Gujarat High Court
State Of Gujarat vs Gk Prajapati on 28 March, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/753/2016 JUDGMENT DATED: 28/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 753 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 12894 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT & ORS.
Versus
GK PRAJAPATI
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Appearance:
MS SHRUTI DHRUVE, ASST GOVERNMENT PLEADER for the Appellant(s)
No. 1,2,3
MS PRACHI UPADHYAY FOR MR VAIBHAV A VYAS(2896) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 28/03/2024
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NEUTRAL CITATION
C/LPA/753/2016 JUDGMENT DATED: 28/03/2024
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal, under Clause 15 of the Letters Patent, has been filed by the State on being aggrieved by the oral judgement dated 22.01.2016 passed by the learned Single Judge. The learned Single Judge by the order under challenge acceded to the petitioner's request for pay protection.
2. Facts in brief are as under:
2.1 The respondent was working on probation on the post of Lecturer of Electrical Engineering, Class-II in Government Polytechnic in the pay scale of Rs.2200-4000 since 29.06.1995. The GPSC invited applications for recruitment for the post of Junior Assistant Electrical Inspector, Class-II in the pay scale of Rs.2000-3200. The original petitioner - respondent herein applied with the permission of the department. Pursuant to the process of selection, he was selected on the said post. Page 2 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024
NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined 2.2 On 29.03.1997, the Government of Gujarat issued an order appointing the petitioner on the post of Senior Electrical Inspector. Apparently, since the pay scale on the post on which he was subsequently appointed was lower i.e. Rs.2000-3200 whereas that of the previous post on which the respondent was working was of Rs.2200- 4000, the petitioner requested that his pay be protected.
It was his case that the pay that he was drawing as Lecturer at the time of joining as Junior Assistant Electrical Inspector should have been protected by the government. Reliance was placed on Rule 41 of the Bombay Civil Service Rules (for short 'BCSR'). The request was rejected.
2.3 The respondent thereafter approached this court by way of filing writ petition being Special Civil Application No. 12894 of 2000 whereby the learned Single Judge allowed the petition and granted pay protection to the original petitioner - respondent herein. The State Page 3 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined aggrieved by the said order has therefore filed the present appeal.
3. Ms. Shruti Dhruve, learned AGP appearing for the appellant State would assail the order of the learned Single Judge on the ground that pay protection to the respondent - original petitioner was not available. She would submit that initially the respondent - original petitioner was working in the Education Department of the State as a Lecturer whereas the subsequent appointment on being selected as Junior Assistant Electrical Inspector, Class-II was with the department of Energy and Petrochemicals. She would submit that though the State had specifically pointed out to the learned Single Judge that in light of the Government Resolution dated 17.06.1994, Note 8 to Rule 41 of the BCSR would not apply. She would take us through the Government Resolution dated 17.06.1994 and submit that pay protection shall only be available in cases where subsequent appointment was to a post which had a higher Page 4 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined pay scale or a equal pay scale to that of the earlier appointment.
4. Ms. Prachi Upadhyay, learned advocate appearing for the respondent - original petitioner would support the order of the learned Single Judge. She would submit that it is clear that reading of Rule 41 and that of Note 8 thereof, that pay protection is available to the respondent
- original petitioner. She would invite the court's attention to the additional affidavit filed on behalf of the original petitioner which referred to the Government Resolution dated 24.02.1993. This resolution too finds mention in the order of the learned Single Judge.
5. It is undisputed as it is apparent from the facts set out by the learned Single Judge that the petitioner when appointed first in point of time was appointed on a higher pay scale of Rs.2200-4000 and subsequently to a pay scale lower than the one that was in his earlier service.
He was subsequently appointed in the pay scale of Page 5 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined Rs.2000-3200. The learned Single Judge in the body of the judgement, on appreciation of Rule 41, has elaborately dealt with the reasons and it will be in the fitness of things to reproduce the observations of the learned Single Judge rendered in paragraphs no. 8 -12.
The same read as under:
"8. Rule 41 of BCSR covers the pay fixation and provides for the initial substantive pay fixation of a government servant who is appointed substantively to a post on a time-scale of pay. Clause (a) thereof which is relevant reads as under:
(a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended under Rule 19.
(i) when appointment to the new post involves assumption of duties or responsibilities of greater importance (as interpreted for the purpose of Rule 56) than those attaching to such permanent post, he will draw as initial pay in respect of the permanent post;
(ii) when appointment to the new post does not involve such assumption, he will draw an initial pay the stage of the time scale which is equal to his substantive pay in respect of the permanent post, or if there is no such stage, the stage next Page 6 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined below that pay, plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time scale of the permanent post, or for the period after which an increment is earned in the time scale of the new post, whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the permanent post, he will draw that minimum as initial pay."
9. In terms of Sub-clause (ii) of Clause (a) of Rule 41 thus, when appointment to the new post does not involve assumption of duties or responsibilities of greater importance, the government servant would draw an initial pay at the stage of time scale which is equal to his substantive pay in respect to the permanent post and if there is no such stage, the stage next below that the pay, plus personal pay equal to the difference and would continue to draw that pay until such time he would receive an increment the time scale of permanent post. However, if the minimum of the time scale of new post is higher than his substantive pay in respect of the permanent post, he would draw that minimum as initial pay.
10.The application on this rule may be appreciated on the basis of GR dated 24.02.1993 which recognizes the protection of the previous service of a government servant who joins another post under the government with the permission of the employer. This Page 7 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined ofcourse is subject to certain conditions with which we are not concerned since it is not the case of the department that the petitioner does not fulfill such conditions. It is, in this context, that the Note 8 below Rule 41 of BCSR provides that if a government servant working in an office or department is selected for appointment either in the same or another office of the government through regular selection process and, if the service rendered prior to and after such selection is continuous without any physical break, the previous service shall count for the purpose of fixation of pay and leave.
11.This provision thus recognizes the principle of protecting the past service of a government servant who, with the permission of the employer applies, gets selected and is appointed to a new post without break in service. In other words, the government resolution recognizes the freedom of the government employee to apply and to be selected to any other post carrying higher or even lower scale of pay than one on which he is working and in case of such situation if there is no break in service, the past service would not be wiped out by placing the petitioner in minimum of the pay scale. By placing the petitioner at Rs. 2000/- in his new appointment to the post of Junior Assistant Electrical Inspector carrying pay scale of Rs. 2000-3200, this is what precisely the respondent did. His past service as a Lecturer of Electrical Engineering was not given any weightage. Even Page 8 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined if Note 8 was later on clarified as to apply only in cases of the government servant joining post carrying higher pay scale, the main body of Rule 41, particularly, containing sub-clause (ii) of clause (a) and the GR dated 24.02.1993 remained unchanged.
12.There is yet another and greater reason why the petitioner's request cannot be rejected. As noted, he was already regularly holding ofcourse on probation the post of Lecturer of Electrical Engineering carrying pay scale of Rs. 2200-4000. When he came over again directly selected through GPSC to the post of Junior Assistant Electrical Inspector in the scale of Rs. 2000- 3200, he carried expectation that his past service would not be wiped out. He, therefore, immediately applied to the government and prayed for protection of his past service and pay. When such a request was not accepted, he, in his letter dated 06.07.1998 after repeating his request for pay protection, suggested that, if, for some reason, it was not be possible to do so, he may be repatriated to his original post. The fact that he was holding a lien on his original post which had not been abolished, is not undisputed. For whatever personal reason therefore, it was well within the right of the petitioner to seek repatriation. The fact that his hope that his pay would be protected being not fulfilled was good enough reason to request for repatriation. The government therefore, ought to have either accepted the request for pay protection or in the alternative, had to grant his request for being repatriated. At any rate, the Page 9 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined government could not have refused both."
6. In addition to what has been stated by the learned Single Judge, while relying on Rule 41, if note 8 thereof is considered, it would be evident that the note indicates that if a government servant working in an office or department is selected for appointment either in the same office or in other office to a service/cadre/post under the Government through the Gujarat Public Service Commission, Centralized recruitment scheme or any other method approved by the Government and if the service rendered prior to and after such selection is continuous without any physical break, the previous service shall count for the purpose of fixation of pay and leave.
7. Evidently, therefore even if we are to consider the circular dated 17.06.1994, we are in agreement with the observations of the learned Single Judge that a statutory rule cannot be restricted by a reading of a circular.
Reading paragraph no. 10 of the order of the learned Page 10 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024 NEUTRAL CITATION C/LPA/753/2016 JUDGMENT DATED: 28/03/2024 undefined Single Judge would bring out the intention that the Rule as to be appreciated on the basis of the Government Resolution and the circulars. Note 8 below Rule 41 therefore would clearly override a circular particularly when the reading has to be done in consonance with the statutory rule.
8. For the reasons aforesaid, we do not find any merit in the appeal and the same is therefore dismissed. No costs.
sd/-
(BIREN VAISHNAV, J) sd/-
(PRANAV TRIVEDI,J) DIVYA Page 11 of 11 Downloaded on : Tue Apr 02 20:37:56 IST 2024