Gujarat High Court
Amreli District Panchayat vs Deputy District Development Officer ... on 20 December, 1988
Equivalent citations: (1989)2GLR1152
JUDGMENT R.C. Mankad, J.
1. Common question which arises for my consideration in these three petitions is whether clerks, who are senior to clerks who were working on work-charge establishments prior to their appointment on regular establishments were entitled to stepping up of their pay under Government Resolution dated May, 8 1970 and July 3, 1972 annexed to the petitions.
2. Rules called Gujarat Panchayats (Classification and Recruitment) Rules, 1961 provide for appointments to the post of clerks. One of the modes of appointment to the post of clerk is by direct selection through a Selection Committee on the result of competitive examination held by the Selection Committee. Each Panchayat has more than one establishments. Two of such establishments are regular establishment and work-charge establishment. Work-charge establishment is created for a particular work or project and the employees who work on such establishment are not regular employees of the Panchayat. The employees on the work-charge establishment are, however, eligible to compete for direct selection through Selection Committee referred to above. The Selection Committee holds competitive examination for recruitment of clerks from time to time. Some of the candidates selected by the Selection Committee are from the work-charge establishment as they are eligible to appear at the competitive examination for direct selection.
3. There are posts of clerks on the work-charge establishment. These posts of clerks on the work-charge establishment are equivalent to the posts of clerks on the regular establishments.
4. Clerk working on work-charge establishment when appointed on regular establishment did not get the benefit of the services rendered by him on the work-charge establishment. As a result clerk who had worked for many years on the work-charge establishment lost benefit of higher pay, which he had earned on the work-charge establishment and he had to again start at the initial pay in the time scale applicable to clerk on the regular establishment. Thus after working for many years on the work-charge establishment such clerk became fresh employee in regular establishment. This naturally created heart-burning among the work-charge clerks, who were appointed on regular establishment. The Government, therefore, decided that work-charge clerk, who is appointed on regular establishment, would get the benefit of continuous service rendered by him on the work-charge establishment and for the purpose of fixing his pay on his appointment on the regular establishment such continuous service on the work-charge establishment would be counted. As a result, when work-charge clerk was appointed as clerk on regular establishment his pay was protected. Thus many a time it so happened that work-charge clerk on his appointment on regular establishment got more or higher pay than his senior in the cadre of clerk, who was appointed by direct selection and who had never worked as work-charge clerk. For instance in Amreli District Panchayat one S M. Rakhashia, who was working on work-charge establishment got higher pay, than his seniors in the cadre of clerk on his appointment on regular establishment. This was because Rakhashia got benefit of the services rendered by him on the work-charge establishment. It appears that Rakhashia's seniors made representation to the competent authority and claimed stepping up of their pay so as to make it equivalent to that of Rakhashia. This claim was made on the basis of two Resolutions dated May 8, 1970 and July 3, 1972 referred to above. This claim was accepted by the competent authority and pay of those clerks who were senior to Rakhashia and who were getting less pay than him was stepped up and they were paid pay equal to that of Rakhasia. I am told that similar benefit of stepping up of pay was given to clerks working on regular establishments of other District Panchayats also. It, however, appears that in case of some of the Panchayats audit objection was raised that the clerks who were given benefit of stepping up of pay were not entitled to such benefit and that their pay was wrongly stepped up. As a result of this audit objection some of the District Panchayats, which included Amreli District Panchayat and Valsad District Panchayat, decided to cancel the order stepping up the pay of the aforesaid clerk and to recover from them the excess pay paid to them. It is in the background of the above facts that these petitions have been filed by the clerks whose pay was stepped up by the District Panchayats.
5. The petitioners are claiming benefit of stepping up of the pay on the basis of Resolution dated May 8, 1970 and July 3, 1972. The Resolution dated May 8, 1970 reads as follows:
Government Resolution:
Under the provisions of the, Government Resolution, Finance Department No. PAY 1264/463 dated the 5th January, 1965 anomalous situation may arise in which a Government servant on promotion to a higher post may become entitled to get more pay than what is his senior colleagues promoted earlier to such posts in the same line of promotion and in the same way may be receiving on the crucial date (date of promotion of the junior Government servant), and in many cases, once such an anomaly arise it perpetuates, thereby causing considerable heart burning and dissatisfaction to the persons concerned.
2. After carefully reviewing the provisions of the aforesaid Government Resolution, Govt, has decided mat the anomaly should be rectified by stepping up the pay of the senior persons affected to the level of the pay admissible to the junior Government servant on his promotion to the higher post irrespective of the fact whether the senior Government servant has been confirmed in the higher post prior to the date of promotion of the junior person
3. The method of "stepping up" shall be employed subject to the following conditions, all of which must be satisfied
(a) The Government servants concerned should be belonging to the same cadre and the posts in which they have been promoted should be indentical;
(b) The time scales of the pay of the lower and higher posts in which they are entitled to draw pay should be identical:
(c) But for his promotion to higher post earlier, the Government servant concerned would have been eligible to draw pay in the lower post at a stage not lower than that admissible to the junior person immediately prior to the latter's promotion to higher post;
(d) The anomaly is directly attributable to the provision of the Govt. Resolution, Finance Department No. pay 1264/463 dated the 5th January'. 1965.
4. The orders regarding the stepping up of the senior officer's pay to the level of that of the junior in accordance with these orders should be issued under the B.C.S.R. 51. The next increment of the senior officer will be drawn on the date on which it would have fallen due but for the refixation of pay.
5. The pay of the senior person so stepped up shall not be reduced on reversion of the junior officer nor it will be stepped up again with reference to the pay of the same officer on repromotion.
6. Government is also pleased to direct that past cases where as a result of fixation of pay under the G.R., F.D.No. GCS/276/1545/F dated the 28th February, 1961 as amended as Government servant happens to get less pay than what a person junior to him may be getting, may be referred to Government for decision under B.C.S.R. 51 on the merits of the individual cases.
7. These orders take effect from 1st April, 1970. The pay of the Government servant concerned should be refixed retrospectively on the basis of these orders, but it should be drawn with effect from 1st April, 1970 without payment of arrears. The cases of Government servants who have quit service on account of retirement etc. prior to the date of issue of these orders as also those of persons on leave to preparatory to retirement as on the 1st April, 1970 shall not be reopened.
Resolution dated: July 3, 1977 reads as follows:
Under the orders contained in Govt. Resolutions, Finance Department, No. PGR-2470/490 CH dated the 8th May. 1970 and No. PGR 2471/3027, CH dated the 16th Nov., 1972 provision has been made for stepping up of pay of a Government servant to the level of pay of a junior Government servant, with a view to removing anomaly, subject to certain conditions. These orders do not cover the following types of cases.
(a) A Government servant appointed to higher post in direct line by selection on merits in open competition, suffering from anomaly on account of subsequent normal promotions of a junior person to such higher post;
(b)(i) Cases in which time scale of the same post is changed and pay fixation and date of next increment are regulated in accordance with the provisions of Bombay Civil Services Rule 44.
(ii) A case in which a person is promoted to higher post before the revision of time scale of lower post and a junior person is promoted to similar higher post in the same cadre after the crucial date.
2. Government has considered all these cases sympathetically and it has been decided that the benefit of stepping up of pay or the date of increment, as the case may be should be allowed to a Government servant with reference to the fact relevant to his junior with effect from the date from which anomaly arises.
The remedy of stepping up should be adopted subject to fulfilment of the conditions and the manner laid down in the Government Resolutions referred to above to the extent these may be relevant.
3. These orders take effect from the 1st July, 1972; past cases in which anomalies still persist should also be reviewed under these orders and the pay of the persons concerned should be regulated accordingly from time to time but they would be entitled to draw the pay so refixed only from the 1st July, 1972.
6. It would appear from the plain reading of the aforesaid Resolution dated May 8, 1970 that the Government had in the said Resolution dealt with the anomalous situation, which may arise in which Government servant on promotion to higher post may become entitled to get more pay than what his senior colleague promoted earlier to such post in the same line of promotion and in the same way may be receiving on the crucial date (date of promotion of the junior Government servant). It was to remove such anomaly that it was decided to employ the method of 'stepping up'. The benefit of stepping up of pay was not applicable to certain cases as stated in the Resolution dated July 3, 1972. One of such cases was of the Government servant appointed to higher post in direct line by selection on merits in open competition, suffering from anomaly on account of subsequent normal promotions of a junior person to such higher post. The Government by the said Resolution decided that benefit of stepping up of pay or the date of increment, as the case may be, should be allowed to a Government servant with reference to the fact relevant to his junior with effect from the date from which anomaly arises. It was, however, made clear that the remedy of stepping up should be adopted subject to fulfilment of the conditions and in the manner laid down in the Govt. Resolutions on the subject to the extent they may be relevant.
7. It is clear from the aforesaid Resolutions that benefit of stepping up of pay is given to person who is senior to person getting higher pay on promotion both in the lower cadre and the higher cadre. For example A and B are working in the lower cadre and A is senior of B, A is promoted to a higher cadre or he is appointed to a post in a higher cadre by direct selection. B who was junior to A in the lower cadre is promoted to higher cadre subsequently. Under the aforesaid Resolutions if pay of B who was junior to A both in the lower and higher cadre is fixed higher than the pay which A is drawing in the higher cadre on the date of promotion of B in the higher cadre, then A's pay is required to be stepped up and brought to the level of the pay of B. It would thus appear that the aforesaid Resolution would apply only when senior and junior employees are working both in the lower and the higher cadres and the question of stepping up of the pay of the senior in higher cadre would arise only in a case where the pay of a junior is fixed higher than his senior on his promotion to the higher cadre. If these conditions arc not satisfied the question of adopting the method of stepping up of the pay would not arise.
8. In the instant case clerks working on the regular establishment are claiming stepping up of their pay on the ground that clerks junior to them, who were working on work-charge establishment are getting higher pay. Post of clerk on work-charge establishment is equivalent to the post of clerk on regular establishment. Work-charge establishment is created for a particular work or a project and all the employees working on such establishment are employed for temporary period till such time the work or the project lasts There is no regular channel of promotion from work-charge establishment to regular establishment. There is also no question of promotion so far as post of clerk is concerned because, as pointed out above, whether the post of clerk is on work-charge establishment or on regular establishment, the cadre is same, namely, that of clerk. In other words, these posts are equivalent posts. Clerks working on work-charge establishment are eligible to compete for direct selection by the Selection Committee and some of them get selected for appointment on regular establishment. Such clerks on their appointment on regular establishment cannot be said to have been promoted. They were clerks on work-charge establishment but on their selection and appointment, they become clerks on the regular establishment. It many times so happens that a clerk remains clerk on the work-charge establishment for a long period because of his failure to get selected for appointment on regular establishment. Many work-charge establishment clerks who did not compete for direct selection for one reason or the other, were in continuous service on work-charge establishment without break. When these clerks were appointed on regular establishment their salary got reduced because their appointment on regular establishment was considered to be fresh appointment. This, as already pointed out above, had resulted in heart-burning. It was therefore, that the Government decided to give such clerks the benefits of services rendered by them on the work-charge establishment, if their services were continuous without break. Thus on their appointment on regular establishment, as pointed out above, the pay they were drawing on work-charge establishment came to be protected. It, however, cannot be said that they got higher pay than the seniors "on their promotion" to the cadre of clerks on regular establishment. Therefore, even if the cadre of clerks on work-charge establishment is considered to be lower than the cadre of clerk in the regular establishment, the case of the aforesaid clerks senior to work-charge clerks appointed on regular establishment would not be covered by the aforesaid Resolutions and they would not be entitled to stepping up of their pay. Mere fact that work-charge clerk on his appointment on regular establishment gets higher pay would not entitle clerk senior to him the benefit of stepping up of the pay. The decision of the concerned authorities in stepping up the pay of these clerks was, therefore, obviously wrong and the audit section was right in pointing out this mistake. Clerks on whose behalf these petitions, are filed, in my opinion, are not entitled to stepping up of' the pay and, therefore, the concerned District Panchayals were right in cancelling the order stepping tup their pay and directing recovery of excess paymeni made to them.
In the result these pennons fail and are rejected. Interim relief ahall stand vacated. Rule issued in each of these petitions shall stand discharged with no order as to costs.