SCA/84/1997 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 84 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== GUJARAT ANIMAL HUSBANDRY DEPTTCLASS -III EMPLOYEES ASSO. - Petitioner Versus STATE OF GUJARAT & 1 - Respondents ====================================== Appearance : MR MUKUL SINHA for Petitioner: 1, MR HEMANT MAKWANA AGP for Respondents : 1 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/04/2008 SCA/84/1997 2/13 JUDGMENT CAV JUDGMENT 1. The petitioners, a recognized association of Class-III employees of the Gujarat Animal Husbandry Department, more particularly, the employees working on the posts of Investigator, Computer, Punch Operator, Punch Verifier have approached this Court under Article 226/227 of the Constitution of India challenging denial of pay scale of 1150-1500 received by similarly situated class of employees working on the post of Progress Assistant, being arbitrary, capricious and violative of Articles 14 and 16 of the Constitution of India, deserve to be quashed and set aside and seeking direction to accord the pay scale of Rs.1150-1500 to the present petitioners as they are exactly similarly situated qua Progress Assistants, who have been given the higher pay scale of 1150-1500. 2. The facts in brief deserve to be set out as under. 3. The respondent employed several persons as Investigator, Computer, Punch Operator and Punch Verifier–numbering 40,22,1 and Nil respectively in the State of Gujarat for collecting and making statistical survey for milk, wool, eggs, hide and skin from the rural areas of Gujarat since several years. Similarly the respondents have also employed certain persons as Progress Assistants numbering 22 to perform exactly the same duty, which have been performed by the aforesaid category of employees. SCA/84/1997 3/13 JUDGMENT 4. The State of Gujarat has constituted an Intensive Cattle Development Project (ICDP) having branches at Baroda, Mehsana, Surat, Rajkot and Ahmedabad. In each of the branch offices of the project Government has posted 2 employees in the post of Computer, 2 employees in the post of Investigator, 4 employees in the post of Progress Assistants. Besides these branch offices, the Head Office is situated at Krushi Bhavan, Paldi, Ahmedabad where the rest of the Investigator, Computer and Punch Operator are posted. 5. Prior to 1981, two sets of Recruitment Rules governed recruitment to the posts of Investigator, Computer and Punch Operator, for the sake of convenience referred to as “the aggrieved employees” and other category of Progress Assistants. In the year 1981, keeping in mind the nature of work and functioning qualification, the State decided to frame common recruitment rules for recruitment to both the posts namely posts hereto held by aggrieved employees and by Progress Assistants. After framing the recruitment rules, the State ultimately merged the employees belonging to both the categories for the purpose of promotion to the higher post of Statistical Inspector and common seniority list was prepared for the employees of both the categories in 1983. The list is produced at Annexure–III. Thus, the promotional avenues became common for both the categories and in fact the categories were merged. The recruitment rules for the post of Statistical Inspector i.e. the post available on promotion to the aggrieved employees as well as the category of Progress Assistants SCA/84/1997 4/13 JUDGMENT also indicate the same and recruitment rules were dated 1.9.1978. The petitioners have further submitted that till 1985, the employees belonging to either category used to be promoted to the post of Statistical Inspector as per the common seniority list and petitioners have annexed the list of employees, who had been promoted either from the two categories. However, since, 1985, no further promotions have been effected. The State has not laid down any ratio or specific guidelines for these two categories. 6. The petitioners while giving little history has narrated in the petition that as per the earlier Desai Pay Commission the employees in the aggrieved categories were in the scale of Rs.260-400, whereas, employees in the category of Progress Assistants were in the scale of Rs.260-430. At the relevant time, the recruitment rules for both the posts were separate and different. However, after 1981, the employees belonging to two categories have been so to say merged as common recruitment rules came into force. The qualifications, duties and responsibilities have become exactly the same for both the categories. Despite this, the State while framing the Gujarat Civil Services (Revision of Pay) Rules, 1987 did not place the employees of the two categories in the common pay scale, but under the said Revision of Pay Rules, the employees of the aggrieved categories were placed in the scale of Rs.950- 1500 and the employees in the category of Progress Assistants were placed in the higher pay scale of Rs.1150-1500. SCA/84/1997 5/13 JUDGMENT 7. Aggrieved by the aforesaid discrimination, all the employees belonging to the aggrieved categories had made representation to the respondents by their representative dated 1.7.1987 requesting the Government to remove the anomaly, copy whereof is annexed to the petition at Annexure – VI. As the State did not act on the said representation and therefore the employees of the aggrieved categories have formed their own committee and through the Convener of the said committee made a further representation dated 27.11.1987 seeking redressal, which was of no avail. 8. The petitioner submit that in the meantime State faced with several anomalies that had crept in the framing of the Gujarat Civil Service (Revision of Pay) Rules, 1987, the Government of Gujarat had formed a Redressal Committee to hear and decide regarding such anomalies in the pay scales. It appears that the Government had forwarded the representation of the employees of the aggrieved categories to the said Committee. The forwarding letter is also placed on record. The redressal Committee however, did not look into the case of the aggrieved employees despite repeated requests by the Government in the months of June, 1988 and September, 1988. 9. In fact the sizable amendment was made on 20th March, 1991 by notification and the Government of Gujarat did amend the Gujarat Civil Service (Revision of Pay) Rules, 1987 and amending the Revision of Pay Rules of 1987 for several categories in the different departments but SCA/84/1997 6/13 JUDGMENT nothing was done so far as the grievances of the aggrieved categories are concerned. 10.Being aggrieved by the same, the petitioners moved through federation but of no avail. 11.Being aggrieved and dissatisfied with the same, the present petition is preferred seeking declaration that action of respondents in placing the employees of the aggrieved categories in lower pay scale of 950-1500 was arbitrary, capricious and deserves to be quashed and set aside. 12.The matter was admitted and listed for final hearing. 13.On the conclusion of the arguments, Shri Sinha, learned counsel for the petitioners submitted that the petitioners’ would have no grievance if the notional benefit is granted from 1986-1996 when anomaly did not exist thereafter. 14.Against the aforesaid backdrop the contentions are required to be examined. 15.Shri Sinha for the petitioner submitted there was absolutely no ground for denying the higher pay scale of Rs.1150-1500 with effect from 1.1.1986 to the petitioner. The merger if it could be so said is from the year 1986 where the common recruitment rules came into existence. The promotional avenues thereafter have been also the same as could be seen from the recruitment rules for the promotional post and therefore, inaction on SCA/84/1997 7/13 JUDGMENT the part of respondent State is arbitrary, capricious and therefore, same deserve to be quashed and set aside and petitioners are required to be placed in appropriate scale at least notional till anomaly is removed with effect from 1.1.1996. 16.Shri Makwana, learned AGP for the respondent State submitted that there was difference in the pay scale in the post of Progress Assistants and that of Investigator, Computer, Punch Operator and Punch Verifier since inception. The former pay scale i.e. according to GCS (ROP) Rules, 1975, the pay scale of Progress Assistants was Rs.260-430, whereas the pay scale of the aggrieved employees was Rs.260-400 and this difference continued there after also. The pay scales according to GCS(ROP) Rules 1987, for the post of Progress Assistants was Rs.1150-1500 and the pay scale for aggrieved employees was Rs.950-1500. Thus, he submits that there was difference in the pay scale of both the cadres since the inception. It is submitted that the Expert Committee under the Chairmanship of the retired Justice Shri S.A.Shah was appointed to adjust 29 pay scales recommended by the 4th Pay Commission of Government of India, against 54 pay scales of the State Govt. Accordingly, the Gujarat Civil Services (Revision of Pay) Rules, 1987 come into force w.e.f. 1.1.986. The State Government has accepted the Government of India's standard of 'scale to scale' basis and not the 'post to post'. Therefore, the cadre of Progress Assistants was in the pay scale of Rs.260-430 before revised pay scale and after revision of pay scale, they were given pay scale of SCA/84/1997 8/13 JUDGMENT Rs.1150-1500 and the cadre of aggrieved employees were in the scale of Rs.260-400 and in the revised scale they got Rs.950-1500. He has further submitted that after implementation of Gujarat Civil Services (Revision of Pay) Rules 1987, Government has received representations of various unions regarding anomalies in pay scales. He has further submitted that matter of revision of pay scale of aggrieved employees was submitted to the High Level Committee of pay scale anomalies, constituted under the Chairmanship of Finance Minster. The Committee had not found anomaly in the pay scales of these cadres and therefore, committee had not recommended the revision of pay scales of aggrieved employees. 17.Shri Makwana has submitted that this Court may not interfere in the matter under Article 226 of the Constitution of India. In support of this submission, Shri Makwana has relied on the additional affidavit filed on 9.7.2001. Shri Makwana has submitted that even pursuant to the order passed by this Court (Coram: K.S.Jhaveri, J.) dated 14.7.2004, the Committee met and that Committee also did not found any justification for accepting the request of the petitioners for granting pay scale of Rs.1150-1500 from 1.1.1986 and therefore, they are not entitled to the scale. 18.This Court has heard the learned counsel for the parties at length and perused the records and proceedings. 19.The following undisputed facts deserve to be enlisted before examining the rival contentions of parties. SCA/84/1997 9/13 JUDGMENT (i) The aggrieved categories as well as category of Progress Assistants are categories existing in the same office i.e. Department of Animal Husbandry under the State of Gujarat. The pay scale initially i.e. after the implementation of Desai Pay Commission recommendation was different. The pay scale of the aggrieved categories was Rs.260-400 and pay scale of Progress Assistants was Rs.260-430. (ii)The petitioners have made categorical averments with regard to nature of duties, educational qualifications and responsibilities to be carried out by the employees working on these posts. The respondents could not effectively controvert the say of the petitioners in respect of similarity in nature of work duties and responsibilities. (iii)The State has in the year 1981 framed common Recruitment Rules and promulgated the recruitment rules for both the posts and promotion for both the posts lies to the post of Statistical Inspector as it is clear from the recruitment rules for the post of Statistical Inspector. (iv)The seniority list of these employees namely aggrieved categories and employees of Progress Assistants have been made common and promotion to the post of Statistical Inspector as per recruitment rules are effected from their posts. (v)The affidavit of State is conspicuously silent with regard to submission of the petitioners of equality or similarity in nature of duty and qualifications etc. SCA/84/1997 10/13 JUDGMENT (vi)The State has merely highlighted as to how the case of the petitioner was placed before various committees of Expert. And the expert did not recommend according of higher pay scale of to the petitioners. 20.The granting of higher pay scale is the function of the State and this Court is only to examine if there is any discrimination and/or arbitrariness in according the pay scale. Ordinarily the Court would not interfere with the administrative functioning. 21.The facts remains that in the present case, the State has not come out with any cogent reasons for denying the higher pay scale to the employees of the aggrieved category. The State has only come with a case that there was difference in both the pay scale since inception and the said difference has perpetuated on all the occasions of pay revision. As against this, the State has not answered as to why when both the categories were merged or at least the recruitment rules were same and promotional avenues is also same, the scale was not accorded to them. The reasoning of the Committee is also ending at saying that the difference in the scale exists since the inception. The subsequent development of merger of the cadre and promulgation of common recruitment rules and availability of promotion to the common posts from the common seniority list, makes it imperative to treat these categories equal in all respect. The petitioners deserves to be accorded appropriate pay scale i.e. scale of Rs.1150-1500 at least from the date of seniority list was merged and made common. SCA/84/1997 11/13 JUDGMENT 22.Shri Makwana’s reliance upon the decision of the Apex court in case of State of Andhra Pradesh Vs. G.Shreenivas Rao reported in (1989) 2 Supreme Court Cases 290 and in case of Government of Andhra pradesh vs. M. Pandurang and others reported in 1996(1) SLR 33 are of no avail as no one can dispute the proposition of law that Higher pay to junior per-se cannot be said to be illegal but it must be based on justifiable grounds. The seniors merely on the strength of their seniority cannot claim selection grade and if the junior is given the selection grade on his merits than senior cannot claim it on ground of discrimination or his seniority alone. These decisions have no applicability to the facts and circumstances of the case on hand. In the instant case the State has not come out with any justification for denying equality in pay scales to these two categories, which are called two categories only for the sake of convenience, in fact there exist no two categories in reality. 23.The State has not come out with any justifiable reason for not treating these two categories of employees at par in giving them pay scales. Only one song is sung that since inception of these cadres there exists difference in the pay scale and as these two categories were not treated equal since beginning they cannot be treated when in the subsequent occasions of pay revisions only Scale to Scale fitment was recommended. The State has not pointed out any distinguishing feature in the two categories justifying non-granting of similar pay scale to SCA/84/1997 12/13 JUDGMENT them. 24.This Court is of the view that bearing in mind similarity in nature of duties, responsibilities and common recruitment rules and common promotional avenues, and ultimately from 1996 the granting of similar pay scale to these employees indicate that their claim for equal pay scale since the framing of common recruitment rule deserves positive consideration. 25.The Court need to take note of the fact that the petitioners have of their volition given up claim for actual monetary benefit till their scales were equated and have confined their claim only to notional benefit from the earlier date till the actual date of removal of anomaly as this court has recorded while adjourning the verdict on 6.02.2008. Thus they have claimed notional benefit from 1986 to 1996. 26.In view of the Apex court decisions that in the matter of pay scale Court need to be slow in straight way ordering equal pay, this court is of the considered view that the State cannot deny the Pay Scale of Rs. 1150 to 1500 to the petitioners only on the ground that since inception the pay scales of these two categories were different. Therefore the respondents are directed to consider the claim of the petitioners in light of the observations made herein above and if no distinguishing feature, other than the initial difference in pay scales is found, than accord them the benefits of scale notionally from 1986 to 1996 SCA/84/1997 13/13 JUDGMENT and all the consequential benefits arising there from as soon as possible. 27.In view of the aforesaid observations, the petition is partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No costs. (S.R.BRAHMBHATT, J.) pallav