1. By way of this petition under Article 226 of the Constitution of India, the petitioner challenges the inaction on the part of respondents No.3, 4 and 5 for not extending benefit of revised pay scale of Rs.1150-1500 as per the provisions of Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as 'ROP Rules, 1987') to the Operation Theatre Assistants, i.e. Class-III servants grade, to the petitioner though he has been promoted by Civil Surgeon, Rajkot with effect from 15.6.1985, as being illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
2. The petitioner has joined Civil Hospital at Rajkot on the post of Ward Servant w.e.f. 16.10.1973 through Employment Exchange. He has been promoted by an order dated 15.6.1985 on the post of Operation Theatre Assistant in the pay scale of Rs. 200-3-206-250. It is clarified by respondent No.4 that as per BCSR Rules 9(27), the post of Operation Theatre Assistant is to be treated as class-III post. After 1.6.1987, the petitioner has been given benefit of higher pay scale on completion of 9 years continuous service. At the relevant point of time, the petitioner was drawing pay scale of Rs. 775-1025 since 1.6.1987. The petitioner has come to know that the identical persons like him at Irwin Hospital, Jamnagar are getting pay scale of Rs. 1150-1500 as per ROP Rules, 1987. The petitioner has made several representations for revision of pay scale at par with others but the respondents have not extended the benefit of revised pay scale from Rs. 775-1025 to Rs. 1150-1500 from 1.1.1986 till 31.12.1995 and thereafter from 1.1.1996 onwards the pay scale from Rs. 2650-4000 to Rs. 4000-6000 of Operation Theatre Assistants to him. Hence he has filed this petition.
3. Learned counsel Mr Bhatt submitted that the case of the petitioner is squarely covered by decision dated 5.12.1991 of this Court in Special Civil Application No. 3196 of 1989, copy of which is at page No.19. He submitted that the identically situated employees of the State are getting revised pay scale of Operation Theatre Assistant and therefore, the petitioner is entitled to get equal pay for rendering equal work.
3.1. Drawing attention to Definition of sub-Rule 5 of Rule 3 of Gujarat Civil Services (Revision of Pay) Rules, 1987, learned counsel Mr Bhatt submitted that after the promotion dated 15.6.1985 of the petitioner to the post of Operation Theatre Assistant, his pay scale was Rs. 200-3-206-250 which has not been specified against the said post in column No.2 of Schedule-C and so the pay scale of the petitioner should be considered specified against the post at serial number 207 and column No.3 of Schedule-C i.e. Rs. 260-430 revised pay scale of Rs. 1150-1500.
3.2 For ready reference Definition of Sub-rule (5) of Rule 3 of the Rules is extracted and reproduced hereunder:
“(5) “Present scale of pay” in relation to any post specified in column 2 of the Schedule-C means the scale of pay whether fixed otherwise specified against that post in column 3 thereof as specified in detail in Schedule-A;”
3.3 So far as the post of Operation Theatre Assistant is concerned, the pay scale specified in column 2 of Schedule C specified against that post in column 3 thereof reads as under:
“DIRECTOR OF HEALTH, MEDICAL SERVICES AND MEDICAL EDUCATION (MEDICAL) “DIRECTOR OF HEALTH MEDICAL SERVICES AND MEDICAL EDUCATION: (MEDICAL EDUCATION AND RESEARCH)
4. Learned AGP appearing for the respondents submitted that it is not the case of the petitioner that he is metriculate. He further submitted that in the entire petition the averments of the petitioner is that his case is squarely covered by decision dated 5.12.1991 of the learned Single Judge of this Court rendered in Special Civil Application No. 3196 of 1989 but the same is not a good law. Learned AGP has drawn attention of this court to the decision in State of Gujarat V. Narayanbhai Dharmabhai Kadam [2001 (0) GLHEL-HC 212250:2001 JX (Guj) 569] and submitted that the Division Bench of this Court has settled this legal position by its order dated 23.3.2001 and the latest ratio laid down therein will squarely and directly applicable to the issue involved in this case on hand. Paragraphs No.4, 5 and 6 of the said judgment is extracted hereunder:
“4. Learned AGP, Mr.Joshi on behalf of the original respondents, appellant before us, vehemently, criticised the fixation of pay of the original petitioner in the pay scale of Rs.1150-1500 by the learned single Judge. He has drawn our attention to the earlier pay scales. There is no dispute about the fact that for the post of Operation Theatre Assistant before the Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as ROP Rules, 1987) there was only one pay-scale. The said post was, therefore, in the running pay-scale of Rs.200-260. By virtue of ROP Rules 1987,the original pay scale of Rs.200-260 came to be revised,upwardly, to Rs.775-1025. ROP Rules 1987 is placed on record for our examination and we found the relevant entry No.82 speaks of the post of Operation Theatre Assistant carrying running pay scale of Rs.200-260 revised to Rs.775-1025, whereas, item No.207 also pertains to post of Operation Theatre Assistant, original pay-scale of which was Rs.260-430, upwardly, revised to Rs.1150-1500. It appears that confusion has arisen on account of two pay-scales in respect of one post. It has been noticed from the record and the ROP Rules 1987 and ROP Rules 1998 that bifurcation came to be made with regard to pay-scale for the same post on the basis of educational qualification, like that, matriculation. It is, evidently, clarified in a notification of the Finance Department dated 20th March, 1991, copy, whereof is produced for our perusal. It is, amply, clear from the record that, earlier post of Operation Theatre Assistant carried running time-scale of Rs.200-
260 which was revised to time-scale of Rs.775-1025, whereas, the same post with incumbent matriculate with two years experience was given the time-scale of Rs.260- 430 and the same came to be, upwardly, revised to time scale of Rs.1150-1500.
5. Following aspects have emerged, unquestionably, from the record of the present case:
(1) The respondent before us, original-petitioner, is not matriculate. Obviously, therefore, there would not arise the question of experience of two years with SSC, which is the scale prescribed for the post in the time-scale of Rs.260-430, which later on revised by ROP 1987 to Rs.1150-1500.
(2) There was only one time-scale when the original petitioner came to be promoted in the cadre of Operation Theatre Assistant from the post of Ward servant, which was in class IV. No doubt, he was appointed in the year 1949 as a Ward Servant in class IV and was working in Operation Theatre in Civil Hospital, Ahmedabad.
(3) The original petitioner came to be promoted and appointed on the post of Operation Theatre Assistant from the post of Ward Servant in 1970 and at that time, there was, only, one time-scale of Rs.200-260.
(4) Division of post of Operation Theatre Assistant into two classes came after 1.1.86, as stated hereinabove.
6. In view of the aforesaid unquestionable and incontrovertible factual scenario emerging from the record and the ROP Rules 1987 and 1998, there is no any manner of doubt that the original petitioner, respondent before us, is not entitled to time-scale of Rs.1150-1500 as he was not in the time-scale of Rs.260-430 on the date when ROP Rules 1987 came into operation. Therefore, the conclusion of the learned single Judge in the impugned judgment, in our opinion, with due respect, is erroneous and based on misreading of facts. It is, in this context, the appeal is required to be allowed so as to put the incorrect and erroneous impugned order into its legal shape.”
(emphasis supplied)
5. I have considered the rival submissions made by learned counsel for the petitioner as well as learned AGP for the respondents. So far as educational qualification of the petitioner is concerned, it is not the case of the petitioner that he is matriculate. On specific query put to the learned counsel for the petitioner on this aspect, he has replied that it is an admitted fact that the petitioner is not matriculate. I have carefully perused the definition of sub-rule (5) of Rule 3 of the ROP Rules, 1987. It is the fact that the pay scale of Operation Theatre Assistant is Rs. 200-3-206-250 of the petitioner has not been specified in column 2 of Schedule 'C' against the post of Operation Theatre Assistant but in my view, it does not mean that his pay scale should be considered specified against the post mentioned at sr.no. 207 in column 3 of Schedule 'C' i.e. Rs. 260-430, revised scale of Rs. 1150-1500 as submitted by the learned counsel for the petitioner. It appears that the learned counsel for the petitioner is misreading the said definition. In absence of specified pay scale against the post in column No.2 of Schedule-C, the details specified in Schedule-A is required to be considered. In last portion in para 4 of the judgment of the Division Bench which is reproduced hereinabove, it appears that after perusal of Notification of the Finance Department dated 20.3.1991, the Division Bench observed that earlier post of Operation Theatre Assistant carried running time scale of Rs.200-260 which was revised to time scale of Rs.775-1025 whereas the same post with an incumbent having qualification of matriculation with two years' experience was given time scale of Rs.260-430 and the same came to be upwardly revised to time scale of Rs.1150-1500. In the case on hand, the petitioner is getting revised pay scale of Rs. 775-1025 and as he is not matriculate, so in my view, he was rightly getting the same pay scale. When the Division Bench has observed that the conclusion of the learned Single Judge dated 22.4.1999 in Special Civil Application No.5255 of 1995 is erroneous and based on misreading of the facts, in my view, the judgment on the identical issue dated 5.12.1991 of the learned Single Judge passed in Special Civil Application No. 3196 of 1989 does not seem to be laying down the correct proposition of law. So there is no substance in the submissions made by the learned counsel for the petitioner that his case is identical to the case of Operation Theatre Assistants which has been decided in Special Civil Application No. 3196 of 1989 by this court and the petitioner's case should be treated at par with those Operation Threatre Assistants. In my view, the ratio laid down by the Division Bench in State of Gujarat v Narayanbhai Dharmabhai Kadam (supra) is squarely applicable to the case on hand. Thus, I do not find any inaction on the part of respondents No.3, 4 and 5 for not extending benefit of revised pay scale of Rs.1150-1500 as per the provisions of ROP Rules, 1987 which warrant any interference by this court.
6. For the aforesaid, this writ petition is devoid of any merit and is accordingly dismissed. Rule is discharged.
[G. B. SHAH, J.] msp