SBCWP No.6120/93. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6120/1993. Gauri Shankar Sharma Vs. State of Rajasthan & Ors. Date of order : November 20, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.C. Jain for the petitioner. Shri Hemant Gupta, Additional Government Counsel. **** BY THE COURT :- This writ petition has been filed by the petitioner with the grievance of his incorrect pay fixation and not fixing his pay in the correct pay scale and not granting him benefit of revised pay scale accordingly. 2) According to the learned counsel for the petitioner, petitioner was appointed on the post of Mistry vide order dated 7/10/1967 in the pay scale of Rs.90-20-110. Petitioner was a qualified Mistry with Higher Secondary. Having been appointed, he is representing the Assistant Engineer to grant him pay scale of Rs.110-230 instead of Rs.90-110 as pay scale of Rs.110-230 was prescribed for the post of Work SBCWP No.6120/93. 2 Munshi as per recommendation of the Ranawat Pay Commission. Petitioner was however wrongly fixed in the pay scale of Rs.70-110 meant for middle pass Work Munshi. Petitioner again represented on 10/12/1974. Assistant Engineer forwarded his representation with the remarks that those having qualification of Matric are entitled to pay scale of Rs.110-230 and that similar pay scale was given to Bhajan Lal who was Work Munshi. Yet another representation was made by the petitioner on 16/8/1997 requesting that he should be provided correct pay scale of Rs.110-230 as per the recommendations of Ranawat Pay Commission w.e.f. 1/9/1968 as similar treatment was given to one Shri Harish Kumar Gupta vide order dated 8/6/1977 in consideration of the fact that he was matriculate. 3) Respondents however illegally granted pay scale of Rs.90-20-110 while reverting him to the post of Work Munshi from 1/5/1968. Petitioner represented to the Executive Engineer who vide order dated 28/1/1975 set-aside the order passed by the Assistant Engineer dated 1/5/1968 and directed that petitioner be continued to be deemed Mistry w.e.f. 1/5/1968 itself. When petitioner was still not paid salary in the correct pay scale, he approached the labour court under Section 33(c)(2) of the Industrial Disputes Act. Labour Court vide order dated 2/3/1979 accepted the application and held that petitioner shall all along been paid scale of pay of the post of Work SBCWP No.6120/93. 3 Munshi. Copy of the order passed by the labour court dated 2/3/1979 has been placed on record. Petitioner was accordingly paid arrears from the date of passing of the said order. 4) Petitioner then submitted further representation to the Assistant Engineer on 27/6/1991 wherein he requested that he was appointed on the post of Mistry w.e.f. 9/7/1967 and was confirmed w.e.f. 1/4/1982. His salary therefore be fixed in Pay Scale No.7 instead of Pay Scale No.6 as similarly situated persons are getting higher pay scale than him in Pay Scale No.7. Petitioner thereafter submitted yet another representation to the Executive Engineer, Irrigation Division, Bharatpur on 2/8/1991 and gave instances of Shri Madan Lal Mistry and Surendra Prasad Mistry who were appointed w.e.f. 7/10/1967 and 22/11/1967, respectively yet, they are getting Pay Scale No.7 whereas, petitioner who was also appointed on 9/10/1967 and possessing qualification of Higher Secondary, is getting Pay Scale No.6. Petitioner submitted one more representation to the Executive Engineer on 2/8/1991 claiming that his salary is to be paid in the pay scale of Rs.110-230 at par with those Work Munshis who are matriculate and not in the pay scale of Rs.90-130. 5) Shri Hemant Gupta, learned Additional Government Counsel opposed the writ petition and SBCWP No.6120/93. 4 argued that petitioner was appointed on the post of work charge Mistry in the pay scale of Rs.75-3-90—4- 110-120-5-13-145 only for a period w.e.f. 7/10/1967 to 29/2/1968. He cannot now claim salary of the post of Work Munshi. Both the cadres are different. Further, Ranawat Pay Commission revised the pay scale of Mistry to pay scale of Rs.100-5-140-8-180 w.e.f. 1/9/1968 and the petitioner has given his option for the said revised pay scale and was given said scale with effect from the said date. Petitioner was not permanently appointed on the post of Mistry w.e.f. 7/10/1967 to 29/2/1968 and thereafter he was given appointment on the post of Work Munshi. Nature of work of the post of Work Munshi is different than that of Mistry. Since the petitioner was appointed as work charge Work Munshi between 1968 to 1975 and held the post of Work Munshi between that period, he could not be granted the demanded salary in scale of Rs.110-230. 6) On consideration of the aforesaid arguments specially the order passed by the labour court, I find that the labour court held the petitioner entitled to the salary of the post of Mistry. Labour court found that petitioner was admittedly a matriculate and that as per the reports produced before it, he was discharging the work of Mistry from 1/9/1968. He was continuously paid in the pay scale of Mistry upto 31/8/1975. Respondents opposed this SBCWP No.6120/93. 5 plea before the labour court on the premise that the authority which issued the promotion order of the petitioner on the post of Mistry or that of Work Munshi, has himself stayed his own order but that was not accepted by the labour court which held that it could not decide whether the stay is legal or not. The fact as proved on record are otherwise. The letter of promotion is unequivocal and does not lay down any condition for promotion. Labour Court further held that two letters produced by the parties did not withdraw the promotion or stay the order of promotion. The Executive Engineer has only withheld the payment of arrears. Labour Court unequivocally held that Executive Engineer had no authority to withdraw or withhold the payment of arrears till the order of promotion remains in force. It was therefore held that appointment of the petitioner in substance is on the post of Mistry and by virtue of such appointment, he would be entitled to be paid the dues as Mistry. 7) Plea with regard to this order passed by the labour court and the finding recorded therein accepting the petitioner as Mistry, has been set up by the petitioner in para 5 of the writ petition. Respondents in reply to this plea have stated that petitioner was appointed on the post of Mistry between 7/10/1967 to 29/2/1968 and thereafter he was again appointed on the post of Work Munshi where he SBCWP No.6120/93. 6 continued to work till 1975. In view of the order of the labour court where categorical finding was given that the promotion order of the petitioner or his promotion on the post of Mistry still subsisted, petitioner is entitled to be paid salary on that post. Plea which they have set up in reply to para 5 of the writ petition was that petitioner was confirmed on the post of Mistry w.e.f. 1/4/1982 hence, he can only claim the relief on the post of Mistry and not on the post of work charged Work Munshi. But this plea is difficult to understand as to what for petitioner is claiming that he should be treated as Mistry and should be paid accordingly and in fact petitioner was confirmed as Mistry w.e.f. 1/4/1982. If what is contended by the learned counsel for the respondents is accepted then, petitioner would certainly be entitled to be paid on the post of Mistry. In fact, case of the petitioner throughout has been that he should be paid salary in the pay scale of the post of Mistry who had the qualification of Secondary and above. The petitioner is holding the qualification of Higher Secondary and thus he is entitled to be fixed in the pay scale of Rs.110-230, when once the petitioner was paid salary of Rs.110- 230 pursuant to the order of the labour court. Petitioner being qualified and possessed Higher Secondary qualifcation, was entitled to retain Pay SBCWP No.6120/93. 7 Scale No.7 i.e. Rs.110-230. 8) The writ petition is accordingly allowed. The respondents are directed to give effect to the order passed by the labour court by placing the petitioner in the pay scale of Rs.110-230 i.e. Pay Scale No.7 at that time and as per the revised pay scale rules framed from time to time corresponding to that pay scale or the subsequent pay scale which has been revised. The petitioner shall be granted consequential benefits from the date of the order of the labour court. The compliance of this judgment shall be made within three months from the date, certified copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil