the office of Health Commissioner should have the pay- scale of Rs.425-700 during the period from 01/01/1973 upto 01/01/1986 same as the Statistical Assistant of Bureau cadre. But, such type of demand does not fall within the purview of this committee and therefore, no recommendation is to be made.
This cadre had compared their pay-scale with the pay- scale of Deputy Mamlatdar and Sales Tax Inspector. But, the comparison of duty of the cadre of Statistical Assistant apparently cannot be made with the duty of Deputy Mamlatdar and Sales Tax Inspector. Similarly, it has also been demanded to grant the pay-scale equal to the cadre of the Central Government. This also is not accepted by the committee. Thus, looking to all these aspects, this committee does not find any anomaly in the pay-scale granted to the cadre of statistical assistant w.e.f. 01/01/1986. "
8. The Cabinet Sub-Committee constituted for the purpose of looking into the recommendations of the Pay Anomaly Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Oct 14 00:10:38 IST 2017 C/SCA/9315/2004 CAV JUDGMENT Committee, in its report, observed as under;
"This cadre has two pay-scale. (1) Rs.1400-2300 from 01/01/1986 and Rs.4500-7000 from 01/01/1996 for those who possess qualification as per the recruitment rules fixed for the office of the Director, Economics and Statistical Bureau. (2) Rs. 1320-2040 from 01/01/1986 and Rs.1400-2300 from 29/07/1992 and Rs.4500 - 7000 from 01/01/1996 for others. This cadre has demanded the pay scale of Rs. 425-700 w.e.f 01/01/1973. The reason behind such demand is the recommendation made by the Committee for examination of Pay Anomaly to grant the pay-scale of Rs. 425-700 w.e.f 01/01/1973 and Rs.1400-2300 w.e.f. 01/01/1986 in accordance with the judgments delivered by the Hon'ble High Court of Gujarat in S.C.A. Nos. 5345/1995 and 6866/1996.
The Sub-committee of the Ministry has done an extensive study of the original papers of the Finance Department, Notifications No. GN-21/AOP-1091-11-M dated 16/05/1991 and (GN-41) AOP-1091-18-M dated 29/07/1992. This decision appears proper. Hence, the recommendation cannot be accepted.
Further, S.C.A. No. 9315 / 2004 has been filed in Gujarat High Court. This matter is pending with the Hon'ble High Court. Action in this regard shall have to be taken according to the outcome of the said application. "
9. Thus, it appears that even the Pay Anomaly Committee has not found any disparity in the pay scales. According to the last reply of the State Government, the recommendations of the 6th Pay Commission effective from 1st January, 2006 have been accepted vide order dated 12th February, 2009. The new pay scales have been recommended and given effect to. In such circumstances, in my view, nothing remains to be adjudicated so far as this petition is concerned. The same is Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Oct 14 00:10:38 IST 2017 C/SCA/9315/2004 CAV JUDGMENT disposed of accordingly.
(J.B.PARDIWALA, J.) Vahid Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Oct 14 00:10:38 IST 2017