IMPORTANT POINT
The judgment establishes the principle of protecting past service and pay for government employees joining new posts without a break in service, as per Rule 41 of BCSR and relevant government resolutions.

JUDGMENT :

Biren Vaishnav, J.

1. This appeal, under Clause 15 of the Letters Patent, has been filed by the State on being aggrieved by the oral judgement dated 22.01.2016 passed by the learned Single Judge. The learned Single Judge by the order under challenge acceded to the petitioner’s request for pay protection.

2. Facts in brief are as under:

2.1 The respondent was working on probation on the post of Lecturer of Electrical Engineering, Class-II in Government Polytechnic in the pay scale of Rs.2200-4000 since 29.06.1995. The GPSC invited applications for recruitment for the post of Junior Assistant Electrical Inspector, Class-II in the pay scale of Rs.2000-3200. The original petitioner – respondent herein applied with the permission of the department. Pursuant to the process of selection, he was selected on the said post.

2.2 On 29.03.1997, the Government of Gujarat issued an order appointing the petitioner on the post of Senior Electrical Inspector. Apparently, since the pay scale on the post on which he was subsequently appointed was lower i.e. Rs.2000-3200 whereas that of the previous post on which the respondent was working was of Rs.2200- 4000, the petitioner requested that his pay be protected. It was his case that the pay that he was drawing as Lecturer at the time of joining as Junior Assistant Electrical Inspector should have been protected by the government. Reliance was placed on Rule 41 of the Bombay Civil Service Rules (for short ‘BCSR’). The request was rejected.

2.3 The respondent thereafter approached this court by way of filing writ petition being Special Civil Application No. 12894 of 2000 whereby the learned Single Judge allowed the petition and granted pay protection to the original petitioner – respondent herein. The State aggrieved by the said order has therefore filed the present appeal.

3. Ms. Shruti Dhruve, learned AGP appearing for the appellant State would assail the order of the learned Single Judge on the ground that pay protection to the respondent – original petitioner was not available. She would submit that initially the respondent – original petitioner was working in the Education Department of the State as a Lecturer whereas the subsequent appointment on being selected as Junior Assistant Electrical Inspector, Class-II was with the department of Energy and Petrochemicals. She would submit that though the State had specifically pointed out to the learned Single Judge that in light of the Government Resolution dated 17.06.1994, Note 8 to Rule 41 of the BCSR would not apply. She would take us through the Government Resolution dated 17.06.1994 and submit that pay protection shall only be available in cases where subsequent appointment was to a post which had a higher pay scale or a equal pay scale to that of the earlier appointment.

4. Ms. Prachi Upadhyay, learned advocate appearing for the respondent – original petitioner would support the order of the learned Single Judge. She would submit that it is clear that reading of Rule 41 and that of Note 8 thereof, that pay protection is available to the respondent – original petitioner. She would invite the court’s attention to the additional affidavit filed on behalf of the original petitioner which referred to the Government Resolution dated 24.02.1993. This resolution too finds mention in the order of the learned Single Judge.

5. It is undisputed as it is apparent from the facts set out by the learned Single Judge that the petitioner when appointed first in point of time was appointed on a higher pay scale of Rs.2200-4000 and subsequently to a pay scale lower than the one that was in his earlier service. He was subsequently appointed in the pay scale of Rs.2000-3200. The learned Single Judge in the body of the judgement, on appreciation of Rule 41, has elaborately dealt with the reasons and it will be in the fitness of things to reproduce the observations of the learned Single Judge rendered in paragraphs no. 8 -12. The same read as under:

“8. Rule 41 of