IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2267 of 1991 With SPECIAL CIVIL APPLICATION No. 3154 of 1991 With SPECIAL CIVIL APPLICATION No. 9246 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DINESHKUMAR P. JADAV & 8 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance :
MR MR ANAND for Petitioner(s) : 1 - 9.MR DIPAK C RAVAL for Petitioner(s) : 1.2.1,1.2.2 GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 27/04/2012 CAV JUDGMENT
1. In this group of petitions, the petitioners have prayed for direction to the respondents to fix pay of the petitioners in the pay-scale of Rs.330-560 with effect from 01.01.1973 and to pay the petitioners the arrears of salary and other consequential benefits on the basis of such fixation of their pay.
2. It is the case of the petitioners that all the petitioners are qualified compounders, posted and working in various Ayurvedic Hospitals run by respondent No.1 State of Gujarat. Petitioners of Special Civil Application No.2267 of 1991 joined the services between 1962 and 1968 as stated in tabular statement annexed with the petition. Petitioners of Special Civil Application No.3154 of 1991 joined the services from 1964 to 1972 and petitioners of Special Civil Application No.9246 of 2004 joined the services between 1962 and 1966, as per the tabular statement annexed with the petition. The Recruitment Rules for the recruitment of compounders came into effect in the year 1967 and as provided in the said Recruitment Rules, all the petitioners were eligible and qualified to be appointed on the post of Compounder. Therefore, for all the purposes, the petitioners are qualified compounders and there cannot be any discrimination in the matter of pay-scale between the compounders who were appointed on the basis of the Recruitment Rules of 1967 and the petitioners.
3. It is further the case of the petitioners that their initial pay-scale was Rs.100-170, which was revised to Rs.135-5-250 with effect from 01.06.1967. The Gujarat Civil Services (Revision of Pay) Rules, 1975 then came into force. Under the said Rules, the petitioners were placed in the pay-scale of Rs.260-
400, though the rules provided that the qualified compounders should be placed in the pay-scale of Rs.330-560. In fact by placing the petitioners in the pay-scale of Rs.260-400, the petitioners were considered as unqualified compounders though they had been drawing the similar pay-scale with other qualified compounders till the above said rules came into existence. Thus the respondents created the class within the class of compounders by branding the petitioners as unqualified compounders. The petitioners are qualified compounders because as on the date of commencement of 1967 Recruitment Rules, since they were matching the qualifications required for appointment to the post of compounder, the petitioners were required to be treated as qualified compounders.
4. The petitioners of Special Civil Application NO.9246 of 2004 had initially filed Special Civil Application No.1415 of 1982 praying to fix their pay in the pay-scale of Rs.330-560 with effect from 01.01.1973 and to pay all consequential benefits, arrears of salary and other benefits etc. The above said petition was allowed by the learned Single Judge of this Court vide order dated 13.02.1991 and respondents were directed to fix the pay of the petitioners in the pay-scale of Rs.330-560 with effect from 01.01.1973 and to pay all consequential benefits. The above said judgment and order passed in Special Civil Application No.1415 of 1982 was challenged by the State of Gujarat by way of preferring Letters Patent Appeal No.33 of 1992 before the Hon'ble Division Bench of this Court. The petitioners sought permission to withdraw the above stated Special Civil Application No.1415 of 1982 to render the impugned order and judgment passed in the said matter inoperative and ineffective. The petitioners were accordingly allowed to withdraw their above stated writ petition and the Hon'ble Division Bench observed that in view of the withdrawal of the main petition, the impugned judgment and order of the learned Single Judge dated 13.02.1991 passed in the above Special Civil Application No.1415 of 1982 would not survive. It was conscious decision of the petitioners to withdraw the above said petition, though the judgment and order passed by the learned Single Judge had already been in their favour. The petitioners had withdrawn the aforesaid petition with a view to make representation to the State Government. The Hon'ble Court permitted the petitioners to make representation to the State Government and the State Government was directed to consider the case of the petitioners sympathetically and decide, whether the petitioners of the above stated petition should be treated as qualified compounders, in view of the fact that they had imparted training to the trained compounders who are treated as qualified compounders. The order passed in above referred Letters Patent Appeal reads as under:
“After detailed arguments in this matter and before the judgement was started, the learned Counsel appearing for the respondents states that the respondents seek permission to withdraw their petition Special Civil Application No. 1415 of 1982, with a view to approach the State Government, as regards their claim for being given the payscale applicable to qualified compounders on the footing that they also should be treated as qualified compounders. It was clearly understood that withdrawal of the writ petition which was filed by the respondents will have the effect of the judgement and order dated 13.2.91 which has been challenged in this appeal to become ineffective. Being fully aware of this consequence, the learned Counsel for the respondents again on instructions reiterates that the respondents seek permission to withdraw the main petition itself i.e. Special Civil Application No. 1415/82 and that the order of the learned Single Judge dated 13.2.1991 would therefore become inoperative and ineffective. The learned Counsel for the appellant has no objection if the Court permits the respondents to withdraw their petition. We allow the respondents to withdraw their writ petition being Special Civil Application No. 1415 of 1982. In view of the withdrawal of the main petition, the impugned judgement and order of the learned Single Judge dated 13.2.1991 will not survive. In this view of the matter, the present Letters Patent Appeal has become infructuous and is accordingly disposed of as having become infructuous with no order as to costs.
If the respondents make any representation or application to the State Government, the State Government shall consider the same sympathetically and decide whether these respondents' claim that they should also be treated as qualified compounders, particularly in view of the fact that they had imparted training to the trained compounders, who are treated as qualified compounders, and take such decision in accordance with law expeditiously, preferably within three months after such application or representation is received. If the decision taken by the State Government goes against the respondents, it will be open for them to challenge the same in accordance with law. There shall be no order as to costs.”
5. At this stage, it is required to be noted that till learned Single Judge allowed the above referred Special Civil Application No.1415 of 1982 vide order dated 13.02.1991, the petitioners of Special Civil Application No.2267 of 1991 and Special Civil Application No.3154 of 1991 had no grievance about fixing the pay in the pay-scale of Rs.260-400, but after learned Single Judge delivered the judgment in Special Civil Application No.1415 of 1982, the petitioners of above referred two petitions filed petition claiming the benefit of fixation of pay in the pay-scale of Rs.330-560. Thus, after about more than 15 years, the petitioners of Special Civil Application No.2267 of 1991 and Special Civil Application No.3154 of 1991 filed the petition for fixation of their pay in the pay-scale of Rs.330-560.
Reverting back to the case of the petitioners of Special Civil Application No.9246 of 2004, the petitioners of the said petition made representation to the State Government on the basis of the order passed in Letters Patent Appeal No.33 of 1992 claiming parity of pay-scale with qualified compounders on the ground of performing similar duty and work to that of qualified compounders as also on the ground that they had imparted training to the trained compounders who were treated to be qualified compounders. The State Government has rejected the said representation of the petitioners of Special Civil Application No.9246 of 2004 on the ground that classification made between the two classes of compounders was based on the basis of qualification required for the recruitment of the compounder and that the petitioners were already placed in the pay-scale equivalent to the pay-scale of clerks i.e. Rs.250-400. On such decision taken by the State Government rejecting the request of the petitioners for fixing the pay in the pay-scale of Rs.330-560, the petitioners of Special Civil Application No.9246 of 2004 have again filed the petition with a similar prayer as made in their earlier petition being Special Civil Application No.1415 of 1982 i.e. to pay in the pay-scale of Rs.330-560 with effect from 01.01.1973 as had been prayed in two other petitions.
6. All these petitions are opposed by the respondent by filing affidavit-in-reply. These two petitions being Special Civil Application No.3154 of 1991 and Special Civil Application No.2267 of 1991 are opposed on the ground that the petitioners of those petitions are not entitled to any relief because of the gross delay on their part in filing the petitions. In paragraph No.5 of the reply in Special Civil Application No.3154 of 1991, it is stated that petition is required to be rejected on the ground of delay as the petitioners were appointed in the year 1964 to 1972 and up till 1991 they did not raise any grievance or dispute. Most of the petitioners have retired. On merits it is pointed out in the reply filed in all the petitions that the Recruitment Rules for the Compounders (Ayurvedic) came to be published in the notification on 04.09.1967 and if the petitioners were to be appointed on the basis of the said Recruitment Rules the petitioners did not have qualifications as required in Clause 3 Sub-Clause B of the said notification and therefore, they cannot be said to be qualified compounders and as per the ROP Rules, 1975 only qualified compounders were entitled to pay in the pay-scale of Rs.330-560. It is also stated in the reply that the petitioners did not give any training as required under Recruitment Rules to the qualified compounders. Since, the Desai Pay Commission had drawn reasonable classification of qualified and unqualified compounders, the petitioners cannot claim to treat them as qualified compounders and demand pay-scale of Rs.330-560.
7. I have heard Learned advocate Shri Dipak C. Raval for the petitioners and Learned AGP Shri Dave. Learned advocate appearing for the petitioners has made following submissions:
(A) The petitioners were holding qualifications required for being appointed as compounders as provided in Recruitment Rules of 1967 and therefore on the date of Recruitment Rules of 1967, since petitioners were qualified to be appointed for the post of compounder, they could not have been treated as unqualified compounders.
(B) There was no rational behind treating the petitioners as unqualified compounders, when the pay- scale of the petitioners and other compounders were revised as per the ROP Rules, 1975, as petitioners have been performing similar kind of work, functions and duties as being performed by the compounders appointed on the basis of Recruitment Rules, 1967. Therefore, by treating the compounders as unqualified compounders only for the purpose of revision of pay is nothing but creating class within class of the compounders.
(C) All the petitioners were permitted to draw similar and identical pay even after the Recruitment Rules, 1967 came into existence, at par with other qualified compounders, till the pay-scale of compounders came to be revised under ROP Rules, 1975. Therefore, there was no reason to debar the petitioners from getting parity of pay-scale at the time of revision of pay-scale of all the compounders, since there was already parity of pay-scale between the petitioners and other compounders appointed on the basis of Recruitment Rules, 1967.
(D) Simply because qualifications were prescribed for the first time in the year 1967 Recruitment Rules, that by itself would not be ground to deprive the petitioners from being entitled to similar pay-scale granted to the other compounders on the basis of ROP Rules, 1975, when there is no difference of work or functions or duties between the two sets of compounders. Since the petitioners continued to draw the similar pay-scale till the ROP Rules came into existence, on the principle of equal pay for equal work also the petitioners were required to be given similar treatment in the matter of grant of pay-scale of Rs.330-560.
(E) The petitioners are even ready to accept the notional fixation of their pay in the pay-scale of Rs.330-560 as, such benefits to the petitioners would make them entitled for other consequential benefits.
8. In support of his arguments the learned advocate for the petitioners has relied upon the decision of Hon'ble Apex Court in the case of Alvaro Noronha Ferriera and ors. V. Union of India and Ors., reported in (1999) 4 SCC 408, where from the learned advocate for the petitioners has pointed out that Hon'ble Supreme Court has held that if there was parity of pay-scale between the two sets of employees till it was disturbed at a later point of time (in that case in 1982) and if the nature and dimension of work discharged by such two sets of employees could not be doubted then such employees should not be made to suffer in the matter of pay-scale at the time of revision of pay-scale. Learned advocate for the petitioner has also relied upon another Supreme Court Judgment in the Case of Union of India and ors., V. Satya Brata Chowdhury and ors., reported in (2008) 16 SCC 383, from where he has pointed out that if two sets of workers were treated equally and paid for the similar pay-scale then it would not be proper to grant differential treatment to such workers at the time of revising their pay-scale.
9. Learned advocate has also relied upon the judgments reported in (1997) 1 GLR 647 to point out that when there are two sets of employees performing the similar duties for long time the deferential treatment given to one set of employees is illegal.
10. As against the arguments advanced by the learned advocate for the petitioners, Learned AGP, Shri Dave has advanced the following arguments:
(A) In the affidavit-in-reply reasonable classification at the time of revision of pay-scale has been well explained and therefore considering the stand of the respondent State Government the petitioners cannot be said to be entitled to pay in the pay-scale of Rs.330-560.
(B) The appointment of the petitioners were long before in the year 1962 except for one or two petitioners it was in the year 1970 and 1972 but those petitioners came to be absorbed from the other department where they were serving and their appointments were not on the basis of Recruitment Rules, 1967. All the petitioners did not make any grievance after the revision of pay-scale in the year 1975 came into existence for many years.
Application No.2267 of 1991, the petitioners have filed petition after a long delay of more than about 15 years and on this ground of unreasonable delay alone the petitioners are not entitled to any relief. In respect of the third petition being Special Civil Application No. 9246 of 2004 learned AGP has pointed out that there also the petitioners are responsible for unreasonable delay of about more than 7 years. He further pointed out that the petitioners of Special Civil Application No.9246 of 2004 are otherwise estopped from now claiming any benefit of fixation of pay in the pay-scale of Rs.330-560 as they had consciously withdrawn their earlier petition being Special Civil Application No.1415 of 1982, though the decision on merits was already in their favour. Now, there is no change in the fact situation and simply because the Government has rejected the representation of the petitioners of the said Special Civil Application that would not give any new ground to the petitioners to again claim same relief.
(D) The State Government has already taken decision on the representation of the petitioners of Special Civil Application No.9246 of 2004 and the State Government having arrived at decision on merits by holding that there was reasonable classification on the basis of the qualifications between two sets of compounders, the claim of the petitioners to give pay- scale of Rs.330-560 cannot be accepted. In view of the decision on the representation of the petitioners, now, it is not open for the petitioners to again come to the Court with similar prayer in respect of which the petitioners have already withdrawn Special Civil Application No.1415 of 1982.
(E) The petitioners are not right in saying that they had trained the compounders who were appointed on the basis of Recruitment Rules, 1967. The training contemplated by the Recruitment Rules is different and distinct training required by the compounders on the basis of 1967 Recruitment Rules. The petitioners have not imparted any such training to the qualified compounders. The compounders appointed on the basis of petitioners cannot be said to have imparted any such training to the qualified compounders. Therefore, when ultimately it is found by the State Government that not only there was reasonable classification on the basis of qualifications but as stated in the reply, it was made very clear that the petitioners cannot be said to have imparted the requisite training to the qualified compounders, this Court may not accept the claim of the petitioners for the pay-scale of Rs.330-560, especially, after a long delay when most of the petitioners have retired.
11. Having heard the Learned advocates for the petitioners and the State and having perused the record of the case, this Court is of the opinion that the petitioners are not entitled to any relief on the ground of delay and laches. They are also not entitled to any relief on the ground of parity by treating them as qualified compounders. The petitioners of Special Civil Application No.3154 of 1991 and Special Civil Application No.2267 of 1991 had no grievance at all till 1991. By the time learned Single Judge of this Court delivered the judgment in the year 1991 in the petition being Special Civil Application No.1415 of 1982, which was earlier preferred by the petitioners of Special Civil Application No.9246 of 2004 more than 15 years had already elapsed. The petitioners were not at all vigilant to claim pay-scale on the basis of ROP Rules, 1975 as qualified compounders. Though limitation act does not apply to petition under Article 226 still if the petitioners have not been vigilant for their rights and do not awake from slumber for years, they are not entitled to make any grievance about violation of their rights at much belated stage.
12. Therefore, the petitioners of the above referred two petitions cannot be granted any relief for fixation of their pay in the pay-scale of Rs.330-
560 on the ground of delay itself. The petitioners have not explained the delay. In fact, it appears that the petitioners were satisfied with the pay-scale of Rs.260-400 which was revised from Rs.135-5-250 at the time of revision of their pay where ROP Rules, 1975 came into existence. This Court has reason to believe that if Special Civil Application No.1415 of 1982 was not filed perhaps the petitioners of Special Civil Application No.3154 of 1991 and Special Civil Application No.2267 of 1991 would not have come to the court at all. Hon'ble Supreme Court in a decision in the case of State of Orissa and others v. Mamata Mohanty, reported in (2011) 3 SCC 436 (Para-54) has held that approaching the Court after similar persons granted relief is no ground for explaining unreasonable long delay. In two other decisions, in the case of State of Karnataka and Ors., V. S.M.Kotrayya and Ors., reported in (1996) 6 SCC 267 and in the case of Jagdishlal and Ors., V. State of Haryana and Ors., reported in (1997) 6 SCC 538 (Para- 18) Hon'ble Supreme Court has held that delay and laches could defeat the right of the employee to get relief of pay-scale. These petitions are therefore required to be dismissed on the ground of delay and laches.
13. Now, so far as the case of the petitioners of Special Civil Application No.9246 of 2004 is concerned, as stated in para 4 of this order, Hon'ble Division Bench has recorded in its order that withdrawal of earlier petition by them would amount to rendering the order passed by the learned Single Judge inoperative and ineffective. It appears that the petitioners decided to withdraw the said petition, perhaps the Court was to allow the Letters Patent Appeal filed by the State Government. Be that as it may the said judgment and order passed in Special Civil Application No.1415 of 1982 did not survive and the State Government was required to decide the representation of the petitioners of the said petition. The representation is decided and from the decision, it is found that there is reasonable classification drawn by the State Government between the two sets of compounders on the basis of their qualifications. The State Government has also considered that at the relevant time pay-scale of Rs.260-400 which was given to the petitioners was equivalent to the pay-scale of clerks. In affidavit- in-reply it is explained that the petitioners cannot be said to be qualified to be appointed as compounders on the basis of Recruitment Rules, 1967.
14. Recruitment Rules, 1967 specifically provided for training or three years experience over and above the educational qualifications. If the petitioners were to be appointed on the basis of Recruitment Rules, the petitioners could not be said to be having the required experience or training as prescribed under the Recruitment Rules, 1967. Simply because, by the time Recruitment Rules, 1967 came into force the petitioners acquired experience or training that would not make petitioners eligible to become qualified compounders with other compounders who recruited on the basis of 1967 Recruitment Rules. Therefore, there was nothing wrong in branding the petitioners as unqualified compounders for revision of pay-scale by the Pay Commission. Even otherwise also the State Government in the affidavit has clarified that the petitioners have not rendered the requisite training to the qualified compounders and simply because qualfied compounders worked under petitioners that would not be sufficient to say that the qualified compounders were given requisite training under the Recruitment Rules by the petitioners. In view of the above facts situation, the judgments cited by Learned advocate of the petitioners would be of no help to them.
15. As held by the Hon'ble Supreme Court in the case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408 and in the case of State of Haryana and ors. V. Jasmer Singh and Ors., reported in (1996) 11 SCC 77, the fixation of pay-scale, parity for equal work equal pay etc. is purely executive or legislative function and when the Pay Commission has undertaken the exercise of revising the pay-scale by taking into consideration qualifications and other criteria, the Court should be very slow in interfering with such decision of the Pay Commission, and also with the decision of the authority which has ultimately implemented the revised pay-scale. Considering the above stated principles of law settled by Hon'ble the Supreme Court, this Court is not inclined to accept the claim of the petitioners on this ground also. Additionally, these petitioners are also responsible for delay and laches. They had also not approached the court within reasonable time. They are also not entitled to any relief on the ground of delay and laches.
16. Ultimately to summaries, this Court is of the opinion that there was reasonable classification between two sets of compounders at the time of revision of pay-scale and the State Government has not acted arbitrarily in prescribing two different pay- scales for qualified and unqualified compounders. Even otherwise also I am of the opinion that the petitioners are not entitled to any relief on the ground of unreasonable delay in approaching this Court. The petitioners having not being vigilant towards their rights and having continued to draw the pay-scale of Rs.260-400 for more than 10 to 15 years and having not raised any grievance by filing any petition for this many long years, this Court is not inclined to grant any relief to the petitioners as prayed for in this petition. Accordingly, all these petitions are required to be dismissed and accordingly, dismissed.
(C. L. SONI, J.) mehul