Gujarat High Court
Dineshkumar Ramjibhai Parmar vs State Of Gujarat on 28 January, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11120 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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DINESHKUMAR RAMJIBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1
MR AKASH GUPTA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/01/2025
ORAL JUDGMENT
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"21. The petitioner, therefore, prays that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, direction or order:
A) Directing the respondents to restore the order dt.23.07.1993 (Annexure 'F') granting the 1st higher grade scale to the petitioner w.e.f 11.10.1988 and accordingly to modify and revise the order dt.15.4.99 and grant the consequential benefits with 6% interest.
B) During the pendency and final disposal of this petition, the Respondent No.2 may be directed to restore the order dt.23.07.1993.Page 1 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025
NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined C) To grant such and further relief as may be deemed fit and proper."
2. Heard Ms. Shivani Barot, learned advocate appearing for Mr. P.A. Jadeja, learned advocate appearing for the petitioner, Mr. Akash Gupta, learned AGP appearing for the respondent No.1 - State and Mr. H.S. Munshaw, learned advocate appearing for the respondent No.2.
3. Briefly stated that, the petitioner herein was appointed as workcharge Clerk on 25.10.1979 in the pay scale of Rs.260-400 on ad-hoc and temporary basis and was placed at Punjpur, Taluka : Danta. By Resolution dated 16.05.1983, the posts of 93 work-charge clerks were converted into temporary establishment with effect from 01.04.1983. The name of the petitioner was included at Sr.No.110 of the said order. 3.1 The petitioner was thereafter selected by the Gujarat Panchayat Service Selection Committee as Junior Clerk by order dated 25.07.1989. The petitioner requested the respondent authority to join the earlier services rendered as work-charge Clerk for the purpose of pay, pension and leave. By order dated 16.09.1989, the respondent No.2 joined the service of the petitioner from 12.10.1979 to 27.07.1989 for the Page 2 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined purpose of leave, pension and pay duly produced at Annexure- E to the petition.
3.2 Pursuant to the scheme of higher pay scale introduced vide Resolution dated 05.07.1991, the petitioner was granted 1st higher grade scale of Rs.1200-2400 w.e.f. 11.10.1988 counting the services of the petitioner from 1979, by order dated 23.07.1993. On 20.01.1995, the said order granting higher pay scale was cancelled in view of the Resolution dated 16.08.1994. The services rendered on work-charge establishment were ignored while counting the service for grant of higher pay scale in view of the said Resolution dated 16.08.1994. The petitioner herein was granted 1st higher pay scale of Rs.4000-6000 by order dated 15.04.1999 w.e.f. 28.07.1998. The said order dated 15.04.1999 is duly produced at Annexure - I to the petition.
3.3 The petitioner challenged the aforesaid action of the respondent before the Tribunal by filing an Appeal No.79 of 1999. The Tribunal dismissed the said appeal by order dated 26.09.2007 for want of jurisdiction duly produced at Annexure
- K to the petition. The petitioner herein filed Special Civil Application No.2874 of 2008 praying for direction to the Page 3 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined respondent authority to consider the case of the petitioner for higher pay scale w.e.f. 01.04.1992 instead of 28.07.1998 and grant arrears w.e.f. 01.04.1992. The said petition was withdrawn on 01.08.2011 on the ground that appropriate facts and submissions were not incorporated in the said petition. Permission to withdraw as prayed for was granted by order dated 01.08.2011. The aforesaid has given rise to the filing of the present petition having prayed for the reliefs, as referred above.
4. Ms. Shivani Barot, learned advocate appearing for the petitioner submitted that the order dated 23.07.1993, which is duly produced at Annexure - F, be restored and the petitioner be granted the benefits of the higher pay scale in accordance with the said order dated 23.07.1993 wherein, the 1 st higher pay scale is granted to the petitioner considering the length of services of the petitioner from the initial date of appointment i.e. 25.10.1979. It is submitted that the benefit of 1 st higher pay scale be considered accordingly w.e.f. 11.10.1988 and as per the order dated 23.07.1993.
5. Mr. H.S. Munshaw, learned advocate appearing for the respondent No.2 relied on the affidavit-in-reply, which is duly Page 4 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined produced at page 77, and submitted that the petitioner herein was born on 16.07.1957 and was offered work as work-charge Clerk vide order dated 25.10.1979 purely on temporary and ad-hoc basis and on certain terms and conditions. It is submitted that thereafter, vide order dated 01.04.1983, the petitioner was taken up on Hangami establishment w.e.f. 01.04.1983 as per the Government Resolution dated 16.05.1983. It is submitted that the petitioner was selected by the District Panchayat Service Selection Committee, Banaskantha District Panchayat as Junior Clerk upon following due procedure on 28.07.1989 and the petitioner joined the service as Junior Clerk on regular establishment. 5.1 Mr. Munshaw, learned advocate submitted that the respondent - State through its Finance Department introduced a scheme of higher pay scale through a Resolution dated 12.07.1991. It is submitted that ignoring the fact that the petitioner herein was duly selected and appointed as Junior Clerk on 28.07.1989, the then Executive Engineer, Roads and Building Division, Banaskantha District Panchayat, put up a proposal for release of 1 st higher pay scale in favour of the petitioner on the basis of his joining service as Work-Charge Page 5 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined Clerk on 25.10.1979. It is submitted that accordingly, the petitioner was granted the benefit of 1 st higher pay scale w.e.f. 12.10.1988 vide order dated 13.07.1993 and placed in the pay scale of Rs.1200-2400/- on the basis of single arithmetic calculation considering the provisions of the Government Resolution dated 05.07.1991. A copy of the order dated 13.07.1999 is duly annexed as Annexure - D to the reply. It is submitted that upon verification by the Audit Department, the error became to the light of the respondent - State and it was thought it fit to withdraw the same by order dated 20.03.1995. 5.2 Reliance is placed on Clause - 3(2) of the Government Resolution dated 16.08.1994 wherein, it is provided that employee is entitled to first higher pay scale upon completion of nine years provided that the employment is upon following due procedure of recruitment. It is submitted that in light of the aforesaid, the petitioner was granted the benefit of first higher pay scale vide order dated 04.02.1999 w.e.f. 28.07.1998 on completion of 9 years in the cadre. It is submitted that the petitioner was given the benefit of 2 nd higher pay scale upon completion of 15 years of service w.e.f. 28.07.2013 vide order dated 15.09.2013 as per the Page 6 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined Government Resolution dated 02.02.2007. It is submitted that the petitioner upon superannuation on 31.07.2015 is released all the retirement benefits available to the petitioner including the pension, gratuity, leave encashment, commutation of pension etc. and the same are accepted by the petitioner without any protest. It is submitted that the present petition is barred by delay of 16 years after the withdrawal of benefit of 1st higher pay scale vide order dated 20.03.1995. It is submitted that the petitioner was serving as work-charge Clerk between 25.10.1979 to 28.07.1989 i.e. the day on which the petitioner was appointed on regular establishment of the cadre of Junior Clerk on selection by the District Panchayat Service Selection Committee. It is submitted that the petitioner served between 25.10.1979 to 28.07.1989 as work-charge Clerk and the nature of job was to attend the construction as well as repairs and maintenance of Roads as per PWD Manual and extract of para 88 & 89 of the Manual. It is submitted that the said service rendered by the petitioner cannot be counted for the release of higher pay scale. It is submitted that as work- charge Clerk or Hangami Clerk, the petitioner was appointed by the Executive Engineer without following due process of recruitment on purely temporary and ad-hoc basis. It is Page 7 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined submitted that the District Panchayat Service Selection Committee as competent authority, selected the petitioner as Junior Clerk after the petitioner successfully cleared the recruitment procedure and thereafter, the Deputy Development Officer appointed the petitioner as Junior Clerk in the regular establishment as a competent authority as provided under the Gujarat Panchayat Act, 1993 and the rules framed thereunder.
Analysis:-
6. Having heard the learned advocates appearing for the respective parties, it emerges that as per the service book of the petitioner, the petitioner was born on 16.07.1957 and superannuated on 31.07.2015. The petitioner was offered work as work-charge Clerk purely on temporary and ad-hoc basis vide order dated 25.10.1979. The petitioner vide order dated 01.04.1983 and was taken up on Hangami establishment w.e.f. 01.04.1983 as per the Government Resolution dated 16.05.1983. The GPF Account of the petitioner was opened on 28.05.1982. The petitioner herein thereafter, was appointed as Junior Clerk on 28.07.1989 upon selection by the District Panchayat Service Selection Committee, Banaskantha District Page 8 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined Panchayat upon following due procedure on regular establishment.
7. In light of the undisputed facts, as referred above, in the opinion of this Court, the petitioner herein is entitled to be considered for the benefit of the Government Resolution dated 16.08.1994 from the date on which, the GPF Account of the petitioner was opened i.e. 28.05.1982. The case of the petitioner be considered under Clause - 3(31) of the Government Resolution dated 16.08.1994 duly produced at page 120.
8. The respondent authority to consider the case of the petitioner for grant of higher pay scale w.e.f. 28.05.1982 as fairly submitted by Mr. Munshaw, learned advocate appearing for the respondent No.2, upon completion of 9 years i.e. in the year 1991, the petitioner would be entitled to the grant of first higher pay scale and that, thereafter the 2nd higher pay scale and all the other consequential benefits. The aforesaid exercise be undertaken by the respondent authorities within a period of eight weeks from the receipt of this order.
9. With the aforesaid directions, the present petition is Page 9 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025 NEUTRAL CITATION C/SCA/11120/2011 JUDGMENT DATED: 28/01/2025 undefined allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) NEHA Page 10 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:39:42 IST 2025