Gujarat High Court
State Of Gujarat vs Kakubha Pratapsinh Gohil on 6 August, 2021
Bench: R.M.Chhaya, Nirzar S. Desai
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 593 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7570 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 593 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KAKUBHA PRATAPSINH GOHIL
==========================================================
Appearance:
MS JYOTI BHATT, ASSISTANT GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
1. Feeling aggrieved and dissatisfied by the
judgment and order dated 12.9.2019 passed by
learned Single Judge (Coram: Ms. Sonia Gokani,
J.) in Misc. Civil Application no.1 of 2019 in
Special Civil Application no.7570 of 2016, the
appellants have preferred this intra-Court
appeal under Clause 15 of the Letters Patent.
2. Following facts emerge from the record of the
petition:-
That, the respondent-original petitioner filed
a Writ Petition under Article 226 of the
Constitution of India and, inter-alia, prayed
as under:-
"[a] to allow this petition with
costs and to issue a writ of mandamus
or any other writ, direction or
order, enjoining upon thereafter
respondents to grant the pensionary
benefits to the petitioner forthwith,
directing payment of pensionary
benefits forthwith, together with
interest at the rate of 12% per annum
from 01-11-2013, as the petitioner
retired on 31-10-2013, until payment
of the pensionary benefits, including
the arrears and also direct to pay
the monthly payment of pension
regularly;
[b] to kindly appropriate interim
relief, including provisional
pension, pending the final disposal
of this petition;"
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
3. The learned Single Judge, having appreciated
the evidence on record and also considering
the ratio laid down by the Hon'ble Apex Court
in the case of State of Gujarat & Ors. Vs. PWD
Employees' Union, reported in 2013 (2) GLH 692
and other judgments of this Court on similar
issue, was pleased to allow the petition.
4. In Paragraphs 16 and 17 of the order dated
13.1.2017 passed by this Court in Special
Civil Application no. 7570 of 2016, the
learned Single Judge has observed that the
service should be calculated from October,
1991. The respondent herein thereafter filed
an application for modification and prayed for
the following main reliefs:-
"(a) to allow this application and
modify the said Oral Order, dated 13-
01-2017, after condoning the delay of
934 days;
(b) to direct the respondents to
accord the benefits of Government
Resolution, dated 17-10-1988 from 23-
03-1981, when the applicant completed
5 years of service; "
5. The learned Single Judge, after hearing the
appellant as well as the respondents, by the
order impugned came to the conclusion that as
per the judgment of the Division Bench in the
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
case of Tribhovanbhai Jerambhai Vs. Deputy
Executive Engineer, Sub-Division, R & B
Department, reported in 1998 (2) GLH 1,
continuous service is to be counted from the
date of entry once he is made permanent. On
the factual matrix arising in the case on
hand, the learned Single Judge came to the
conclusion that the original writ petitioner
completed 5 years of service on 23.3.1981 and
relying upon the Government Resolution dated
17.10.1988, came to the conclusion that the
provisions of the said Resolution would apply
with effect from 23.3.1981 i.e. on completion
of 5 years and not the completion of 5 years
from the date of his regularization as his
services of previous year would be required to
be counted and accordingly, while allowing the
application for modification, modified the
directions issued in Paragraphs 16 and 17 of
the order dated 13.1.2017 and being aggrieved
by the same, the present appeal is filed.
6. Heard Ms. Jyoti Bhatt, learned Assistant
Government Pleader for the appellants.
7. Ms. Jyoti Bhatt, learned Assistant Government
Pleader for the appellants contended that the
learned Single Judge ought to have considered
the fact that the order dated 13.1.2017 came
to be challenged by the appellant and the same
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
came to be dismissed. Ms. Bhatt also contended
that even the learned Single Judge has not
considered the delay of 934 days in preferring
the application and without condoning the
delay, the same has been allowed and the order
has been modified. It was contended that the
same has prejudiced the rights of the
appellants.
8. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
9. At the outset, it deserves to be noted that
the respondent - original writ petitioner has
clearly, inter-alia, prayed in Misc. Civil
Application no.1 of 2019 to condone the delay
of 934 days. The impugned order clearly shows
that the learned Single Judge has modified the
order as prayed for, wherein the prayer for
condonation of delay was also there. From the
impugned order, it clearly transpired that it
is a bi-parte order and the appellants were
represented through the learned AGP and the
contention of delay is not even raised before
the learned Single Judge as can be seen from
the record of this appeal. It is also a matter
of fact that the contentions raised in the
Misc. Civil Application are not being
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
controverted by the appellants before the
learned Single Judge though in the main Writ
Petition, the reply was filed and when the
application is allowed by modifying the same,
the appellants cannot be now permitted to
argue that the learned Single Judge has
allowed the application without condoning the
delay. The impugned order rendered by the
learned Single Judge is unsuccessfully
assailed before this Court. The learned AGP
has not been able to point out that the
appellants have challenged the decision of the
Division Bench in the earlier Letters Patent
Appeal and thus, having accepted the order,
the appellants cannot now be permitted to
raise the contention of delay before this
Court. The learned Single Judge, while
modifying the order and substituting
Paragraphs 16 and 17 of the order dated
13.1.2017 has followed the binding decision of
this Court in Tribhovanbhai Jerambhai (supra).
We find that the learned Single Judge has
rightly considered the provisions of the
Government Resolution dated 17.10.1988 and has
correctly came to the conclusion that the
respondent - original writ petitioner would be
entitled to the benefits of the same from the
date on which he completed 5 years of service
i.e. from 23.3.1981.
C/LPA/593/2021 JUDGMENT DATED: 06/08/2021
10. We are in total agreement with the conclusions
arrived at by the learned Single Judge. No
interference is called for. The appeal, being
merit-less, deserves to be dismissed and is
hereby dismissed. However, there shall be no
order as to costs. As the appeal is dismissed,
connected Civil Application is also dismissed.
(R.M.CHHAYA, J)
(NIRZAR S. DESAI,J)
Maulik
