Gujarat High Court
State Of Gujarat vs Nair Smita Vinu & 18 on 15 September, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/652/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 652 of 2016
In SPECIAL CIVIL APPLICATION NO. 12207 of 2014
With
CIVIL APPLICATION NO. 6855 of 2016
In
LETTERS PATENT APPEAL NO. 652 of 2016
With
LETTERS PATENT APPEAL NO. 708 of 2016
In
SPECIAL CIVIL APPLICATION NO. 4716 of 2015
With
CIVIL APPLICATION NO. 7510 of 2016
In
LETTERS PATENT APPEAL NO. 708 of 2016
With
LETTERS PATENT APPEAL NO. 654 of 2016
In
SPECIAL CIVIL APPLICATION NO. 18619 of 2014
With
CIVIL APPLICATION NO. 6864 of 2016
In
LETTERS PATENT APPEAL NO. 654 of 2016
With
LETTERS PATENT APPEAL NO. 655 of 2016
In
SPECIAL CIVIL APPLICATION NO. 2965 of 2015
With
CIVIL APPLICATION NO. 6865 of 2016
In
LETTERS PATENT APPEAL NO. 655 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
Page 1 of 19
HC-NIC Page 1 of 19 Created On Sat Sep 17 05:38:11 IST 2016
C/LPA/652/2016 CAV JUDGMENT
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
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 ?
========================================================== STATE OF GUJARAT....Appellant(s) Versus NAIR SMITA VINU & 18....Respondent(s) ========================================================== Appearance:
MR PK JANI, AAG WITH MR DHAWAN JAYSWAL, AGPfor the Appellant(s) No. 1 - 2 MR AR MAJMUDAR, ADVOCATE for the Respondent(s) No. 3 MR KB PUJARA, ADVOCATE for the Respondent(s) No. 1 - 2 , 4 - 18 MR SHAHIL M SHAH, ADVOCATE for the Respondents. ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 15/09/2016 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The appellants-original respondent no.1 Page 2 of 19 HC-NIC Page 2 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT and 2 have filed these appeals under Clause 15 of the Letters Patent against the CAV Common Judgment dated 19.10.2015 passed by the learned Single Judge, by which the learned Single Judge has allowed the petitions filed by the original petitioners.
2. Since all these appeals involve identical question of facts and law and as the learned Single Judge has rendered a common judgment, the same are being decided by this common judgment, finally with the consent of the learned advocates. However, for the sake of convenience, the facts narrated in Special Civil Application No.12207 of 2014 are recorded.
3. The petition being Special Civil Application No.12207 of 2014 was filed by the original petitioners who are English Stenographers (Grade-I) against the present appellants and Registrar General, High Court of Gujarat, wherein the petitioners have prayed for the following reliefs:
"13 (a) to admit this petition and to issue notice for final disposal on returnable date:
(b) to quash and set aside the impugned illegal actions of the respondents in giving arbitrary and discriminatory treatment to the petitioners by placing them at Rs.12090/-
w.e.f. 1-1-2006 and thereby paying them less salaries than their juniors who are placed at Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT Rs.12540/- w.e.f. 1-1-2006 as is revealed from the comparative statements at Annexure-G and Annexure-H, and to remove the said anomaly and discrimination;
(c) to direct the respondents, their agents and servants to step up the petitioners' pay and to put them at par with their juniors who are appointed on or after 1-1-2006 and to place the petitioners at the stage of Rs.12540/- in the Pay-band of Rs.9300-34800 (PB-2) with effect from 1-1-2006 which is the Entry Level Pay for fresh recruits as per Finance Department G.R.dtd.14th September, 2011 at Annexure-F, and to pay all the consequential benefits to the petitioners accordingly;
(d) to direct the respondents, their agents and servants to pay the arrears of difference of salary payable to the petitioners on removal of anomaly together with interest @18% per annum.
(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION BE PLEASED to direct the respondents, their agents and servants to start paying the salaries to the petitioners with effect from the next month as if the anomaly between the pay of the petitioners with effect from the next month as if the anomaly between the pay of the petitioners and their junior was removed with effect from 1-1-2006;
(f) to grant any other appropriate and just relief/s."
It is the case of the original petitioners that they are appointed as English Stenographers, Grade-I and presently some of them are serving as Principal Private Secretaries whereas some are working as Private Secretaries in the High Court of Gujarat. As on 31.12.2005, the petitioners were in the pay scale of Rs.6500-10500 as per the Page 4 of 19 HC-NIC Page 4 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT 5th Pay Commission pay scales. Thereafter, the 6th Pay Commission pay scales came to be implemented with effect from 1.1.2006 pursuant to the Gujarat Civil Services (Revision of Pay) Rules, 2009 (hereinafter referred to as `the Rules of 2009' for the sake of convenience) issued by the Finance Department. The post of Stenographers Grade-I of the State Secretariat cadre was placed in the pay structure of PB-2 with pay scale of Rs.9300-34800 with grade pay of Rs.4200/-. Thereafter, by Government Resolution dated 6.4.2010, the said pay structure of Stenographers Grade-I of State Secretariat cadre was further revised to pay structure of PB-2 with pay scale of Rs.9300-34800 with grade pay of Rs.4600/-. Thereafter, by another Government Resolution dated 14.10.2010, the benefit of the said revision of pay structure of Stenographers Grade I of the State Secretariat cadre was extended to the posts in all the field level officers. It is the say of the petitioners that their pay was fixed under the 6th pay commission with effect from 1.1.2006 at Rs.12,090/- after applying the factor of 1.86 (Rs.6500 x 1.86 = Rs.12090/-) as per Rule 7(A)(i) of the Rules of 2009.
4. It is the grievance of the petitioners that for the fresh recruitment Stenographers Grade-I who are appointed on or after 1.1.2006, Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT the State Government revised their entry level pay in the revised pay structure at Rs.12,540/- by issuance of Government Resolution dated 14.9.2011. It is the grievance of the petitioners that this has resulted into a discrimination and grave injustice to the petitioners who are senior as compared to the direct recruitees English Stenographers Grade-I who came to be appointed on or after 1.1.2006 as the pay of the petitioners as on 1.1.2006 has been fixed at Rs.12,090/-, wheres the pay of their juniors has been fixed at Rs.12,540/- as on 1.1.2006. The petitioners, therefore, filed the petition wherein the aforesaid reliefs were prayed for.
5. The learned Single Judge by the impugned judgment allowed all the petitions and thereby the original respondents-present appellants are directed to step up the pay of the petitioners by placing them at Rs.12,540/- and at Rs.10,810/-, as the case may be, in the respective petitions with all consequential benefits and to pay the periodical rise and also directed to pay the arrears from 1.1.2006 with interest @9% p.a. from the date of their entitlement. The appellants- government authorities have therefore preferred the present appeals.
6. Heard learned Additional Advocate Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT General (`AAG' for short) Mr.P.K.Jani with learned Assistant Government Pleader (`AGP' for short) Mr.Jayswal for the appellants and learned advocate Mr.K.B.Pujara, learned advocate Mr.A.R.Majmudar and learned advocate Mr.Shahil M Shah appearing for the concerned respondents- original petitioners in respective appeals.
6.1 Learned AAG mainly assailed the impugned judgment rendered by the learned Single Judge on the ground that the employees who are appointed prior to 1.1.2006 and who are appointed on or after 1.1.2006 are forming two separate classes and therefore when the appellants implemented the recommendation of 6th Pay Commission after framing the Rules of 2009 with effect from 1.1.2006, whereby the original petitioners' pay has been fixed at Rs.12,090/- whereas the pay of the employees who are appointed after 1.1.2006 has been fixed at Rs.12,540/- on the basis of the Rules of 2009, cannot be considered as giving discriminatory treatment to the petitioners. The petitioners and those appointed subsequently to them cannot be said to be similarly situated employees and therefore their case cannot be equated with the direct appointees who are appointed after 1.1.2006. Hence, learned Single Judge has committed an error by giving direction to the present appellants to step up the pay of Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT the petitioners by placing them at Rs.12,540/- and Rs.10,810/-, as the case may be, and also committed an error by giving direction to pay the arrears from 1.1.2006.
6.2 Learned AAG thereafter urged that the learned Single Judge has wrongly applied the concept of equal pay for equal work and has wrongly relied upon the judgment where stepping up was granted because there was a specific clause of granting stepping up in the concerned Rule itself whereas in the present case, Rules of 2009 which are in consonance with the recommendation of the 6th Pay Commission do not provide for any stepping up of an employee if there is anomaly between direct recruitees prior to 1.1.2006 and direct recruitees after 1.1.2006. At this stage, it is further contended that such an anomaly has occurred because of introduction of new concept of `entry level pay' which means the pay of an employee who is recruited after 1.1.2006 is fixed at a particular initial pay along with respective pay bands.
6.3 Learned AAG thereafter would submit that learned Single Judge has wrongly relied upon Rule 7(2)(ii) and Note 4 of Rules of 2009 for grant of stepping up. As per the contention of learned AAG, the said Rule as well as Note 4 will apply Page 8 of 19 HC-NIC Page 8 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT in those cases where there is anomaly in pay between seniors and juniors who are appointed prior to 1.1.2006 and not between those persons who are appointed prior to 1.1.2006 and after 1.1.2006. Hence, learned Single Judge has wrongly given direction to the appellants to step up the pay of the petitioners.
6.4 Learned AAG further submitted that the learned Single Judge has also committed an error by directing the appellants to pay the arrears from 1.1.2006 to the petitioners and payment of the amount with 9% interest from the date of entitlement. It is submitted that even as per the resolution dated 14.9.2011 issued by the Government, employees who are appointed as fresh recruits on or after 1.1.2006 to a particular post carrying a particular grade pay, their entry pay has been fixed as per the table shown in the said Government Resolution. However, in the said Government Resolution itself, it is clarified that the pay from 1.1.2006 to 31.3.2010 and difference of pay and allowances payable thereon shall be notional at par with other government employees covered under the Government Resolution dated 6.4.2010 and 14.10.2010 and hence not payable. It is further clarified that revised entry pay and allowances thereon shall be paid in cash from 1.4.2010. Thus, the learned Single Page 9 of 19 HC-NIC Page 9 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT Judge has wrongly directed to pay the arrears from 1.1.2006. At this stage, it is further urged that the question involved in the matter was with regard to the interpretation of Rules of 2009 and therefore it cannot be said that the appellants have intentionally denied the benefit as prayed for to the petitioners. Hence, the learned Single Judge ought not to have directed the appellants to pay the amount to the petitioners with 9% interest and therefore this part of the direction given by the learned Single Judge may also be set aside.
7. On the other hand, learned advocates appearing for the respondents-original petitioners supported the reasoning given by the learned Single Judge in the impugned judgment and submitted that the petitioners were drawing less pay than their juniors and difference between their salaries will further increase year by year and therefore said difference is rightly struck down by the learned Single Judge. When the petitioners who are recruited prior to 1.1.2006 and direct recruits who are recruited after 1.1.2006 are performing the same work, equal pay for equal work is required to be granted by the appellants and therefore when there was anomaly of pay of the petitioners who are senior to the persons who are appointed after 1.1.2006, the Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT learned Single Judge has rightly directed stepping up of the pay of the petitioners. Hence, the present appeals be dismissed.
8. We have considered the submissions canvassed on behalf of the learned advocates appearing for the parties. We have also gone through the material produced on record. In the present appeals, the question involved is whether the learned Single Judge is right in directing the appellants to step up the pay of the original petitioners by placing them at Rs.12,540/- or Rs.10,810/- as the case may be, in the pay scale of Rs.9300-34800 (PB-2) with arrears from 1.1.2006 and with interest @9% p.a. from the date of their entitlement?
8.1 It has emerged from the record that the original petitioners are appointed prior to 1.1.2006 and were placed in the pay scale of Rs.6500-10500 in the 5th Pay Commission. However, because of the implementation of the recommendation of 6th Pay Commission and on framing of Rules of 2009 by the State Government, the petitioners' pay has been fixed at Rs.12,090/- with effect from 1.1.2006 after applying the factor of 1.86 (6500/-x1.86 = Rs.12,090/-) as per Rule 7 (A)(i) of Rules of 2009. However, for the fresh recruited Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT Stenographer Grade I appointed on or after 1.1.2006, the appellants have revised their entry level pay in the revised pay structure at Rs.12,540/- in view of Government Resolution dated 14.9.2011. Thus, the pay of the juniors to the petitioners was fixed higher than the pay of the petitioners.
Rule 7 (A) of Rules of 2009 provides as under:
"7. Fixation of initial pay in the revised pay structure:
xxxxx (A) in case of all employees:
(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
(ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale."
Clause (v) of 2.2.22 of the 6th Central Pay Commission Report reads as under:
"2.2.22: Fixation of pay in the revised pay bands of existing employees as well as future recruits shall be done in the following manner:
xxxxx
(v) In case of promotion between identical posts in the same cadre, if a senior employee promoted to the higher post before 1.1.2006 draws less pay in the revised scale from his/her junior who is promoted to the higher post on or after 1.1.2006, the pay of the Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT senior employee shall be stepped up to an amount equal to the pay of the junior in that higher post, provided the senior employees, at the time of promotion, had been drawing equal or more pay than his/her junior."
Rules of 2009 provides for explanation of the Rules in the form of various notes, wherein Note 4 of Rules of 2009 reads as under:
"Note 4: Where in the fixation of pay under sub-rule (1), the pay of a Government servant, who, in the existing scale was drawing immediately before the 1st day of January, 2006 more pay than another Government servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped upto the same stage in the revised pay band as that of the junior."
8.2 From the aforesaid relevant provisions of the Rules as well as the report, it can be said that if the minimum of revised pay band/pay scale is more than the amount arrived at as per Sub-Rule(i) of Rule 7(A), the pay shall be fixed at the minimum of the revised pay band/pay scale. In the case of the petitioners, the minimum revised pay band/pay scale is more than the amount arrived at as per 7(A)(i) and therefore in view of Rule 7(A)(ii) of the Rules of 2009, their pay is required to be fixed at the minimum of the revised pay band/pay scale which, in the present case, comes to Rs.12,540/- and Rs.10,810/- respectively. Further, sub-clause (v) of Clause Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT 2.2.22 of the Report as observed hereinabove provides for stepping up of the pay if the senior employee promoted to the higher post before 1.1.2006 draws less pay in the revised scale than his junior who is promoted to the higher post on or after 1.1.2006, the pay of the senior employees shall be stepped up to an amount equal to the pay of the junior in that higher post.
8.3 Similarly, Note 4 of Rules of 2009 as discussed hereinabove provides that the stepping up of pay of a government servant who in the existing scale was drawing immediately before 1.1.2006 more pay than his junior in the same cadre is promoted, that means if the pay of the senior employee in the very cadre gets fixed in the revised pay band at a stage lower than that of his junior, his pay has to be stepped up to the same stage in the revised pay band as that of his juniors. Thus, in the present case, the petitioners who were appointed prior to 1.1.2006 and their juniors who were appointed on or after 1.1.2006, the pay band of juniors to the petitioners was fixed higher than that of the petitioners and therefore there is apparent anomaly in the salary being paid to the petitioners as against their juniors.
8.4 Learned Single Judge has considered the Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT aforesaid aspects and after relying upon the decision rendered by this Court on 28.11.2011 in the case of Maganbhai Arjanbhai Vegda etc. V/s State of Gujarat and others in Special Civil Application No.12541 of 2011 and allied matters which was confirmed by the Hon'ble Division Bench vide order dated 8.1.2013 passed in Letters Patent Appeal No.1349 of 2012, given the direction to the appellants to step up the pay of the petitioners by placing them at Rs.12,540/- or Rs.10,810/-, as the case may be, in pay band of Rs.9300-34800 (PB-2). We have gone through the reasoning given by the learned Single Judge while giving the aforesaid direction and we see no reason to interfere with the same.
8.5 However, learned AAG is right in submitting that by way of Government Resolution dated 14.9.2011, the employees appointed as fresh recruits on or after 1.1.2006 to a particular post getting a grade pay stated in the table provided in the said Government Resolution, their entry level pay was fixed in a particular band. However, by way of the said Government Resolution, the said pay from 1.1.2006 to 31.3.2010 and the difference of pay and allowances payable thereon was considered as notional at par with other government employees covered under Government Resolution dated Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT 6.4.2010 and 14.10.2010 and therefore difference was not actually paid to such employees. It is further clarified in the said Government Resolution that the revised entry pay and allowances thereon shall be paid in cash from 1.4.2010. For ready reference, the relevant provision of the said Government Resolution reads as under:
RESOLUTION The State Government has decided to revise the entry level pay, payable under Rule-8 of The Gujarat Civil Service (Revision of Pay) Rules, 2009, in the revised pay structure for direct recruits as shown below:
PB-2 (9300-34800) Grade Pay in the Pay Band Total Pay 4400 10810 15210 4600 12540 17140 Employees appointed as fresh recruits on or after 1st day of January, 2006 to a particular post carrying above mentioned grade pays, their entry level pay shall be as shown above. These orders shall take effect from 01.01.2006. The pay from 01.01.2006 to 31.3.2010 and the difference of pay and allowances payable thereon shall be notional at par with the other government employees covered under Finance Department, Government Resolutions dated 6.4.2010 and 14.10.2010, and hence not payable. Further revised entry pay and allowance thereon shall be paid in cash from 01.04.2010.
Subsequent amendment in the Gujarat Civil Service (Revision of Pay) Rules, 2009 shall Page 16 of 19 HC-NIC Page 16 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT be made hereafter."
Thus, in view of the above, we are of the considered view that learned Single Judge has committed an error by giving direction to the appellants to pay arrears from 1.1.2006. Similarly, learned AAG is right in submitting that the question involved in the petition was with regard to the interpretation of the Rules of 2009 and with regard to the 6th Central Pay Commission Report. Hence, the direction given by the learned Single Judge to pay the interest @9% is also required to be set aside.
9. In view of the above discussion, these appeals are partly allowed by modifying the impugned judgment in the following terms:
(1) The appellants-original respondent authorities are hereby directed to step up the pay of the petitioners of Special Civil Application No.12207 of 2014 by placing them at Rs.12,540/- in the pay band of Rs.9300-34800 (PB-
2) from 1.4.2010 with arrears and to pay periodical rise and with other consequential benefits as per Government Resolution dated 14.9.2011.
(2) The appellants-original respondent authorities are hereby directed to step up the pay of the petitioners of Special Civil Page 17 of 19 HC-NIC Page 17 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT Application No.18619 of 2014, 2965 of 2015 and 4716 of 2015 by placing them at Rs.10,810/- in the pay band of Rs.9300-34800 (PB-2) from 1.4.2010 with arrears and to pay periodical rise and with other consequential benefits as per Government Resolution dated 14.9.2011. (3) The pay of the petitioners in the respective pay scales be calculated and accordingly they be paid such amounts on regular basis. (4) The said exercise of calculation of pay of the petitioners and payment of arrears shall be completed within a period of two months from the date of receipt of this order.
(5) The original petitioners are not entitled to get the interest @9% p.a. from the date of their entitlement. The impugned order of the learned Single Judge qua grant of interest is set aside.
Rule is made absolute to the aforesaid extent.
10. As the main appeals are disposed off, no orders are required to be passed on Civil Applications. Accordingly, the same are also disposed off.
(R. SUBHASH REDDY, CJ) Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat Sep 17 05:38:11 IST 2016 C/LPA/652/2016 CAV JUDGMENT (VIPUL M. PANCHOLI, J.) Srilatha Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Sep 17 05:38:11 IST 2016