Gujarat High Court
Association Of Class-Iii Employees vs State Of Gujarat & on 2 May, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/7686/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7686 of 2006
With
SPECIAL CIVIL APPLICATION NO. 7687 of 2006
TO
SPECIAL CIVIL APPLICATION NO. 7705 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE sd/-
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1 Whether Reporters of Local Papers may be NO
allowed 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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ASSOCIATION OF CLASS-III EMPLOYEES....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
(MR HJ NANAVATI), ADVOCATE for the Petitioner(s) No. 1
MR VH DESAI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/05/2016
COMMOM ORAL JUDGMENT
The issue involved in these petitions is common and therefore, they are being disposed of by this common Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Aug 25 04:45:04 IST 2016 C/SCA/7686/2006 JUDGMENT judgment.
2 The petitioners have raised a common grievance that though as per Rules dated 19.11.1996 the petitioners are promoted as Head Clerks, they are being not paid the pay scale of Rs.5,000- 8,000 and instead, they are being paid pay scale of Rs.4500-7500, which was the pay scale of the post of Statistical Assistant, which is since abolished.
3 I have heard Ms Tejal Vashi, learned advocate for Mr V.H. Desai, learned advocate for the petitioners and Ms Amita Shah/Ms Vrunda Shah, learned Assistant Government Pleaders for the respondents.
4 This is the second round of litigation for the same issue. The petitioners had earlier approached this Court by filing Special Civil Application No.11104 of 2003, which was decided on 27th April, 2004. In paragraph 3 of the said judgment, it is observed as under:-
"Under the above circumstances, the respondents are directed to make appointment to the posts of Head Clerk as per the Rules of 19th November, 1976, which are in existence as on today and appointment is not to be made in any manner except following the said Recruitment Rules. In fact, so far as the State Government is concerned, there is no dispute on this aspect.
"So far as appointment to the post of Head Clerk is concerned, that has to be made as per the Recruitment Rules dated 19th November, 1976, as stated above. If any appointment is made contrary to the recruitment rules, which are in existence as on today, i.e. Recruitment Rules of November, 1976, naturally, such promotions cannot be given any effect, as the 1976 Rules are having statutory effect and the same are made by resorting to Article 309 of the Constitution of India."
5 As stated hereinabove, after promoting the petitioners to Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Aug 25 04:45:04 IST 2016 C/SCA/7686/2006 JUDGMENT Head Clerks from the post of Senior Clerks they are not being paid the pay scale of Head Clerks. The respondents have filed affidavit to oppose the petitions wherein in paragraphs 9, 10 and 11 it is stated thus:
"9. With reference to para 2.6, it is stated that as per the direction given by this Hon'ble Court in the Judgement and Order rendered in SCA No.11104 of 2003 and as per the Education Department's Rule of 1976 and letter dated 12.02.2004, the Senior Clerks working in the pay scale of Rs.4000/- 6,000/- are promoted to the post of Head Clerk in the pay scale of Rs.5000/- 8000/-. Hence, the department has accepted the same and the promotions are given from Senior Clerk to Head Clerk and this system is still followed by the department.
10. With reference to para 2.7 and 2.8, it is stated that as per the 19.11.1976 guidelines, the Senior Clerk are to be promoted as Head Clerk. The same method is adopted for the promotion to the post of Head Clerk till date. At the time of fixation of the pay scale of Senior Clerk for higher grade, the chance of promotion, the different cadre of promotion etc., are to be considered when the higher grade scale is to be sanctioned for the senior clerk and the different promotional post with different pay scales are available, at that time the higher grade scale available to the senior clerk would be lowest scale in the promotional posts available in all the promotional cadre. As per the Finance Department's resolution dated 16.8.1994 Paragraph 3 the pay scales available to the Statistical Assistant for Rs.4500/- to Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Aug 25 04:45:04 IST 2016 C/SCA/7686/2006 JUDGMENT Rs.7000/- will be made available to the Senior Clerks as per the rules. The Senior Clerks are entitled to the lowest grade of the promotional post, hence are entitled to the pay scale of Rs.4500 to Rs.7000/-, which is just, proper and legal, and as per the guidelines issued by the Finance Department time to time.
11. With reference to para 2.9, it is stated that the Senior Clerks are given the promotion to the post of Head Clerks as per 1976 Recruitment Rules and the Education Department's letter dated 12.02.1999 and 12.02.2004. As per Education Department's letter dated 12.02.2004 the higher grade scale of the cadre of Statistical Assistant is granted to the Senior Clerks who have completed 9 years of the service, as per the provision of 16.08.1994 resolution of the Finance Department. The Recruitment Rules for Statistical Assistants, 1972 and Recruitment Rules for Head Clerks, 1976 for promotion to the post of Senior Clerks are in operation. Accordingly, vide GRFD dated 16.8.1994, the posts which have more than one posts of promotion with different pay scales, the employee working on such post will get higher grade pay scale of the lowest cadre post of promotion. In other words, it is directed to give statistical assistant's pay scale as higher grade of pay scale. It has been sanctioned with the concurrence of the Finance Department."
6. A bare reading of the above reply manifestly makes it clear that it is a matter of common understanding that once an employee is promoted to the next higher post, he is to be given the pay scale of the promotional post. On one hand, Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Aug 25 04:45:04 IST 2016 C/SCA/7686/2006 JUDGMENT the say of the respondents in paragraph 9 of the affidavit-in- reply is that the Senior Clerks working in the pay scale of Rs.4000/- 6,000/- are promoted to the post of Head Clerk in the pay scale of Rs.5000/- 8000/-. In the second breath in paragraph nos.10 and 11 of the affidavit-in-reply they have taken an absolutely contradictory stand. The stand of the respondents in paragraphs 10 and 11 of the affidavit-in-reply would not appeal to any person who has got a slightest understanding. The undisputed fact is that since the petitioners are promoted to the post of Head Clerk from the post of Senior Clerk, they are entitled to the pay scale of Head Clerk which is Rs.5,000-Rs.8,000 and the same cannot be denied to them.
For the foregoing reasons, all the petitions are hereby allowed. The order dated 7th October, 2005 passed by the Joint Director (Establishment) in the office of Commissioner of Midday Meals and Schools, Gandhinagar is quashed and set aside. The respondents are directed to pay to the petitioners the pay scale of Rs.5,000-Rs.8,000 from the date of their promotion to the post of Head Clerk. The difference amount shall be paid from the the day it became due with interest at the rate of 12% per annum till realisation. Rule is made absolute to the extent indicated above. No order as to costs. Direct Service is permitted.
Sd/-
(A.G.URAIZEE, J.) mohd Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Aug 25 04:45:04 IST 2016