Point of Law: When the appellant Board has given the benefit of first higher grade scale to some of the petitioners, at that juncture, such contention was not raised and at the time of granting the second higher grade scale such type of contention is raised

JUDGMENT :

1. Heard learned advocate Mr. T.R. Mishra for the petitioners, learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent- State and learned advocate Mr. Shivang Thacker with learned advocate Mr. A.R. Thacker for respondents no. 2 and 3 through video conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Jayneel Parikh waives service of notice of rule on behalf of respondent-State and learned advocate Mr. Shivang Thacker waives service of notice of rule on behalf of respondent nos. 2 and 3.

3. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

“(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to immediately grant benefit of higher grade on completion of 9,18 & 27 years of service, as has been granted to other similarly situated employees and Your Lordships be further pleased to directed the respondents to pay the aforesaid benefits with 12% interest thereon;

(B) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to immediately grant the said benefits prospectively, forthwith;

(C) Any other and further relief as may be deemed fit just and proper may be granted in the interest of justice;”

4. Brief facts of the case are that the petitioners were appointed through employment exchange. Petitioner nos. 1 and 2 are working as typist whereas petitioner no.3 is working as peon with the respondents. Petitioner no.1 and 2 were initially appointed as typist in scale of Rs.260-400 on 5.10.1983 which was subsequently revised to Rs.950-1500 and further revised as per the 6th Pay Commission recommendations to Rs.3050-4590. The petitioner nos. 1 and 2 are presently working in the pay scale of Rs.5200- 20,200.

4.1 The petitioner no.3 is working as a peon from his initial date of appointment in the pay scale of Rs.750/- which was revised as per the 6th Pay Commission recommendation to Rs.4440- 7440 with grade pay of Rs.1400/-. The petitioners are getting the benefits of regular employees and have been given revised pay scale with all incremental benefits of various Pay Commission recommendations upto 6th Pay Commission. However, the petitioners are not treated as regular employees and therefore, they have been denied the benefits of higher grade pay scale on completion of 9, 18 and 27 years of service. According to the petitioners, the issue of giving higher grade pay scale has been resolved by the judgment of Supreme Court.

4.2 The petitioners made representations before respondent no.3-Superintendent Engineer and pursuant to the representations, respondent no.3 recommended the names of the petitioners to be included in the seniority list vide letter dated 3.2.1993 addressed to respondent no.2- Chief Administrative Officer. Respondent no.3 again by letter dated 30.1.1996 recommended the names of the petitioners to grant higher grade pay scale. The Executive Engineer also recommended the names of the petitioners to convert their services from irregular appointment to regular appointment by letter dated 25.3.2009 to respondent no.3 and in turn, respondent no.3 recommended the names of the petitioners to respondent no.2 by letter dated 4.4.2009. According to the petitioners similarly situated persons have been granted the benefits of higher grade pay scale. The petitioners relied upon the various orders passed by this Court in case of similarly situated persons as under :

(i) Rashmikaben Trikamlal and others v. State of Gujarat and others (judgment dated 21.1.2011 rendered in Special Civil Application No.7464/1996).

(ii) State of Gujarat and others v. T.P. Patel and others (judgment dated 17.10.2011 rendered in Letters Patent Appeal No.1360/2011 in Special Civil Application No.7464/1996).

(iii) Order of Supreme Court dated 5.10.2012 dismissing SLP