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Judgment
C.L. Soni, J.—Both the petitions were ordered to be heard together. In Special Civil Application No. 7371 of 1995, the prayer made is to quash and set aside the action of the respondents of withdrawing higher pay-scale benefits of Rs. 1200-2040 which was granted to the members of the petitioner-union and to direct the respondents not to recover the arrears of difference of salary paid on the basis of the above said pay scale. The prayer made in Special Civil Application No. 12981 of 2007 is to direct the respondents to grant higher pay scale benefit of Rs. 1200-2040 to the petitioner on the ground that similarly situated employees were granted such benefits. The case put up in Special Civil Application No. 7371 of 1995 is that the members of petitioner-Union are permanent employees working on the post of helper. They were given pay-scale of Rs. 40-60 which was revised to Rs. 210-270 and lastly revised Rs. 800-1150 under the Revision of Pay Rules, 1987. It is stated in the said petition that those members of the petitioner-Union who had completed 9 years of continuous service were given the benefit of scheme of higher grade scale and each of such members were given higher pay-scale of Rs. 950-1400 against existing pay-scale of Rs. 800-1150 with retrospective effect from 1st June 1987. The petitioner has further averred in the petition that recruitment Rules for the post of Assistant Instructor Class III were framed in 1992. The Helper was entitled to promotion to the post of Assistant Instructor Class III. The said rules came into force by notification dated 25th March 1992 and therefore the benefit of higher pay scale was granted to the Helper in the scale of Rs. 1200-2040. Such higher pay-scale given to members of the petitioner was under resolution dated 5th July 1991. However, the Government introduced another resolution dated 16th August 1994 and placing reliance on clause 3(8) of the said resolution, the impugned action was taken for withdrawal of pay-scale of Rs. 1200-2040 and for recovery of difference of amount paid under the aforesaid pay-scale. It is the case of the petitioner that such decision of withdrawal of the above pay-scale is illegal and the benefit given to its member on such resolution cannot be withdrawn by giving retrospective effect to the resolution dated 16th August 1994.
1.1. The petition is resisted by reply affidavit dated 21st September 1995 stating that by virtue of clause 3(8) of Government Resolution dated 16th August 1994 the members of the petitioner-union were not entitled to the pay-scale of Rs. 1200-2040 and therefore there is no illegality in withdrawing such pay-scale.
The case of the petitioner of Special Civil Application No. 12981 of 2007 is that the petitioner was granted higher pay-scale of Rs. 950-1400. It is further case of the petitioner that the petitioner was entitled to higher pay scale in the scale of Rs. 1200-2040 which has been given to other helper on coming into force of recruitment rules of higher post but however, the petitioner was denied such pay-scale for the higher post on account of pendency of Special Civil Application No. 7371 of 1995. It is further case of the petitioner that the petitioner had undertaken that the petitioner shall abide by the decision in Special Civil Application No. 7371 of 1995 and refund the difference of amount if adverse decision comes in the said petition, however, the request of the petitioner for higher pay-scale was turned down by the respondent vide order dated 26th April 2007.
I have heard learned advocates for the parties. Learned advocate Mr. N.K. Majmudar appearing in Special Civil Application No. 7371 of 1995 submitted that there is no dispute about the fact that the members of union became entitled to higher pay-scale benefit on the basis of resolution passed by the Government dated 5th July 1991. Mr. Majmudar submitted that when the resolution dated 5th July 1991 came into force, since there was no higher post available for promotion, the members of the petitioner-union were granted benefit of higher pay scale of Rs. 950-1400 as provided in the schedule attached to the said resolution against the existing scale of petitioner-union of Rs. 800-1150. Mr. Majmudar submitted that since, the recruitment Rules for the higher post known as Assistant Instructor Class III (Commissionerate of Cottage Industries) Recruitment Rules, 1992 came into force w.e.f. 25th March 1992, and since, the members of the petitioner-union serving on the post of Helper were entitled for promotion to the said post of Assistant Instructor Class III, they were accordingly granted the higher pay-scale in the scale of Rs. 1200-2040 w.e.f. 25th March 1992 vide order dated 20th October 1992. Mr. Majmudar submitted that in absence of actual promotion to the higher post, the petitioners were entitled to continue wit the above said pay-scale of Rs. 1200-2040 however, on account of subsequent resolution dated 16th August 1994 such pay-scale was ordered to be withdrawn by relying on clause 3(8) of the said resolution. Mr. Majmudar submitted that such subsequent resolution cannot be applied retrospectively to the members of the petitioner-union. Mr. Majmudar submitted that when the benefit of higher pay-scale was granted relying on the resolution of 1991 such higher pay scale is to continue till the petitioners are given actual promotion to the higher post. Mr. Majmudar submitted that the petitioner has not played any mischief or fraud in getting benefit of higher pay-scale of the promotional post and therefore, as per the settled principles of law as also according to Rule 28 of Gujarat Civil Services Pay Rules, no recovery of the difference of the amount from the members of the petitioner-union can be permitted. Mr. Majmudar urged to allow this petition. Mr. Majmudar relied on the decision of the Hon''ble Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others, .
Ms. K.P. Shah appearing in Special Civil Application No. 12981 of 2007 while adopting arguments advanced by Mr. Majmudar submitted that the petitioner was denied the benefit of higher pay-scale in the scale of Rs. 1200-2040 on the ground that Special Civil Application No. 7371 of 2007 was pending. She submitted that if the members of the petitioner-Union of Special Civil Application No. 7371 of 1995 were paid higher pay-scale of Rs. 1200-2040 there was no reason not to make the petitioner entitled for the said pay-scale. Ms. Shah submitted that the petitioner having become entitled to the higher pay-scale on the basis of the resolution dated 5th July 1991 since, the Recruitment Rules of promotional post came into force in the year 1992, the petitioner was very much entitled to the pay-scale of Rs. 1200-2040 and therefore the petitioner was wrongly denied the benefit of the said pay-scale. She thus, urged to allow the petition and to direct the respondent to give benefit of higher pay-scale in the scale of Rs. 1200-2040 to the petitioner and to release all increments pursuant to the said pay-scale.
Learned Assistant Government Pleader Mr. Urshit Oza appearing in both the petitions submitted that when the petitioners were first granted the benefit of higher pay-scale as per the resolution of 5th July 1991 in absence of promotional avenues, they were entitled to higher grade scale benefit as per the schedule attached to the resolution dated 5th July 1991. Learned AGP Mr. Oza submitted that simply because the Recruitment Rules for the promotional post came into force the members of the petitioner-union and the petitioner of Special Civil Application No. 12981 of 2007 did not automatically become entitled to pay scale of the promotional post. Mr. Oza submitted that in 1994 the Government introduced modified/amended scheme and according to such scheme the petitioner were not entitled to higher scale benefit on the basis of the promotional post. Mr. Oza submitted that from the date of coming into force of modified scheme, the employees would be governed by provisions of modified scheme. As per the modified scheme when the Government decided not to extend the benefit of higher pay-scale of the promotional post for the post in respect of which the promotional avenues were opened only after 1987, the petitioners cannot claim as a matter of right the pay-scale for the higher post. Mr. Oza submitted that when it is the policy decision of the Government, the petitioners stand governed by such policy decision of the Government and cannot claim the benefits dehors such policy decision of the Government. Mr. Oza submitted that since the petitioners were not entitled to benefit of higher pay-scale for the scale of promotional post till they get actual promotion, the respondents were justified in ordering recovery of the excess amount paid to the members of the petitioner-Union in SCA No. 7371 of 1995. He thus, urged to dismiss both the petitions.
Having heard learned advocates for the parties and having perused the record of the petitions, it appears that when the resolution dated 5th July 1991 was introduced by the Government for giving benefit of higher grade scale, there were no promotion avenues available to the petitioners. Therefore under the scheme the petitioners were entitled to benefits of higher pay scale as per the schedule-I attached with the scheme. The schedule attached with the said resolution is found at page no. 16. The members of the petitioner-union in Special Civil Application No. 7371 of 1995 were drawing pay-scale of Rs. 800-1150 when the resolution dated 5th July 1991 was introduced by the Government for benefit of higher grade scale. Therefore as per the schedule-I, against the existing scale, they were entitled to get higher grade scale Rs. 950-1400. They were thus given the said higher grade scale of Rs. 950-1400.
It appears that on coming into force of Recruitment Rules for the post of Assistant Instructor Class III which is immediate higher post to the post of Helper, the members of the petitioner-Union of Special Civil Application No. 7371 of 1991 were immediately granted the benefit of Rs. 1200-2040 which was the pay-scale meant for the post of Assistant Instructor. So far as the petitioner of SCA No. 12981 of 2007 is concerned he was not granted such pay-scale.
It further appears that the Government introduced modified/amended scheme for conferring the benefit of higher pay-scale vide resolution dated 16th August 1994 at Annexure H annexed with Special Civil Application No. 17371 of 1995. Clause 3(8) of the said resolution provides that those posts which are singly isolated (the post having no further promotional avenues) and in the case of such posts if the promotional posts come into existence after 1st June 1987, the higher pay-scale for such post shall be sanctioned only as per the schedule-I and pay-scale of promotional posts shall be available only from the actual date of promotion.
As per the modified Government policy, the respondent no. 3 passed order dated 7th February 1995 withdrawing/canceling the benefit of pay-scale of Rs. 1200-2040 granted to the members of the petitioner-Union in SCA No. 7371 of 1995 and ordered to recover the difference of amount paid to them on the basis of the pay-scale of Rs. 1200-2040.
It is required to be noted that when the scheme for giving benefit of higher pay-scale was introduced by resolution dated 5th July 1991 there were no promotional avenues to the post of Helper, therefore, the members of the petitioner-union as also the petitioner of Special Civil Application No. 12981 of 2007 were entitled to higher grade scale as fixed in the schedule attached to 1991 resolution. The resolution dated 5th July 1991 provides that the first higher grade scale of pay shall be the scale of pay of the next promotional post, subject to other conditions of resolution of July 5th 1991. However, on coming into force of Recruitment Rules, 1992 for the promotional posts the members of the petitioner-union in Special Civil Application No. 7371 of 1995 came to be granted the scale of pay of next promotional post by way of higher grade scale.
But when the Government introduced modified/amended scheme for granting benefit of higher pay scale under the Resolution dated 16th August 1994, such benefits have to be according to the policy of the Government. It was for the Government to decide the terms and conditions for grant of the benefits of higher grade scale. Such benefits since cause heavy financial burden on the exchequer of the Government, it is always for the Government to provide for the terms for conferring such benefits to its employees. No employee is therefore entitled as a matter of right to ask for such benefits dehors the scheme. Therefore, when the Government provided by clause 3(8) in the resolution dated 16th August 1994 that those posts where the promotional avenues came into existence after 1st June 1987 they shall be granted higher pay-scale as provided in the schedule-I attached with the first resolution till the employees holding such post getting actual promotion, the employees holding such posts would stand governed by such modified policy of the Government. They cannot contend or claim as a matter of right that even after coming into force of modified policy as per resolution dated 16th August 1994, they would continue to enjoy pay scale of promotional post without getting actual promotion to such promotional post. In my view the impugned decision and action taken by respondents authorities, since, in consonance with the modified/amended policy of the Government for the higher pay scale benefits the petitioners cannot be held entitled to higher pay scale in the scale of Rs. 1200-2040 which is pay-scale for the higher post. However, since the members of petitioner union were already given benefit of higher pay scale in the scale of promotional post till the modified policy introduced by the Government vide Resolution dated 16th August 1994, withdrawal of such benefits paid till introduction of the modified scheme cannot be permitted. However, as per the modified scheme, since the petitioners could be made entitled to only higher grade scale as per the schedule attached with the first policy, they cannot be permitted to continue drawing higher pay-scale equivalent to the scale of the promotional post. Therefore, the decision/action taken by the respondents of withdrawing/canceling the pay-scale of Rs. 1200-2040 cannot be said to be in any manner illegal or arbitrary.
In the light of the above, the challenge to the action of the respondents in canceling/withdrawing the benefit of the scale of Rs. 1200-2040 cannot stand scrutiny of law and prayer to direct the respondents to pay the benefit of the said scale to the petitioners cannot be accepted.
However, till the modified scheme was introduced since the members of the petitioner-union of the first petition were paid the scale of higher pay of promotional post by the respondents themselves on the basis of first policy of 1991, it could not be said that the members drew such benefits unauthorisedly. The members if paid such benefits subsequently under the interim order of the Court, the respondents could not be permitted to recover excess amount paid to the petitioners.
In the result, the petitions are dismissed. However, it is directed that the respondents shall not recover the excess amount paid to the members of the petitioner-union in Special Civil Application No. 7371 of 1995 till the modified scheme dated 16th August 1994 was introduced and shall not recover any amount if paid by the virtue of the interim order passed by this Court. The petitions are disposed of accordingly. Interim order if any stands vacated. Rule is discharged in each of the petition.