JAVID ABDULBHAI SAIYAD vs STATE OF GUJARAT & ORS.

Heard learned counsel for the parties.

The petitioner has taken out this petition under Article 227 of the Constitution of India, on the following prayers:

"[A] This Hon''ble Court be pleased to issue an order, writ in the nature of mandamus, and/or certiorari or other appropriate writ, order or direction, declaring the impugned decision of respondents denying benefits of pay scale of Rs.950-1500 to the petitioner on the ground that he is not irregularly appointed daily wage employee, as illegal, contrary, unjust and violative of Art. 14 & 16 of the Constitution of India;

[B] This Hon''ble Court be pleased to declare that petitioner is entitled to get benefits of higher scale of pay of Rs.950-1500 and direct respondents to grant difference of salary and all consequential benefits with 18% interest;

[C] Pending admission and final disposal of this petition, be pleased to direct respondents to grant pay scale of Rs.950-1500 to the petitioner treating him skill employee, in light of govt. resolution dt. 19.5.1990 at Annexure - F;

[D] Pending admission and final disposal of this petition be pleased to direct respondents to reconsider the case of the petitioner and to extend all benefits of higher scale of pay of Rs.950-1500 from retrospective date with 18% interest.

[E] Any other relief which this Hon''ble Court deems fit and proper in interest of justice together with cost."

Thus, essentially what has been sought for is writ of mandamus or any other writ, order or direction to the respondents for granting pay scale of Rs.950-1500 to the petitioner for the reasons stated in the memo of petition.

The facts shorn-off unnecessary details and relied for deciding the issue deserve to be set out as under:

The petitioner was appointed as Laundry Plant Operator, Class-3 after his selection by the Selection Committee vide letter dated 7.9.1990. The said appointment was on temporary basis in the pay scale of Rs.950- 1050 and he accordingly resumed his duties from 24.10.1990. On account of sanction of post in question being not extended, his services came to be terminated with effect from 17.11.1990. The petitioner approached the concerned Minister of Health and Welfare and order came to be issued on 11.3.1991 reinstating the petitioner as Laundry Plant operator, Class-3 at Civil Hospital at Ahmedabad. The intervening period was treated as leave without pay. The petitioner resumed his duties as Laundry Plant Operator Class-3 at Civil Hospital at Ahmedabad.

On account of adverse family circumstances, the petitioner found difficult to continue at Ahmedabad. Hence, he addressed a letter dated 6.6.1991 requesting the authority that he be posted as Assistant Electrician in the pay scale of Rs.775-1025 on the vacant post at Jamnagar. On petitioner''s furnishing appropriate undertaking in an unequivocal terms that he was ready and willing to work on lower post at Jamnagar in lower pay scale on account of his inability to continue at Ahmedabad, as his family circumstances were adverse. Accordingly, the petitioner was given a posting order on 5.7.1991. The petitioner came to know that on account of Government Resolution in respect of Daily rated

workmen, mazdoor etc., improving the benefit of pay scale to Mazdoor, the qualified electrical helper / electrical mazdoor were given pay scale of Rs.950-1500 vide resolution dated 19.5.1990. The petitioner came to know that one Parikh Rakesh Laxmanbhai, who was working as Daily Rated labourer possessing the same qualification was extended the benefit of higher pay scale and given wages in the pay scale of Rs.950- 1500. The petitioner has addressed a communication on 8.7.1993 for similar benefits. The petitioner''s department has also recommended his case based thereupon, which came to be turned down on the ground that said Government Resolution was not applicable to the petitioner and the cadre on which the petitioner was appointed. Being aggrieved and dissatisfied with said denial, petitioner filed present petition on the grounds mentioned in the memo of petition.

Learned counsel appearing for the petitioner invited this Court''s attention to gist of controversy, which could be seen from page-30 & 31 and in view of that, there was no earthly reason for respondents to discriminate the petitioner as the petitioner was qualified and he was working as Assistant Electrician and yet he was getting lower salary than the electrical mazdoor / electrical helper, who were given better salary in the pay scale of Rs.950-1500.

Learned counsel for the petitioner invited this Court''s attention to communication placed on record dated 31.5.2008 issued by the Deputy Director, Health and Medical Education and Research and submitted that the artificial difference or distinction sought to be made out does not exist and therefore, the petitioner deserves to be granted the pay scale.

Learned AGP appearing for respondent submitted that communication at page-49 dated 31.5.2008 makes it abundantly clear as to how and in what manner the entire controversy be viewed and Court

may not at this stage issue any direction or mandamus as it is otherwise clear analogous situation in the existing pay scale of many.

Learned AGP has invited this Court''s attention to note placed on record by way of Annexure-R2 collectively on page-86 dated 28.5.2008 and led emphasis upon the last conclusion in the form of submission to the concerned, indicating that how and in manner the provisions of resolution, is applicable to case of Shri Parikh and not in case of present petitioner.

The Court has heard learned counsel for the parties and perused documents on record. The Court is of the view that the petition is in fact misconceived. The petitioner approached the Court without their being any material on record to justify his claim. The petition is unfortunately bereft of appropriate documentary evidence and relevant rules and provisions to support case of petitioner. As against this, learned AGP has made emphasis upon note and narration in the note, which clearly indicate that the petitioner initially appointed as Assistant Electrician was in fact in the pay scale of Rs.775-1025, as against this, the pay scale of Electrical helper / electrical mazdoor at the relevant time were only Rs.750-940 i.e. admittedly lower than the pay scale of Assistant electrician. Now, if the pay scale of the Electrical helper/ electrical mazdoor have been revised and improved from Rs.750-940 to Rs.950- 1400, then, automatically same could not have been made applicable to the persons like present petitioner, who were already on higher pay scale of Rs.750-1025. The pay commissions have been assigned the task of undertaking and exercise of recommending the appropriate pay scale and revision of the pay scales and therefore, this Court at this stage cannot embark upon making detail inquiry in respect of pay anomaly if any which is sought to be pleaded at bar. The submission of counsel regarding discrimination or anomaly on account of nomenclature used for 2 post in

itself would not sufficient for this court to embark upon such an inquiry as it would amount to undertaking inquiry without their being any basis thereon. In fact in absence of specific pleadings and supporting documentary evidence in form of Rules governing the pay scale, the petitioner could not have approached this Court on a broad principle and the anomaly needs more probing.

Hence, at this stage the Court is not inclined to interfere and issue any direction in favour of the petitioner. This rejection of the petition surely would not militate against the petitioner''s claim to seek better pay scale or revised pay scale on the anomaly in pay scale of Electrical helper / electrical mazdoor and pay scale of Electrical Assistant, if it is made out with appropriate documentary evidence of indicating the existence of anomaly, the same be decided in accordance with law.

With aforesaid observation, petition is dismissed. Rule is discharged. There shall be no order as to costs.