B K MYSOREWALA SMT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner Smt. B. K. Mysorewala questions the corre- ctness or the order dated 29th October 1975 by which she was given the benefit of the higher pay with effect from 16th July 1975 and not with effect from 1-6-1967 as prayed for by her and for a direction directing the respondents to pay the arrears of salary which would be payable to her once she is put in the scale of Rs. 200-340 from 1-6-1967.

(2.) Few facts leading to the present petition may be stated. Petitioner is serving as Linen Keeper at the S.S.G. Hospital Baroda since 1959. At the relevant time when she joined service she was put in the scale of Rs. 125 and by 1967 she had reached the maximum of this scale. First Gujarat State Pay Commission revised the pay-scale of the post held by the petitioner to Rs. 160-225. Petitioner came to know that there was post of Linen Keepers in other Hospitals owned and managed by State of Gujarat and all these Linen Keepers belong to one cadre and there were two scales in operation for the post of Linen Keepers being Rs. 200 and 160-225. Petitioner came to know that some Linen Keepers junior to her and posted in the Civil Hospital at Surat and Mental Hospital at Ahmedabad were in the scale of Rs. 200-340 while she was continued in the scale of Rs. 160-225. In the meantime in the year 1970 Government created two posts of Linen Keepers in the scale of Rs. 200- 340 and when petitioner came to know about it she represented to the Gove- rnment that she should be put in the higher scale because she is senior to those who are awarded the scale of Rs. 200-340. She pointed out that she was at Sr. No. 2 in the Seniority List for Linen Keepers while Smt. D. W. Bhatt who is at Sr. No. 9 in the Seniority List and Kumari S. H. Khatri who is at Sr. No. 17 in the list have been put in the scale of Rs. 200-340 and that this results in denial of equal opportunity in the matter of appointment in public service and is violative of Article 16 of the Constitution Her representation remained unattended. Petitioner filed Special Application No. 229 of 974 D M contending that her workload compared to Linen keepers working at Civil Hospital Surat and Mental Hospital at Ahmedabad is higher and that she is senior most Linen Keeper attached to S.S.G. Hospital at Baroda which is the second biggest hospital is Gujarat State and that refusal to put her in the higher scale is violative of Article 16 and that she has been accorded discriminatory treatment and that she should be put in file higher scale. When that petition came up for hearing the learned Government Pleader appearing on behalf of the State produced before the Court an order dated 17th June 1975 annexure C made by second respondent awarding to her scale of Rs. 200-340 from the date of taking charge. In view of this order the petition was with- drawn reserving liberty to the petitioner to move the Government for awarding retrospective operation of the higher scale. Petitioner thereafter moved the Government to put her into higher scale from 1-6-1967 when the scale of Rs. 200-340 came into force consequent upon the recom- mendations of the first Gujarat State Pay Commission. This representation was rejected by an order annexure D dated 19th October 1973. Petitioner has questioned the correctness of this order in this petition.

(3.) It is really regrettable that the Government should have adopted an attitude in this petition which is on the face of it thoroughly unfair and unjust. The facts which are not in dispute are that the petitioner has been serving as Linen Keeper at S.S.G. Hospital since 1959. There are two posts of Linen Keepers at Baroda and she is senior amongst the holders of the post. She was put in the scale of Rs. 150-225 and has continued to be in that scale First Gujarat Pay Commission awarded higher scale of pay of Rs. 200-340 to Linen Keepers. That scale is awarded to three Linen Keepers as would be apparent from the seniority list of Linen Keepers published by the second respondent on 18th April 1975. Those who were put in the scale of Rs.200-340 were Miss Edulji at sr. No. 1 Smt. D M. Bhatt at Sr. No. 9 and Kumari S. H. Khatri at Sr. No. 17. The past of Linen Keeper in which Smt. D. M. Bhatt is placed was created in 1970. Smt. D. M. Bhatt is attached to the Civil Hospital at Surat. Now if a post was created in the scale of Rs. 200-340 for Linen Keepers in the first instance from amongst those Linen Keepers who were serving under respondent No. 2 should have been considered for the post. That has not been done. Smt. D. M. Bhatt who is much junior to the petitioner has been put in that scale. In fact there are two Linen Keepers attached to the Civil Hospital at Surat since 1970 and one is in the scale of Rs. 200-340 Smt. D. M. Bhatt another is in the scale of Rs. 160-225 Smt. N. L. Shah who is at Sr. S. No. 10 in the list. It appears from the seniority list that Smt. D. M Bhatt Joined service on 3 and Smt. N. L. Shah joined service on 3-11-1965. Thus admittedly both of them are junior to the petitioner yet Smt. D. M. Bhatt has been put in the higher scale of Rs. 200-340 from 1970. Similarly Kumari S. H. Khatri at Sr. No. 17 in the seniority list has been put in the scale of Rs. 200-340 since 1970. It appears two posts in the upper scale were greated in 1910 one for Civil Hospital at Surat and another in Mental Hospital at Ahmedabad and completely ignoring seniors in the cadre of Linen Keepers some juniors were arbitrarily and indiscriminately selected and awarded the scale. The only explanation about this unusual action of the respondents is that the posts of Linen Keepers were not brought on common cadre and cadre was formed in 1975 and that only local promotions were being given. I would presently examine that submission. The fact remains that one who came in 1965 namely Smt. D. M. Bhatt and one who came in 1969 Kum. S. H. Khatri jumped into the higher scale as awarded by the department wholly overlooking and ignoring the claim of seniors by several years. It is very unfortunate that this petitioner had to come to the High Court for compelling the Government to put her in the higher scale and it is after the petition was filed that the order dated 17th June 1975 was made and petitioner and one Smt. V. P. Vyas presumably who is shown as Smt. U. P. Vyas at Sr. No. 4 were put in the scale of Rs. 200-340. I must however make one thing very clear that the Directorate clearly recognised the injustice done to the petitioner and as soon as Smt. V. M. Bhatt and Kumari Khatri were placed in the higher scale the Directorate immediately took up the question with Government way back in 1970 to upgrade the post held by the petitioner. Dr. O. P. Gupta Director of Medical Education and Research has in para 5 of the affidavit in reply in terms stated as under: