State Of Gujarat vs Jitendrabhai L Serkhedi
2021 Latest Caselaw 10364 Guj

       C/LPA/61/2021                                       ORDER DATED: 03/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO.                  61 of 2021

       In R/SPECIAL CIVIL APPLICATION NO. 15971 of 2013

                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
             In R/LETTERS PATENT APPEAL NO. 61 of 2021
==========================================================
                           STATE OF GUJARAT
                                Versus
                 JITENDRABHAI L SERKHEDI & 1 other(s)
==========================================================
Appearance:
MR TIRTHRAJ PANDYA, AGP (1) for the Appellant(s) No. 1
 for the Respondent(s) No. 2
MR RATILAL V SAKARIA(6613) for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                   Date : 03/08/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and order dated 07.12.2018, passed by the learned Single Judge (Coram : A.J. Shashtri, J.), in SCA No. 15971 of 2013, the appellant, State has preferred this appeal under Clause 15 of the Letters Patent.

2. Heard Mr. Tirthraj Pandya, learned AGP for the appellant, Mr. Ratilal Sakaria, learned advocate for respondent no.1 and Mr. Hemant Munshaw, learned advocate for respondent no.2.

3. The following facts emerge from the record of

C/LPA/61/2021 ORDER DATED: 03/08/2021

the appeal -

3.1 That the respondent no.1 was appointed as Khadi Karyakar in Jilla Sarvoday Yojna, Pariyad with effect from 01.11.1979 in the pay scale of Rs.170-250/- as per Government Resolution dated 17.05.1978, which was revised up to Rs.300-560/-. It is a matter of record that Sarvodaya Yojna was closed on 31.08.1981 and the respondent no.1-original petitioner was absorbed as Khadi Karyakar in the same post and same pay-scale and allowances, but without any promotion and retirement benefits. The respondent no.1-original petitioner made representation to the Government and the G.R. dated 15.12.1987 came to be passed wherein all the Sarvodaya Yojana employees were absorbed on regular basis and the original petitioner was reverted back to the post of Jr. Clerk from the original post of Khadi Karyakar. The services of the original petitioner was counted from 01.04.1987. Thereafter, vide order dated 31.12.1987 passed by the respondent no.2, the respondent no.1-original petitioner was appointed as Junior Clerk and came to be superannuated with effect from 31.12.2008.

3.2 The record indicates that as the appellant calculated the services of the original petitioner from 01.04.1987, the original petitioner approached this Court by way of filing SCA No. 18601 of 2007, which came to be disposed of by directing the respondents therein to consider the petitioner therein to be entitled for benefit of 4 th and 5th pay commission.

C/LPA/61/2021 ORDER DATED: 03/08/2021

3.3 The respondent no.2 acting upon the same, gave pensionary benefits and initial appointment in Sarvodaya Yojna and 4th and 5th pay-scale from 01.09.1981. It was the case of the respondent no.1- original petitioner that he was entitled to first higher pay-scale from 01.09.1990 and second higher pay-scale from 01.09.2005 instead of 01.04.1987. The respondent no.1 herein preferred SCA No. 15971 of 2013 with a prayer to quash the Resolution dated 21.06.2012. The learned Single Judge considered the contentions raised by the parties to the petition and observed that the case of the original writ petitioner is covered by the judgment in SCA No. 17724/16 and allied matters, which came to be allowed along with allied matters vide judgment and order dated 03.08.2018 and the petition came to be allowed and being aggrieved by the same, the present appeal is filed.

4. Mr. Pandya, learned AGP contended that the impugned decision dated 21.06.2012 is in form of a policy decision and for welfare of the petitioner and therefore, the learned Single Judge ought not to have allowed the writ petition. Mr. Pandya, learned AGP for the appellant has contended that the services rendered by the original writ petitioner ought to have been counted as the said department/office was closed. It was also contended by Mr. Pandya that the respondent no.1-original writ petitioner was taken up on cadre post only on 01.04.1987 and therefore, it was contended that the respondent no.1-

C/LPA/61/2021 ORDER DATED: 03/08/2021

original writ petitioner was not entitled to the same benefits. On the aforesaid grounds, it was contended by Mr. Pandya, learned advocate appearing for the appellant that the appeal requires consideration.

5. Mr. Munshaw, learned advocate appearing for respondent no.2 has adopted the arguments of Mr. Pandya, learned AGP.

6. No other or further contentions have been raised by the learned advocates for the parties.

7. Before reverting to the submissions made by the learned AGP that one of the ground raised in the memo of the appeal refers to the order dated 03.08.2018 passed by the learned Single Judge of this Court in SCA No. 1270/14 and it is contended by that the said judgement which is relied upon by the learned Single Judge while dismissing the petition has been challenged by way of an appeal. It deserves to be noted that in para 4 of the impugned judgment, it is clearly observed by the learned Single Judge that the issue involved in this writ petition is identical to the issue which was there in SCA No. 17724 of 2016, which has been allowed by order dated 03.08.2018. The said fact has already been verified by the learned AGP who appeared before the learned Single Judge as observed in para 5 of the impugned judgment and order. Relying upon the observations made by the learned Single Judge in SCA No.17724/16, the learned Single Judge while allowing the writ petition, has observed thus in para 7 -

C/LPA/61/2021 ORDER DATED: 03/08/2021

7. In aforesaid set of circumstances, this group of petitions also is ordered to be disposed of on the similar line as has been broadly submitted before the Court. Accordingly, the impugned resolution dated 21.6.2012 is hereby quashed and set aside, with a further direction that amount of higher pay scale may not be recovered and the petitioner's case may be considered for grant of benefit of higher pay scale, as most of them have by-now retired. Since similar is the position, the decision which has to be taken by the respondent authority, shall be taken within a period of three months from the date of receipt of the writ of this Court for grant of higher pay scale as may be admissible on the basis of continuity of service counted from the original date of appointment and the respondent authority shall pass a reasoned order."

8. It is pertinent to note that SCA No. 17724/16 came to be challenged by way of LPA No. 20/20. The same was heard along with allied group of appeals, i.e., LPA No. 16/20 being the lead appeal where similar set of circumstances arose. The said group of appeals filed by the appellant herein was rejected by the coordinate bench of this Court vide judgment and order dated 06.01.2020. Having agreed before the learned Single Judge that the issue involved in the writ petition is identical to SCA No. 17724/16, the appellant cannot be permitted to now raise a contention that the same is not identical. Even on verification of the facts as existed in writ petition being SCA No. 17724/16 is concerned, the contention raised in this petition and the issue involved in this writ petition are identical to the said matter and as aforesaid, even the Letter Patent Appeal being

C/LPA/61/2021 ORDER DATED: 03/08/2021

LPA No. 20/20 filed against the judgment and order rendered by the learned Single Judge in SCA No. SCA No.17224/16 dated 03.08.2018 has already been dismissed.

9. Mr. Pandya, learned AGP appearing for the appellant has not been able to even remotely show that the facts are different. At this stage, it deserves to be noted that the judgment rendered by the learned Single Judge came to be challenged by way of appeal being LPA No. 20/20, which was heard with other group of allied appeals and LPA No. 16/20 being the lead matter. The Hon'ble Division Bench while dismissing the appeal has considered the identical issue involved in this appeal as well and has observed thus-

14. Having heard the learned advocates appearing for the parties and having gone through the material on record placed before us, we may observe from the impugned order, in the Letters Patent Appeals, was passed at length by the learned Single Judge after considering all the Government Resolutions and the circulars pressed during the course of hearing. Further, following a careful analysis of the said regulations, a view is taken which in any form cannot be said to be perverse or arbitrary. The order impugned prima facie does not reflect any irregularity.

15. Apart from this, even if we independently look at the controversy generated, a bare look at the very scheme floated way back in the year 1948, if observed, shows that the same was aimed to uplift persons of backward class and overall developments of selected backward areas on the basis of the Sarvodaya ideology. This benevolent scheme appears to

C/LPA/61/2021 ORDER DATED: 03/08/2021

have been continued for a pretty long period, even after the establishment of the State of Gujarat on 1.5.1960. We have perused that these centers where the scheme was run were increased to the extent of 101 centers over a period of time and this Scheme was with the support of a 100% Government grant from the State of Gujarat. Therefore, this was a limb of the State, where these original petitioners worked. We have also seen from the record that the controversy here is with regard to the issue of whether these employees' services prior to their absorption in the Panchayat services can be counted as continuous service for pensionary benefits or not. The issue which confronted in the past, around the year 1996, has been dealt with in a group of petitions. It was observed by this Court in a judgment delivered in Special Civil Application No.1696 of 1997 and allied matters, which is deemed proper to reproduce hereinafter: - "3. The contention of the petitioner is that initially there was a scheme originally called as "Sarvodaya Yojna and each of them were employed for the activities of scheme. Undisputedly Sarvodaya Yojna had Government sponsorship. It is inter alia contended that there services in the Sarvodaya Yojna should be taken into account and will be considered as continuous service under the respondent - District Panchayat.

7. . ...................................... .........The State is directed to consider the services rendered by present petitioners from their initial date of appointment when they were absorbed in the Panchayat cadre i.e. from the year 1980-81 till the date of retirement or otherwise for pensionary benefits as continuous service. Further, it is observed that this period should be treated to grant pensionary benefit only and they will not be entitled to claim any cash or other financial benefit. I am told that the

C/LPA/61/2021 ORDER DATED: 03/08/2021

present petitioner were given other benefits like leave et. For their earlier services with Sarvodaya scheme."

16. We have found it very curious to see that in this case, the stand of State in considering pensionary benefits, this past tenure is considered as continuous service, whereas for grant of other benefits, the same is not to be counted. The submission made by the learned Assistant Government Pleader is found to be illogical and irrational, and hence, it is not possible for us to accept it.

17. We have also seen the decision delivered by this Court in Special Civil Application No.14642 of 2003, decided by the Court vide order dated 19.4.2004. There also the observations made are sufficient to indicate that no illegality was committed by the learned Single Judge in relying upon it. On the contrary, in the said decision, it was categorically observed that the stand taken by the authority with regard to the undertakings given by the petitioners cannot be accepted to their disadvantageous position. The same was found to be absolutely unjust and improper. Now, that order has attained finality. As stated before us, and in another identical situation, another Bench delivered a decision on 16.10.2001 in Special Civil Application No.1696 of 1996. The effect of this was also appropriately considered and dealt with by the learned Single Judge. We see no infirmity with the view taken by the learned Single Judge. Detailed observations made by the learned Single Judge in considering the grievance, have been found to be just and proper. We deem it proper to reproduce the said conclusion relevant hereinafter: -

"11. As could be seen from the background of the facts, the petitioners were appointed in Sarvodaya Yojna, which was closed w.e.f. 31.8.1981. Thereafter, pursuant to the earlier litigation the similarly situated persons who had preferred SCA 1696/1996 and the allied group

C/LPA/61/2021 ORDER DATED: 03/08/2021

of matters were allowed by the High Court (Coram: C.K.Buch,J) vide judgment and order dated 16.10.2001. The fact remains that the persons like the petitioners were taken in panchayat services but they were not initially absorbed and ultimately they were absorbed w.e.f. 1.4.1987. Therefore, the persons like the petitioners had approached the High Court by way of SCA 14642/2003 and the High Court (Coram: Akshay Mehta,J) vide judgment and order dated 19.4.2004 quashed and set aside the Resolution dated 15.12.1987 with an observation that the employees who were compelled to give an undertaking in terms of Resolution dated 15.12.1987 with regard to the absorption on the post having lower pay scale would not be justified and therefore directions were given to put them in the pay scale with continuity of service. It has been observed:

"However, this Court allowed the petitions and directed the respondents that such service should also be taken on the record. Thus this Court has consistently taken view to the effect that the respondents could not compel the ex- cadre employees under the Scheme on the basis of the undertaking which was obtained from them in accordance with the term of the Resolution dated 15th December 1987. If that be so, in the present case also, the stand taken by the respondents with regard to the undertaking given by the petitioners cannot be accepted. When the petitioners have been put in disadvantageous position, it was absolutely, unjust, improper on the part of the respondents to extract an undertaking from them."

12. Similarly, in earlier petition being SCA 1696/1997 the High Court (Coram: C.K.Buch,J) vide judgment and order dated 16.10.2001 has considered the same issue and has made the observations that the persons like the petitioners who were surplus due to the closer of the Sarvodaya Yojna could be accommodated elsewhere in panchayat service and the undertaking should not be insisted upon.

C/LPA/61/2021 ORDER DATED: 03/08/2021

It is in these background the Resolution issued by Panchayat Housing and Urban Development Department, Gujarat State dated 30.7.1981 is required to be considered. In the said Resolution, it has been specifically stated that on closer of the scheme, the employees and the Teachers were ordered to be absorbed during the course of the court proceedings. Therefore, the aforesaid Resolution came to be issued and in this Resolution itself it has been observed that those employees who have completed one year of service as on 31.8.1981 may be absorbed in the panchayat service as excadre employees. Meaning thereby they were ordered to be absorbed in the services. Thereafter, another Resolution dated 26.7.2005 came to be issued in light of the judgment and order of the High Court as stated above specifically taking note of the fact that the undertaking has not been believed or accepted by the High Court and it has also been stated that in some cases the benefit of continuity of service for the purpose of pension has been granted.

It is in these background the submissions which have been made by the learned AGP referring to the further affidavit-inreply that the judgment of the High Court in SCA 1696/1996 is misread and the court had directed the government to consider the case only for the purpose of pension. Meaning thereby the benefit of higher pay scale was not covered and therefore it may not have any application is required to be considered. At the same time, as it appears the government has issued a circular dated 30.7.1981 for the employees of the Sarvodaya Yojna who have been absorbed as an ex-cadre employees of the panchayat. Therefore, the Government Resolutions dated 16.8.1994 and 2.7.2007 have to be rad in the background of the facts. The GR dated 16.8.1994 has a reference to provide the benefit of higher pay scale to the employees who had limited chances of promotion and the reference is made in Clause 3(15) that the services rendered previously in other

C/LPA/61/2021 ORDER DATED: 03/08/2021

departments shall not be counted. Similarly, GR dated 2.7.2007 has a reference to providing a benefit of higher pay scale, where also, the reference is made to the GR dated 16.8.1994 of the Finance Department and for the purpose of granting the benefit of 12 years and 24 years benefit the services of the surplus employees in previous departments would not be considered. However, these are the Resolutions worked out for the purpose of providing benefit to the employees in general as a matter of policy. However, in the facts of the case, on closer of the Sarvodaya Yojna when the persons like the petitioners have been directed to be absorbed in pancayat service as an ex-cadre and when they have been rendering the service since 1981, there is no justification for not counting such services for the purpose of benefit of the higher pay scale particularly when the GR dated 15.12.1987 has been quashed and set aside. 13. The submissions which have been made that the benefit could be considered only from the date of actual absorption in the panchayat service in 1987 and the certificates rendered earlier should not be reckoned is misconceived for the simple reason that though the order of absorption may have been in 1987, the fact remains that they have been absorbed in the panchayat service effectively from 1981 and have been rendering the services. Therefore, the continuity of such service for the purpose of granting the benefit of the higher pay scale cannot be denied and it would not justify to refuse such benefit though such persons like the petitioners have been absorbed with the panchayat service and have been working there since 1981 or prior thereto. 14. The submission that the date of absorption should be the date on which they could be said to have born in the cadre has to be considered in peculiar facts of the case that they have been absorbed as an ex- cadre employee since 1981 or prior thereto. Therefore it is not the seniority but only for the purpose of benefit of higher pay scale, such services rendered by the persons like the petitioners cannot be ignored or overlooked. 15.

C/LPA/61/2021 ORDER DATED: 03/08/2021

It is in these circumstances, the observations which have been made and which have been relied upon in the earlier orders of the High Court could not be distinguished in the manner canvassed. The emphasis on the specific observation that the order of the High Court in SCA 1696/1996 was with regard to counting the continuity of service in case of the employees for the benefit of pension and it could not be counted for the purpose of higher pay scale or the financial benefit cannot be accepted. Therefore, when such services rendered with the panchayat after the absorption in the year 1981 or prior thereto could be considered for the purpose of pension, there is no justification for not considering the same for the other financial benefits. It is required to be stated that the GR dated 15.12.1987 has been set aside with specific observation that such undertakings given by the respective employees will not have any application. Therefore such services rendered by the employees cannot be ignored.

20. So far as the stand regarding depriving the original petitioners from the benefit of a higher pay scale/grade by treating them to be ex-cadre is concerned, we may look at the object of the scheme of the higher grade scale, pronounced by the Government of Gujarat, vide Government Resolution dated 16.8.1994. The ultimate aim is not to create a different class, rather to see that the employees who may not have a chance of further promotion and may be stagnated at the pay at a maximum stage, on account of such lack of promotional avenues are provided for with this higher grade scale in accepting the recommendation of the Central Pay Commission. Undoubtedly, these are the respondents who had been in services under the scheme floated and maintained on a 100% grant by the State Government, absorbed in Panchayat services on the same pay scale and posts. It is highly illogical to count their past services for pensionary benefits but not to count for higher pay scale, especially when these employees have actually worked. Therefore, we

C/LPA/61/2021 ORDER DATED: 03/08/2021

are of the considered opinion that the extension of such benefit appears to have been rightly granted by the learned Single Judge by looking at past judgments, also referred above.

24. Another circular dated 21.6.2012, is a clarification. As per Clause 3/15 of the Government Resolution dated 16.8.1994, as referred to above, and as per clause 2(11) of the Government Resolution dated 2.7.2007 of the Finance Department, the service of the surplus employees due to non-availability of the posts put in earlier Department cannot be considered. It has no legs to stand on, in view of the fact that these very circulars, i.e. circular dated 16.8.1994, as well as 2.7.2007 have been conjointly read and the benefits have been made available to several employees earlier. In view of this, there seems to be no justification in the stand taken by learned Assistant Government Pleader.

25. In the wake of the aforesaid situation, and the circumstances examined by the learned Single Judge and independently by us, we see no reason to interfere with the discretion exercised by the learned Single Judge. Every aspect has been appropriately dealt with. There seems to be no perversity or material irregularity of any nature. That being the position, we are not inclined to substitute the view taken by learned Single Judge.

26. At this stage, we refer to the relevant proposition of law laid down by the Apex Court on the issue of exercising the appellate jurisdiction. It has been clearly spelt out by the Apex Court that, "Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by learned Single Judge unless both sides agree for a fairer approach on the relief". Considering the aforesaid observation made by the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company reported in

C/LPA/61/2021 ORDER DATED: 03/08/2021

(2016)3 SCC 340, contained in para 5, we are not inclined to exercise our appellate jurisdiction. Accordingly, the Letters Patent Appeals, being merit-less, are dismissed with no orders to costs.

10. Even examining the facts arising out of this appeal and considering the contention raised in the petition, the case of the respondent no.1-original petitioner is squarely covered by the judgment rendered by this Court in LPA No. 20/20 and allied appeals, LPA No.16/20 being the lead appeal. It is a matter of fact that the Circular dated 21.06.2012 has been quashed and set aside and as rightly observed by the learned Single Judge, the respondent no.1- original writ petitioner would be entitled to higher pay-scale by counting the period of service from the original date of appointment without taking into consideration the circular dated 21.06.2012, which is set aside and has further observed that the service period for grant of higher pay-scale shall also be counted from the initial date, i.e., from the date of their appointment, as per the record, and accordingly second higher pay-scale shall be extended to the respondent no.1-original petitioner if he fulfills the other requisite conditions.

11. Following the binding decision of this Court in LPA No. 16/20 and allied appeals including LPA No. 20/20 filed against the judgment and order passed in dated 06.01.2020, no interference is called for. We are in total agreement with the reasoning given by the learned Single Judge. The appeal therefore is

C/LPA/61/2021 ORDER DATED: 03/08/2021

meritless and same deserves to be dismissed. However, time to comply with the directions issued by the learned Single Judge in para 7 of the impugned judgment is extended for a further period of three months from today. As the appeal is dismissed, the connected Civil Applications also stands dismissed.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) BIJOY B. PILLAI