Judgment:
S.K. Keshote, J.
1. This is clearly a litigation which otherwise would have been avoidable in case the respondents No.1, 2, 3 and 5 would have acted reasonably, fairly and in consonance with the principles of fairplay. It is not gainsay that because of inaction or omission or causal approach on the part of the functionaries and officers of the State of Gujarat, a Welfare State, numerous litigations are coming up before this court though otherwise those would have been avoidable litigations. This Court is already facing the problem to reduce the mounting arrears of pending cases. The State of Gujarat its functionaries and officers instead of giving their fullest cooperation to the Court to overcome this problem are in fact adding further litigations, which is clearly reflecting from this case. The worse part is that the respondents aforesaid have not even cared to file reply to the special civil application. Not only this, nobody is present on their behalf to make oral submissions also. No officer or officer in-charge of the case from any of the departments is also present. So the total contribution of the State of Gujarat, its functionaries and officers, is not to file reply as well as to contest this petition orally. Despite of State of Gujarat setting a handsome amount in the budget for defending the litigations which are being filed against it in the High Court or Subordinate courts, this is the total defence which is forthcoming from them. It is high time for the State of Gujarat to consider whether this handsome amount of public money has to be gone wasted. In case if the Courts are to decide the matters without any assistance forthcoming from the State of Gujarat, its functionaries and officers then what for this institution 'Government Pleader's Office' is continued and what for this heavy burden is put on the public of this country. This amount could have been utilised better for other good cause as well as to provide the necessary facilities to the people of the State. This is not the first case where I am constrained to make all these observations but earlier also from time to time in many of the cases, this court has drawn the attention of the State Government in this respect but ultimately what has been done in the matter is only in the file of the respondent-State. Noncooperative attitude of the State of Gujarat its functionaries and officers also delay the disposal of the matters. This Court has to wait for reasonable time for filing reply by the State Government. This petition has been admitted by this court on 23rd October, 1996 and more than two years and seven months have already been passed but the State of Gujarat its officers and functionaries have not taken any care to contest this petition. Non-filing of the reply and absence of the officers of the State Government and the Government Advocate goes to show that the State of Gujarat has no case whatsoever to defend. Even if it is taken to be correct then the State of Gujarat, a Welfare State, and its officers should have been very frank to the court as well as fair to the employees may be of the Panchayat to bring this fact to the notice of this court. If it would have been done at the earlier opportunity then this petition would have been disposed of long back. This remained pending for this long time and as such the petitioners could not get the timely relief.
2. The respondent No.4 has filed reply to the special civil application but if we go by the contents thereof I find that it is not substantially contesting the petition. Learned counsel for the respondent No.4 during the course of arguments very fairly submitted that it is the State Government who is not giving it that positive orders otherwise the Panchayat has accepted the claim of the petitioner.
Heard the learned counsel for the parties.
3. It is not in dispute that prior to 1-1-1986 both in the Irrigation Department of the State of Gujarat and in the Panchayat there was a post under the designation of Supervisor and that post in the State Government and in the Panchayat was carrying the same pay scale. It is also not in dispute that qualifications for appointment on this post both in the State Government and in the Panchayat are identical. Above that, there is no dispute that from the side of any of the respondents that the holders of this post in the State Government and the Panchayat were doing the same work and discharging the same duties.
4. Vide Government resolution dated 5th August, 1981, the post of Supervisor in the Irrigation Department and P.W.D. were came to be redesignated as Additional Assistant Engineer. The pay scale of this post has also been revised from 1-1-1986 to Rs.1400-2300. It is not in dispute that though in the aforesaid department of the Government the post has been redesignated as Additional Assistant Engineer but in the Panchayat its designation continued to be Supervisor and the pay scale has been revised to Rs.1400-2300. It is not correct to averred and contend by the learned counsel for the petitioner that this post in the Panchayat has also been redesignated. After this revision of the pay scale from 1-1-1986 I find from the record of this special civil application which is not controverted by any of the respondents that both the Additional Assistant Engineers in the Department of the State Government and the Supervisor in the Panchayat made representation for claiming higher revised pay scale from 1-1-1986. However, ultimately the State of Gujarat found favour with the representation made by the Additional Assistant Engineers in its department and under its resolution dated 9th October, 1992 the pay scale of the post of Additional Assistant Engineer was further increased to Rs.1640-2900. This was given effect to from 9th October, 1992. So from 9th October, 1992, the Additional Assistant Engineers in the Department of the Government started to get the higher pay scale. No reason is forthcoming from the State of Gujarat and its officers what for the claim of the petitioners was not granted. I find from the reply of the respondent No.4 that the State of Gujarat ultimately accepted to redesignate the post of Supervisor belonging to the Irrigation Department of the District Panchayats as Additional Assistant Engineers w.e.f. 14th May, 1998.
5. The claim of the petitioners for the pay scale of Rs.1640-2900 from 1-1-1986 does not stand to any merits. The State of Gujarat has given the benefit of this higher pay scale to its Additional Assistant Engineers of the Irrigation Department or the P.W.D. from 9th October, 1992. However, on the record of this special civil application no explanation has been put forth by the State of Gujarat, its officers and functionaries why the benefit of higher pay scale was not given to the petitioners from 9th October, 1992. The Panchayat is not contesting the claim of the petitioners but its only defence is that the State Government is not agreeing for that pay scale. In the absence of any reasons much less a good and valid reason from the State Government of not extending the benefit of higher pay scale to the petitioners from 9th October, 1992 and more so when the post of Supervisor has also been redesignated as Additional Assistant Engineers in the Panchayat this action of the State Government is wholly arbitrary and unjustified and it makes a hostile discrimination amongst the persons who are similarly situated since inception of their services. Merely on the basis of the nomenclature and more so when it was not taken to be any difference whatsoever in the payscale for both the post of Additional Assistant Engineers in the State Government and Supervisor in the Panchayat the same revised pay scale has been there from 1-1-1986 and when this revised pay sale from 1-1-1986 of the Additional Assistant Engineers was further increased to Rs.1640-2900 from 9th October, 1992 that benefit should have been automatically extended to the Supervisors now Additional Assistant Engineers in the District Panchayats of the State but it not been done. Because of this inaction or omission on the part of the State of Gujarat, this avoidable litigation has come up before this Court and further has created agony and frustration amongst the employees of the District Panchayats of the State.
6. In the result, this special civil application succeeds and the same is allowed. It is hereby declared that the Additional Assistant Engineers in the Irrigation Department of the District Panchayats are entitled for the higher pay scale of Rs.1640-2900 from 9th October, 1992 as from that day, this higher pay scale has been give to the Additional Assistant Engineers of the State of Gujarat in its department. The District Panchayats shall take care of the matter and may not deny the benefits only on the ground that the Additional Assistant Engineers of the category for which this matter has been decided have not filed case before this Court. It is a declaratory judgment and its benefits are to be given to all the Additional Assistant Engineers who are similarly situated in all the District Panchayats. A copy of this judgment be sent to all the District Panchayats in the State. The District Panchayats in the State are directed to revise the pay of the concerned Additional Assistant Engineers in the pay scale of Rs.1640-2900 from 9th October, 1992 and accordingly fix the arrears of pay and pay of the concerned Additional Assistant Engineers. This whole exercise has to be undertaken within a period of three months from the date of receipt of writ of this order. Compliance of this order has to be reported to this court. It is further directed that the consequential revision in the pay scale of 5th Pay Commission recommendations has to be made accordingly and arrears to be paid accordingly within the stipulated period as aforesaid. Rule is made absolute in the aforesaid terms.
7. The petitioner-Mandal has unnecessarily been dragged into litigation by none other than a welfare State which has resulted due to the inaction or omission on the part of the officers of the State of Gujarat. Learned counsel for the petitioner, on being asked by the Court, submitted that he has charged and the petitioner paid to him Rs.5000/- towards his professional fees. I do not find any material on the record in support of this statement. However, if the petitioner or its advocate produces any evidence on the record of this special civil application that this amount of Rs.5000/- has been paid to the counsel for the petitioner as professional fees, the respondents No. 1, 2 and 3 are directed to pay Rs.5000/- as costs of this litigation to the petitioner. Where no such proof is produced then office is directed to tax Rs.1000/- as costs of this petition in favour of the petitioner. Copy of this order may be sent to the Chief Secretary of the State of Gujarat. The Chief Secretary of the State of Gujarat is directed to hold an inquiry in the matter and whosoever officer is found negligent, careless in defending this petition, necessary departmental action may be taken against him and the amount of costs which is to be paid by the respondents No. 1, 2 and 3 to the petitioner has to be recovered from him. Compliance of this order has to be reported to this Court. This exercise has to be undertaken and finally completed within a period of six months from the date of receipt of writ of this order. It is also expected of the State of Gujarat to see that necessary arrangements are being made where in the matters pending in this court or which may come in future, timely reply has been filed and advocates fully instructed and having complete record of the case are present. What measures are being taken in this respect are to be reported to this court also by the Chief Secretary of the State of Gujarat.