Prafulla Kiranbhai Derasari vs State Of Gujarat

Gujarat High Court

Prafulla Kiranbhai Derasari vs State Of Gujarat on 17 November, 2025

                                                                                                                    NEUTRAL CITATION




                           C/SCA/5548/2018                                          JUDGMENT DATED: 17/11/2025

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                             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/SPECIAL CIVIL APPLICATION NO. 5548 of 2018

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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                                  Approved for Reporting                           Yes          No
                                                                                                 √
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                                              PRAFULLA KIRANBHAI DERASARI
                                                         Versus
                                                STATE OF GUJARAT & ORS.
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                      Appearance:
                      MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
                      MR SIDDHARTH RAMI, ASST. GOVERNMENT PLEADER for the
                      Respondent(s) No. 1,2,3
                      MR HS MUNSHAW(495) for the Respondent(s) No. 4
                      =============================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                          Date : 17/11/2025
                                                          ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Siddharth Rami waives service of notice of rule for Respondent Nos.1 to 3. Learned advocate Mr.H.S.Munshaw waives service of notice of rule for respondent No. 4.

2. Heard learned advocate Mr. Viabhav A. Vyas, for the petitioner, learned Asst. Government Pleader Mr. Rami for respondent No. 1 to 3, and learned advocate Mr. H.S.Munshaw for respondent Nos.4 at length. With their consent, matter is taken up for final hearing.

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3. The present writ petition is filed under Articles 14, 16, and 226 of the Constitution of India, seeking the following reliefs :

"(A) Pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to grant the benefit of pay protection to the petitioner as is granted in case of other similarly situated persons, and (AA) Direct the respondent authorities to grant the benefit of pay protection to the petitioner as per the Government Circular dated 27.11.1997 upon her absorption/ appointment in Gujarat Diamond Development Board vide order dated 9.10.1997 and grant all consequential benefits including the arrears of pay and allowance, with interest at the rate which the Honourable High Court may consider just and proper in the facts and circumstances of the case.

                               (B)     Award the cost of this petition."


                      SUBMISSIONS OF THE PETITIONER :

                      4.       At    the     outset,      learned     advocate   Mr.Vaibhav           Vyas

appearing for the petitioner, would states that the grievance raised by the petitioner in the present petition is squarely covered by the judgment and order dated 22.04.2016, passed by the learned Single Judge of this Court in Special Civil Application Nos.1858 of 2011 and 4116 of 2011, which was partly disturbed by an Honorable Division Bench of this Court by way of its judgment and order dated 03.09.2025, passed in Letters Patent Appeal No.880 of 2016, whereby this Court granted the benefit of pay protection to similarly situated persons like the petitioner.

NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined 4.1 Learned advocate Mr.Vyas would further state that the petitioner was initially working in Gujarat State Textile Corporation Limited (for short, "GSTC") and, due to the closure of GSTC, being wound up in 1996, the petitioner absorbed into the service of the Diamond Development Board (for short, "DDB") and subsequently, the petitioner was absorbed by Respondent No. 4, i.e., Gujarat Water Supply and Sewerage Board, in the year 2006.

4.2 Learned advocate Mr.Vyas would further state that as per the State policy in the form of a circular dated 27.11.1997 issued by Finance Department of State of Gujarat, whenever any State Corporation/Undertaking wound up, an option given to its employees either to take the Voluntary Retirement Scheme (VRS) or to be absorbed in other establishments of the State, but with pay protection. He would emphasised upon Clause-C (7) of the aforesaid circular thereby, contended that once employee absorbed in other Corporation/Undertaking of State, such employee's pay requires to be protected.

4.3 Learned advocate Mr.Vyas would respectfully submit that petitioner was drawing a basic pay of Rs.1400/- in the pay-scale of Rs.1400/ - Rs.2300/ while serving in GSTC and when first absorbed in the DDB, but put into the pay-scale of Rs.950/ - Rs.1500/ and received Rs.950/ as basic pay instead of Rs.1400/, which is unjust, unfair, arbitrary, and contrary to the aforesaid circular issued by the State itself.

4.4 Learned advocate Mr.Vyas would further submit that in fact, the case of the petitioner was recommended by Page 3 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined Respondent No.4 vide its letter dated 04.01.2018, thereby requested to grant the benefit as per the aforesaid circular, but till date, no such benefit granted, such an action of State not granting benefit is violative of Article 14 of the Constitution of India.

4.5 Learned advocate Mr. Vyas would respectfully submit that when a Coordinate Bench of this Court, in its aforesaid decision, granted such benefit to similarly situated employees of GSTC absorbed in different State Undertakings, similar benefit requires to be granted to the petitioner by the respondents, and having not done so, its action is in violation of Articles 14 and 16 of the Constitution of India.

4.6 Learned Advocate Mr. Vyas would further submit that when any decision is taken by policy in the form of a circular by State, it would be bounden duty of the State, being a model employer, to grant the benefit of such circular/policy to all its employees/beneficiaries fall within its purview and cannot pick and choose between them. It is respectfully submitted that mere delay in approaching this Court to claim such pay protection by the petitioner would not, ipso facto, disentitle her to claim the benefits of the aforesaid circular, inasmuch as, no prejudice would cause to the State if directed to consider the case of the petitioner along with other similarly situated persons.

4.7 Finally, learned advocate Mr.Vyas would submit that when any action of the State is found to be arbitrary and in Page 4 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined violation of Article 14 & 16 of the Constitution of India, such unconstitutional act of the State needs to be corrected by this Court by exercising its discretionary power under Article 226 of the Constitution of India by issuing appropriate Writ to respondents.

SUBMISSIONS OF THE RESPONDENTS :

5. Per contra, learned Assistant Government Pleader, Mr. Siddharth Rami, would candid and unable to dispute the fact that petitioner's claim covered by above referred decisions of this Court, but he would vehemently oppose this petition, contending, inter alia, that petitioner was absorbed in the service of the DDB on 09.10.1997, and till the order passed by the Coordinate Bench of this Court in the aforesaid writ petitions, no grievance voiced by the petitioner to claim such benefit, i.e., pay protection. Thus, due to delay and laches on the part of the petitioner in claiming such benefit, the petitioner is not entitled to claim any benefit of the aforesaid circular.

5.1 Learned Assistant Government Pleader Mr. Rami would further submit that as per the settled legal position of law, a fence-sitter would not be entitled to receive the benefit of any judgment passed in the matter of similarly situated persons, inasmuch as, if such judgment is not passed in rem, the petitioner, as a matter of course, cannot claim similar benefit after the passage of two decades.

NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined 5.2 Learned Assistant Government Pleader Mr. Rami would submit that as per the judgment and order passed by the Division Bench of this Court as submitted aforesaid, petitioner even not entitled to claim any higher pay-scale and what was preserved by Division Bench is protection of the pay of the absorbed employee.

5.3 Lastly, learned Assistant Government Pleader, Mr. Rami, would submit that, in any case, the petitioner is not entitled to claim any relief in the matter, but still, if this Court thinks it fit to grant such benefit of pay protection, the petitioner is not entitled to claim any interest on such amount which may be paid to the petitioner.

5.4 In support of his submission, learned AGP relied upon the judgment of the Honourable Apex Court in the case of State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others -2015 (1) SCC 347.

6. Learned advocate Mr.Munshaw appearing for Respondent No. 4, adopted the arguments so canvassed by learned Assistant Government Pleader Mr. Rami.

7. No other submissions have been made by the learned counsels for the parties.

ANALYSIS :

8. Having heard learned advocates for the respective parties, the undisputed fact that emerges from the record that Page 6 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined the case of the petitioner is so similar to the case of the petitioner of Special Civil Application Nos.1858 and 4166 of 2011, decided by a Coordinate Bench of this Court (Honourable Mr. Justice J. B. Pardiwala, as his lordship then was) in its judgment and order dated 22.04.2016, which partly modified by the Division Bench of this Court in its judgment and order dated 03.09.2025, passed in Letters Patent Appeal No.880 of 2016. But the fact remains that the protection of pay of the concerned petitioners not disturbed by the Division Bench, only disturbed the part of the judgment whereby higher pay considered to be paid to the concerned petitioner. As noted hereinabove, learned advocate Mr. Vyas candid in his submission that the petitioner is not asking for any higher pay scale, but confined the prayers as made in this petition to the effect that whatever benefit of pay protection available to the petitioner pursuant to the circular dated 27.11.1997 of State, can be granted to her.

9. Thus, in view of the aforesaid facts and circumstances, and in view of the aforesaid judgment and order passed by the Coordinate Bench and Division Bench of this Court, and so also after going through the circular dated 27.11.1997, issued by the Finance Department, State of Gujarat, more particular its Clause-C-7, it is very much clear that when the petitioner was absorbed in the service of DDB, her pay ought to have been protected, whereby she was entitled to receive basic pay of Rs.1400/- instead of Rs.950/-.

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10. Further, it is also required to be taken note of the fact that Respondent No.4 herein, vide its letter dated 04.01.2018, recommended the case of the petitioner to grant the benefit of pay protection as per the aforesaid circular, which appears not to have been considered by the respondent till date. At least not justified reasons assigned by State, having not granted benefit of pay protection to petitioner.

11. In view of the aforesaid facts and circumstances of the case, according to my view, the petitioner is entitled to get at least a basic pay of Rs.1400/- when absorbed in the service of DDB on 09.10.1997.

12. So far as the resistance of learned AGP, Mr. Rami, about not to grant the aforesaid relief in favour of the petitioner on the ground of delay and laches and so also aforesaid judgement of this Court relied upon, not passed in rem but passed in personam is concern, it is true that petitioner having absorbed in year 1997 till 2017, never demanded basic pay of Rs.1400/ though put in pay scale of Rs. 950/, but raised her grievance after aforesaid decision passed by Co-ordinate bench of this Court that her pay also to be protected when absorbed in the service of DDB.

13. To buttress his aforesaid argument, learned Assistant Government Pleader relied upon the judgment of Arvind Kumar Srivastava (supra) and emphasized what held by the Apex Court in paragraph 22 of said decision, which reads as Page 8 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined under:

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India . On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

(emphasis supplied) Page 9 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined

14. True, ordinarily when any person-petitioner approaches this Court by significant delay and his/her action suffers from such delay/laches, this Court well within its discretion to deny the benefit to such petitioner having approached be lately. Nonetheless, it is not an absolute proposition of law that every writ petition filed with delay/laches needs to be dismissed. There is no universal application of law in this regards. This Court in appropriate cases may exercise its discretion in favour of writ petitioner by issuing appropriate Writ, when found decision/action of respondent statutory authority per se illegal, arbitrary, in violation of fundamental right of citizen, contrary to own policy/resolution/circular especially when none would be affected - prejudiced by such invocation of power except violator i.e. respondent-State.

15. As observed above, in the present case, it is not in dispute that as per Government Circular dated 27.11.1997, pay of petitioner is required to be protected when absorbed in service. The State, being a model employer, cannot disown the right of its employee - petitioner merely because she approached this Court be lately having raised her claim in year 2017 instead of 1997 itself. When any policy formed by the respondent State, thereby accorded its sanction to provide some relief to its employee, especially when the service of its employee is going to be affected due to the closure of any establishment, according to my view, not granting such benefit of policy would be in violation of Article 14 of the Constitution of India.

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16. As such, it was incumbent upon the respondent State to put the service of the petitioner in the basic pay of Rs.1400/ when absorbed in the year 1997, and having not done so, it would be an arbitrary action. But, later in point of time, when this Court, in the aforesaid decisions, granted such benefit to other similarly situated persons, there is no harm in claiming and getting such benefit by the petitioner, inasmuch as, such benefits not flow due to aforesaid decisions but such decision passed by this Court based upon State own circular/policy. Having considered such aspect of the case, according to my view, by granting the relief as per aforesaid circular in favour of the petitioner, neither any serious prejudice would cause to the interest of the respondent State nor anyone other than State be affected in any manner whatsoever except financial burden putting upon shoulder of State, which otherwise accepted such liability when passed the aforesaid circular.

17. Thus, in view of the aforesaid, when any legitimate dues of the employee is denied by the State, being a model employer, the objections raised by the State about delay and laches in approaching this Court are not sustainable in law. Even the claim of petitioner would sustainable as per aforesaid circular and so also aforesaid decision of this Court would squarely covered her claim, which would only reinforce the sustainability of the claim of petitioner. As such, the ratio of the decision of the Apex Court in the case of Arvind Kumar Srivastava (supra) would not ipso facto apply to the facts of the present case; rather, as observed in paragraph 22.1 thereof, whenever there is a discriminatory action of the Page 11 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025 NEUTRAL CITATION C/SCA/5548/2018 JUDGMENT DATED: 17/11/2025 undefined respondent State found to be in violation of Article 14 of the Constitution of India, benefits given to other similarly situated persons requires to be given to the petitioner as well.

18. In view of foregoing reasons, I am not at all impressed by any of submissions so canvassed by learned Assistant Government Pleader Mr. Rami, thus, rejected. Consequently, petitioner would entitle to get relief in form of pay protection as claimed.

CONCLUSION:

19. The upshot of the aforesaid observation, discussion and reasons is that the claim made by the petitioner to grant benefit of pay protection by way of this present petition requires to be allowed, which is hereby allowed.

20. Thus, I pass the following order/direction:

(i) The respondents are hereby directed to consider the claim of the petitioner of protecting her pay to Rs.1400/-, being basic pay instead of Rs.950/-, when absorbed in the service of DDB on 09.10.1997, as per Government Circular dated 27.11.1997, accordingly grant all consequential benefits on the basis of the aforesaid basic pay, i.e., Rs.1400/- and allowances thereon.

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(ii) Such calculation of all consequential benefits and arrears to be paid to the petitioner by the respondents concerned on or before 15.02.2026, failing which the petitioner is entitled to receive such amount with interest at the rate of 9% p.a. from 16.02.2026, till its realization.

(iii) It goes without saying that the respondent authority is required to refix the amount of retirement benefits as well and arrears of difference of retirement benefits after re-fixation of the pay scale of the petitioner be also undertaken by the respondent authorities on or before 15.02.2026, and the same shall also be paid to the petitioner, failing which the petitioner is also entitled to receive 9% p.a. interest on such arrears of retiral benefits from 16.02.2026, till its realization.

21. In view of the foregoing conclusions, the present writ petition is hereby partly allowed to aforesaid extent. Rule is made absolute, accordingly. No order as to costs.

22. Direct service is permitted.

(MAULIK J. SHELAT, J) GAURAV J THAKER Page 13 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 01:57:42 IST 2025