R S ARYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and/or order directing the respondents to consider the period of officiation in the cadre of Section Officer from 11 -11 -78 to 16 -6 -79 for the purpose of granting the benefit of higher pay scale. It is also further prayed to quash and set aside the order passed by the respondents dated 29 -6 -2006 and consequently to restore the order dated 17 -5 -92 as amended on 28 -12 -92.

(2.) THE facts leading to the present Special Civil Application in nutshell are that the petitioner was appointed as Assistant on 20th May 1970 in the Sachivalaya and was promoted as Section Officer vide order dated 8 -11 -78. He was reverted from the post of Section Officer to the post of Assistant on administrative ground vide order dated 16 -6 -79. He was again promoted as Section Officer vide order dated 3 -10 -79. It is submitted that at the time of promotion in October 1979, the pay of the petitioner was fixed in accordance with BCSR Rule 41 -A. That since the petitioner had worked on the post of Section Officer from 11 -11 -78 to 16 -6 -79, the said period of 8 months was considered for the purpose of calculating the next date of increment in accordance with BCSR rule 50. Accordingly, the next date of increment was fixed in the month of February 1980. The petitioner was promoted as Under Secretary vide order dated 6 -12 -1990 and he took over as Under Secretary on 7 -12 -1990. It is submitted that on introduction of Higher Grade Scheme vide resolution dated 5 -7 -91, commonly known as 9 -18 -27 scheme, the petitioner was entitled for the first higher grade scale of Under Secretary w.e.f. February 1988 and accordingly the order was passed to that effect on 15 -7 -1992 as amended by order dated 28 -12 -1992 and it was ordered that the petitioner would be entitled to the benefit of the higher pay scale of Under Secretary w.e.f. 1 -2 -1988. It is submitted that thereafter on the basis of the subsequent government resolutions dated 16 -8 -94, the said order came to be cancelled and a fresh order came to be passed dated 29 -6 -96 whereby the period for which the petitioner worked as Section Officer i.e. 11 -11 -78 to 16 -6 -79 was not considered for the purpose of counting the 9 years period for granting the benefit of higher pay scale and the order is passed that the petitioner would be entitled to the benefit of the higher pay scale w.e.f. 3 -10 -88. It is submitted that thereafter the petitioner submitted representation which was turned down and therefore, the present petitioner has preferred the present Special Civil Application.

(3.) RELYING upon the government resolution dated 5 -7 -91 and BCSR Rules 41 and 50, the learned advocate appearing on behalf of the petitioner has vehemently submitted that the period of officiation in the cadre of Section Officer from 11 -11 -78 to 16 -6 -79 was required to be counted for the purpose of calculation of 9 years for granting the benefit of higher pay scale in the scale of Under Secretary and the orders dated 17 -5 -92 as amended on 28 -12 -92 were just and proper and were not required to be cancelled. It is submitted that even the interpretation of the government resolution dated 16 -8 -94 is also not well founded and in spite of the fact that there is no provision that an employee should have been worked continuously for 9 years for the purpose of getting the benefit of higher pay scale, the respondents construed the same and therefore, it is requested to quash and set aside the order dated 29 -6 -1996 and to restore the orders dated 17 -5 -92 as amended on 28 -12 -92.