1 S.B.CIVIL WRIT PETITION NO.2891/2007 Ishaq Mohd. & Ors. v. State of Rajasthan & Anr. Date of Order :: 16 th December, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Ravi Bhansali, for the petitioners. Mr. Kaliash Joshi, for the respondents. .... This petition for writ is preferred by the petitioners who are holding the post of Gardeners with Municipal Council, Bhilwara for claiming the reliefs as follows:- “i)the respondents may be directed to make payment of salary to the petitioner in the revised pay scale of Rs.800-1250 (Now Pay Scale of Rs.2650-4000 w.e.f. 01.09.1996) w.e.f. The date when the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 came into force and further the respondents may be directed to pay the arrears of salary to the petitioner with interest at the rate of 24% p.a. ii)that without prejudice to above and in the alternative it is prayed that the respondents may be directed to make payment of salary to the petitioners in the revised pay scale under the Rajasthan Civil Services (Revised Scale) Rules, 1989 from the date when the order dated 15.11.1995 (Annex-2) was issued 2 and under the Rajasthan Civil Services (Revised Pay Scales) Rules 1998 with all consequential benefits and reliefs as if the same was never denied to the petitioners and further the respondents may be directed to pay arrears of salary with interest at the rate of 24% p.a.” The post of Gardener is a post encadred under the Rajasthan Municipalities (Class-IV Service) Rules, 1964 (hereinafter referred to as “the Rules of 1964”) and the State Government by exercising powers conferred by Section 297(1) of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as “the Act of 1959”) and in pursuant to Rule 11 of the Rules of 1964 prescribed new pay scales for all the posts encadred in the Rules of 1964 by a notification dated 25.1.1973. The pay scales so prescribed were revised time to time and the pay scale of Rs.750-940 was made applicable for Gardeners working with different municipalities in the State of Rajasthan w.e.f. 1.9.1988. However, by a notification dated 15.11.1995 the State Government made certain amendments in the pay scales relating to the posts available with different municipalities as per the staffing pattern. According to the notification aforesaid the pay scale of Rs.975-1720 was allowed to the posts of Mistris, Fitters, Linemen, Meter Reader, Gajdhar, Turner, Luhar, Painter, Carpainter, Wiremen and Adorma Operator; the pay scale of Rs.1250-2050 was given to the Surveyors and Assistant Inspectors; the 3 pay scale of Rs.910-1530 was prescribed for the posts of Karigar, Chaudhary, Pokar and Sub-Nakedar and the pay scale of Rs.800-1250 was allowed to the holders of the posts of Helper, Wardboy and Naka Guards. The same pay scale was made applicable to all other Class-IV employees working in various municipalities in the State. It is relevant to note that the notification dated 15.11.1995 was issued by the State Government in exercise of powers conferred by Section 297(1) of the Act of 1959. Despite the notification dated 15.11.1995 the respondent Municipal Council continued the petitioners in the pay scale of Rs.750-950 under the Pay Rules of 1989 and further fixed them in the pay scale of Rs.2550-3200 on revision of the pay scales in the year 1998 w.e.f. 1.9.1996. The case of the petitioners is that their pay is required to be fixed in the pay scale of Rs.800- 1250, as per the notification dated 15.11.1995 and further in the corresponding revised pay scale i.e. of Rs.2650-4000 w.e.f. 1.9.1996. Per contra, the stand of the respondents as reflected in para 6 of the writ petition is “that Notification dated 15.11.1995 was superseded by Circular dated 27.11.1995 in which it was categorically stated that the matter has been examined and it is clarified that this item includes unclassified post of Class IV servants are included in 4 the staffing pattern, but this pay-scale shall not apply for any Class IV servants”. The circular dated 27.11.1995 referred above reads as follows:- “Attention is invited to the Department Notification No.7.(Gha)(Ka)SME/93/4915 dated 15.11.95 under which the pay scale of unclassified Class IV servants apparing at S.No.16 of the said Notification was revised from 750-940 to Rs.800-1250 doubt has arisen whether this pay scale would be applicable to Class IV servants. The matter has been examined and ti is clarified that this item includes unclassified post of class IV servants not included in the pattern but this pay scale shall not apply to any class IV servants.” Heard counsel for the parties. At the threshold it is contended by counsel for the petitioners that the controversy involved in this petition for writ has already been decided by this Court in the case of Kishan Singh & Ors. v. State of Rajasthan & Anr., SBCivil Writ Petition No.829/1999, decided on 16.10.2003, by holding as follows:- “A perusal of the order Annx.5 dated 15-11-1995 shows that the pay scales of the 5 employees have been changed under the Revised Pay Scales Rules, 1989 and the minimum pay scale provided to the Class IV employee is Rs.800-1250/-. There is no pay scale lower than the pay scale. Moreso, even if the stand taken by the respondents is believed that the petitioners are working as Gardeners, though referred by the petitioners, still the respondents could not show that the petitioners do not come within the category of Class IV person or there is any pay scale lower than the pay scale of Rs.800-1250/-. Thus, by all means, the petitioners are entitled for the pay scale of Class IV employees as there is no post carrying lower pay scale shown in Annx.5.” In case of Kishan Singh (supra) this Court found that the Gardeners are entitled for the pay scale of Rs.800-1250 as prescribed under the notification dated 15.11.1995. Counsel for the respondents strenuously urged that the judgment given by this Court in the case of Kishan Singh (supra) is required to be ignored as in the case aforesaid the circular dated 27.11.1995 superseding the notification dated 15.11.1995 was not brought into the knowledge of the Court. I do not find any substance in the argument advanced. The notification dated 27.11.1995 nowhere supersedes the notification dated 15.11.1995. It simply prescribes a clarification relating to the notification concerned. According to the circular 6 dated 27.11.1995 the pay scale of Rs.800-1250 is not required to be applied for the posts not included in the staffing pattern. Even otherwise, by an administrative instruction the notification issued by the Government by exercising powers under Section 297 (1) of the Act of 1959 cannot be superseded. To supersede such a notification which is piece of subordinate legislation the State Government is required to exercise the powers under Section 297 of the Act of 1959 itself. In view of whatever said above, the judgment given by this Court in Kishan Singh's case (supra) is having absolute application in present case also. From perusal of the notification dated 15.11.1995 it is apparent that various pay scales are prescribed for various posts encadred in Class-IV service created under the Rules of 1964. A general assertion is made in the notification aforesaid to allow the pay scale of Rs.800-1250 to all other Class- IV employees who are not referred in the notification. The post of Gardener is not referred in the notification and, therefore, the pay scale of Rs.800- 1250 is required to be given to them. The pay scale aforesaid came to be revised w.e.f. 1.9.1996 and, therefore, the corresponding revised pay scale i.e. of Rs.2650-4000 is required to be made applicable to the Gardeners working in different municipalities. The respondents by denying the pay scales aforesaid to the 7 petitioners are acting contrary to a statutory notification i.e. dated 15.11.1995. Accordingly, this petition for writ deserves acceptance, therefore, the same is allowed. Respondent Municipal Council, Bhilwara is directed to allow the pay scale of Rs.800-1250 to the Gardeners working with it as per the notification dated 15.11.1995 and further to allow them the pay scale of Rs.2650-4000 w.e.f. 1.9.1996. The petitioners are also declared entitled for all benefits consequential to fixation of their pay in the pay scales aforesaid. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.