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SCA/11843/2009 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11843 of 2009
=========================================================
R
P DAMOR - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PARESH UPADHYAY for
Petitioner(s) : 1,
MR NIKUNT RAVAL AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/04/2010
ORAL
ORDER
1.0 By
way of present petition, the petitioner has prayed for direction to
respondent authorities to protect the pay of the petitioner, on his
appointment as Jailor (Group-II) vide appointment order dated
11.06.2004 which the petitioner was getting while working as Senior
Clerk and also to direct the respondent authorities to grant
consequential benefits to the petitioner.
2.0 The
petitioner joined the service under the administration of the
Inspector General of Prisons and in due course the petitioner was
promoted on the post of Senior Clerk in the year 1990. Upon
completing nine years of the service on the post of Senior Clerk, he
was granted benefit of first higher pays scale of Rs. 5000-8000 on
the post of Head Clerk. Lastly he was drawing pay scale of Rs.
5600/-. On 07.04.2004, the applications for the post of Jailor (Group
II) were invited for the post of Jailor and after due process of
selection, the appointment to the post of Jailor (Group- II) has been
given to the petitioner in the pay scale of Rs.4500-7000/-. The pay
scale on the petitioner at the time of promotion was Rs. 5600/- in
the pay scale of Rs. 5000-8000/-, but the same was not protected to
the petitioner upon his appointment on the post of Jailor (Group II).
The petitioner made representation to the respondent authorities. The
petitioner was informed that the benefit of pay protection cannot be
granted to the petitioner as he was not appointed on a post carrying
equal or higher pay scale. Hence, this petition.
3.0 In
view of Rule 11 of the Gujarat Civil Service Rules (Pay), 2002, the
petitioner had made representation which came to be turned down. The
date of the appointment of the petitioner is 11.06.2004 and his
representation was rejected on 08.06.2009 i.e after nine years.
4.0 The
appointment of the petitioner as Jailor was on ad-hoc basis and on
probation of two years vide order dated 11.06.2004. It is the
contention of the petitioner that he was informed that the
representation of the petitioner dated 04.12.2007 cannot be accepted
in view of the decision of the Government dated 26.05.2009. Being
aggrieved by the action of the respondent authorities of not granting
the benefit of pay protection to the petitioner on being appointed to
the post of Jaior (Group II) from the post of Senior Clerk in the
service of the State Government, the petitioner has filed the present
petition. Learned advocate for the petitioner submitted that in view
of his earlier service, pay scale of Rs. 5000/- should have been
considered.
5.0 Learned
advocate for the petitioner further contended that as per Clause 5 of
the appointment order dated 11.06.2004, it is clearly stated that the
Government Resolution regarding the appointment of the Government
published from time to time shall be applicable.
6.0 Mr.
Raval, learned Assistant Government Pleader has submitted that Rule
23 of the Gujarat Civil Services Rules (Pay), 2002 is applicable
which reads as under:
Rule
23: Pay on new appointments
(1)
Where the Government employee is selected for appointment to a
service or cadre or post under the Government through the Gujarat
Public Service Commission, Centralized Recruitment Scheme or
any other method approved by the Government and if the service
rendered prior to and after such selection is continuous and the
appointment is on a higher post as compared to the pay scale of the
post on which the employee was working prior to his appointment
before selection, his pay shall be fixed as per Rule 13.
Explanation:
For this purpose the service shall be treated as continuous one even
if there is a physical break not exceeding twenty four hours.
Note
1 If the new appointment is in the same station, for the purpose of
computing ‘physical break’ (of more than twenty four hours), Sunday
and/or a Public Holiday declared by the State Government shall be
exonerated.
Note
2: IF the new appointment involves movement from one station to
another, for the purpose of computing ‘physical break’ (of more than
twenty four hours) the maximum period to cover actual journey
inclusive of Sunday and/or a Public Holiday declared by the
State Government shall be executed.
Note
2 : If the new appointment involves movement from one station to
another, for the purpose of computing ‘Physical break’ (of more than
twenty four hours) the maximum period to cover actual journey
inclusive of Sunday and/or a Public Holiday declared by the State
Government shall be executed.
(2) The
provisions of Sub-rule (1) shall not apply in the case of a
Government employees in the case of a Government employee who is so
appointed after a physical break exceeding twenty four hours
following resignation, removal, dismissal or discharge on reduction
of establishment or after invalidation out of service. Such an
appointment amounts to a fresh appointment.
The
G.C.S (Pay) Rules, 2002, Rule 13 reads as under:
Rule
13: Fixation of pay on appointment to another post not involving
assumption of duties or responsibilities of greater importance.
Where
a Government employee holding a post in substantive, temporary or
officiating capacity, is appointed in a substantive, temporary or
officiating capacity to another post including an ex-cader post
and appointment to the new post does not involve assumption of duties
or responsibilities of greater importance than those attached to the
old post, his initial pay shall be fixed as under:
(a) if
there is a stage in the time scale of the new post which is equal to
his pay in the pay scale of the old post, he shall draw pay at that
stage;
(b) if
there is no such stage, he shall draw pay at the stage next below his
pay in the pay scale of the old post plus personal pay equal to the
amount of difference;
(c)
in either of these two cases, he shall continue to draw that pay
until such time as he would have received an increment in the time
scale of the old post or till he would earn an increment in the time
scale of the new post, whichever is earlier;
(d) if
the minimum of the time scale of the new post is higher than his pay
in the old post, he shall draw that minimum as initial pay.
7.0 Learned
AGP has submitted that the petitioner is not entitled to the other
scale inasmuch as appointment order was very clear on this aspect it
is stipulated by the decision of the Apex Court reported in case of
U.P. State Cement Corporation Ltd. and others
versus B.K. Tiwari reported
in 1998 (2) SCC 542.
8.0 From
a perusal of Rule 23, it is obvious that the petitioner cannot take
any protection from the same. The petitioner was appointed by order
dated 11.06.2004 in the pay scale of Rs. 4500-7000/-. The petitioner
has been departmentally recruited as a Jailor ( Group- II). The pay
scale and conditions are mentioned in the said order which has been
accepted by him and having accepted the same, it is not open to the
petitioner to challenge the same. Further, the petitioner was serving
as a Senior Clerk and that is not the feeder cadre of Jailor (Group-
II) post. In that view of the matter, there was no reason to protect
the pay scales when the petitioner was appointed on the said post.
9.0 In
the premises aforesaid, I do not find any merits in the petition. The
same is therefore, rejected. Notice is discharged with no order as to
costs.
(K.S.JHAVERI,
J.)
niru*
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