S.A. Shah, J.
1. This is a petition filed by Government servants of the Public Works Department claiming minimum of time-scale of the cadre of Deputy Engineer when they were promoted to the cadre of Deputy Engineer. The grievance appears to be that instead of giving them minimum of the time-scale which was at that time Rs. 220/- they were given Rs. 200/- per month which was the salary fixed for the probationers who were directly recruited to the post of Deputy Engineer, P.W.D. Petitioner No. 1 is the recognised association of Deputy Engineers in Gujarat Service of Engineers Class II in the Public Works Department and rest of the petitioners are the persons who are claiming higher initial salary of Rs. 220/- or revised initial salary of Rs. 300/- as the case may be. This petition is filed on behalf of the Deputy Engineers who are similarly situated and who are claiming initial pay of Rs. 220/- instead of Rs. 200/- granted to them by the Government when they were promoted from the lower cadre of Junior Engineer, Supervisor or Overseer as the case may be. The bone of contention is that the time-scale of the Deputy Engineers of the Public Works Department as fixed by various pay-rules was Rs. 220-15-400-EB-20-500-EB-25-650 which was thereafter revised to Rs. 300 25-450-EB-25-500-30-740. The contention of the petitioners is that Rs. 220/- or Rs. 300/-as the case may be, being the minimum of the time-scale in the cadre of Deputy Engineer, must be given to the Deputy Engineers who are promoted to the cadre of Deputy Engineer from substantive posts of Junior Engineer, Supervisor or Overseers as the case may be, unless he is entitled to a still higher initial time-scale as provided in Rule 41 of the Bombay Civil Services Rules (hereinafter referred to as BCSR). The contention of the petitioners that instead of granting minimum of time-scale at Rs. 220/- or Rs. 300/-, as the case may be, the State Government has granted Rs. 200/- which is designated for the probationers who are recruited by direct selection. According to the petitioners, the action of the State Government in granting the time-scale or the payment for probationers and denying the benefits of at least minimum of the time-scale is in breach of Rule 41 of BCSR which are admittedly statutory rules made under Article 309 of the Constitution of India.
2. Mr. Jadeja, learned Advocate appearing on behalf of the State Government has raised two contentions against the prayer of the petitioners, namely, (1) that the petitioners are asking for relief from 1st May, 1960, the cause of action for the claims of the petitioners having arisen on that date, 30 years have passed, petition cannot be entertained by this Court, and the demand being stale must be rejected; and (2) that the Government has denied the minimum of time-scale of Rs. 220/- on the ground that under the provisions of Note-7 to Rule 41 of BCSR the initial salary available to the Deputy Engineers (Promotees) is that of the probationer and what has been fixed at that time by the Government was in accordance with the rules as they were in existence.
3. Now, let me examine the contentions of the petitioners subject to the aforesaid two objections raised by the State Government. First of all, I will deal with the relevant facts so that the aforesaid two objections can be properly answered. The petition was admitted by this Court in the year 1977. The petition was filed in 1977 because, according to the petitioners, the State Government which was considering the grievances of the petitioners since beginning had decided the question of initial time-scale only by Government Resolution dated May 3, 1976 which is produced at Annexure-H to the petition. However, according to the petitioners, this resolution satisfies the claim of the petitioners partly. Though the Government has agreed that the offending Government Resolution dated November 27, 1964 should not be made applicable to the promoted Deputy Engineers and as a result of the said decision the pay of the promoted Deputy Engineers should be refixed notionally from November 27, 1964, or the subsequent date of promotion the Government did not agree to make payment of arrears of pay and allowance payable to the petitioners on account of the said revision. In other words the Government accepted that the resolution of November 27, 1964 produced at Annexure-B is not applicable to the Deputy Engineers, i.e. the petitioners and on that basis agreed to refix the salary notionally from 27-11-1964, but the Government refused to pay the arrears without assigning any reasons. According to the petitioners, their age-old demand for minimum of time-scale having been kept pending all these years and when the same has been ultimately decided by the Government giving only partial relief, the cause of action to approach this Court has arisen only when the Government refused to grant full reliefs to the petitioners by resolution dated 3rd May, 1976. The petitioners, therefore, submitted that no question of any delay much less inordinate delay, has arisen in this case. The petitioners further submitted that though they were making representations and their case had been properly presented by their association, they were kept under the impression that the Government will take final decision especially when a binding judgment of this Court in the case of Revenue Department was pressed into service by the petitioners before the Government. They were assured that the Government will decide their case strictly in accordance with the rules as they were in force from time to time.
4. There is no doubt that the petitioners have kept this question pending for a very long time but it is not denied by the respondents in their affidavit that the said issue was not pending before the State Government and the Government Resolution dated May 3, 1976 is a clear indication and admission of the State Government that the question of fixation of initial salary was under the consideration of the Government.
5. This question can also be viewed from another angle, namely, that the correct fixation of their salary was dependent on the initial time-scale admissible to the petitioners and, therefore, the petitioners were getting their salary every month, and they have always a right to refixation of their salary because the fixation of salary will also affect the salary during superannuation.
6. It has now been settled that when the State is under statutory obligation to give salary to its officers and if the salary is not found to be in accordance with the provisions of law it is not just or proper for the State Government to deny the relief of salary on a technical ground of limitation or delay. If the action is wrong from the beginning the Government should come out at any time to correct the same because what they are granting is the salary payable under the statutory rules and that too to their own servants who still continue to work for them. Therefore, such technical objections regarding delay is not very proper on both the grounds, nainelv. that to deny such benefits to their own servants will also in the long run effect their performance or efficiency. Any way the State Government has not taken this objection any where in the affidavit-in-reply and the State Government has simply relied upon Note 7 of Rule 41 of the BCSR, to controvert the claim of the petitioner. In this view of the matter the first contention of the respondents regarding the delay is rejected.
7. So far as the second contention of Mr. Jadeja, learned A.G.P. appearing on behalf of the State is concerned it will also be necessary to consider the scheme of Rule 41 of BCSR. Rule 41(a)(i) prescribes that when appointment to the new post involves assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 56) than those attaching to such permanent post, he will draw as initial pay the stage of the time-scale next above his substantive pay in respect of the permanent post.
8. For example, if the minimum of the time-scale is less than the pay of the substantive post of the appointee, since he has received promotion he will get an initial salary one stage more of the time-scale next above his substantive pay and not the minimum of the time-scale. Sub-rule (ii) of Clause (a) is in respect of appointment to the new post where it does not involve assumption of higher duties or responsibilities and in such case additional stage of time-scale is not available to him.
9. Clause (b) of Rule 41 is applicable to the appointment where Clause (a) is not applicable. The first two lines of Clause (b) being important are reproduced below:
41. (b) If the conditions prescribed in Clause (a) are not fulfilled, he will draw as initial pay the minimum of the time-scale.
The proviso is not important for the purpose of this case and it is not reproduced.
10. It, therefore, transpires from Rule 41 that when an appointment is made to a post carrying fixed time-scale, the appointee is entitled atleast to the initial pay at the minimum of the time-scale subject to the exceptions which are carved out in subsequent rules. Now Note 7 which is appended to this rule which has been relied upon by the Government reads as under:
Note 7 - In applying this rule as well as Rules 56 and 57 in respect of a Government servant appointed to a post to which a fixed probationary pay below the minimum of the time-scale is prescribed, such probationary pay should be deemed to be the first stage of the time scale of the post and minimum of the time-scale itself as the second stage.
(Proviso being not material, is not reproduced)
11. Now the question that arises is whether Note 7 is applicable to the probationer, first appointee or promotee. The general rule is that if a person is appointed to a post carrying a minimum time-scale he is then entitled to such minimum. It is a well-known fact that recruitment to a higher cadre is sometimes made by direct recruitment or by promotion or by transfer or by deputation. So far as the appointment of direct recruits are concerned they are taken by holding open competition test. Generally they are coming directly from their respective colleges and have no experience of service on a particular post. The recruitment to the cadre of Deputy Engineer itself mentions that such direct recruits will undergo training for a period of one year and thereafter for further one year he will be under supervision, and after he acquires sufficient knowledge and experience and if found so he could be confirmed on the post. Various Pay-Commissions or the Government as the case may be, have, therefore, provided probationary salary or pay-scale for such probationers which is a little less than the minimum of the time-scale. The reasons for fixing lesser than the minimum time-scale are obvious and such pay-scale in service jurisprudence is known as pay-scale for the probationer. If one looks to the provisions of pay-rules of 1961, the relevant extract being reproduced by the petitioner in Para 7A of the petition, the pay-scale of Deputy Engineer is shown as Rs. 200-220-15-400-EB-20-500-EB-25-650 which means that Rs. 200/- is meant for probationer and Rs. 220/- is the minimum time-scale. What is implicit in this time-scale has been made explicit, if one looks to item No. 3 in Schedule-C where the time-scale is designated as Rs. 220-650 and it has been specifically mentioned 'probationer Rs. 200/ - per month'. In the revised scale also there is the same phraseology. Therefore, in this view of the matter it is clear that the first figure of Rs. 200/- represents the salary payable to a probationer or to an employee who is on probation. There is no time-scale in fixation of pay-scale of a probationer. He gets Rs. 200/- till he enters into regular cadre and is entrusted with regular duty of the post. He then starts earning various stages of the time-scale.
12. Mr. Mehta, learned Advocate appearing on behalf of the petitioner draws my attention to the Government decision dated 28th November, 1961 produced at Annexure-G, regarding fixation of pay of Overseers when promoted as Deputy Engineers. This letter has been sent to the Accountant General, Gujarat, and the relevant portion being important is reproduced below:
I am directed to state that under paragraph 1(V) of G.C.P. & S Department No. 3868/46 dated 1st March, 1956, in some departments appointments to posts for which a fixed probationary pay is prescribed are also made by promotion and in such cases the persons so promoted are not to be treated as probationers for purposes of pay and increments. I am, therefore, to state that overseers of the Public Works Department when promoted as Deputy Engineers should not be treated as probationers for purposes of pay and increments. The initial pay on promotion in such cases should be Fixed under the normal rules in the B.C.S.R. etc., the Overseers thus promoted as Deputy Engineers and who satisfy the conditions mentioned in paragraph 2(a) will be entitled to the benefits provided under G.R.F.D. No. 2761/154S-F dated 28th February, 1961.
This decision of the Government clearly shows that the Overseers who are pn noted to the cadre of Deputy Engineers are not treated as probationers for the purpose of granting initial pay of Rs. 200/-. Atleast after the said decision which is conveyed to the Accountant General Gujarat, by letter dated 28lh November, 1961 the State Government was enjoined not to treat promotee Deputy Engineers as Probationers and ought to have granted minimum of the time-scale of Rs. 220/- as fixed by the pay-rules.
13. Now the argument of Mr. Mehta is that if there are two initial pay-scales it necessarily means that they are applicable to two classes of persons. Now, so far as recruitment to the cadre of Deputy Engineers is concerned, as I have stated, there are mainly two classes, namely, direct recruits who are to be treated as probationers for two years and promotees. Now, if by virtue of Note-7 the probationary scale of Rs. 200/- is applied to both the recruits then to whom we will apply the minimum payscale of Rs. 220/- atleast considering the definition of the time-scale and the practice that has been followed since number of years. Some persons who are appointed must be given the minimum of the time-scale of Rs. 220/-. Which is the class of such persons? Mr. Jadeja, learned Counsel appearing on behalf of the State is unable to answer this question. This argument of Mr. Jadeja that Note 7 applies to both, namely, probationer as well as promotee, does not stand to any logical reasons. 'Probationer' is not only defined in Clause 47 of the B.C.S.R. but it is well understood in Service Jurisprudence. A probationer is a person who is acquiring knowledge of the post on trial basis. He has no experience on a particular post. His entry is new to the cadre whereas a promotee has experience of atleast the lower cadre in the department. He being found suitable on the touch-stone of selection or seniority-cum-merit and knowledge is inducted to a higher cadre. He is entrusted directly with his duties and responsibilities of the higher cadre. He has full powers and discharges all his functions and, therefore, he is entitled to something higher than what a probationer gets. When the rule making authority prescribes the minimum of the pay-scale it means that a person who is discharging duties and liabilities of the post is entitled to atleast minimum of the time-scale; on what parity of reasons one will deny the minimum of the time-scale to a person who is promoted on his merits according to the service rules of promotion in existence and who discharges all the duties and responsibilities of the post? In my opinion neither it stands to reason nor to law to deny the minimum of the pay-scale to a person who assumes higher responsibilities and does duties of the post from the day he joins the higher cadre. If one equates a promotee with a direct recruit under training where two initial grades are prescribed he will be charged with discrimination inasmuch as he is treating unequals as equals. I have not to go to that extent in deciding the question before me.
14. Rule 9(16) of the B.C.S.R defines the duty of the probationer which is reproduced below:
9(16) : Duty includes-
(a) Service as a probationer or apprentice (excluding an apprentice appointed on or after 15th July 1940), provided that such service shall not be regarded as duty for leave unless it be followed by confirmation.
Note (1)-A Government servant appointed directly to a post to which a fixed probationary pay is prescribed during the period of probation, is not permitted to earn increments during the period of probation. For this purpose, the clause 'a Government servant appointed to a post' includes -
(1) a Government servant who holds substantively a permanent post in a cadre and is appointed by selection in open competition to the above post, and
(2) a Government servant who is so appointed but is granted a higher starting pay in the time-scale attached to the post.
Now it is clear from this that even a Government servant, if he applies for direct selection, may be appointed to the higher post and in such circumstances he will be a probationer even though be held substantively permanent post in the lower cadre. This means that a probationer may be a person who is a direct recruit, probationer may be a Government servant holding permanent post in the lower cadre but appointed as direct recruit. Merely because he is a Government servant he cannot be given benefit of minimum time-scale. He cannot thereby avoid lesser scale of pay provided for the probationer. In my opinion this, clarifies the position that a probationer may include existing Government servant if he enters higher cadre by direct selection. That is how the State Government has fallen into an error by applying the provision of Note 7 to the petitioners and considering them as probationers and not granting the minimum of time-scale.
15. It is not the case of the State Government that the appointment of the petitioners and similarly situated other Deputy Engineers were promoted as probationers to the said cadre. The petitioners were never promoted as probationers. They have not entered the higher cadre by direct selection. They were promoted in accordance with the service rules and were a class which is entitled to atleast minimum of the time-scale, provided for the said post.
16. It is a clear position of rule of interpretation that the main rules always declare the rights and liabilities of the persons subjected to and generally notes are either in the nature of clarification or exception etc. Now, if the probationer is appointed to a permanent post by compliance of Rule 41(b) he is entitled for the minimum of pay-scale which is Rs. 220/- but Note 7, in my opinion, has carved out some exception that a Government servant appointed to a post to which a fixed probationary pay below the minimum of the time-scale is prescribed, such probationary pay should be deemed to be at the first stage of the time-scale of the post and minimum of time-scale itself is a second stage refers to a Government servant who is subjected to probationary pay.
17. If we interpret Note 7 as applied to both direct recruits and promotees we will be re-writing the provisions of Rule 41(b) and other substantive rules. The note cannot be interpreted in such a manner. It only applies to a Government servant or direct recruit who has been appointed to the post on probation and. therefore, not entitled to the regular time-scale. Unless we read Note as an exception carved out, as applicable to the probationer, it will become a substantive provision contrary to the other provisions of Rule 41 and therefore, it is necessary to reconcile both the provisions and according to the well-recognised rule of construction this Note must give way to the substantive provision of the rule. This is the only way in which both the provisions can be reconciled, namely, that the main part of the rule applies to the Government servants promoted from the lower cadre to higher cadre who are entitled to the minimum of the time-scale as provided in Rule 41 and Government servants who are selected for that post by open competition and who are treated as probationers will be governed by the provisions of Note 7 of Rule 41.
18. Mr. Mehta, learned Advocate appearing on behalf of the petitioners, has relied upon a binding decision of this Court in the case of Iswarlal Maganlal Joshi v. State of Gujarat delivered by J. B. Mehta, J., as he then was, on July 30, 1983, which has been produced at Annexure-F to the petition. The case pertains to the cadre of Mamlatdars who challenged two orders of the State Government which were produced at Annexure-B and F to that petition. Ultimately the controversy raised there was settled by the decision of this Court. The issue raised was whether two probationary stages can be applied to the cadre of Mamlatdar who are not direct recruits and who are promotees to that cadre. It was not disputed there that the petitioner was promoted to the cadre of Mamlatdar on April 22, 1962. He was never a probationer Mamlatdar, he was a promotee throughout. Though he was promoted he was paid the scale of probationer initially and not the minimum of the regular time-scale of that cadre. The controversy was whether the probationary stage of scale should be applied to such direct recruits or the promotee also. The Court observed as under:
Mr. Desai rightly pointed out the Government resolution No. 19 of 1959 laying down recruitment rules for the post of Mamlatdar which provides only direct recruit to be on probation for the period for the departmental promotee. Therefore, the State is under complete misconception that the petitioner was even a probationer or that any probationary stage could apply in his case. Therefore, the State has wrongly applied two probationary stages in the post of Mamlatdar while refixing his pay in the revised scale.
19. In short the ratio of the aforesaid decision is that probationary scales can only be applied to the direct recruits who were on probation and not to the promotees who were promoted from the lower cadre. On reaching that decision the High Court has directed the State Government to refix the salary of the petitioner accordingly. It appears that this decision of the High Court has been accepted by the Government by its resolution dated October 12, 1972 in spite of the resolution dated 29-7-1964 which is also impugned in the present case. The Government has stated that the Government has since decided to acquiesce in the said decision of the High Court and after carefully considering the question in the light of the general orders in this behalf, has decided to continue the benefit of the orders contained in G.R.P & S.D. No. 3868/46 dated 25-8-59 upto 31-5-67 (i.e. till the pay scales of Mamlatdars and Deputy Collectors rationalised under the G.C.S. Pay Rules, 1969 with effect, from 1-6-67). In short, the Government had accepted the decision of the High Court that the Mamlatdar, being not probationer, cannot be given lesser pay-scale than the minimum time-scale of that post. It is, therefore, submitted by Mr. Mehta that the main resolution dated 27-9-1964 is applicable to all the cadres namely, cadre of the petitioners as well as the cadre of Mamlatdars and since the Government has accepted the decision of the High Court that such probationary pay-scale is not applicable to the promotee officer and the promotee officer is entitled to the minimum of the time-scale and the resolution in the case of Mamlatdar has been impliedly revoked, how can the said resolution be made applicable or can be acted upon by the State Government in the case of the cadre of the petitioners. Such a discriminatory treatment, on the face of it, is violative of Articles 14 and 16 of the Constitution of India. I think, the contention of Mr. Mehta cannot be disputed. If the Government resolution dated 29-7-1964 is not made applicable to the cadre of Mamlatdars, then a similar resolution dated 27th November, 1964, produced at Annexure-D cannot be made applicable to the cadre of Deputy Engineer because both the resolutions are in pursuance of the policy decision having been taken in the Government Resolution, Finance Department, dated 5-3-1964 which has been tendered today by Mr. Jadeja. Important portion of the said resolution being necessary is reproduced below:
Both these levels of probationary pay should be regarded as the stages of the time-scale for the persons promoted from a lower post.
Para 4 of the Government resolution directs to review the present arrangement in respect of several posts and further states that these orders will take effect from 1st January, 1964. In other words the clarification which was made in the letter dated 28th November, 1961 Annexure G, is given go-by and a different policy decision is taken to apply the probationary scales to the promotees also. Being aggrieved by this decision of the Government the Revenue cadre promotee Mamlatdar filed the petition and the decision thereof has been accepted by the State Government and benefits of minimum time-scale has been given to the cadre of Mamlatdar contrary to the policy decision taken by them in the aforesaid resolution.
20. Even this decision of the State Government by resolution of 1964 has been changed by subsequent Government resolution dated 3rd May, 1976, Annexure-N to the petition. Once the Government accepts the position that the promotee Deputy Engineers are entitled to the minimum of the pay-scales and refixed and revised notionally the pay and allowances and agreed to the refixation, it is not possible for the Government to contend that full effect of the said resolution cannot be given to the promotees because Rule 41 along with Note 7 are statutory rules and if the Government adopts the interpretation of Note 7 for the purpose of refixation in granting notional salary right from 27-11-1964 the said rule and note cannot be interpreted otherwise for the purpose of granting arrears of salary. It is well settled position that when statutory rules fix the condition of service the State Government by its executive power cannot make any amendment and cannot deny the benefits flowing from the statutory rules. If the construction which has been advanced by the petitioners of Rule 41 read with Note 7 is accepted by the Government then in my opinion necessary consequence must follow.
21. Mr. Jadeja, appearing for the State Government, not in a position to support the construction of Note 7 to the effect that the said Note applies also to the promotees. This issue involves the interpretation of Rule 41, Note 7 and several Government resolutions. The case was adjourned from time to time to enable Mr. Jadeja to call the proper officer of the Government for assistance. Mr. Jeswani, Joint Secretary to Government, Finance Department had remained present to assist the Court. Mr. Jeswani also is of the view that Note 7 would apply only to the probationers, reading the same in context with the other rules and Government Circulars.
21.1 In view of the aforesaid discussion and the meaning which we have to assign to the word 'probationer' and in view of the decision of this Court as referred to above I am in full agreement with the view taken by J.B. Mehta, J. that the probationary pay-scale is applicable only to the probationers and not to the promotees from the lower cadre. Therefore, the petition shall have to be allowed.
22. It is true that the petition has been filed by the Association and some members of the Association who are actually affected it has been mentioned that petition is filed for and on behalf of the members of the association. The question involved in the petition is of the interpretation of Rule 41 read with Note 7. It is, therefore, expected that if the Government accepts this decision the Government will not deny the benefit of this judgment to the other members of the Association who are not specifically joined as petitioners in the petition.
23. I, therefore, direct the State Government to refix the initial pay of the petitioners at Rs. 220/- instead of Rs. 200/- in the pay-scale of Rs. 200-650 and when the same was revised at Rs. 300/- instead of 275/- and thereafter on further revision at Rs. 370/- instead of Rs. 345/- and pay arrears of refixation. It is further directed that the refixation shall be made with effect from 1-5-1960 and effect will be given to the periodical revisions that have been made on acceptance of the recommendations of the Pay Commissions. The respondents are also directed to pay arrears if any on such refixation to the petitioners. The respondents will carry out the orders of this Court within six months from the date of receipt of writ of this Court. Rule is made absolute with no order as to costs.