The main legal point established in the judgment is the interpretation and application of Rule 23 of the Gujarat Civil Services (Pay) Rules, 2002 in the context of pay protection for employees transitioning from diploma to degree side, considering the impact of grade pay on pay fixation.

JUDGMENT :

1. Rule, returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule for the respondents – State.

2. With the consent of the learned advocates appearing for the respective parties, both the petitions were taken up for its final disposal.

3. In both these petitions, under Article 226 of the Constitution of India, the petitioners have prayed for a direction that their services, ad-hoc as well as regular on the diploma side should be treated as continuous alongwith that of the degree side for the purposes of pay, leave, pension and other consequential benefits. The petitioners have also prayed that their pay on being appointed on the degree side as Assistant Professors be protected.

4. In SCA No.12824 of 2020, the respondents by communication dated 19.3.2015, 13.2.2017 and 27.6.2019 have rejected the case of the petitioner for protection of pay on the ground that since the petitioner was appointed from the diploma side to the degree side, and he was availing higher pay scale in his earlier post at the polytechnic side and by virtue of his appointment in the degree side since he is on lower pay scale post, the benefit of pay protection cannot be granted.

5. For the purposes of this judgment, the facts of SCA No.12824 of 2020 shall be considered.

5.1. The petitioner was appointed as lecturer Class II (Electrical Engineer) at Government Polytechnic in the pay scale of Rs.8,000-13,500/- by order dated 22.3.2002. He was, thereafter, appointed as a regular lecturer Class-II after being selected through the GPSC by order dated 23.5.2005. By an order dated 26.4.2007, the services of the petitioner on ad-hoc basis was regularized and the pay was fixed at Rs.8,825/-. The petitioner was granted senior scale of Rs.10,000-15,200/- on completion of six years of service by an order dated 16.10.2009.

5.2. The petitioner was by an order dated 12.3.2010 selected as lecturer Class II on the degree post and re-designated as Assistant Professor Class II in the scale of Rs.9,300-34800/- and grade pay of Rs.5,400/-. He was, then, fixed in the grade pay of Rs.6,000/-.

5.3. On the 6th pay commission being implemented as per AICTE, the petitioner’s pay fixation when he was diploma side was fixed with his basic salary to be Rs.20,610/- with grade pay of Rs.7,000/-. He attained the degree side without any break with effect from 6.4.2010.

5.4. The petitioner made representations from time to time since the petitioner was in the senior scale of Rs.15,600-39,100/- with grade pay of Rs.7,000/- in the diploma side, having got an appointment at the degree side on 6.4.2010 in the scale of Rs.15,600-39,100/-, the grade pay of Rs.6,000/-, is grade pay ought to be protected of Rs.7,000/-. Representations were made by the petitioner pointing out that his services as ad-hoc on the diploma side from 4.4.2001 to 28.2.2005 and regular service on the diploma side from 28.2.2005 to 5.4.2010 be treated as continuous. It appears that by the impugned orders, the representations of the petitioner for pay protection has been rejected on the ground that since the petitioner was appointed in the pay scale, initially, with a grade pay Rs.7,000/- and on being subsequently selected and appointed on the degree side with the same pay scale but with the grade pay of Rs.6,000/-, being an appointment from the higher scale to the lower scale, he cannot get the benefit of pay protection.

6. Mr. Ekrama H. Qureshi, learned counsel for the petitioners would submit that initially both for the lecturers of diploma as well as degree, the pay scales were the same. On interpretation of the 6th pay commission, the AICTE came out with regulation at the degree and diploma side and for the first time, the concept of grade pay was introduced. The pay scales for both; diploma and degree side was fixed that Rs.15,600-39,100/- but the grade pay changed, inasmuch as, for the diploma at the entry level, it was Rs.5,400/- and at the degree side it remained Rs