Gujarat High Court
District Development Officer vs Ratnben Harisinh Sindha Wd/O. ... on 3 August, 2021
Bench: Mr. Justice R.M.Chhaya, Nirzar S. Desai
C/LPA/670/2021 ORDER DATED: 03/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 670 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3928 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 670 of 2021
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DISTRICT DEVELOPMENT OFFICER
Versus
RATNBEN HARISINH SINDHA WD/O. HARISINH SARDARSINH SINDHA
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 2
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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 13.03.2019, passed by the
learned Single Judge (Coram : N.V. Anjaria, J.), in
SCA No. 3928 of 2019, the appellant, District
Development Officer has preferred this appeal under
Clause 15 of the Letters Patent.
2. Heard Mr. H.S. Munshaw, learned advocate for the
appellant, Mr. Ratilal Sakaria, learned advocate for
respondent no.1 and Mr. Tirthraj Pandya, learned AGP
for respondent no.2 State.
3. The following facts emerge from the record of
C/LPA/670/2021 ORDER DATED: 03/08/2021
the appeal -
3.1 That the husband of the respondent no.1 was
appointed as Peon (Karyalay Sevak) with effect from
11.08.1975 and thereafter, he was appointed as Up
Sanchalak at Kalmsar Sarvodaya Yojna, Taluka
Khambhat, District Anand in the pay scale of Rs.70-
100/- as per Government Resolution dated 17.05.1978.
It is a matter of record that Sarvodaya Yojna was
closed on 01.09.1981 and all Sarvodaya Yojna
employees were treated as ex-cadre employees from
01.09.1981 and ultimately, such employees were
absorbed as Peon in the same post and same pay-scale
and allowances in the same District Panchayat, but
without any promotion and retirement benefits. The
record indicates that vide Resolution dated
15.12.1987, such employees were absorbed on regular
basis, i.e., reverting to the original post of Peon.
The services of the husband of the original
petitioner was counted from 01.04.1987. The record
further shows that an undertaking was taken, but was
withdrawn subsequently as per the circular dated
26.07.2005. Thereafter, vide order dated 25.01.1988
passed by the appellant, the husband of the
respondent no.1-original petitioner was appointed as
Junior Clerk and came to be superannuated with effect
from 30.06.2006.
3.2 The record indicates that as the appellant
calculated the services of the husband of the
original petitioner from 01.04.1987, the husband of
the original petitioner approached this Court by way
C/LPA/670/2021 ORDER DATED: 03/08/2021
of filing SCA No. 11754 of 2012, which came to be
disposed of by directing the appellant to decide the
representation dated 06.12.2011 within a period of
three months.
3.3 The appellant 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 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 original
petitioner relied upon the judgment of this Court in
the case of Balvantbhai M Trivadi Vs. State Of
Gujarat in SCA No. 1270/13 and allied matters and
similar issue came to be decided whereby this Court
was pleased to quash and set aside the Government
Resolution dated 12.06.2012. The learned Single
Judge considered the contentions raised and the
parties to the petition agreed before the learned
Single Judge as recorded in para 4 of the order
impugned that the case of the original writ
petitioner is covered by the judgment in the case of
Balvantbhai M. Trivadi (supra), which came to be
allowed along with allied matters vide judgment and
order dated 03.08.2018. Following the ratio laid
down by this Court in Balvantbhai M. Trivadi (supra),
the learned Single Judge observed thus -
"5. The ratio in Balvantbhai M. Trivadi (supra)
and Pravinbhai Kantibhai Goseliya (supra) would
apply in the facts of the present case. The
petitioner stands entitled to be granted the
C/LPA/670/2021 ORDER DATED: 03/08/2021
relief. Accordingly, the respondents are
directed to grant the first higher
pay-scale to the petitioner by counting the
period of service from the original date of
appointment without taking into account
the contemplation about not counting the
ex-cadre post service in Circular dated
21.06.2012 which is already set aside.
The service period for the grant of second
higher pay-scale shall also be counted
from the initial date, that is
01.09.1981, and the second higher payscale shall
be extended to the petitioner provided
the petitioner fulfills other requisite
conditions to be entitled to the second higher
payscale.
5.1 As per Circular dated 21.06.2012 issued by
the Department of Panchayats, it was
provided that the services rendered by
the employee concerned as excadre employee
would not be liable to be counted for the
purpose of benefits of higher payscale. This
Circular has been set aside as mentioned above.
6. The petitioner shall be paid the
consequential benefit along with arrears
arising because of the aforesaid
directions on or before 31.07.2019."
The petition came to be allowed and being
aggrieved by the same, the present appeal is filed.
4. Mr. Munshaw, learned advocate 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. Mr.
Munshaw relied upon the provisions of the Government
Resolution dated 16.08.1994. It was also contended
by Mr. Munshaw that the husband of the respondent
no.1-original writ petitioner was taken up on cadre
C/LPA/670/2021 ORDER DATED: 03/08/2021
post only on 01.04.1997 and therefore, it was
contended that the husband of the respondent no.1-
original writ petitioner was not entitled to the same
benefits. On the aforesaid grounds, it was contended
by Mr. Munshaw, learned advocate appearing for the
appellant that the appeal requires consideration.
5. Mr. Tirthraj Pandya, learned AGP, appearing for
respondent no.2 State has adopted the arguments of
Mr. Munshaw.
6. No other or further contentions have been raised
by the learned advocates for the parties.
7. As can be seen from the observations made by the
learned Single Judge in para 4, it is specifically
observed and recorded by the learned Single Judge
that the parties appearing through their respective
learned advocates were ad idem that the question
involved and the prayer made in the petition stands
covered by the decision of this Court in Balvantbhai
M. Trivadi (supra).
8. Having agreed before the learned Single Judge,
it is not open for the appellant who were parties
before the learned Single Judge to argue to the
contrary. Mr. Munshaw, learned advocate for the
appellant has not been able to remotely show that the
facts are different. At this stage, it deserves to
be noted that the judgment rendered by the learned
Single Judge in Balvantbhai M. Trivadi (supra) came
to be challenged by way of LPA No. 1539 of 2019,
C/LPA/670/2021 ORDER DATED: 03/08/2021
which came to be disposed of with other allied
appeals and LPA No. 16/20 being the lead matter. The
Hon'ble Division Bench while considering the issue
involved in this appeal, 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
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
C/LPA/670/2021 ORDER DATED: 03/08/2021
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
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
C/LPA/670/2021 ORDER DATED: 03/08/2021
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
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
C/LPA/670/2021 ORDER DATED: 03/08/2021
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.
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
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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
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
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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.
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
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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
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
C/LPA/670/2021 ORDER DATED: 03/08/2021
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
(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.
9. Even examining the facts arising out of this
appeal and considering the contention raised in the
petition, the case of the husband of respondent no.1-
original petitioner is squarely covered by the
judgment rendered by this Court in LPA No. 16/20 and
allied appeals. It is a matter of fact that the
Circular dated 21.06.2012 has already been quashed
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and set aside and as rightly observed by the learned
Single Judge, the husband of 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 already 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., 01.09.1981 and
accordingly second higher pay-scale shall be extended
to the respondent no.1-original petitioner if he
fulfills the other requisite conditions.
10. Following the binding decision of this Court in
LPA No. 16/20 and allied appeals 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 meritless and
same deserves to be dismissed. However, time to
comply with the directions issued by the learned
Single Judge in para 6 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
