Gujarat High Court
Lilly Chacko vs State Of Gujarat on 22 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15900/2019 ORDER DATED: 22/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15900 of 2019
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LILLY CHACKO
Versus
STATE OF GUJARAT
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Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/09/2022
ORAL ORDER
1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned AGP waives service of notice of rule on behalf of respondents.
2. This petition, under Article 226 of the Constitution of India, is filed by the petitioner who has retired on 31.05.2022 for quashing and setting aside the orders dated 22.01.2020 and 31.03.2021. By the original order and the order in appeal, the request of the petitioner for protection of pay has been rejected. By a communication dated 19.07.2022 produced with the further affidavit the Page 1 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 school wherefrom the petitioner had retired has been informed that unless and until she consents through an affidavit to accept the stand of the respondents and pay the recovery amounts, her pension case will not be finalized.
3. Facts in brief would indicate that the petitioner was appointed as an Assistant Teacher at the Lal Bahadur Shastri Higher Secondary School on 29.08.1988 in the pay-scale of Rs.1640-2900. On account of her marriage, she having to shift to Ahmedabad, the petitioner requested the District Education Officer vide letter dated 20.06.1992 for a resignation. The resignation was accepted by the District Education Officer on 29.06.1992. The District Education Officer intimated the school at Rajkot that her resignation is approved and she be relieved. She was accordingly relieved from Rajkot on 30.06.1992. A salary certificate was issued showing the basic pay of the petitioner as Rs.1820/-. The school namely the school at which she was teaching at Rajkot Page 2 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 was a higher secondary school.
3.1 On being relieved on 30.06.1992, she reported at Asia English School in Ahmedabad on 01.07.1992. Her pay was fixed in the scale of Rs.1400-2600 and the basic pay was Rs.1520/-. It was subsequently found that the petitioner was entitled to pay protection in accordance with the provisions of Rule 41 of the Bombay Civil Services Rules (BCSR) and therefore the District Education Officer by an order dated 28.06.1999 granted her the benefit of pay protection and her pay was accordingly fixed at Rs.1820/-. The petitioner accordingly drew her pay based on her order of pay protection dated 28.06.1999.
3.2 On completing 9 years of service on 01.07.2001, the District Education Officer, Ahmedabad fixed the pay-scale of the petitioner in the scale of Rs.5500-9000 and fixed her basic pay at Rs.7250/- and an endorsement accordingly was made in the service book. It appears thereafter that when the pay fixation was sent to the Page 3 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 Local Audit for approval, by a letter dated 03.09.2010, the District Education Officer, Ahmedabad rejected the pay protection granted vide order dated 28.06.1999 opining that the pay fixation has to be as per Rule 23 of the Gujarat Civil Services (Pay) Rules, 2002 (for short 'the Rules').
3.3 That order was subject matter of Special Civil Application No. 5884 of 2010 which was rejected by this court. On an appeal being preferred by the petitioner being Letters Patent Appeal No. 2959 of 2010, the Division Bench of this court vide oral judgment dated 15.12.2015 set aside the order of the learned Single Judge. The petition was allowed only on the ground of violation of principles of natural justice and the order dated 03.09.2010 was quashed and set aside with an observation that the situation prevalent as on 28.06.1999 be restored. The petitioner made a representation to the authorities and after hearing the petitioner, by the impugned orders, the District Education Officer opined Page 4 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 that the petitioner was not entitled to the pay protection granted by the order dated 28.06.1999 on the ground that the petitioner had moved from a higher post to a lower post inasmuch as she was teaching in the higher secondary school at Rajkot and had come over to teaching in the secondary school.
3.4 Accordingly, the impugned order dated 22.01.2020 was passed and consequential recovery of Rs.12,83,031/- has been ordered and unless that amount of recovery is paid the pension case will not be finalized.
4. Mr. Darshan Kinariwala, learned advocate appearing for the petitioner would submit that the orders of reduction of pay and consequent recovery are bad. He would submit that the resolutions annexed to the petitions of the State clearly hold that when one moves from one school to the other school, the benefit of pay protection is granted. Reliance is placed on a circular dated 21.12.1971 and one of 14.12.1973 which are Page 5 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 annexed at Annexures P and Q to the petition. He would submit that the provisions of Rule 41 of the BCSR, particularly note 8 thereof, squarely applies to the case of the petitioner and it is not a case where Rule 23 of the rules would apply. Even otherwise recovery of a large amount post the retirement of the petitioner on the ground of a wrong pay fixation and cancellation of the order of 1999 after more than 12 years is bad on account of delay and therefore cannot be quashed and set aside.
5. Mr. Utkarsh Sharma, learned AGP appearing for the respondents would submit that the orders of pay fixation passed at the relevant point of time were conditional orders inasmuch as they were subject to approval of the Local Fund Office and audit approval. No right, therefore, would accrue to the petitioner based on such pay fixation. He would refer to the brief history of the service career of the petitioner as stated in the reply and submit that though the petitioner in the year 1988 was appointed in the pay scale of Rs.1640-2900 at Rajkot, Page 6 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 when she came over to Asia English School, Ahmedabad on resignation, she came to a lower post. He would submit that objections were raised on the pay fixation at Rs.1820/- in the pay-scale of Rs.1640-2900 and therefore her pay fixation in the scale of 5500-9000 with a basic pay of Rs.7250/- was wrong. It should have been in the pay scale of Rs.5000-8000, fixed at Rs.6050/-. He would submit that since the post she occupied from the higher secondary school to the secondary school was on a lower post, in accordance with the resolution dated 24.01.1967, pay fixation was done.
5.1 Reliance was placed on para 12 of the affidavit by Mr. Sharma who would submit that while reading Rule 23 of the rules and Rule 41 of the BCSR, what needs to be taken care of is the circular of the State dated 17.06.1994 which indicates that when appointment is accepted on a lower pay, pay protection cannot be granted. He would therefore justify the refixation in a lower scale, consequential recovery and denial of pensionary benefits Page 7 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 until and unless such recovery amounts are deposited.
6. Having considered the submissions of the learned counsel for the respective parties, certain undisputed facts as set out by the Division Bench in Letters Patent Appeal No. 2959 of 2010 need to be reproduced. The same are as under:
"10. During the course of submission the following factual undisputed aspects emerged which need to be enlisted hereunder.
(i) The petitioner was admittedly working in the higher secondary school in the pay scale of Rs.1640-2900/- at Rajkot.
(ii) The petitioner had been receiving the wages and emoluments on the basic of 1820/-, when she had to resign and joined school at Ahmedabad.
(iii) The resignation at Rajkot was duly approved by the concerned DEO in accordance with rules and so far there is no submission from any quarter to indicate that resignation, which was approved, was not a resignation and on account thereof the protection or continuity cannot be granted. The Court hasten to add here that in absence of any such specific plea taken on the part of the respondent, it would Page 8 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 not be proper for this Court to examine and opine on this aspect.
(iv) The petitioner was relieved under the order of DEO, Rajkot on 29.06.1992 and she joined in Ahmedabad school on 01.07.1992. In other words without undue whiling away of time the petitioner had joined her new assignment at Ahmedabad, so as to be within the legal framework of continuity of service which otherwise also available in a given case.
(v) The petitioner while working at Ahmedabad received an order on 28.06.1999, though the said order did contain a clause that the very protection was subject to audit objection but ostensibly the same was in consonance with the then extant provision of Rule 41 and explanation made thereunder.
(vi) Based thereupon the petitioner was accorded all the benefits and periodical revisions including pay revisions and only in the year 2010 vide impugned order the said protection was sought to be withdrawn. Even while withdrawing the protection also immediately there was no order of recovery issued.
(vii) On specific inquiry from the learned AGP and on perusal of order dated 03.03.2010, the Court is satisfied that there existed no opportunity ever to the petitioner for being heard on the withdrawal of pay protection.Page 9 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022
C/SCA/15900/2019 ORDER DATED: 22/09/2022
(viii) Thus, there exists clear breach of principle of natural justice, as the petitioner, who was granted benefit of pay protection and on that benefit, when further benefits of revision of pay scale was granted, was abruptly sought to be visited with withdrawal of pay protection, which not only affected her emoluments, her other benefits which are likely to affect her retirement pension and all other prospect." 6.1 What therefore is indicative is that when the petitioner resigned from her school at Rajkot and the resignation was accepted, and she was relieved on 30.06.1992, immediately thereafter without any break, the petitioner with effect from 01.07.1992 resumed her services at the Ahmedabad school namely Asia English School. It is in the background of this continuous service from the date of initial appointment at the Rajkot school that the District Education Officer on 28.06.1999 acceded to the request of pay protection of the petitioner fixing the pay of the petitioner in the scale of 1640-2900 at Rs.1820/-.
6.2 12 years thereafter on 03.03.2010, District Page 10 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 Education Officer recalled the order, withdrew the pay protection and sought recovery on the ground that the petitioner having worked in the higher secondary school and now having accepted her engagement as a teacher in the secondary school was accepting appointment from higher to lower post and therefore in accordance with Rule 23 of the Rules, the pay had to be fixed accordingly. Reading the affidavit too would indicate the stand of the respondents accordingly.
7. Perusal of the petition and the representation made by the petitioner indicates that the petitioner had requested for pay protection being continued on the ground of a decision of this court in the case of G.K. Prajapati vs. State of Gujarat and Others decided on 22.01.2016 in Special Civil Application No. 12894 of 2000. In the case of G.K. Prajapati (supra), this court had an occasion to consider the provisions of Rule 41 of the BCSR and the circular dated 17.06.1994 which is relied upon by the government in the present case. That Page 11 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 was a case in which the petitioner had come to this court for a direction to grant pay protection in the cadre of Junior Assistant Electrical Inspector. It was the case of the petitioner therein that he was initially working on an ad-hoc basis and thereafter on a regular basis when appointed on the post of Lecturer of Electrical Engineer in the pay-scale of 2200-4000. While he was working as a Lecturer in the pay-scale of 2200-4000, he applied for the post of Junior Assistant Electrical Inspector in the pay- scale of 2000-3200. On being appointed, he left his original post as a Lecturer of Electrical Engineering on 07.07.1997 and immediately without break joined the new post of Junior Assistant Electrical Inspector on 08.07.1997. At the time of his appointment as Junior Electrical Inspector, his basic pay was Rs.2275/- in the previous service as Lecturer of Electrical Engineering. It was his case that this pay should have been protected. The department instead of acceding to his request placed him in the pay-scale of Rs.2000/-. It is in the light of these facts that the court while considering Rule 41 of the Page 12 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 BCSR in context of note 8 under the Rules held 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 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 Page 13 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 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 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 Page 14 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 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 main body of Rule 41, particularly, containing sub-clause (ii) of clause (a) and the GR dated 24.02.1993 remained unchanged.
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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 Assistant Electrical Inspector on the date of his appointment would be Rs. 2275, the basic Page 16 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 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."
8. What is evident from reading the decision of this court is that on reading note 8 of Rule 41 of BCSR, the court found that Rule 41 provides for fixation of substantive pay. Note 8 thereof indicates that if a government servant working in an office or department is selected for appointment either in the same office or any other office to a service/cadre/post through GPSC or any other method and if the service rendered prior to and after such selection is continuous without any physical break, the previous service shall count for the purposes of fixation of pay and it is light of this position the court negated the contention of the State that the circular of 17.06.1994 applies. The court held that this provision recognized the principles of protecting past services of a government servant who with the permission of the Page 17 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 employer applies, gets selected and is appointed on the post without any break. The court held that particularly when the rule provides for such a situation, the clause of the government resolution may not apply.
9. In light of the position as enunciated by this court in the case of G.K. Prajapati (supra), the analogy of the State that since the petitioner migrated from a school where she was teaching in the higher secondary section to teaching in the secondary section and therefore she was not entitled to pay protection is a stand which is misconceived.
10. Accordingly the orders dated 22.01.2020 and 31.03.2021 are hereby quashed and set aside. The communication dated 19.07.2022 which entails recovery from the petitioner is also quashed and set aside. The pay fixation of the petitioner shall be on the basis of the order of the District Education Officer dated 28.06.1999. Based on the said order and consequential refixation of Page 18 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022 C/SCA/15900/2019 ORDER DATED: 22/09/2022 pay on the basis of upgradations that the petitioner is entitled to, the pensionary benefits shall be computed on the basis of last pay drawn accordingly and the amounts of pension and gratuity shall be paid to the petitioner within ten weeks from the date of receipt of the writ of the order of this court.
11. Petition is accordingly allowed. Rule is made absolute. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 19 of 19 Downloaded on : Mon Sep 26 20:40:14 IST 2022