C/SCA/109/2017 ORDER DATED: 23/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 109 of 2017 ================================================== SUSHILABEN PRANLAL PANDYA Versus STATE OF GUJARAT, DIRECTOR OF MUNICIPALITIES, & ORS. ================================================== Appearance: MR IM PANDYA(546) for the Petitioner(s) No. 1 MS. KRISHNA DESAI, AGP for the Respondent(s) No. 1 MR DEEP D VYAS(3869) for the Respondent(s) No. 2 MS SANGNA KANSAGRA(9378) for the Respondent(s) No. 2 RULE NOT RECD BACK for the Respondent(s) No. 1,2,3 ================================================== CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 23/07/2025 ORAL ORDER [1] Following facts are not in dispute. The petitioner had been appointed as a Staff Nurse in the year 1982 and during her tenure as a Staff Nurse, an advertisement was issued in the year 2010 for the post of Assistant Nursing Tutor. The petitioner applied for the said post and she was appointed as an Assistant Nursing Tutor. While appointing her as Assistant Nursing Tutor, the following condition was incorporated in the order appointing the petitioner as Assistant Nursing Tutor, which is reproduced hereunder for the sake of clarity (translated copy furnished by the 2nd respondent) :- C/SCA/109/2017 ORDER DATED: 23/07/2025 “6. As the said candidate has been serving as a Staff Nurse at Sheth V. S. Hospital for a long time, she shall be granted pay protection with the salary and benefits she currently receives for the post of Staff Nurse at Sheth V.S.General Hospital, until she completes her probationary period (three years as an assistant) in the post of Assistant Nursing Tutor.” [2] As could be seen from clause – 6, the respondents taking into consideration that the petitioner was serving as a Staff Nurse at the hospital for a long time, proceeded to grant her “pay protection with the salary and benefits she currently received for the post of Staff Nurse at Sheth V. S. General Hospital, until she completed her probationary period in the post of Assistant Nursing Tutor”. This would, therefore, indicate that notwithstanding the fact that she was under probation for a period of three years, during which, under the terms of appointment, though she was to get a fixed salary in the normal course, she would nevertheless be getting the same pay and the benefits that her original post of Staff Nurse was entitled to. [3] To put it differently, the salary and the benefits that the petitioner was receiving as a Staff Nurse were to be continued even during the probation period of three years when she was appointed as an Assistant Nursing Tutor. It is settled law that when an employee is appointed to a new post which may result in a reduction in the pay, the normal practice of protecting the pay of the employee C/SCA/109/2017 ORDER DATED: 23/07/2025 is resorted to only to ensure that an employee does not suffer a lesser pay merely because he or she sought to be appointed to a different post (with the permission of the erstwhile employer). The underlying objective of pay protection is to ensure that the past service rendered by an employee, due to which he or she has secured benefits is not lost when he or she seeks for a fresh appointment with the permission of erstwhile employer. Consequently, it will have to be held that by virtue of clause 6 of this resolution, the petitioner would not only be entitled to the same salary she received but also to the increments that automatically accrued on her salary being paid to her as a Staff Nurse. [4] It is the case of the petitioner that despite this specific pay protection granted to her, the respondents while confirming the services as a Nursing Tutor have imposed a condition in which it is stated that for the period when she worked as a probationer on a fixed salary for a period of three years, the said period shall not be considered for computing her pension, bonus, LTC and other benefits. The petitioner is, therefore, before this Court seeking for a direction to the respondents to revise her pension and re-fix the pension by incorporating the increments for the period during which she discharged as a probationer, i.e., from 2010 to 2013. Page 3 of 6 C/SCA/109/2017 ORDER DATED: 23/07/2025 [5] This prayer of the petitioner is stoutly opposed by the respondents contending that the petitioner having accepted the post of Assistant Nursing Tutor and also the fact that she would be on a fixed salary during the period of probation, she cannot be permitted to seek for the benefits of the increments also. It is the case of the respondents that the increments that the petitioner would have got if she had continued as a Staff Nurse cannot be considered for the purpose of our pensionary benefits. [6] An argument is also advanced that the petitioner had accepted the order of appointment as an Assistant Nursing Tutor, which imposed the condition that the period of probation would not be considered for the purposes of commuting her pension and other benefits and therefore, she is estopped from making such a claim, that too after she retired from service. [7] I have considered the submissions made by both the learned counsel and I am of the view that the prayer of the petitioner would have to be granted. [8] As already stated above, the very concept of pay protection is to ensure that an employee’s pay is protected and this would be in the light of the fact that the new appointment would entail a C/SCA/109/2017 ORDER DATED: 23/07/2025 reduction in the pay. The respondents while appointing the petitioner as an Assistant Nursing Tutor have categorically assured the petitioner that she would be granted pay protection not only with the salary but also the benefits that she currently received as a Staff Nurse. It cannot be in dispute that the benefit of securing yearly increment is also a benefit that goes along with the salary that the petitioner was getting as a Staff Nurse. The respondents by virtue of granting pay protection not only in the salary but also the benefits cannot be permitted to contend that the grant of increments for the probationary period of three years cannot be considered while computing the pensionary benefits of the petitioner. [9] As far as the argument that the petitioner accepted the order of appointment, which excluded this benefit of increments for three years and she thereafter has filed the petition in the year 2017 is concerned, it is to be held that the respondents cannot approbate and reprobate. The respondents were categorical in 2012 when they appointed the petitioner and had stated that the pay and the other benefits of the petitioner was getting as a Staff Nurse would be protected. This pay protection of both the salary and the benefits cannot be undone by imposing a condition while confirming the services of the petitioner as an Assistant Nursing Tutor. It is to be C/SCA/109/2017 ORDER DATED: 23/07/2025 kept in mind that the terms of appointment would prevail and these terms of appointment cannot be modified or reduced to the detriment of the an employee at the time of her confirmation. [10] In this view of the matter, the question of the petitioner having accepted such a reduction in her benefits would not arise. Consequently, the writ petition is allowed and the respondents are directed to incorporate the yearly increments that the petitioner was entitled to during the period of probation of three years and re-fix her pension. The said benefits shall be computed and made over to the petitioner within a period of three months from the date receipt of the order of this Court. Rule is made absolute. (NSSG, J.) DHARMENDRA KUMAR Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: KUMAR DHARMENDRA(HC01071), GOV, at High Court of Gujarat on 25/07/2025 12:00:21