Gujarat High Court
Gk Prajapati vs State Of Gujarat & 2 on 22 January, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/12894/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12894 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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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GK PRAJAPATI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 22/01/2016
ORAL JUDGMENT
1. The petitioner has prayed for a direction to grant pay protection in the cadre of Junior Assistant Electrical Inspector. Undisputed Page 1 of 8 HC-NIC Page 1 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT facts are as under:
2. The petitioner joined the State Government service on ad-hoc basis on 24.06.1994. Later on, after being selected through GPSC, the petitioner was appointed on regular basis on probation to the post of Lecturer of Electrical Engineering, Class II w.e.f. 29.06.1995 in the pay scale of Rs. 2200-4000.
3. While still in probation, the petitioner applied with permission of the department for direct recruitment to the post of Junior Assistant Electrical Inspector, Class-II, carrying a pay scale of Rs. 2000-3200. He was selected and appointed to the said post by order dated 19.03.1997. He left his original post of Lecturer of Electrical Engineering on 07.07.1997 and joined the new post of Junior Assistant Electrical Inspector immediately on 08.07.1997, thus, without any break in service. At the time of his appointment as Junior Assistant Electrical Inspector, his basic pay was Rs. 2275/- in the previous service as Lecturer of Electrical Engineering. His request is that, this pay should have been protected in his new employment. Instead, the department placed him at the minimum of the scale of Rs.
2000/- by way of his basic salary.
4. On 04.11.1997, the petitioner wrote to the department giving the background facts and requested that, his service be treated continuous from 02.07.1994 and his pay be protected Page 2 of 8 HC-NIC Page 2 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT accordingly. On 07.03.1998, the department conveyed to the petitioner that he has joined the service carrying lower pay scale than one he was previously holding and that, therefore, he cannot claim pay protection. The petitioner, once again wrote on 22.04.1998 to the department and repeated his request for pay protection referring to Rule 41 of the Bombay Civil Service Rules. This request was also rejected under communication dated 25.06.1998.
5. On 06.07.1998, the petitioner wrote to the department and, in addition to repeating his request for pay protection, further pointed out that, if this was not possible, the petitioner would stand to lose considerable amount and that, therefore, in such a case, he may be repatriated to his original post. The department did not accept the request of the petitioner. Though in the further correspondence, there is a reference to the rejection of the petitioner's request for pay protection, no specific order was passed rejecting his request for repatriation. By default, such further request was not granted. At that stage, the petitioner filed the present petition.
6. Learned counsel Mr.Vyas for the petitioner drew my attention to Rule 41 of the BCSR to contend that whenever the government servant joins another post maintaining continuity in service, the pay of the previous post would be protected. He drew my attention to Note 8 under the said Rule in support of his contention. He also placed reliance on the GR dated Page 3 of 8 HC-NIC Page 3 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT 24.02.1993 where, subject to certain conditions, past service of the government servant under certain circumstances would be protected. He further contended that, in any case, the petitioner's lien on his original post of Lecturer of Electrical Engineering was still maintained. If it was not possible for the department to protect his pay, the petitioner should have been repatriated to such post.
7. On the other hand, learned AGP Mr.Patel opposed the petition contending that Note 8 below Rule 41 of the BCSR was later on amended by circular dated 17.06.1994, in which, it was clarified that the pay protection would not be available when a government servant joins another post carrying lower pay.
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
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C/SCA/12894/2000 JUDGMENT
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 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 5 of 8 HC-NIC Page 5 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT 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 if Note 8 was later on clarified as to apply only in cases of the government servant joining post carrying higher pay scale, the Page 6 of 8 HC-NIC Page 6 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT 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 government could not have refused both.
13. Under the circumstances, the petitioner's request for pay protection is granted. His initial posting in the cadre of Junior Page 7 of 8 HC-NIC Page 7 of 8 Created On Thu Jan 28 00:36:57 IST 2016 C/SCA/12894/2000 JUDGMENT Assistant Electrical Inspector on the date of his appointment would be Rs. 2275, the basic which he was drawing on that date in the previous post. He shall get consequential benefits of further pay fixation and difference in salary on such basis which may be released expeditiously and not later than 30.04.2016. Petition is allowed and disposed of accordingly.
(AKIL KURESHI, J.) Jyoti Page 8 of 8 HC-NIC Page 8 of 8 Created On Thu Jan 28 00:36:57 IST 2016