JUDGMENT
C.K. Thakker, J.
1. This petition is filed by petitioner No. 1 – Agricultural Assistant working in the office of the Director of Agriculture, respondent No. 3 herein and also by petitioner No. 2 – Staff Association of Agriculture Supervisors (Promoted) and Agriculture Assistants Class III (Technical) working in the Gujarat Agriculture University, for appropriate writ, direction and/or order directing the respondents to grant benefit of bunching as provided under Note 3 of Rule 7 of the Gujarat Civil Services (Revision of Pay) Rules, 1975 by giving starting pay of Rs. 350/- to Agricultural Assistants who are Diploma Holders in the revised pay scale of Rs. 330-560 and to grant increments on that basis and also by directing the respondent authorities to give all consequential benefits including arrears of pay which may be due and payable to them in accordance with the said fixation.
2. It is the case of the petitioners that petitioner No. 1 is working as Agricultural Assistant in the Directorate of Agriculture prior to the establishment of the State of Gujarat. The Gujarat Civil Services (Revision of Pay) Rules, 1975 (hereinafter referred to as “R.O.P. Rules”) have been framed by the Governor of Gujarat in exercise of the powers under the proviso to Article 309 of the Constitution of India and they came into force with effect from January 1, 1973. They are made applicable to all Government servants. Rule 3 defines “basic pay” as pay defined in Sub-clause (a)(i) of Clause (39) of Rule 9 of the Bombay Civil Services Rules, 1959. “Revised Scale” is defined as the scale of pay specified against the post in Col. 4 of Schedule B of the Rules. The scale of pay for various posts has been specified in Schedule “C”. Rule 5 provides for revised scales of pay whereas Rule 6 provides for option. Rule 7 fixes initial pay in the revised scales. The said Rule is material for the purpose of controversy raised in the present petition and requires to be quoted.
7. Fixation of initial pay in the revised scales: (I) The initial pay of a Government Servant who elects, or who is deemed to have elected under Rule 6, to be governed by the revised scale from the 1st day of January, 1973, shall, unless in any case the Government by special order otherwise directs or except in any case covered by Explanation 2 be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him in the following manner, namely:
(A) In the case of a Government Servant drawing basic pay upto and including Rs. 1800 in the existing scale:
(a) an amount representing five per cent of the basic pay, subject to a minimum of Rs. IS and a maximum of Rs. 50 shall be added to the existing emoluments of the Government servant.
Explanation – 1: If the amount so computed includes a part of a rupees, then if such part is fifty paise or more, it shall be increased to one complete rupee and if such part is less than fifty paise it shall he ignored;
(b) after the existing emoluments have been increased and computed as specified in Clause (a), the pay shall be fixed in the revised scale at the stage equal to the amount so computed or if there is no such stage in the revised scale at the stage next above the amount so computed:
Provided that-
(i) if the amount as computed under Clause (a) is less than the minimum of the revised scale the pay shall be fixed at the minimum of that scale;
(ii) if the amount as computed under Clause (a) is more than the maximum of the revised scale the pay shall be fixed at the maximum of that scale:
Provided further that in the case of a Government servant who is in receipt of a non-practising allowance, the pay shall be fixed in the revised scale at such a stage so however that the aggregate of the revised pay and the revised non-practising allowance is equal to the amount computed under Clause (a), or if there is no such stage in the revised scale, at the lowest stage in the revised scale where the aggregate aforesaid exceeds the amount computed under Clause (a):
Provided also that, except in the case where the pay is fixed at the minimum of the revised scale if the revised emoluments as determined under this sub-rule exceed the existing emoluments by more than Rs 100/-, the initial pay shall be fixed at the higher stage in the revised scale at which the revised emoluments payable do not exceed the existing emoluments by Rs. 100 and the difference, if any, between the existing emoluments plus Rs. 100 and the revised emoluments so payable shall be allowed as personal pay to be absorbed in future increases in pay.
Explanation 2.- In the case where on the 1st January, 1973, a Government servant has continuously officiated in a post for a period equal to three years or exceeding three years, it shall not be necessary to fix the pay of the lower post or posts if the appointment to the post in which he has so officiated is made by way of normal promotion from the lower post or posts, unless the pay of the lower post affects the pay of the post in which he has so officiated fixed under these rules on the 1st January, 1973 or thereafter Note:. 1 xxx xxx xxx Note: 2xxxxxxxxx Note: 3 –
Where in the fixation of pay under Clause (b) the pay of Government servant drawing pay at more than five consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised scale at the same stage, the pay in the revised scale of such of those Government servants who are drawing pay beyond the first five consecutive stages in the existing scale shall be stepped up to the stage where such bunching occurs, as under, by the grant of increments) in the revised scale in the following manner, namely:
(a) for Government servants drawing pay from the 6th upto By one increment the 10th stage in the existing scale if there is bunching beyond the 5th stage,
(b) for Government servants drawing pay from the 11th upto By two increments the 15th stage in the existing scale if there is bunching beyond the 10th stage,
(c) for Government servants drawing pay from the 16th upto By three the 20th stage in the existing scale, if there is bunching increments beyond the 15th stage.
If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised scale which is higher than the stage in the revised scale at which the pay of another Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short that of the former. Note 4 ‘.- Where in the fixation of pay under Clause (b), the pay of a Government servant, who in the existing scale was drawing immediately before the 1st January 1973 more pay than another Government servant junior to him in the same cadre, gets fixed in the revised scale at a stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised scale as that of the junior.
Note 5 – xxx xxx xxx
Rule 9 provides for next increment in the revised scale. Rule 10 makes provision for fixation of pay in the revised scale subsequent to 1st January, 1973. Rule 11 speaks of payment of arrears. Rule 12 gives overriding effect to the rules. It reads as under:
12. Where the pay is regulated under these rules, the provisions of the Bombay Civil Services Rules, 1959 shall not apply to the extent they are inconsistent with these rules.
3. It is the case of the petitioners that pay scale for the post of Agricultural Assistant was Rs. 135-250. It was revised to Rs. 330-10-380-EB-12-440-15- 560 (Diploma Holders to start at Rs. 350/-). It is not disputed that the petitioner No. 1 is Diploma Holder. It is also not disputed that petitioner No. 1 opted for the revised scale and it is further undisputed that when he opted for the revised pay scales, he had reached at Rs. 198/- in the existing scale (Rs. 135-250) which was the stage in the existing scale. It is the case of petitioner No. 1 that upon exercising option his initial pay was required to be revised in accordance with Rule 7 by putting him at the minimum scale of Rs. 350/- since he was a Diploma Holder. According to the petitioners, the revised pay scale is Rs. 330-560 but Diploma Holders were to start at Rs. 350/- and, therefore, in case of Diploma Holders, the minimum was to be counted at Rs. 350/-. Accordingly, vide order dt. January 29/30, 1976, pay scale of petitioner No. 1 was fixed at Rs. 350/-. Copy of the said order is annexed at Annexure ‘A’ to the petition. Having regard to the fact that the petitioner No. 1’s case was covered by Note 3 of Rule 7 extracted hereinabove, he was entitled to two increments since he was at the 11th stage in the existing scale. From Note 3 it is clear that a Government servant is entitled to one increment if he has crossed five stages in the existing scale and there is bunching from 6tii stage upto 10th stage of the existing scale. Similarly, he is entitled to two increments if there is bunching from 11th stage upto 15th stage of the existing scale. The petitioner was at 11th stage and, hence, he was entitled to get benefit of bunching by two increments of Rs. 10/- each. Thus, he was entitled to get Rs. 370/-. (Rs. 350/- + Rs. 10/- + Rs. 10/-). Accordingly, an order came to be passed on January 31, 1976 and the benefit of stepping up by two increments on account of bunching as per Note 3 to Rule 7 had been extended in favour of the petitioner. A copy of the said order is annexed to the petition at Annexure ‘B’.
4. The petitioner No. 1 has averred that all of a sudden and without issuing any notice, calling for any reply or affording opportunity of being heard, earlier fixation by Annexure ‘B’ came to be cancelled by the Cotton Superintendent, Kadi vide order dt. September 24, 1976 pursuant to the order referred to therein on the ground that the benefit of bunching was available only when fixation is done at the minimum of time scale and since the minimum pay scale of Agriculture Assistant was Rs. 350/-, the petitioner was not entitled to benefit of bunching. It is the case of the petitioner No. 1 that he had made a number of representations to the authorities but the authorities did nothing. In these circumstances, he had issued notice through his Advocate on December 5, 1983 but the respondent-authorities have not accepted the view points put forward by the petitioner and hence, he has filed the present petition.
5. Notice was issued by This Court (Coram: R.C. Mankad, J.) on September 26, 1985 and the Rule was thereafter issued (Coram: G.T. Nanavati, J.) on November 27, 1985. The matter is now posted for final hearing.
6. I have heard Mr. S.N. Shelat for Mr. S.M. Mazgaokar, for the petitioners and Miss R.M. Doshit, Assistant Government Pleader for the respondents.
7. Mr. S.N. Shelat raised the following contentions:
(1) Fixation of the pay scale made by the respondent-authorities in January 1976 vide annexures ‘A’ and ‘B’ was legal, valid and in accordance with R.O.P. Rules.
(2) Order Annexure ‘C’ dated September 21, 1976 by which earlier orders came to be cancelled was contrary to law and inconsistent with the provisions of R.O.P. Rules.
(3) Impugned order is violative of principles of natural justice and fair play inasmuch as before passing it, no notice was issued, no explanation was sought, and no opportunity of hearing was afforded to the petitioner No. 1. The order adversely affects the petitioner No. 1 and it could not have been passed without observing natural justice.
(4) Rule 12 of the Rules provides for overriding effect of R.O.P. Rules and no reliance thereafter can be placed on any of the provisions of the Bombay Civil Services Rules, 1959.
(5) Higher start of pay scales has relevance with educational qualifications and if the rule-making authority has provided for such higher start to Diploma Holders, the respondent-authorities cannot deprive Diploma Holders increments and/or other benefits to which they are otherwise entitled.
(6) The underlying object of giving the benefit of bunching as provided in Note 3 of Rule 7 is to avoid heart-burning on the part of senior Government servants who have put in certain years of service by treating them at par with junior Government servants. The object cannot be said to be arbitrary, irrational or unreasonable.
(7) As the petitioner No. 1 was Diploma Holder, he was entitled to Rs. 350/- as minimum in the pay scale of Rs. 350-560. Since he had reached 11th stage in the existing pay scale, he was entitled to two increments. The orders at Annexures ‘A’ and ‘B’ were, therefore, legal and proper.
(8) There is an error of law apparent on the face of the record committed by the respondent-authorities in not properly considering ambit and scope of Note 3 of Rule 7, Note 3 does not say that the benefit of bunching can be granted only if fixation is made at minimum of the time scale. The benefit of bunching has nothing to do with fixation of time scale. That benefit is available to a Government servant because he has reached a particular stage in the existing scale. When the petitioner No. 1 has reached 11th stage in existing scale of Rs. 135-250 (at Rs. 198/-) he cannot be deprived of the said of bunching.
8. Miss Doshit, on the other hand, supported the action taken by the respondent-authorities. She submitted that:
(1) The impugned orders passed by the respondent-authorities are in accordance with law. According to her, petitioner No. 1 was entitled to get the revised pay scale of Rs 330-560. But as he was a Diploma Holder, his pay scales were to start from Rs. 350/-. In that case, however, he was not entitled to benefit of bunching as provided in Note 3 to Rule 7.
(2) By passing orders at Annexures ‘A’ and ‘B’, a mistake was committed by the respondent-authorities As per settled principle of law, a mistake can always be corrected. The petitioner cannot make any grievance and contend that such mistake cannot be corrected. An error cannot be allowed to be perpetuated by extending benefits to the petitioner No. 1.
(3) Since the pay fixation was contrary to the statutory rules, it was cancelled. For doing so, it was not necessary to issue notice, call for the reply, or to afford opportunity of hearing to the petitioner. Principles of natural justice cannot be applied in such cases.
(4) No purpose would have been served by issuing notice or affording hearing to the petitioner No. 1 inasmuch as the impugned action taken by the respondent-authority is in consonance with statutory rules.
9. Having heard the Learned Counsel for the parties, I am of the opinion that the petitioner requires to be allowed.
10. As stated above, certain facts are not in dispute at all. It is not disputed that the petitioner No. 1 was in the pay scale of Rs. 135-250 (Revised Rs. 330-560). It is also not in dispute that the petitioner had reached 11th stage in the existing scale, at Rs. 198/-. There is no dispute that the petitioner opted for the revised pay scale. It is clear from the R.O.R Rules that in the revised pay scale of Rs. 330-560/-, Diploma Holders were to start at Rs. 350/-. Therefore, the material question before the is as to whether the petitioner No. 1 was entitled to the benefit of bunching when he was at the 11th stage, and if he was entitled to that benefit, whether he can be deprived of the said benefit on the ground that in his case, initial salary was fixed at Rs. 350/- as Diploma Holder.
11. In my view, the contention of the Learned Counsel for the petitioners is well founded and must be accepted that the benefit of bunching has no relevance in fixation of pay scale. In my judgment, the benefit of bunching has nexus with the stage at which a Government servant has reached. If a Government servant has crossed five stages, he is entitled to the benefit of bunching by getting one increment. Similarly, if he has crossed ten stages, he will be entitled to two increments and if he has crossed fifteen stages, he will be entitled to three increments. The respondents, hence, cannot contend that since the petitioner No. 1 was getting salary of Rs. 350/-, he was not entitled to benefit of bunching. According to me, Mr. Shelat is also right in contending that Note 3 to Rule 7 does not indicate that benefit of bunching can be available only in case where fixation is done at the minimum of the time scale. So far as time scale is concerned, it is Rs. 330-560. In view of the fact, however, that the petitioner No. 1 was Diploma Holder; that time scale in case of such Diploma Holders will be Rs. 350/- instead Rs. 330/-. For all purposes, therefore, in case of Diploma Holders, the time scale will be considered as Rs. 350-560 and not Rs. 330-560. Therefore, if the Government servant is a Diploma Holder, the benefit of the time scale of Rs. 350/- is his right and the authorities cannot refuse to grant benefit of bunching if such Government servant is otherwise entitled to that benefit in accordance with Note 3 to Rule 7 if he has reached a particular stage in the existing scale.
12. My attention is also invited by the Learned Counsel for the petitioner the number of such posts. It is not necessary for the to deal with cases in the present petition, but looking to certain posts, it is clear that such a benefit has been extended by the Government in minimum time scale to Diploma Holders. For instance, under the Directorate of Manpower, Employment and Training at Sr. No. 60, the post of Mechanic is mentioned. The existing pay scale is Rs. 175-345. It is revised to Rs. 350-560. But if the Mechanic is holding a certificate or Diploma, the revised pay scale is Rs. 380-600. Similarly, at Sr. No. 83 the post of Compounder is mentioned and different pay scales have been provided for qualified persons and others. Under the Directorate of Gujarat State Archieves at Sr. No. 6 post of Librarian is mentioned in the existing pay scale of Rs. 145-300, revised into Rs. 330-560, but starting salary for Diploma Holder is Rs. 360/ -. Finally, under the Directorate of Health & Medial Services (Medical), the post of Librarian/ Assistant Librarian is mentioned at Sr. No. 152. Similar is the position there also. From the present existing scale of Rs. 145-300 revision is made to Rs. 330-560 but Diploma Holders in Library Science were to start at Rs. 360.
13. It, therefore, clearly appears to the that initial start of higher salary on the basis of educational or other qualifications has nothing to do with other benefits conferred on a Government servant, if he is, otherwise entitled to such benefits on the basis of completion of certain years in service. Such higher start is given to a Government servant because of additional qualification which he is possessing. In my view, therefore, the petitioner No. 1’s salary was fixed at Rs. 350/- not because he had completed minimum service of a particular period, but because he was a Diploma Holder. That benefit cannot be taken away by the respondent-authorities if the petitioner No. 1 is otherwise entitled to get benefit of bunching. That benefit must be made available uniformally to all Agricultural Assistants who are Diploma Holders. So far as benefit of bunching is concerned, it is an independent benefit and a Government servant is entitled to one increment if he is in stage 6 to 10. He is entitled to two increments, if he is in stage 11 to 15. And he is entitled to three increments, if he is in stage 16 to 20. There is no doubt in my mind that the respondent-authorities cannot refuse that benefit by taking into account the fact that initially the petitioner No. 1 or any other person -similarly situated was fixed at Rs. 350/- because that was done in view of the statutory provision. The argument is fallacious and cannot be upheld also since if it will be accepted, an employee who is in the 15th stage will get Rs. 350/~ and an employee who is in the 1st stage will also get Rs. 350/- if both of them are Diploma Holders. If such a contention is upheld, the object underlying the provision of granting benefit of bunching will completely be frustrated and will become nugatory. Mr. Shelat is also right in submitting that those provisions do not impose a condition that a benefit of bunching can be extended only if a Government servant is at a minimum pay scale. In my opinion, therefore, the respondent-authorities cannot take away the benefit of bunching if a Government servant is otherwise entitled to one or two or three increments on the basis of the stage at which he reached in the existing pay scales. Since, in the instant case, the petitioner was at 11th stage, he was entitled to two increments over and above the minimum pay scale of Rs. 350-560 as a Diploma Holder. The impugned orders arc, therefore, contrary to law and requires to be interfered with by This Court.
14. Mr. Shelat is further right in contending that the impugned orders are violative of the principles of natural justice and fair play. Admittedly, in January 1976, the orders came to be passed by the authorities and the petitioner was granted benefit of bunching. Without affording hearing, those orders came to be cancelled. It is not disputed and cannot be disputed that civil consequences ensued from the said orders inasmuch as the petitioner’s pay packet was adversely affected by canceling the earlier orders and by passing the impugned orders. As per settled legal position, no such orders could, therefore, be passed without complying with the principles of natural justice. Hence, on that ground also, the impugned orders are required to be quashed and set aside.
15. In the result, the petition is allowed. The impugned orders at Annexure ‘C’ dated September 24, 1976 as also all other consequential actions are quashed and set aside and it is held that the petitioner No. 1 was entitled to the pay scale in the revised pay scale Rs. 350-560 as a Diploma Holder and he is also entitled to two increments as per Note 3 to Rule 7 of R.O.P. Rules. The petitioner No. 1 is entitled to all consequential benefits also. Since petitioner No. 2 is staff association, it is also declared and held that all other similarly situated Agriculture Assistants (Diploma Holders) are also entitled to the benefits of this judgment. The respondent-authorities are directed to pay arrears of salary, if any, to the petitioner No. 1 and other similarly situated persons in accordance with this judgment within eight weeks from the receipt of the writ. The petition is allowed with costs. (ATP)Petition allowed.
