- (1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner challenges the inaction on the part of respondents No.3, 4 and 5 for not extending benefit of revised pay scale of Rs.1150-1500 as per the provisions of Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as 'ROP Rules, 1987') to the Operation Theatre Assistants, i.e. Class-III servants grade, to the petitioner though he has been promoted by Civil Surgeon, Rajkot with effect from 15.6.1985, as being illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
(2.) THE petitioner has joined Civil Hospital at Rajkot on the post of Ward Servant w.e.f. 16.10.1973 through Employment Exchange. He has been promoted by an order dated 15.6.1985 on the post of Operation Theatre Assistant in the pay scale of Rs. 200-3-206-250. It is clarified by respondent No.4 that as per BCSR Rules 9(27), the post of Operation Theatre Assistant is to be treated as class-III post. After 1.6.1987, the petitioner has been given benefit of higher pay scale on completion of 9 years continuous service. At the relevant point of time, the petitioner was drawing pay scale of Rs. 775-1025 since 1.6.1987. The petitioner has come to know that the identical persons like him at Irwin Hospital, Jamnagar are getting pay scale of Rs. 1150-1500 as per ROP Rules, 1987. The petitioner has made several representations for revision of pay scale at par with others but the respondents have not extended the benefit of revised pay scale from Rs. 775-1025 to Rs. 1150-1500 from 1.1.1986 till 31.12.1995 and thereafter from 1.1.1996 onwards the pay scale from Rs. 2650-4000 to Rs. 4000-6000 of Operation Theatre Assistants to him. Hence he has filed this petition. Learned counsel Mr Bhatt submitted that the case of the petitioner is squarely covered by decision dated 5.12.1991 of this Court in Special Civil Application No. 3196 of 1989, copy of which is at page No.19. He submitted that the identically situated employees of the State are getting revised pay scale of Operation Theatre Assistant and therefore, the petitioner is entitled to get equal pay for rendering equal work. 3.1. Drawing attention to Definition of sub-Rule 5 of Rule 3 of Gujarat Civil Services (Revision of Pay) Rules, 1987, learned counsel Mr Bhatt submitted that after the promotion dated 15.6.1985 of the petitioner to the post of Operation Theatre Assistant, his pay scale was Rs. 200-3-206-250 which has not been specified against the said post in column No.2 of Schedule-C and so the pay scale of the petitioner should be considered specified against the post at serial number 207 and column No.3 of Schedule-C i.e. Rs. 260-430 revised pay scale of Rs. 1150-1500. 3.2 For ready reference Definition of Sub-rule (5) of Rule 3 of the Rules is extracted and reproduced hereunder: "(5) "Present scale of pay" in relation to any post specified in column 2 of the Schedule-C means the scale of pay whether fixed otherwise specified against that post in column 3 thereof as specified in detail in Schedule-A;" 3.3 So far as the post of Operation Theatre Assistant is concerned, the pay scale specified in column 2 of Schedule C specified against that post in column 3 thereof reads as under: "DIRECTOR OF HEALTH, MEDICAL SERVICES AND MEDICAL EDUCATION (MEDICAL) sr. Designation Present scale Revised scale Re- no. marks 1 2 3 4 5 82 Operation Theatre (I) Rs. 200-260 Rs. 775-1025 - Assistant (ii)Rs. 196-232 Rs. 750-940 "DIRECTOR OF HEALTH MEDICAL SERVICES AND MEDICAL EDUCATION: (MEDICAL EDUCATION AND RESEARCH) sr. Designation Present scale Revised scale Re- no. marks 1 2 3 4 5 207 Operation (I) Rs. 260-430 Rs. 1150-1500 - Theatre Assistant
(3.) LEARNED AGP appearing for the respondents submitted that it is not the case of the petitioner that he is metriculate. He further submitted that in the entire petition the averments of the petitioner is that his case is squarely covered by decision dated 5.12.1991 of the learned Single Judge of this Court rendered in Special Civil Application No. 3196 of 1989 but the same is not a good law. Learned AGP has drawn attention of this court to the decision in State of Gujarat V. Narayanbhai Dharmabhai Kadam [2001 (0) GLHEL-HC 212250:2001 JX (Guj) 569] and submitted that the Division Bench of this Court has settled this legal position by its order dated 23.3.2001 and the latest ratio laid down therein will squarely and directly applicable to the issue involved in this case on hand. Paragraphs No.4, 5 and 6 of the said judgment is extracted hereunder: "4. Learned AGP, Mr.Joshi on behalf of the original respondents, appellant before us, vehemently, criticised the fixation of pay of the original petitioner in the pay scale of Rs.1150-1500 by the learned single Judge. He has drawn our attention to the earlier pay scales. There is no dispute about the fact that for the post of Operation Theatre Assistant before the Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as ROP Rules, 1987) there was only one pay-scale. The said post was, therefore, in the running pay-scale of Rs.200-260. By virtue of ROP Rules 1987,the original pay scale of Rs.200-260 came to be revised,upwardly, to Rs.775-1025. ROP Rules 1987 is placed on record for our examination and we found the relevant entry No.82 speaks of the post of Operation Theatre Assistant carrying running pay scale of Rs.200-260 revised to Rs.775-1025, whereas, item No.207 also pertains to post of Operation Theatre Assistant, original pay-scale of which was Rs.260-430, upwardly, revised to Rs.1150-1500. It appears that confusion has arisen on account of two pay-scales in respect of one post. It has been noticed from the record and the ROP Rules 1987 and ROP Rules 1998 that bifurcation came to be made with regard to pay-scale for the same post on the basis of educational qualification, like that, matriculation. It is, evidently, clarified in a notification of the Finance Department dated 20th March, 1991, copy, whereof is produced for our perusal. It is, amply, clear from the record that, earlier post of Operation Theatre Assistant carried running time-scale of Rs.200- 260 which was revised to time-scale of Rs.775-1025, whereas, the same post with incumbent matriculate with two years experience was given the time-scale of Rs.260- 430 and the same came to be, upwardly, revised to time scale of Rs.1150-1500. ;