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Vijaysinh vs Ns

High Court Of Gujarat|29 June, 2012
By way of this petition under article 226 of the Constitution of India, the petitioner has challenged the order dated 27.05.1998 passed by Executive Engineer, Irrigation Division No.4, Baroda, (which is referred to as order dated 29.05.1998 in the petition) whereby, the earlier Office Order dated 18.08.1989, by which the petitioner was ordered to be paid his pay at the stage of Rs.1200/- per month is canceled. Before canceling the order dated 18.08.1989 in the year 1998, no notice was given to the petitioner. Apart from merits, it is contended by learned advocate for the petitioner, and which learned AGP has not been able to dispute, that the impugned action of the respondent authority is in gross violation of principles of natural justice and therefore on this count alone, the impugned order is required to be quashed and set aside.
Since the petition has remained pending before this Court for about fourteen years, at this distant point of time, to interfere in the impugned order only on the ground of violation of principles of natural justice and relegate the petitioner to the respondent authorities for appropriate order after hearing him on merits, does not appear to be just and proper and further, since, there is sufficient material on record to address the issue on merits, the petition is taken up for hearing on merits.
It is an undisputed position that the petitioner has been working on the post of electrician. The Office Order dated 18.08.1989, by which the pay of Rs.1200/- was conferred on the petitioner, was passed by Deputy Executive Engineer, Halol, under whom the petitioner was working, whereby pay of total twenty-three employees was fixed and the name of the petitioner figures at Serial No.22. In the said order, the petitioner is referred to as electrician and on that basis his pay is stated to be fixed at the stage of Rs.1200/-. Even in the order impugned in this petition, the petitioner is referred to and addressed as electrician by the Executive Engineer. In my view, the fact that petitioner is working as electrician is indisputable, and as a matter of fact it is not disputed by learned AGP. Further, the petitioner has submitted that more than one electrical majdoors are working under him and therefore, it would be wrong to say that the petitioner himself is working as electrical majdoor. Thus, on the first point there is no dispute that the petitioner is working as electrician.
The pay-scale applicable to electrical majdoor and electrician is on record. Electrical majdoor or electrical helper are directed to be paid in the pay-scale of Rs.950-1500 or Rs.750-940. Since, factually, the petitioner is not electrical helper or electrical majdoor, petitioner could not have been given the pay-scale of Rs.950-1400. Since, the order impugned in this petition directs the petitioner to be paid at the stage of Rs.950 in the pay-scale of Rs.950-1400, in my view, it is illegal and needs to be interfered with.
Further, no reason is reflected in the impugned order as to why the petitioner is required to be paid at the stage of Rs.950/-, instead of Rs.1200, except that there was some error which is corrected. When, in fact it is found that the petitioner was working as electrician and as against the post of electrician, the pay-scale of Rs.950/- is not there, the action of respondent authorities to say that the petitioner is entitled to the pay at the stage of Rs.950/- is found to be illegal and contrary to rules.
Since the order impugned stops at this stage, no further discussion or finding may be necessary to set-aside the impugned order, however, to satisfy the conscious, it was further inquired and learned AGP was called upon to address the Court as to why the petitioner is not entitled to the pay of electrician, it is pointed out by the learned Advocate for the petitioner, as well as learned AGP that petitioner has already made concessional statement on oath as reflected in affidavit-in-rejoinder, and therefore that point may not be gone into. The said statement reads thus :
"....In view of the above my pay-scales ought to have been fixed at Rs.1350-2200, but it was fixed at Rs.1200-2040, which by itself was unjust, but having accepted the same, I am not making any grievance against the same."
Therefore that question is not gone into.
Considering the totality of the facts and for the reasons recorded above, it is held that the petitioner is entitled to pay of electrician and not of electrical majdoor and since Rs.950/- is not the pay of electrician, the action of the respondent authority of withdrawing the pay of Rs.1200/- and bringing it down to the stage of Rs.950/- is held to be illegal and arbitrary and therefore the impugned order is quashed and set-aside. It is further directed that consequential arrears of pay, payable to the petitioner, shall be paid within a period of two months from today.
Petition is allowed and rule is made absolute to the aforesaid extent.
(PARESH UPADHYAY, J.) Sunil W. Wagh Top
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Vijaysinh vs Ns


High Court Of Gujarat

29 June, 2012