M M BHAVSAR PEON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Service of rule is waived by learned counsel for the respondents. As pleadings are complete, the petition is heard finally at the request of parties.

(2.) The petitioner was appointed as Packer in 1978 in the Printing Press who was working under the Fisheries Department. Thereafter, he was appointed as a Distributor as a direct recruit which under the recruitment rules of the fisheries department was a Class IV post. By order dated 26/07/1990, the Government directed to close the printing press and absorb its employees in fisheries department in the same pay scale. Pursuant to this order, the petitioner became an employee of the fisheries department with effect from 26/7/90. Order of appointment by absorption was issued on 25/7/91 as peon on ad hoc basic in Class IV service in the pay scale of Rs.750.00 - Rs.940.00, however his pay as on 25/2/91 as distributor at Rs.1130.00 was protected, when he joined as peon. By order dated 27/7/95, in pursuance of Government Resolutions of 5/7/1991 as substituted by resolution dated 18/2/95 was protected, the petitioner was given benefit of next higher grade of the pay scale on completion of 9 years service as distributor w.e.f. 18/3/90. The higher pay scale referred to in the order is Rs.1200 - Rs.1800. Thereafter, by order dated 19th September 1997, the petitioner was ordered to be confirmed as peon in the pay scale of Rs.775 - Rs. 1025 w.e.f. 25/2/91. The petitioner protested against this by pointing out that he has already been placed in a higher pay scale w.e.f. 18/3/90, before the date of his absorption and therefore, his higher status / pay scale is protected in view of the order dated 26/7/90. By confirming the petitioner w.e.f. 25/2/91 in pay scale of Rs.775 - 940, when the petitioner was already placed in higher pay scale w.e.f. 18/3/90 on pay scale of Rs.1200 - 1800, the order was not justified inasmuch as by order dated 26/7/90, the pay scale to which the petitioner was entitled as on that date was protected. This representation of the petitioner did not find favour with the respondents and by order dated 21/7/99, he was informed that since is services in the printing press came end under order dated 26/7/90, his placement in higher grade is not protected on absorption. It is this order which results in denying protection of pay to which the petitioner became entitled to before his absorption and withdrawal of higher pay scale given to the petitioner with effect from date of absorption is under challenge.

(3.) The respondents have filed a reply affidavit in which it was pointed out that the petitioner on being absorbed was initially offered posting as cleaner in the pay scale of Rs.775 - 1025 because at that time, there was no equivalent post of Class IV equivalent pay scale of Rs.800 - 1150 was available and with the stipulation that he would be placed at the bottom of the seniority. His option was asked if he is prepared to accept the offer or his case may be considered for retrenchment for want of requisite post. This option was given to the petitioner by order dated 3/08/1990. The petitioner respondent by letter dated 4/8/90 pointing out his difficulties and stated that he is prepared to be absorbed on any post at Ahmedabad or Gandhinagar, which is equivalent or even if it is lower to the post that is available for his absorption. The same offer was repeated by the petitioner on 1 8/12/1990. Relying on this option, the petitioner was absorbed as peon instead of cleaner in the pay scale of Rs.750 - 940 which was also a Class IV post though the pay scale was lower than which the petitioner was drawing as a distributor namely Rs.800 1150. Therefore, the petitioner is not entitled to pay scale of higher grade. However, in reply affidavit, there is no denial of the orders dated 27/7/95 by which the petitioner was granted higher grade and placed in pay scale of Rs.1200 - Rs.1800 w.e.f. 18/3/90 on completion of 9 years of service in one and the same grade under career advancement scheme of the State to ammeliorate the conditions of service of persons as a relief against stagnancy. The only justification which appears from the reply and contentions of the learned counsel for the respondents is that, because the petitioner has given option on 4/8/90 to be absorbed on a lower post and he has been so absorbed, he cannot now claim benefit of protection of his pay scale to which he because entitled to prior to date of absorption.