N D CHAUHAN Vs. CHIEF SECRETARY

JUDGEMENT

(1.) THE petitioners, who are serving as Dressers, which is Class IV post, have approached this Court for getting relief to the effect that since they have performed duty on the higher post of Operation Theater Assistants (hereinafter referred to as "O.T.A."), which is Class III post, they should be given salary meant for that post. Scale of Dresser is 2,650 � 4,000 while the scale of O.T.A. is 4,000 � 6,000. It is a case of petitioners that they should be given benefit of higher pay-scale of O.T.A. since they have performed the duty on the said post. It is pointed that from the post of Dresser a person can be promoted on the post of O.T.A. In substance, the grievance of the petitioners that even though their substantive appointment as Dresser, which is Class IV post, they were asked to perform duty as O.T.A., which is class III post, and therefore, scale of O.T.A. should be made available to them meant for the said post. This petition is resisted by the respondents and an affidavit-in-reply has been filed by one Dr.Arjun Harilal Vyas, Medical Superintendent of G.G. Hospital, Jamnagar. Learned Assistant Government Pleader Ms.Calla has relied upon the said affidavit. It is argued by Ms.Calla that petitioners were never promoted at any point of time substantially or otherwise to the post of O.T.A. Substantial appointment of the petitioners is on Class IV post. It is submitted by Ms.Calla that Certificate, on which reliance has been placed by the petitioners, is given by a person who is not authorised to issue such Certificate.

(2.) HEARD learned counsel for both the sides and also gone through the petition and affidavit- in-reply as well as documents forming part of the petition. It is not in dispute that substantive appointment of the petitioners is on the post of Dressers, which is Class IV post, It is submitted that by Mr.Joshi, learned counsel for the petitioners, that Dressers can be promoted to the post of O.T.A. It is required to be noted that it is not in dispute that petitioners were never appointed to the post of O.T.A., which is class III post, and at the time when the petition was filed, they were serving on the Class IV post as Dresser. Even if somebody took work from the petitioners, which can be in the nature of O.T.A., petitioners are not entitled to get regular scale of the said post. In case the petitioners are promoted as per seniority list and as per the Rules, naturally they are entitled for the scale of O.T.A., but since the petitioners are not promoted to the post of O.T.A., they are not entitled to the regular scale meant for the said post. In the affidavit-in-reply, it is averred that the person, who has given Certificate to the petitioners, is not authorised to issue such Certificate at all and the person, who has given Certificate, was subjected to Memo on 06th August, 2003. Averment made in this behalf in paragraph 7 of the affidavit-in-reply. In paragraph 8 of the reply, it is pointed out that post of O.T.A. falls in Class III whereas post of ward servant / sweeper and/or that of dressers falls under Class IV. In the affidavit-in-reply it is denied that petitioners were ever assigned work of O.T.A. It is averred in paragraph 13 of the affidavit-in-reply that petitioners were never promoted as O.T.A. and therefore, they are not entitled to to the pay-scale of the post of O.T.A. Even if somebody might have taken work from a person of the promotional post, then that person cannot be given pay-scale of the said post unless they have regularly selected / appointed / promoted to the concerned post. In view of the same, relief prayed for by the petitioners cannot be granted by this Court in this behalf. However, it is clarified that as and when question for giving promotion from Dressers to O.T.A. arise, claim of the petitioners may be considered as per the seniority list for the said purpose. In case the petitioners will be promoted, they will be entitled to the salary of the said post. If at all the petitioners are having any grievance with regard to non-maintaining of seniority list, they can take appropriate remedial measure as deem fit and in accordance with law. In this aspect, this Court cannot express any opinion, as it is not the subject matter of the present petition.