Gujarat High Court
Kishor Manubhai Baraiya vs Deputy Secretary on 7 December, 2021
Bench: A.S. Supehia
C/SCA/14371/2016 ORDER DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14371 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14371 of 2016
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KISHOR MANUBHAI BARAIYA
Versus
DEPUTY SECRETARY & 1 other(s)
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Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1
MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 07/12/2021
ORAL ORDER
[1] With consent of the learned advocates for the
respective parties, the main matter is taken up
for final hearing.
[2] In the present writ petition, the petitioner
has prayed for the following reliefs:-
"(A) That Your Lordships be pleased to issue an order, direction
and/or writ in the nature of mandamus and/or any other
appropriate writ, order or direction, directing the
respondents to consider the case of the petitioner and grant
the regular time scale of pay to the petitioner in view of
the Government Resolution dated 17.10.1988 from the date
of petitioner has completed 5 years, 10 years 15 years of
service and be pleased to direct the respondents to pay the
arrears arising out of non payment of benefits under
Government Resolution dated 17.10.1988 along with 12%
interest thereon;
(B) That Your Lordships be pleased to quash and set aside the
order dated 21.05.2016 and 09.06.2016 marked ANN-I to
this petition;"
C/SCA/14371/2016 ORDER DATED: 07/12/2021
[3] At the outset, learned advocate Mr. Mukesh
Mishra for the petitioner has submitted that the
issue is squarely covered by the catena of
judgments of the Coordinate Benches as well as
the Division Benches of this Court. He has
submitted that the only reason for extending
benefits of the Government Resolution dated
17.10.1988 as per the impugned Communication
dated 21.05.2016 is that the said resolution is
not applicable to the Gujarat Maritime Board
(Board).
[3.1] Learned advocate Mr.Mishra has submitted
that there are various judgments passed against
the present respondent Board, wherein the Court
has extended the benefits of 5th and 6th Pay
Commissions and it is recorded by this Court that
the Government Resolution dated 17.10.1988 would
applicable to the employees of the respondent-
Board who are appointed after the cut off date
i.e. 17.10.1988.
[3.2] In support of his submissions, the
learned advocate for the petitioner has placed
reliance on the judgment dated 25.09.2019 passed
in Special Civil Application No.12046 of 2019,
which is also confirmed by the Division Bench
vide order dated 08.09.2020 passed in Letters
Patent Appeal No. 510 of 2020, the order dated
C/SCA/14371/2016 ORDER DATED: 07/12/2021
23.01.2018 passed in Special Civil Application
No. 15055 of 2017, which was confirmed by the
Division Bench by the order dated 07.09.2018
passed in Letters Patent Appeal No. 1148 of 2018
and the order dated 23.01.2018 passed in Special
Civil Application No. 6083 of 2017, which was
confirmed by the order dated 24.08.2018 passed in
Letters Patent Appeal No. 1101 of 2018 and lastly
and finally the order dated 26.10.2018 passed in
Special Civil Application No. 3756 of 2018, which
was confirmed by the order dated 24.01.2019
passed in Letters Patent Appeal No. 231 of 2019.
[3.3] Thus, learned advocate Mr.Mishra has
submitted that it is well settled that the
Government Resolution dated 17.10.1988 has been
adopted by the Gujarat Maritime Board and the
petitioner may be extended the benefits of
Government Resolution dated 17.10.1988.
[4] In response to the aforesaid submissions,
learned advocate Ms.Dharmishta Raval for the
respondent no.2 has submitted that in fact on
instruction of the State Government, benefits of
Government Resolution dated 17.10.1988 were not
extended to the petitioner since it was opined by
the State Government that the judgment of this
Court rendered in Letters Patent Appeal No. 325
of 2005 will be applicable to the Gujarat Water
C/SCA/14371/2016 ORDER DATED: 07/12/2021
Supply and Sewerage Board and not the respondent
Board.
[5] Learned advocate Ms.Raval has further
referred to the averments made in the affidavit-
in-reply, more particularly, Paragraph No.4,
wherein she has stated that the respondent has
refused to grant the Government Resolution dated
17.10.1988 on account of fact that the State
Government has not given its consent for
extending the benefits of the said Government
Resolution. Learned advocate for the respondent
no.2 has also submitted that in fact extension of
benefits, approval of the State Government is
required. No further submissions advanced by the
learned advocate for the respondent.
[6] Heard the learned advocates for the
respective parties and perused the judgments and
orders as mentioned hereinabove.
[7] In the present writ petition, the petitioner
is claiming to extend the benefits of Government
Resolution dated 17.10.1988 and fix his pay after
completion of 5,10 and 15 years of service. It is
not in dispute that all the aforenoted judgments
are passed against the respondent Board. The
perusal of the judgments would reveal that the
benefits of Government Resolution dated
C/SCA/14371/2016 ORDER DATED: 07/12/2021
17.10.1988 are extended to all the daily wagers
and the same is also adopted by the the Gujarat
Maritime Board and in case of those daily wagers,
who are appointed after the cut of date i.e.
17.10.1988. Though, the judgments pertain to
grant of benefits of 6th and 7th Pay Commissions,
they also referred the fact that the daily wagers
working under the Gujarat Maritime Board are
extended benefits of Government Resolution dated
17.10.1988.
[8] One of the facts recorded in the order dated
26.10.2018 passed in Special Civil Application
No. 3756 of 2018, which has been confirmed by the
Division Bench, is as under:-
"2. Seven petitioners who joined the services under respondent
Gujarat workers and Maritime subsequently Board came to as
be daily rated extended the benefit under Government Resolution
dated 17.10.1988, have prayed, by filing the present petition,
to extend the benefit of 6th Pay Commission and 7th Pay
Commission and to pay their paying the revised pay scale with
effect from 01.01.2006 and 01.01.2016 respectively. The
petitioners have further prayed to direct the respondent authorities
to pay the arrears.
3. Noticing the relevant facts, having been appointed
initially as daily wagers, the petitioners were granted the benefits
under resolution dated 17.10.1988 upon their completion of
requisite number of years in service. When 5th Pay Commission
recommendations were implemented, they were granted the said
benefit also. The 6th Pay Commission was implemented from by
the 01.01.2006. Central The Government recommendations with
effect came to be adopted by the State Government and all
governmental authorities in the year 2009. The 7 th Pay Commission
recommendations which was brought into force from 01.01.2016
C/SCA/14371/2016 ORDER DATED: 07/12/2021
was also adopted by the State Government and its authorities."
[9] While passing the order dated 25.09.2019 in
Special Civil Application No. 12046 of 2019, the
Court has recorded thus:-
"3. The petitioner joined service as daily wager in the year 1999
under the respondent Gujarat Maritime Board at the office of Port
Officer, Veraval. When the petitioner completed 5 years and 10
years of his service, he was extended the benefits under the
resolution dated 17.10.1988. At the time when 5 th Pay Commission
scales were implemented, the said benefit was also given to the
petitioner. learned advocate Central Government recommendations
1.1.2006. for of petitioner introduced which 6 th were that Pay the
the Commission implemented from The State Government adopted
the scales of 6th Pay Commission. Also the It is stated by adopted
the Likewise, the State Government recommendations of 7 th Pay
Commission."
[10] While passing the order dated 23.01.2018 in
Special Civil Application No. 15055 of 2017, this
Court has recorded thus:-
"3. The husband of the petitioner was appointed on 5 th
January, 1989 as daily- wager by the respondent No.4. He was
given the benefits of Government Resolution dated 17 th October,
1988 on 05th January, 1989 after completion of five years and
further benefits have been extended on 13 th April, 1994 after
completion of ten years. He was also given benefits of the Fifth
Pay Commission by virtue of Government Resolution dated 30 th
March, 1998."
[11] Thus, it is not open for the respondent Board
to contend that the Government Resolution dated
17.10.1988 is not applicable to the daily wagers
appointed by the respondent Board. Such stand is
illegal, illconceived and contrary to the facts
C/SCA/14371/2016 ORDER DATED: 07/12/2021
recorded by this Court in the aforenoted
judgments. The Communications dated 09.06.2016
and 21.05.2016 are hereby quashed and set aside.
The respondent authorities including the State
Government cannot recant from the facts as
narrated and recorded by this Court that all the
dailywagers, who had approached this Court
claiming benefits of 6th and 7th Pay Commission
have been extended benefits of Government
Resolution dated 17.10.1988 and accordingly,
their Pay Scale were also fixed.
[12] Under the circumstances, the respondents are
directed to extend the benefits of Government
Resolution dated 17.10.1988 to the petitioner and
his pay shall be accordingly fixed after
completion of 5,10 and 15 years of service.
Necessary order to that effect shall be passed
within a period of three months from the date of
receipt of the writ of the order of this Court.
[13] With the aforesaid directions, the present
petition is disposed of. Rule is discharged. As a
sequel, the civil application is disposed of.
(A. S. SUPEHIA, J)
NABILA
