Gujarat High Court
Yashwant K Tadvi vs State Of Gujarat on 27 November, 2025
NEUTRAL CITATION
C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6046 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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YASHWANT K TADVI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. SHIVANI J. BAROT, ADVOCATE FOR
MR PA JADEJA(3726) for the Petitioner(s) No. 1
MS. FORUM SUKHADWALA, ASST. GOVERNMENT
PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/11/2025
ORAL JUDGMENT
[1] With the consent of the learned advocates for the appearing parties, the present writ petition is taken up for hearing.
[2] Heard Ms. Shivani J. Barot, learned advocate for Page 1 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined Mr. P.A.Jadeja, learned advocate for the petitioner as also Ms. Forum Sukhadwala, learned Asst. Government Pleader for the respondents - State and its authorities. [3] The present Writ Petition is filed under Articles 14, 16, and 226 of the Constitution of India, seeking following reliefs:
"A) Quashing and setting aside the letters dt.27.1.2011 and order dt.21.12.1998 and directing the Respondents to grant the second higher grade scale in accordance with the Resolution dt.2.7.2007. B) Declaring that the refusal of "transfer" from the post of senior clerk to the post of senior clerks (Accounts) vide order dt.16.11.98 by the petitioner is not refusal of "promotion" within the scheme of the higher grade scale, and directing the Respondents to grant the benefits of the higher grade scale to the petitioner on the basis that it was not refusal of promotion and to pay the consequential amounts with 12% interest, including pensionary benefits. C) During the pendency and final disposal of this petition, the Respondent No.2 may be directed to consider the case of the petitioner for the grant of higher grade scale as if the petitioner had not refused promotion at any time.
D) To grant such and further relief as may be deemed fit and proper."
[4] Ms. Shivani J. Barot, learned advocate for the petitioner would submit that the impugned order dated 21.12.1998 passed by the respondent-authority is dehors the Rules framed by the respondent - State, inasmuch as, it is contrary to the Government Resolution dated 16.08.1994, whereby, employee/s entitle/s to receive a higher pay scale Page 2 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined irrespective not report to duty at transfer place. [4.1] It is submitted that the petitioner was working as a Senior Clerk with the respondent and was served with an order of transfer to Ahmedabad from Baroda for the purpose of carrying out the duty of Senior Clerk (Accounts), but due to his personal reasons and on his request, the respondents - authorities have cancelled the order of transfer but vide its order dated 21.12.1998 held that petitioner is not entitled to get any promotion in future and his name not be added in the seniority list for transfer to post of Senior Clerk (Account). Further, it has been observed that any higher pay-scale already awarded to the petitioner, requires to be taken back/withdraw from him.
[4.2] It is respectfully submitted that nowhere in G.R. dated 16.08.1994, any reference is made by the State that in a case where employee refused to join the duty at transfer place and in a case where such transfer stands cancelled by the competent Authority, in that eventuality, employee concerned will not entitle to either claim higher pay scale or such benefits will be withdrawn from employee concerned. [4.3] Ms. Barot, learned advocate would respectfully Page 3 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined submit that in the aforesaid facts, when there is no statutory rules entitled the respondents to withdraw the benefits of higher pay scale, thereby, impugned order suffers from without authority, without jurisdiction, and arbitrary, requires to be quashed and set aside. It is further submitted that despite there is repeated representations submitted to respondent authority, it was not taken note by the competent authority, which resulted into miscarriage of justice. [4.4] Ms. Barot, learned advocate would further submit that on getting appropriate information from the respondent authority which confirmed that transfer post where petitioner did not join the duty, was not a promotional post, inasmuch as, Senior Clerk and Senior Clerk (Accounts) considered to be a same post, thus, provisions of denial of higher pay scale attached in a case where employee refused to take promotion, would not apply in the case on hand.
[4.5] Lastly, Ms. Barot, learned advocate would respectfully submitted that considering length of service of petitioner till his retirement in year 2009, petitioner would also entitled to receive benefit of 2 nd higher pay scale. It is submitted that denial of such higher pay scale by respondent Page 4 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined authority under wrong premise, requires to be set at naught by this Court.
[4.6] Ms. Barot, learned advocate for the petitioner would request this Court to allow the present Writ Petition as prayed.
[5] Per contra, Ms. Forum Sukhadwala, learned AGP would request this Court not to entertain the present Writ Petition only on the ground that the order impugned is not passed without jurisdiction, inasmuch as, when petitioner himself refused to join at the transfer post, in that event, competent Authority entitled to pass impugned order whereby, his future promotion or the benefits flowing there from stood withdrawn.
[5.1] Learned AGP would further submit that when petitioner did not join the post of Senior Clerk (Accounts), thereafter, he would not be considered for any future promotion on the post of Asst. Superintendent (Division). It is submitted that when any person working as a Senior Clerk does not accept the post of Senior Clerk (Accounts), he cannot be considered for the next promotional post. Page 5 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025
NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined [5.2] It is submitted that as per the provisions of G.R. dated 16.08.1994 and so also, G.R. dated 02.07.2007, which relied upon by the petitioner himself, would disentitle him to claim any higher pay-scale, rather, he is required to return back such benefits which accordingly did so by passing impugned order by the respondent authority. [5.3] Making the above submissions, Ms. Forum Sukhadwala, learned AGP would request this Court to reject the present Writ Petition.
[6] Having heard the learned advocates for the respective parties and after considering their respective pleadings and documents placed on record, the following emerges:-
[6.1] The petitioner was serving as a Senior Clerk with respondent at Vadodara, who transferred from Vadodara to Ahmedabad vide order dated 16.11.1998 but on his request, such transfer was recalled by the respondent and passed the impugned order dated 22.12.1998 whereby, it was observed that the petitioner will not entitle to claim any future promotion and he will not be even included in the seniority list for transfer to post of Senior Clerk (Account). Page 6 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025
NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined [6.2] Apart from the aforesaid, by impugned order, respondent authority withdrawn the benefits of higher pay- scale already enjoyed by the petitioner from 11.12.1990 till passing of impugned order and ultimately, recovery sought from the petitioner and in fact, effected by respondents. [6.3] The basic premise, under which impugned order came to be passed, was that when petitioner refused to join at transfer post as a Senior Clerk (Accounts), he would not be entitled to claim future promotion and having denied such benefits of promotion, as per the provisions of the G.R.s dated 16.08.1994 and/or 02.07.2007 as the case may be, petitioner would not be entitled to receive any higher pay scale. As the petitioner granted higher pay-scale prior to passing of impugned order as aforesaid, the same was withdrawn and such benefits were also recovered from him.
[7] When this Court has analyzed the aforesaid Government Resolutions, nowhere it has been found that in a case where employee did not join at transfer post or in a case where on request of employee, such order of transfer recalled by the respondent - authority, in that eventuality, such employee would not entitle to receive any higher pay-scale. Page 7 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025
NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined The respondents- authorities have completely misconstrued themselves by wrongly interpreting provisions of the aforesaid Government Resolutions. As per said Government Resolutions, it only suggests that in a case where, when promotion given to employee and he denied to receive such promotion, in that eventuality, the benefits of higher pay-scale given to him shall be withdrawn, but not otherwise.
[8] The facts which are observed hereinabove and discernible from the record, indicate that post where petitioner was serving as Senior Clerk and post where he was transferred i.e. Senior Clerk (Accounts) was the same - equal and in any case not promotional post. Ms. Shivani Barot, learned advocate for the petitioner has drawn the attention of this Court to the reply received by the petitioner in RTI from respondent - authority and as such, said fact is not disputed by the learned AGP, rather unable to counter such submission of learned advocate of petitioner.
[9] Undoubtedly, when above is the factual aspect and the scenario, the respondents - authorities have completely misdirected themselves by considering that when transfer order was recalled, thereby, petitioner refused to avail Page 8 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined promotion, which entitled the respondent - authority to withdraw the benefits of higher pay-scale availed by the petitioner.
[10] According to my view, order impugned is passed dehors the aforesaid resolutions and not backed by any statutory Rules framed by the respondent - State to take away the benefits of higher pay-scale already availed by the petitioner. The impugned order having found without any jurisdiction, arbitrary and contrary to law, thus, not sustainable in law.
[11] When this Court has come to this definite conclusion that petitioner could not have been deprived to receive higher pay-scale and in fact, in the present case, petitioner had receive 1st higher pay-scale w.e.f. 11.12.1990, such benefit requires to be repaid to petitioner, and accordingly requires its resumption, which I do so. On restoration of such benefits of 1 st higher pay scale, as a matter of course, considering the G.R. dated 16.08.1994 and / or G.R. dated 02.07.2007 as the case may be, petitioner is also entitled to receive 2nd higher pay-scale as he retired from service w.e.f. 30.04.2009, thereby, he completed more than 15 Page 9 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined years of service from the date of receipt of 1 st higher pay-scale i.e. 11.12.1990.
[12] It is true that such impugned order came to be passed in the year 1998, whereas, the present petition is filed in the year 2011, but at the same time, when any benefits which were wrongly withdrawn and not granted from/to the petitioner - employee concerned i.e. pay scale, he at the given point of time, might have engaged with the respondent - authority, by making various representations and before filing writ petition, approached this Court in the year 2009, in none of these circumstances, can be denied to secure relief i.e. pay scale. According to my view, the legitimate right of the petitioner employee to receive higher pay-scale which has direct bearing on entitlement of his pension, such right of the petitioner cannot be jeopardized, merely approaching this Court belatedly as per settled law, right to receive higher pay scale and or pension is fundamental right and it would be treated as continuous cause of action for petitioner to get such relief.
[13] At the same time, when petitioner having not approached this Court at given point of time in year 1998 Page 10 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined when impugned order passed, rather made various representations with the authorities whereby came late before this Court, according to my view, considering aforesaid peculiar facts and circumstances of the present case, petitioner is not entitled to receive interest on the amount which this Court is going to direct the respondent to pay to the petitioner otherwise entitled to receive by petitioner as and when it accrued as per aforesaid Government Resolutions. Thus, the claim of interest on such amount (arrears amount) is hereby rejected / denied. Nonetheless, such amount requires to be paid by respondent authority without any delay, failing which entail with payment of interest thereon from date of default.
[14] Having found petitioner entitle to receive benefits of 1st and 2nd higher pay scale and consequently its pension requires to be recalculated then, all such benefits require to be paid to petitioner by respondents.
[14.1] The calculation of 1 st and 2nd higher pay-scale be carried out by the respondent - authority including amount so far recovered from petitioner pursuant to impugned order dated 21.12.1998 as early as possible and released all Page 11 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025 NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined consequential benefits flowing thereof including arrears on or before 28th February, 2026, failing which, petitioner is entitled to receive interest @ 6% from 01.03.2026, on aforesaid benefits.
[14.2] The respondents - authorities are also required to re-calculate the amount of pension available to the petitioner after giving effect of 1st and 2nd higher pay-scale in the pensionable pay of the petitioner and accordingly, arrears of pension amount also be calculated and released in favour of the petitioner on or before 28 th February, 2026, failing which, petitioner is also entitled to receive interest @ 6% from 01.03.2026, on aforesaid pensionary benefits. [15] Thus, upshot of the aforesaid observations, reasons and conclusion, the impugned order dated 21.12.1998 and communication dated 27.01.2011 are hereby quashed and set aside and thereby, it is held that the respondent - authority has wrongly withdrawn the higher pay-scale which was already availed by the petitioner and so, wrongly denied benefit of 1st and 2nd higher pay scale, which ultimately affect his entitlement to receive pension as aforesaid. Page 12 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025
NEUTRAL CITATION C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025 undefined [16] Resultantly, the present Writ Petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J) Lalji Desai Page 13 of 13 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:11:39 IST 2025