Gujarat High Court
S.K. Patel vs State Of Gujarat on 31 August, 2021
Bench: Biren Vaishnav
C/SCA/96/2008 JUDGMENT DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 96 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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S.K. PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR IS SUPEHIA(874) for the Petitioner(s) No. 1
MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 31/08/2021
ORAL JUDGMENT
1 In this petition under Article 226 of the Constitution of India, the
prayer of the petitioner is to quash and set aside the order dated
16.10.2007 passed by the respondents. It is the further prayer of the
C/SCA/96/2008 JUDGMENT DATED: 31/08/2021
petitioner that he is entitled to the higher grade scale from 06.08.1995 and
revision of pensionary benefits accordingly.
2 The facts in brief are as under:
2.1 The petitioner was appointed as a Junior Clerk on 01.10.1963.
Thereafter, he was promoted as a Senior Clerk from 06.08.1986. It
appears that, post his promotion to the post of Senior Clerk, the
respondents found that on the basis of the Seniority List of the Junior
Clerks as on 01.01.1995, published on 01.02.1997, the petitioner was not
entitled to the promotion to the post of Senior Clerk with effect from
1986, as his position in the cadre of Junior Clerk was revised.
2.2 An order dated 26.11.1997 was passed reverting the petitioner from
the post of Senior Clerk to Junior Clerk. Perusal of the impugned order
dated 06.10.2007 would indicate that the order of reversion was a subject
matter of challenge by filing Special Civil Application No. 5006 of 1998.
During the pendency of the petition, stay against reversion operated and
the petitioner retired on 31.12.2002. Accordingly, by an order dated
07.07.2006, the Court disposed of the petition observing that
consequential recovery vis-a-vis the retiral benefits will not be enforced.
2.3 It is the case of the petitioner that since he worked as a Senior
Clerk pending the petition on having completed 9 years of service on
06.08.1995, the petitioner prays for the first higher grade scale.
C/SCA/96/2008 JUDGMENT DATED: 31/08/2021
3 Mr.Meet Thakkar, learned Assistant Government Pleader, has
drawn the attention of the Court to the affidavit-in-reply filed by the
respondents. He would submit that but for the operation of interim relief,
the petitioner would have been reverted, his actual date of promotion to
the post of Senior Clerk would have been June 2001. Having retired
within a year thereafter on 31.12.2002, the petitioner is not entitled to the
benefit of the first higher grade scale.
4 Considering the submissions made by the learned Assistant
Government Pleader and having perused the papers, affidavit-in-reply
and the impugned order, what emerges is as under:
4.1 Initially, the petitioner was promoted as a Senior Clerk in 1986.
That was based on the seniority position, which was subsequently revised
on the basis of the amended rules of 17.04.1970.
4.2 That was a situation where the petitioner was reverted from the
post of Senior Clerk to the post of Junior Clerk. The reversion was a
subject matter of challenge before this Court in Special Civil Application
No. 5006 of 1998.
4.3 Perusal of the order passed by this Court in the petition which was
disposed of post the petitioner's retirement, particularly paras 3 and 4
would indicate that the petition was not pressed, the order of reversion
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was not set aside, the petitioner only invited a clarification that in
computation of retirement benefits there need not be any recovery. Para 3
and 4 of the said order reads as under:
"3 In this fact situation, it is not necessary to record
submissions of the parties. It is an admitted fact that by way of
interim relief the order of reversion and consequential recovery
have been stayed and till the date of superannuation of each of the
petitioners, such interim relief has been operative. In these
peculiar facts and circumstances of the case it would be in the
fitness of things if the order of reversion and consequential
recovery are not permitted to operate qua the retiral benefits
including pension and the controversy between the parties is put at
rest without any further directions.
4 In the facts and circumstances of the case, the controversy
regarding fixation of seniority has become academic and hence,
the prayer for declaration of seniority list on 1 st February, 1997
being bad in law need not be entertained at this stage."
4.4 It appears that subsequently he also approached this Court by filing
Special Civil Application No. 21929 of 2007. This Court disposed of this
petition on 24.08.2007 directing the respondents to decide the
representation claiming the benefit of higher grade scale. Had that
petition been decided in 2007, he would not have waited for another 14
years. It is in this background that the order made herein has been passed.
5 A twin condition for the grant of the benefit of higher grade scale
especially the first higher grade scale is completion of nine years of
service in the same cadre in the same pay scale.
C/SCA/96/2008 JUDGMENT DATED: 31/08/2021
6 Considering the facts on hand what is apparent is that the petitioner
was reverted on revisional seniority to the post of Junior Clerk. Though
the order of reversion was stayed, the benefits of stay cannot be accrued
to the petitioner. Moreover, while disposing of the petition, the petitioner
did not claim that the petition be decided on merits, but invited an order
only limited to the extent of no recovery being made pursuant to the order
of recovery. A specific finding has been recorded that the order of
reversion is not interfered with.
7 Therefore, the benefit of continuing in service because of an
interim order on the post of Senior Clerk cannot enure for the benefit of
grant of higher pay-scale to the petitioner. The petition is accordingly
dismissed with no orders as to costs. Rule is discharged.
(BIREN VAISHNAV, J)
Bimal
