IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10006 of 1995 For Approval and Signature:
HONOURABLE MR.JUSTICE PARESH UPADHYAY =============================================================
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 ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================================= GUJARAT STATE ACCOUNTS SERVICE (NON GAZETTEE)ASSO. -
Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MR BIREN A VAISHNAV for Petitioner(s) : 1, Mr.Rakesh Patel Assistant Government Pleader for Respondent(s):1 - 4.
============================================================= CORAM : HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 10/02/2012 CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner-Association has prayed as under:
“(A) Your Lordships be pleased to quash and set aside the action of the respondents of not granting common first higher grade scale for the Junior Clerks recruited under the common scheme like Centralized Recruitment Scheme, working under respondent No.4, as compared to the Junior Clerks allocated to the other departments like Revenue Department, Secretariat etc. as being bad in law illegal, arbitrary, unconstitutional, suffers from non application of mind, not in consonance with the principles of EQUAL PAY FOR EQUAL WORK, discriminatory and also against the constitutional guarantees enshrined upon the petitioner, by issuing a writ of mandamus or any other appropriate writ, order or direction of this Hon'ble High Court.
(B) Your Lordships be pleased to declare that the members of the petitioner association working in the class-III posts like Junior Clerks recruited under the common scheme are entitled for the common first higher grade scale as is being granted to the junior clerks allocated in other departments like Revenue, Secretariat etc. and be further pleased to declare that the members of the petitioner association working as Junior Clerks under respondent No.4 are entitled for the common first higher grade pay scale of Rs.1640-2900 as is given to the allocated Junior Clerks in the other departments like Secretariat, Revenue, etc. along with all the consequential benefits like difference of salaries with effect from 1.1.1986 along with interest at the market rate, by issuing a writ of mandamus or any other appropriate writ, order or direction of this Hon'ble High Court.
(C) Your Lordships be pleased to direct the respondents to pay the salary of the petitioner union working in the class III cadre as Junior Clerks drawing the pay scale of Rs.950-1500, the pay first higher grade scale of Rs.1640-2900 by making necessary/ suitable alternations/ modification to the G.Rs. providing for scheme of higher grade scale in question at Annexure A to C to the petition, by issuing appropriate writ, order or direction of this Hon'ble High Court.
(D) Your Lordships be pleased to direct the respondents to forthwith pay the members of the petitioner union working in the class- III cadre as Junior Clerks, salary in the pay scale of Rs.1640-2900 as first higher grade scale on completion of nine years of service, at least from the next month onwards, pending the final disposal of this petition.
(E) Your Lordships be pleased to grant any such other and further reliefs as thought fit and proper in the interest of justice”.
2. Heard Shri Biren A.Vaishnav, learned advocate for the petitioner.
The grievance voiced in this petition, in substance is that a junior clerk, who is appointed in the Accounts Department (Directorate of Accounts and Treasuries, Gujarat state), which carries the pay scale of Rs.950-1500 (as per Revision of Pay Rules, 1987, effective from 1.1.1986), on completion of nine years of service should get the pay scale of Rs.1640-2900, as the first higher grade scale, and not the scale of Rs.1200-2040, which they are given, since in other departments like Revenue Department, State Secretariat etc. a junior clerk on completion of 9 years of service gets the first higher grade scale of Rs.1640-2900. According to petitioner, this is an anomalous situation, which according to them is illegal and arbitrary and calls for interference by this Court.
3. To appreciate the grievance of the petitioner, the object and salient features of the scheme in question will have to be considered. The State Government formulated a scheme for granting higher grade scale to its employees on completion of 9, 18 and 27 years of service, vide Government Resolution dated 5th July, 1991 as amended vide Government Resolution dated 16th August, 1994. As per the said scheme, an employee after completion of 9 years of service, is entitled to get the pay scale of the next promotional post, subject to fulfilling other conditions as prescribed in the scheme.
4. The scheme, in question, was adopted by the Government vide Government Resolution dated 5.7.1991. Preamble and relevant clauses thereof read as under:
“To deal with the problem of stagnation in many cadres due to absence or restricted chances of promotions, Government had announced the Scheme of higher grade scales vide Government Resolution of even number dated 20.2.1991. In supersession of this earlier scheme, Government is now pleased to introduce the following scheme of grant of higher grade scales;
i) This scheme shall be applicable to all posts with a pay or scale of pay the maximum of which does not exceed Rs.3500 per month;
ii) The first higher grade scale shall be granted on completion of 9 years of service in the relevant scale provided that the employee has not received more than two promotions earlier. For the purpose of computation of 9 years service in the relevant scale, all service that counts for increment in that scale shall be taken into account;
iii) The first higher grade scale of pay shall be the scale of pay of the next promotion post provided that for employees in a post having more than one promotional post in different scales of pay, their first higher grade scale of pay shall be the lowest promotion post's scale of pay;
Provided further that in case there is no promotion scale, the first higher grade scale shall be the higher grade scale corresponding to his existing scale as specified in the Schedule annexed to this Government Resolution.
Provided also that in the case of posts with feader cadres in different pay scales instead of the promotional scale, the higher grade scale of such post shall be the higher grade scale corresponding to his existing scale as specified in the Schedule annexed to this Government Resolution;
iv) The second higher grade scale shall be granted on completion of 18 years service in the relevant scale provided that the employee has not received more than two promotions / higher grade scale earlier. If an employee after getting higher grade scale is promoted to his regular promotional posts, then this will be considered as having received one higher grade scale/ promotion only;
v) The second higher grade scale shall be the scale of pay of the promotion post corresponding to the first higher grade scale provided that if the post in the first higher grade scale has more than one promotional post in different scale of pay, then second higher grade scale of pay shall be the lowest promotional post's scale of pay;
Provided further that in case there is no promotion scale, the second higher grade scale shall be the higher grade scale corresponding to his existing scale, as specified in the Schedule annexed to this Government Resolution;
Provided also that in the case of posts with feeder cadre in different pay scales, instead of the promotional scale, the higher grade scale of such posts shall be the higher grade scale corresponding to his existing scale as specified in the Scheduled annexed to this Government Resolution;
vi) The third higher grade scale shall be granted on completion of 27 years service in the relevant scale provided that the employee has not received more than two promotions /higher grade scales earlier. If an employee after getting higher grade scale is promoted to his regular promotional post, then this will be considered as having received one higher grade scale / promotion only;
vii) The third higher grade scale shall be the scale of pay of the promotion post corresponding to the second higher grade scale provided that if the post in the second higher grade scale has more than one promotional post in different scales of pay, the third higher grade scale of pay shall be the lowest promotional posts' scale of pay:
Provided further that in case there is no promotion scale, the third higher grade scale shall be the higher grade scale corresponding to his existing scale, as specified in the Schedule annexed to this Government Resolution;
Provided also that in the case of posts with feeder cadres in different pay scale, instead of the promotional scale, the higher grade scale of such post shall be higher grade scale corresponding to his existing scale as specified in the Schedule annexed to this Government Resolution;
viii) The highest scale admissible under this scheme shall not exceed the scale of Rs.2500-4200. This scale shall be admissible to the posts in the scale of Rs.2000- 3500 which have promotional posts with scale of Rs.2500-4200 or higher scale. If the promotional scale is Rs.2200-4200 or Rs.2200-4000, the higher grade scale shall be Rs.2200-4200 or Rs.2200-4000 as the case may be. In the case of posts in the scale of Rs.2000-3500 which do not have the promotional post, the higher grade scale shall be Rs.2200-4000;
ix) The appointing authority for the post carrying higher scale shall be competent to grant the eligible employees the higher grade scale provided that the employee is fit for promotion on the basis of overall performance, qualifications and passing of prescribed examinations wherever prescribed. The existing screening mechanism/ selection procedures shall apply to the grant of higher grade scale”.
(emphasis supplied)
5. The said scheme came to be amended vide Government Resolution dated 16.8.1994, however, so far controversy raised in the present petition is concerned, in substance, same conditions have continued.
6. The very preamble of the Government Resolution dated 5.7.1991 makes it clear that this scheme is adopted by the Government to deal with the problem of stagnation in many cadres due to absence or restricted chances of promotions. The object of this scheme, therefore, is that an employee, who completes 9 years of service, on a particular post/ in a particular scale, is entitled to get the pay scale of the next higher post on which he would have got promotion, subject to fulfilling other conditions, so that he does not have the heart burning of stagnation. Here next higher post, necessarily means, post next higher in his own department on which he would have got regular promotion, and not in other department, which is not his promotional channel. In different departments, for different posts, different pay scales can be there and therefore, two employees starting their service in the same pay scale as Junior Clerk in different departments may get promotion in their respective department, on the post which may have different pay scales. The grant of 1st, 2nd and 3rd higher grade scale, as the case may be, is of the post, which an employee would have otherwise got by way of regular promotion, in his own department and therefore, the pay scale of those posts would also be of his own department itself.
7. There are four different cadres in class-III, under the administrative control of the Directorate of Accounts and Treasuries, Gujarat state, the details of which are as under.
8. The argument of learned advocate for the petitioner in this background, if tested, would show that the petitioner-Association compares the case of junior clerks appointed in Accounts Department, with the employees of other departments, where the promotions are on the posts which carry different / higher pay scale. As is evident, the scheme has come into force since 1991 only. Even before 1991, regular promotions were already being availed by the employees in respective departments and the same was in the channel of the promotional post available in the respective departments. Even in absence of the higher grade scale scheme, a junior clerk in Accounts Department carrying the pay scale of Rs.950-1500 (as per the pay scale effective from 1.1.1986) was being promoted on the post of Sub-Accountant carrying pay scale of Rs.1200-2040. While it is possible that in other departments, a junior clerk was promoted straightway to a post carrying the pay scale of Rs.1400-2600, or in some cases, on the post carrying the pay scale of Rs.1640-2900. Considering these aspects, the grievance of the petitioner-Association is to the effect that, in their Department (i.e. Accounts Department) there are more promotional posts in between, the post of junior clerk carrying pay scale of Rs.950-1500 and of Accountant carrying pay scale of Rs.1640-2900, while in other departments, in between these two scales, there are no posts in the pay scale of of Rs.1200-2040 and Rs.1400-2600 and therefore, there is heart burning. This argument on behalf of the petitioner cannot be accepted because, even in absence of higher grade scale scheme, in those departments, regular promotions have been given from the pay scale of Rs.950-1500 to the pay scale of Rs.1400-2600 and/ or Rs.1640-2900, as the case may. In any department, whether after 9 years of service, an employee would get regular promotion or not was not certain and to deal with that situation, Government adopted the policy of higher grade scale vide Government Resolution dated 5.7.1991. This policy confers the benefit to its employee to the extent that even after working for 9 years on one post/ one pay scale, if his turn for regular promotion does not mature, then also he will be entitled to the pay scale of the post on which his regular promotion would have come. On the face of this object and spirit of the scheme, the contention on behalf of the petitioner to the effect that, if regular promotion would have come in the pay scale of Rs.1200-2040 that was alright since that is the pay scale of promotional post, but in absence of this regular promotion the first higher grade scale, under the scheme should be of Rs.1640-2900, can not be accepted. If the argument of the petitioner is accepted, it would create a situation where a junior clerk who after two regular promotions is working in the pay scale of Rs.1400-2600 would get less pay than a junior clerk who has not got any promotion from Rs.950-1500 and who is granted the first higher grade scale of Rs.1640-2900, as claimed by the petitioner. Thus, it is evident that what has been granted to the junior clerks of the Accounts Department as the first higher grade scale is not creating any anomalous situation but if the contention of the petitioner is accepted that would create anomalous situation.
9. The petitioner has also given the comparison of the nature of work being done by the clerks of the Accounts Department and clerks of other departments. It is also sought to be demonstrated that before year 1960, the work of Treasury Department was part of Revenue Department itself. Though, learned counsel for the petitioner may be right in making this comparison, it may be a ground for claiming revision of pay scales for the posts in Accounts Department, which would be the subject matter to be looked into by Pay Commission and/ or Pay Anomaly Committee. So far the grant of higher pay scale pursuant to the scheme of the Government as adopted vide Government Resolution dated 5.7.1991, as amended vide Government Resolution dated 16.8.1994 is concerned, as the scheme provides that an employee is entitled to get the pay scale of the next promotional post, which has necessarily to be in his own department, no comparison/ grievance can be made with the promotional avenues and pay scales of the posts in other departments.
10. In view of the above reasoning, the prayers made in this petition, can not be granted and therefore the petition is dismissed. Rule discharged. No order as to cost.
(PARESH UPADHYAY, J.) (ashish)