JUDGMENT
Anant S. Dave, J.
1. All these petitions are having identical subject matter, and the remedies sought under Article 226 of the Constitution of India are on the same line and, by an earlier order passed by the Court, they are ordered to be heard with Special Civil Application No. 612 of 1994. The matters are, therefore, listed together and, with the consent of the learned advocates for the parties, they are taken up for final hearing.
SPECIAL CIVIL APPLICATION NO. 612 OF 1994
2. So far as Special Civil Application No. 612 of 1994 is concerned, the case of the petitioners therein is that, originally, they were appointed in the year 1979 as Work Charge Helpers in the Public Health Engineering Department under the Health and Family Welfare Department of the Government of Gujarat.
2.1 According to the petitioners, in the year 1981, the activities, which were performed by the Public Health Engineering Wing under the Health and Family Welfare Department have been transferred to Gujarat Water Supply and Sewerage Board, respondents Nos. 1 and 2 herein (hereinafter referred to as ‘Board’ for the sake of brevity). The petitioners have stated that various posts have been sanctioned under various offices and units of the Public Health Engineering Wing were held in abeyance under the Government. However, the said posts were not abolished. According to the petitioners, since the Board had no separate recruitment rules, the recruitment rules applicable to the Public Health Engineering Circles have been made applicable to the employees of the Board till the date of filing of the petition.
2.2. It is further stated that, in the year 1986, all the 9 petitioners of Special Civil Application No. 612 of 1994 came to be promoted as Fitters on temporary establishment in the pay-scale of Rs.350-560 with usual allowances available to such posts. The orders (Annexure “A” colly), by which the petitioners were promoted, state that the work charge helpers, like the petitioners, have been taken up as Fitters on temporary establishment on provisional basis in usual pay-scale of Rs.350-560 with usual allowances available to such posts. At item No. 28 in the Schedule of pay-scale (Annexure “B”) for various categories under the Public Health Engineering Circles, the post of Fitter, which carries revised pay-scale of Rs.350-560, is mentioned.
2.3 According to the petitioners, in the said revision of Pay Rules and Schedule, the post of Fitter is mentioned as a single category and it is not divided into lower grade or higher grade or qualified or unqualified Fitter. Not only that, but, according to the Gujarat Civil Services (Revision of Pay) Rules, 1987, the petitioners, who were working as Fitters, got upward revision of their pay from Rs.350-560 to Rs.1200-2040 with retrospective from 1986, and the said post of Fitter figures in the revised pay-scale as such under the head of the Public Health & Engineering Circle. Therefore, according to the petitioners, there was only one cadre of Fitter and there was no division such as lower or higher grade Fitters and, accordingly, the petitioners were drawing the pay-scale of Rs.1200-2040 in the category of Fitters since 1986.
2.4 However, in the year 1993, the Board passed an order dated 3rd November 1993 and decided to revise the pay-scale of Fitter given to the petitioners from Rs.1200-2040 to Rs.950-1400 on the ground that the petitioners had been temporarily promoted on provisional basis as Fitter and, in view of the conditional order of promotion of the petitioners in the year 1986 to the post of Fitter, the new pay-scale to be given to the petitioners is Rs.950-1400, and not Rs.1200-2040, which is available to the Fitter Grade-I (qualified higher grade), as is available in several departments, like Road & Building Department and Irrigation Department.
2.5 Being aggrieved by the said order dated 3rd November 1993, and the consequential orders passed by the Superintending Engineer of the respondent-Board, the petitioners have filed Special Civil Application No. 612 of 1994 challenging the impugned orders at Annexure “D” collectively to the petition, on the grounds that:
(i) no opportunity of hearing was given to the petitioners before revising their pay-scale from Rs.1200-2040 to Rs.950-1400, and the impugned orders are violative of principles of natural justice;
(ii) no Rules have been framed by the Board and, even if such Rules are framed, it is not approved by the State of Gujarat and, therefore, the Recruitment Rules, which are in force, and applicable to the petitioners, are framed by the Public Health Engineering Department of Health & Family Welfare Department of the State of Gujarat, and no resort can be made to take assistance from the Rules and Regulations of P.W.D. or any other Department, since the function of the Fitter in the respondent-Board is totally different than in the Road & Building Department or in the automobile wing of the State of Gujarat;
(iii) in the Public Health Engineering Department, there was no classification or division as qualified fitter or non-qualified fitter or higher grade or lower grade for the post of fitter, and there was single category os post of fitter, which was reflected in ROP Rules, 1975 as well as ROP Rules 1987;
and
(iv) the petitioners are drawing the salary since 1986 in the pay-scale of Rs.1200-2040, and the revision of pay-scale would result into financial loss after seven years and that too without affording the petitioners any opportunity of hearing.
SPECIAL CIVIL APPLICATIONS NOS. 12128 OF 1994, AND 12129 OF 1994 TO 12135 OF 1994
3. So far as the case of the petitioners in Special Civil Applications Nos. 12128 of 1994, and 12129 of 1994 to 12135 of 1994, is concerned, the grievance of the petitioners in those petitions is two-fold, namely:
(i) non-promotion of the petitioners to the post of fitters even though they are qualified and such promotions were already given to the similarly situated persons like the petitioners of Special Civil Application No. 612 of 1994
and
(ii) revision of pay-scale of the post of fitter from Rs.1200-2040 to Rs.950-1400, without considering the case of the petitioners for the said post and also by ignoring the report of the Expert Committee, constituted by the respondent-Board, to look into the grievance of the petitioners for promotion to the post of fitter as well as to grant the revised pay-scale of Rs.1200-2040.
3.1 The contentions of the petitioners of this group of petitions are almost identical to that of Special Civil Application No. 612 of 1994 and Mrs. Sangeeta Pahwa, learned advocate appearing for the petitioners in Special Civil Application No. 612 of 1994, has made a statement that she adopts the arguments of Mrs. Devyani Shah, learned advocate for the petitioners in Special Civil Application No. 12128 of 1994 and allied matters.
4. According to the learned advocate Mrs. Shah, learned advocate appearing for the petitioners in Special Civil Application No. 12128 of 1994 with Special Civil Application No. 12129 to 12135 of 1994, the petitioners, working as helpers and subsequently taken up as work charge helpers initially with the Public Health Engineering Department, were taken up by the respondent No. 1, which came into existence on 1.4.1981. Prior to existence of the Board, the activities, which were performed by the Public Health Engineering Wing under the Health & Family Welfare Department had been transferred to the Board and the posts sanctioned in the Public Health Engineering Wing remained the same. According to Mrs. Shah, the present petitioners are fitters and are engaged in the drilling activities, which are identical to that of fitters of Irrigation Department. The petitioners are required to go from village to village for the purpose of drilling who drills the land for making bore and they are continuously attending the duties for about 16 to 18 hours. Therefore, according to Mrs. Shah, the duties performed by the petitioners are strenuous in the field.
4.1 According to Mrs. Shah, in the year 1969, a seniority list was prepared for various posts and the petitioners had no idea about their correct seniority. Even, in the year 1986, when the promotion was given to junior helpers on the post of fitters, the petitioners were not aware about this fact. However, in the year 1991, when the petitioners came to know the promotion of junior work charge helpers, they had a representation before the Authority and, thereafter, it was thought it fit by the respondent-Board to appoint a Committee to look into the grievance and to grant them appropriate deemed date on the post of fitters and place the petitioners in the revised pay-scale of Rs.1200-2400.
4.2 Learned advocate, Mrs. Shah, has submitted that the petitioners have performed their duties in different capacities and, so far as the performance of their duties is concerned, no grievance is ever made by the respondents-Authorities. According to learned advocate, Mrs. Shah, all the petitioners had been confirmed as work charge helpers vide order dated 4th February 1980 and the subsequent order making it effective from 1st April 1981. The petitioners have also produced on record the order of promotion of other work charge helpers who came to be promoted as fitters in the pay-scale of Rs.350-560 by orders dated 12th February 1987 and 7th August 1986. Those orders of promotion were passed in favour of the petitioners of Special Civil Application No. 612 of 1994. There, the grievance made by the learned advocate for the petitioners is that, though the petitioners in the instant petitions are senior to the petitioners of Special Civil Application No. 612 of 1994, they are not considered for promotion to the post of fitters. However, the learned advocate for the petitioners has joined the issue so far as revision of pay-scale from Rs.1200-2040 to Rs.950-1400 is concerned, as agitated by the petitioners of Special Civil Application No. 612 of 1994 and a common grievance is made that the respondent-Board has no authority to revise the pay-scale from Rs.1200-2040 to Rs.950-1400, once having been revised upward by the Authority, and the Committee had also recommended to give promotions to work charge helpers to the post of fitters, as per its report.
4.3 According to Mrs. Shah, the Grievance Committee headed by the Chief Engineer, had specifically recommended the case of the petitioners for promotion to the post of fitter and the report was submitted in the year 1992 and copies of the said report and recommendations have been produced at Annexure “G”, “H” and “I” to the petition, wherein, it is stated that there is only one cadre of fitter, and no different pay-scales for qualified or unqualified fitter are available as per the Gujarat Civil Service Revision of Pay Rules,1975, and, therefore, the Board was requested to look into the matter. It is also observed by the Committee that, however, in the Rules framed by the Board for recruitment for the post of fitters, no avenues are kept open for promotees from the feeder cadre, and a provision is made for direct recruitment only. However, it was recommended that those work charge helpers, who have completed about eight years are to be given promotion to the post of fitter (lower grade) and those who have completed ten years as work charge helper are to be given promotion on the post of fitter (higher grade). The learned advocate, Mrs. Shah, has, therefore, submitted that, since all the petitioners have completed more than ten years of service as work charge helper, they are entitled to be considered for promotion to the post of fitters on par with other similarly situated persons like the petitioners who have been already promoted in the year 1986 to the post of fitter. No only that, some of them were juniors to the petitioners in the feeder cadre of work charge helpers.
4.4 Learned advocate, Mrs. Shah, has vehemently submitted that the recruitment rules of the respondent-Board, if at framed, are not approved by the concerned Authority of the State Government and, therefore, the same remained ineffective and cannot be relied upon by the respondent-Board. According to Mrs. Shah, the practice and procedure prevalent for years together, as adopted by the Public Health and Engineering Department under the Health and Family Welfare Department of the State of Gujarat, is the correct procedure and, according to Mrs. Shah, the post of fitter is a single category and there was no division or classification of qualified or unqualified fitter and/or fitter (lower grade) and fitter (higher grade) and even the same was reflected in the ROP Rules 1975 and 1985. Therefore, the decision of the respondent-Authority to revise the pay-scale from Rs.1200-2040 to Rs.950-1400 is unreasonable, discriminatory and violative of Article 14 of the Constitution of India and, further, non-consideration of the case of the petitioners for promotion to the post of fitter, though qualified and though similar treatment was given to other junior work charge helpers by the Board, amounts to unreasonable exercise of power, and violative of principles of natural justice, the petitioners are denied the right to have ‘Equal Pay for Equal Work’ and, therefore, this is a fit case to exercise the power under Article 226 of the Constitution of India.
5. The respondent-Board filed affidavit-in-reply in Special Civil Application No. 612 of 1994 and Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994. The respondent-Board resisted the claim of the petitioners contending, inter alia, that the respondent No. 1-Board is a statutory board established under the Gujarat Water Supply and Sewerage Board Act, 1978 and Section 77 of the said Act empowers the Board to frame Rules and, by virtue of the provisions of Section 77(2)(b) of the said Act, recruitment rules for the post of fitter are framed. It is further stated that, in the said Rules, at item No. 46, qualifications for the post of fitter are prescribed and, accordingly, the post of fitter is divided into lower grade and higher grade and the same is to be filled in by way of direct recruitment. According to the respondent-Board, there is no provision for promotion to the post of fitter from the post of helper, and distinction of higher and lower grades (qualified and non-qualified) for the post of fitter exists since the year 1958 as per the resolutions of the Public Works Department. It is further stated in the affidavit-in-reply that, in the Irrigation Department, the post of qualified fitter did carry the pay-scale of Rs.350-560, which was revised to Rs.1200-2040 as per the ROP Rules of 1987, and the said benefits have been extended to work charge employees by Government Resolution dated 8th June 1987. According to the respondent-Board, the petitioners, who are not qualified fitters, and who are not holding necessary trade certificates, had drawn the lower grade pay-scale of Rs.950-1400 and, therefore, the petitioners are not entitled for the pay-scale of Fitter-Grade I (qualified).
5.1 It is further stated in the affidavit-in-reply that the Special Committee had looked into the grievances of the petitioners and submitted its report in the meeting of the Board held on 15th October 1993 and, thereafter, the respondent-Board passed appropriate orders in accordance with law. According to the respondent-Board, since there was no promotional avenue to certain work charge helpers, they were taken as temporary fitter in the month of August 1986, and the Recruitment Rules framed by the Board were already approved as back as on 25th July 1984 with distinction of higher grade and lower grade fitters. According to the respondent-Board, the persons, who were promoted on temporary and provisional basis, with conditional order, as fitter at the relevant point of time, cannot claim any higher pay-scale available to qualified Grade-I fitters at Rs.1200-2040 and, therefore, the action of the respondent-Board is in consonance with the rules framed by the Board. The respondent-Board has, further, made it clear that the promotion orders given to the petitioners in Special Civil Application No. 612 of 1994 clearly mention that the said orders were issued subject to further policy decision of the Board and the petitioners had accepted the said condition of the Board as mentioned in the orders of promotion and, therefore, any action taken as per the said condition is binding to the petitioners and no grievance can be made about it. Lastly, it is submitted that, even as per the Rule 57 of the Bombay Civil Service Rules also, it was for the Authority to take appropriate action in the interest of administration and the same is pending to the employees.
6. Affidavit-in-rejoinder is filed by the petitioners and, by and large, the averments made in the affidavit-in-reply were controverted.
6.1 Learned advocate, Mrs. Shah, for the petitioners has drawn the attention of the Court mainly to the report of the Committee submitted to the Board in the year 1993 and, according to Mrs. Shah, the report of the Committee clearly establishes the case of the petitioners that completion of minimum eight years of service in the cadre of work charge helper, gives right to such employee to be considered for promotion to the post of fitter (lower grade) and completion of minimum ten years of experience in the cadre of work charge helpers gives right to the post of fitter (higher grade). According to the learned advocate for the petitioners, in any case, the petitioners are eligible to be considered for promotion to the post of fitter (Grade-I- qualified) in view of the fact that all the petitioners had completed minimum period of ten years as work charge helpers at least in the year 1979-80.The learned advocate for the petitioners opposed the submission of the respondent-Board about classification of the post of fitter in the lower grade or higher grade and qualified or non-qualified, and applicability of PWD Rules or Rules framed by any other Department, and, according to Mrs. Shah, the Rules, which are applicable to the petitioners are only of Public Health Engineering Department, as was in practice since many years, and the Authority ought not to have gone beyond the recommendation of the Committee which had submitted the report. In support of the above submission, the learned advocate, Mrs. Shah, has relied upon the Oral Judgment dated 16th August 1982 of this Court (Coram: G.T. Nanavati, J, as he then was) rendered in Special Civil Application No. 2816 of 1981, where also, similar question arises where the Government had changed the pay-scale of work charge employees and the Court observed that the action of the Government was bad and illegal.
6.2 Learned advocate, Mrs. Shah, for the petitioners, has further submitted that the decision of the respondent-Board is unreasonable, arbitrary, violative of principles of natural justice and Article 14 of the Constitution of India, in as much as, while deciding the question about the pay-scale of the petitioners, no opportunity of hearing was given to them and, in fact, there was no effective consultation with the employees and even their claim with regard to seniority is also not determined, and, therefore also, appropriate directions be given to the respondent-Board in exercise of power under Article 226 of the Constitution of India to redress the grievance of the petitioners.
7. Having heard the learned advocates for the parties and taken into consideration their submissions including the affidavit-in-reply and the rejoinder filed by the respective parties, I find considerable force in the arguments advanced by the learned advocate for the petitioners and their submissions are required to be upheld, for the reasons discussed hereinbelow.
8. So far as the grievance of the petitioners of Special Civil Application No. 612 of 1994 is concerned, revision of their pay-scale from Rs.1200-2040 to Rs.950-1400 in the temporary fitter grade-II, is clearly violative of principles of natural justice, since the petitioners of this Special Civil Application came to be promoted as back as in the year 1986 and continued to serve as such and, in the absence of sanctioned and approved recruitment rules/regulations by the respondent-Board, the order adjusting or reducing the pay-scale of these petitioners from Rs.1200-2040 to Rs.950-1400 is clearly passed without hearing the petitioners or without affording an opportunity to explain their case and, therefore, the order impugned in Special Civil Application No. 612 of 1994 requires to be quashed and set aside being violative of principles of natural justice.
8.1 The other contentions raised in the said writ petition, being Special Civil Application No. 612 of 1994, are being dealt with hereinbelow while dealing with the submissions advanced by Mrs. D.T. Shah, learned advocate for the petitioners of Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994, in view of the submission made by learned advocate Mrs. Sangeeta Pahwa, appearing for the petitioners in Special Civil Application No. 612 of 1994, that she adopts the arguments of learned advocate Mrs. D.T. Shah in view of the fact that the subject matter in all the writ petitions is common and identical.
9. From the record of the petitions, it is borne out that all the petitioners, at the relevant point of time, joined the service, initially, as helper and continued to serve as such till all of them came to be confirmed as work charge helper by the orders dated 29th June 1979, 20th June 1979 and 1st July 1980.
9.1 So far as the petitioners of Special Civil Application No. 612 of 1994 are concerned, they have produced the order at Annexure “A” to the petition, where, it is shown that, by Office Order No. 201 of 1986 and another Order No. 281 of 1986, all of them working as work charge labourer were taken up as fitter on temporary establishment on provisional basis in the pay-scale of Rs.350-560 with permissible admissible allowances. So far as the petitioners Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994 are concerned, they were promoted in the year 1993 and taken up as temporary fitter in the year 1993 and 1994 respectively.
9.2 The bone of contention is that, with the respondent-Board, initially, there was single cadre of fitter and it was not bifurcated into qualified or unqualified fitter. Even no decision was taken by the Board with regard to different pay-scales of fitter Grade-I or fitter Grade-II and, therefore, according to the petitioners, even the Revision of Pay Rules of 1975 and 1987 continued to give one pay-scale only. Therefore, it was unfair and arbitrary on the part of the respondent-Board to give lower pay-scale of unqualified fitter in fitter Grade-II, namely, Rs.950-1400, which is contrary to the Rules. The aforesaid submission was half-heartedly denied by the respondent-Board in the affidavit-in-reply by stating that the Board framed recruitment regulations for the post of fitter prescribing certain qualifications for direct recruit fitter and, according to the said regulations, the minimum qualification for appointment to the post of fitter is prescribed, i.e. the candidate should have passed the course of fitter from a Government Technical Center or equivalent course recognized by the Government. It does not make any provision for those employees who have worked in the feeder cadre, like the petitioners, who were serving as work charge helpers. It is clear that the aforesaid recruitment regulations framed by the Board in exercise of power conferred by sub-section (2)(b) of Section 77 of the GWSSB Act, 1978, do not state that the said recruitment regulations have come into force by passing any notification after approval or sanction by the State Government. Simply framing of recruitment regulations will not be applicable to the employees like the petitioners who have been performing their duties even before existence of the Board and governed by the Rules of the Public Health Engineering Department.
9.3 Section 77 of the Gujarat Water Supply and Sewerage Board Act, 1978, clearly envisages certain regulations that can be framed by the Board for administration of its affairs, and, according to clause (b) of sub-section (2) of Section 77, with regard to the recruitment and the salaries and allowances and other conditions of service of employees of the Board, the respondent-Board can make Regulations. However, sub-section (1) of Section 77 makes it clear that such powers can be exercised by the Board with the previous approval of the State Government and not otherwise and, therefore, nothing is mentioned in the affidavit-in-reply to the effect that, before framing the Regulations, the Board had taken previous approval of the State Government and, therefore, the said Regulations of Fitter Grade-I and Grade II – qualified or unqualified – are not sustainable.
10. The contention of the learned advocate Mrs. Shah is that the nature of duty performed by the petitioners as fitter and earlier as helpers is on par with other employees in other departments of the State Government, namely, Irrigation Department, P.W.D. Department, etc. and even the petitioners have to perform the strenuous work in the field and they are performing the duties for more than 12 to 15 hours a day in a given case. Not only that, the recruitment rules for the post of fitter in other Departments do provide a provision for promotion to the post of fitter, while no such provision has been made by the GWSSB under the respondent-Board while framing recruitment regulations for the post of fitter, as relied upon by the respondent-Board in the affidavit-in-reply.
11. Even as per the recommendation of the Expert Committee constituted by the respondent-Board, there was no post of qualified or unqualified fitter in the respondent-Board and the post of fitter was a single cadre post. The said Expert Committee has also recorded that even in the earlier order by which the employees like the petitioners were taken up in the cadre of fitter, no mention was made of lower grade or higher grade and even as per the revised pay-scale for the cadre of fitter, the Public Health and Engineering Department circular mentioned only one pay-scale. The said Committee has discussed the provisions of various Pay Commissions and even ROP Rules, 1987, which mentions the pay-scale of Rs.1200-2400 for the post of fitter in continuation with the Gujarat State Civil Services Rules, 1975 with regard to pay-scale and no bifurcation was made of qualified or unqualified fitter and no different pay-scale was recommended.
11.1 The aforesaid recommendation of the Expert Committee supports the case of the petitioners that they are entitled to only one pay-scale of Rs.1200-2040 for the post of fitter on par with the fitter of other departments. The communication at Annexure “K” to the petition addressed by the Chief Executive Officer of the respondent-Board, to the Chief Engineer and other subordinate officers, clearly mentions that the Director of the respondent-Board has taken a decision that those work charge helpers, who have been serving since eight years, are to be given the pay-scale of fitter grade-II and those who have completed ten years of service in the feeder cadre of work charge helper are to be given higher grade in the cadre of the fitter. In this view of the matter, this Court has no hesitation to accept the submission of the learned advocate Mrs. Shah for the petitioners that the petitioners of Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994 have completed more than ten years of service in the feeder cadre of work charge helper and, thus, all of them are entitled to higher grade of fitter, Grade-I. Looking to the record of the petitions, which is not disputed by the respondent-Board, the petitioners of Special Civil Application No. 612 of 1994 were taken up as fitter on temporary establishment since 1986 and the petitioners of Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994 have been promoted as fitter in the year 1993-1994. Thus, all the petitioners in this group of petitions have completed more than ten years of service in the feeder cadre of work charge helper and, therefore, they are entitled to higher grade of Rs.1200-2400 on completion of ten years of service in view of the vacancies available with the respondent-Board.
12. So far as the grievance of the petitioners of Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994 is concerned, though they were seniors to the petitioners of Special Civil Application No. 612 of 1994, at the relevant point of time, their cases were not considered for promotion to the post of fitter and, in spite of representation, their claim is yet not adjudicated nor any reply is given by the respondent-Board. It is, therefore, just and proper to direct the respondent-Board to decide the claim of the petitioners inter-se and to take appropriate decision as expeditiously as possible.
13. The contention of the respondent-Board, as urged by the learned advocate Mr. Baxi, that the Board has power to frame recruitment regulations and, accordingly, the Board adopted the said recruitment regulations as early as on 25th July 1984 and, therefore, the petitioners are governed by the said regulations, has no force, in view of the fact that, in the year 1986, the petitioners of Special Civil Application No. 612 of 1994 came to be promoted as fitter and at that time also they were placed in the pay-scale of Rs.1200-2040 and it was not mentioned in the said order that the said petitioners were promoted as qualified or unqualified fitter or their pay-scale is of lower grade or higher grade fitter. Even, subsequently also, looking to the grievance of the employees, the Board has constituted a Special Committee, consisting of the Chief Engineer, to resolve the dispute, and it is established that there was a single cadre of fitter and the pay-scale of Rs.1200-2040 was given to such promotee-employees.
14. So far as the implementation of the impugned orders is concerned, in Special Civil Application No. 612 of 1994, status-quo qua the pay-scale is granted and, even no recovery was to be effected. The only question remains with regard to entitlement of the pay-scale in the cadre of fitter as discussed hereinabove. Looking to the facts and circumstances of the case, it would be just and proper to direct the respondent-Board to take into consideration the findings of the Expert Committee formed by the respondent-Board and particularly in view of the fact that all the petitioners have completed ten years of service as work charge helpers, they are entitled to the pay-scale of Rs.1200-2040 as per the decision taken by the Board and as per the Annexure “Q”, page 137 of the petition produced by the petitioners along with the affidavit-in-rejoinder, a communication addressed by the Superintending Engineer of Public Health Engineering of Gujarat Water Supply & Sewerage Board, the respondent herein. The said communication is based on the decision taken by the respondent-Board, which is produced by the petitioners at Annexure “D” to Special Civil Application No. 12128 of 1994.
15. So far as the case law referred to as per the oral judgment dated 16th August 1982 in Special Civil Application No. 2816 of 1981 is concerned, it supports the case of the petitioners where the Honourable Court (Coram: G.T. Nanavati, J. as His Lordship then was), held as under:
“Since the petitioners have not passed the prescribed course of fitter or an equivalent course recognised by the Government, they are not qualified fitters and, therefore, they are not entitled to the revised pay-scale of Rs.350-550, but would be entitled to the revised pay-scale of Rs.260-350 as recommended by the Second Pay Commission. What is really overlooked by the respondents is that rightly or wrongly, the petitioners were appointed in the scale of Rs.130-240. Since they were appointed in that scale, they would be entitled to the revised pay scale of Rs.350-560 which is the corresponding scale of the said pay scale. The Executive Engineer, respondent No. 3 could not have after lapse of number of years revised the original pay scale of the petitioners. It was not the case of the respondents that the Executive Engineer had the power or authority to revise the pay scale or that he had done so under instructions from the Government. Since the action of the respondents in revising the pay scales of the petitioners from Rs.130-240 to Rs.125-200 is without any authority of law, the petitioners cannot be deprived of the benefit of the revised pay scale available to the employees in the pay scale of Rs.130-240. Therefore, on this short ground, the petition will have to be allowed.”
The facts of the present case are also identical in view of the fact that the petitioners were also getting the pay-scale which was initially fixed in the grade of Rs.350-560 and continued to get the revised pay-scale accordingly since number of years. Therefore also, on completion of ten years of service as work charge helpers, the petitioners are entitled to pay-scale of Rs.1200-2040.
16. Therefore, the respondent-Board is directed to consider to promote the petitioners as fitter on completion of ten years of service in the feeder cadre of work charge helper. Since all the petitioners had completed more than ten years service.
16.1 So far as the claim of the petitioners of Special Civil Applications Nos. 12128 of 1994 to 12135 of 1994, with regard to their inter-se seniority and promotion between the petitioners of the writ petitions, being Special Civil Application No. 612 of 1994 and Special Civil Application Nos. 12128 of 1994 to 12135 of 1994, to the post of fitter is concerned, it may be decided by the respondent-Board within three months from the date of receipt of writ of this order of this Court and to pass appropriate orders accordingly.
16.2 In view of this, the prayer of the petitioners of Special Civil Application Nos. 12128 of 1994 to 12135 of 1994 with regard to entitlement of higher pay-scale for the post of fitter in the pay-scale of Rs.1200-2040, is granted and they are to be given pay-scale accordingly from the date when they had completed ten years of service as work charge helpers with the respondent-Board.
17. Since the respondent-Board itself has taken a decision not to recover the amount of difference of pay-scale granted to the petitioners of Special Civil Application No. 612 of 1994, no stay order qua recovery is required to be passed by this Court.
18. So far as the impugned order in Special Civil Application No. 612 of 1994 is concerned, it is quashed and set aside as being violative of principles of natural justice and held to be ineffective qua the petitioners. In view of this, Special Civil Application No. 612 of 1994 is allowed to the aforesaid extent.
19. The respondent-Board is directed to pay difference of revised pay-scale to the petitioners of Special Civil Application Nos. 12128 of 1994 to 12135 of 1994, within three months from the date of receipt of writ of this order.
20. Rule is made absolute to the aforesaid extent in each petition with no order as to costs.