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2022 Supreme(Guj) 1597
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRZAR S. DESAI, J.
Maganbhai Jethabhai Vankar & Others - Petitioners
Versus
State of Gujarat & Others - Respondents
R/Special Civil Application No. 19014 of 2017
Decided On : 28-11-2022
For the Petitioners: Mr. Gunvant R. Thakar, Ms. Bhargavi G. Thakar.
For the Respondent: Mr. Kurven Desai, AGP.
Headnote:
Continuity of service - Entitled for second higher pay scale - Prayed for quashing and setting aside order passed by respondent No.3 and prayed to hold that petitioners are entitled for second higher pay scale with continuity of service with pay protection and to declare that petitioners are entitled for second higher pay scale on completion of 15 years of service after grant of first higher pay scale, except petitioner No.2 - Held, Government Resolution more particularly prescribe that a person, who has received benefit under 9-18-27 years higher pay scale scheme and who has once availed benefit on completion of 9 years is entitled to get second higher pay scale on completion of 15 further years, in all after completion of 24 years of service - Once, language of order is very clear and Government Resolution dated itself clearly provides that a persons on completion of 15 years of service after getting benefit first higher scale on completion of 9 years service is entitled to second higher pay scale, stand taken by Government cannot be accepted - Observations of Division Bench which are relied upon by Mr. Thakkar, learned advocate for petitioner makes it abundantly clear that merely because petitioners have been transferred from one cadre to another cadre on his own volition all that he has given up is only seniority and no other benefits, and therefore, case of petitioners is required to be considered for benefit of second higher pay scale - Respondents are directed to pay benefit of second higher pay scale to tall petitioners upon completion of their 15 years service after getting first higher pay scale on completion of 9 years of service - Petition allowed.
JUDGMENT :
1. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 4.8.2017 passed by respondent No.3 and prayed to hold that the petitioners are entitled for second higher pay scale with continuity of service with pay protection w.e.f. 18.1.1993 and to declare that the petitioners are entitled for second higher pay scale on completion of 15 years of service after grant of first higher pay scale, except petitioner No.2 all other petitioners are entitled for second higher pay scale w.e.f. 15.11.2008 and petitioner No.2 is entitled to second higher pay scale w.e.f. 16.08.2006 as per the Government Resolution dated 2.7.2007.
2. Heard Mr. Gunvant Thakkar, learned advocate for the petitioners and Mr. Kurven Desai, learned Assistant Government Pleader for State respondents.
3. It is the case of the petitioners that all the petitioners, except petitioner No.2, were appointed as Police Constable (Armed) in the year 1984, whereas the petitioner No.2 was appointed as Police Constable (Armed) in the year 1982. The petitioner No.2 was granted first higher pay scale after completion of 9 years service in the year 1991, whereas the petitioner Nos.1, 3, 4 & 5 were granted first higher pay scale on completion of 9 years in the year 1993. In the meantime, on 18.1.1993, all the petitioners were posted from the cadre of Police Constable (Armed) to the cadre of Police Constable (Unarmed) with continuity of service and pay protection but without seniority of Police Constable.
3.1 After the petitioners got the benefit of first higher pay scale on completion of 9 years of service since they are placed from the cadre of Armed Police Constable to Un-armed Police Constable vide order dated 18.1.1993, the respondents not only placed them at the bottom of seniority in the cadre of Unarmed Police Constable but also did not grant them second higher pay scale and that is the grievance of all the petitioners.
3.2 In the meantime, vide Government Resolution dated 2.7.2007 the Scheme of time scale promotion on completion of 9-18-27 years of service was modified and instead of giving higher pay scale on completion of 9-18-27 years of service, higher pay scale was introduced after completion of 12-24 years of service. Clause 4(b) of the Government Resolution provides that when a person has received first higher pay scale on completion of 9 years, thereafter on completion of further 15 years, which comes to total 24 years of service, that person is entitled for second higher pay scale. According to the petitioners, as per the Government Resolution dated 2.7.2007, the petitioners are entitled for second higher pay scale upon completion of 15 years of service after the first higher pay scale was given to the petitioners. In spite of the aforesaid clear cut position in the Government Resolution, the petitioners are denied the second higher pay scale, and therefore, the petitioners have preferred this petition with the prayers, which are already referred to in the foregoing paragraph.
4. Mr. Thakkar, learned advocate for the petitioners, relied upon order dated 18.1.1993 whereby the petitioners were placed in Unarmed cadre of Police Constable from Armed cadre and submitted that as per the aforesaid order though the services of the petitioners were treated to be continuous and their pay was protected, what was not given to the petitioners was only the benefit of seniority as the petitioners were placed at the bottom of the seniority list of the concerned district and though the aforesaid order categorically provides that pay scale of the petitioners is protected by virtue of benefit of pay protection and continuous service, the respondent authorities have completely ignored the aforesaid order and treated the petitioners transfer from Armed to Unarmed cadre as change of cadre and without there being any justification denied the benefit of second higher pay scale to the petitioners, and therefore, the impugned order dated 4.8.20
