HONOURABLE MR v. GUJARAT MINERAL DEVELOPMENT CORPORATION LTD

of the Constitution of India have challenged denial of equal treatment and pay scale of Rs. 1640 –2900, granted to those 12 employees who were treated to have been promoted ignoring the seniors and other eligible employees like present petitioners.

2. This group of Special Civil Applications involves common points and prayers hence they were heard together and are being disposed of by this Common Judgment & Order.

3. The facts in brief deserves to be narrated in order to appreciate the controversy involved in this group of petitions: The petitioners who were serving as Senior Assistants at the relevant time under the respondent Corporation have approached this Court as the Corporation did not accord equal treatment to them. The petitioners were initially appointed as Assistant in the Corporation during period 1979 – 1982. Thereafter they were promoted to the post of Senior Assistant by order dated 13/8/1993 and since then till the time of filing of the petitions they worked as such. It is averred by the petitioners in the memo of the petition that vide order dated 13/8/1993 some 129 persons came to be promoted. In fact this promotion was termed to be change of designation in the same pay scale and with same responsibilities, and therefore, it was not a promotion in fact, but it was re-designation of the posts, which they held at the relevant time. The order dated 13/8/1993 contains name of the petitioners at various serial numbers, which have been specifically mentioned in the petition. In the same order 12 employees are also figuring at various serial numbers, whose names are also given in the petition and the serial number the Corporation by different SCA/15584/2003 JUDGMENT orders in respect of aforesaid 12 employees decided to change their designation from Assistant to that of Senior Assistant (now designated as Assistant Superintendent) with pay scale from Rs.1200-2040 to Rs.1640-2900 w.e.f. 1/9/1990. One such specimen order is produced in the compilation being order dated 19/8/1995 in respect of one Shri. V.B. Patel.

4. When the petitioners came to know that aforesaid 12 employees have been thus promoted ignoring their claims, they started making representations individually and collectively. Copies of the representations have been annexed to the memo of the petition. The respondent Corporation replied to the representation vide their letter dated 20/3/2003 that the officiating pay rise to be given to the above 12 employees as per the settlement arrived at between the Unions and management and therefore petitioners were not adversely affected by said order on the seniority. Since revised pay scale have been implemented after 5th Pay Commission Report, nothing new can be done without prior approval of the State Government for which the proposal had been sent. The petitioners on receiving said reply made further representation on 1/9/2003 pointing out the loss caused to them on account of the fact that juniors at least 12 employees had been drawing higher emoluments than petitioners though petitioners are seniors. In the representation it was submitted that since the seniority list was published or circulated, copy of the seniority list was also requested. Corporation issued letter dated 20/9/2003 indicating discussion on behalf of the representatives held on 18/6/2003 and informing that the individual representation would not be entertained. This anomaly in the pay scale is the subject matter of challenge before this Court.

5. The respondent resisted these petitions on the grounds of SCA/15584/2003 JUDGMENT delay, latches, acquiescence and estoppal. It was sought to be justified that some persons who had been officiating at far off place at Panendra, district Kutch were required to work in an adverse condition where civic amenities were not available and it was very difficult for the Corporation to direct sufficient number of qualified persons to work at that project. In order to overcome this difficulty the Corporation decided to pay emoluments at 20 % of the basic pay to the employees who were willing to work at Panendra project and this work was carried out smoothly between years 1983 to 1990. The Corporation adopted 4th Pay Commission recommendations vide settlement dated 5/9/1990 and Corporation discontinued the payment of officiating allowance as per the recommendation of the Pay Commission. The Corporation therefore decided to change designation of the four employees who were officiating on higher post and were paid higher pay scale and accordingly their designation was changed and they were given corresponding scale also. This change in designation in respect of four employees led to rise of demand by 14 other employees who were also holding charge on the post of officiating on the higher post. The Charter of Demands dated 18/10/1994 was submitted raising 19 demands including demand for change of designation for those remaining employees who were officiating on the higher post of Senior Assistant. Representatives of both the Unions were called for negotiations on 20/10/1994 and decision was taken, minutes were drawn on 19/10/1994. In this negotiation Corporation agreed that those employees officiating on higher post would be given post and pay as has been done in the case of four employees. As this decision could not be implemented Union gave call of strike from 25/1/1995 to 31/1/1995. The Corporation could not take any decision because of the announcement of election program by the Election Commission. After completion of election process Corporation took a decision of changing designation in respect of SCA/15584/2003 JUDGMENT 14 employees also on certain terms & conditions including withdrawal of Recovery Application filed by them. The Corporation therefore issued letter/ orders on 19/8/1995 changing designation of 14 employees and giving them pay scale of Senior Assistant on the post whereon they were officiating earlier. In view of this amicable decision the dispute did not survive and ALC vide its communication dated 22/11/1995 reported to the Government that the dispute was settled in view of the settlement amongst 14 employees in parity with four employees.

6. The petitioners also put up rejoinder wherein they have contended that no option of choice was given to the petitioners to work at Panendar project. No willingness was sought from any one as to whether they were ever interested to work at Panendar and at least in case of petitioners namely Mr. I.A. Dandhukia, Pravin Surala had in fact worked at Panendar since 1989 and till date, petitioner no.2 Narendrabhai from 1993 to 2003 and AG Trivedi worked as such from 1979 to 1988. Thus the say of the corporation that 14 persons were working at Panendar and therefore given designation with pay scale is belied. Petitioners have also made statement in rejoinder paragraph no.3 (page 89) that Mr. P.K. Sharma, V.B. Parke the beneficiaries whose name appear at Sr. No. 12 and 11 of the waiting list were never worked at Panendar while they were given benefit of continuous officiating. They were some time at Ambaji project and some time at Panendar project. Thus even persons at Ambaji project were also given benefit of higher-grade pay scale and designation.

7. Mr. Supehia for the petitioners submitted that this being hostile discrimination it deserves to be quashed and set aside. Shri. Supehia invited this Court's attention to the averments SCA/15584/2003 JUDGMENT made in the petition as well as in the rejoinder and submitted that the stand taken by the Corporation of granting designation and scale only to those who actually officiated is not borne out from the record. Shri. Supehia submitted that in view of this the petitions deserve to be allowed.

8. Shri. Patel has submitted that the petitioners have no case for seeking parity with 14 persons. As stated herein above 14 persons were governed by the settlement, which is extensively relied upon by the Corporation and submitted that in view of the settlement, was binding upon the present petitioners, also petitioners have no case to seek parity with those 14 persons. Shri. Patel has in support of his submissions relied upon following authorities.