Kamlesh Girdharilal Hotwani vs State Of Gujarat
2021 Latest Caselaw 18291 Guj

     C/SCA/6653/2020                                       JUDGMENT DATED: 10/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 6653 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                   Sd/-
========================================================

1     Whether Reporters of Local Papers may be allowed to see the No
      judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy of the judgment No
      ?

4     Whether this case involves a substantial question of law as to the No
      interpretation of the Constitution of India or any order made
      thereunder ?

========================================================
                       KAMLESH GIRDHARILAL HOTWANI
                                   Versus
                             STATE OF GUJARAT
========================================================
Appearance:
MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No. 1
MR UTTKARSH SHARMA ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3
========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 10/12/2021

                                  ORAL JUDGMENT

1. Heard learned Advocate Shri Prabhakar Upadhyaya on behalf of the petitioner and learned Assistant Government Pleader Shri Uttkarsh Sharma on behalf of respondent no.1- State and learned Advocate Ms. Trusha Patel behalf of respondent no.2

2. Issue Rule returnable forthwith. Learned Advocates waive service of rule on behalf of their respective respondents.

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

3. With consent of parties, the petition is taken up for final disposal.

4. By way of this petition, the petitioner has sought for following relief/s:

"24, The petitioner, therefore, humbly prays to this Hon'ble Court that:

A. Your Lordships may kindly be pleased to issue a writ of Mandamus and/or Writ of any other appropriate Writ, direction and order to quash and set aside the letter/communication dated 04.12.2019 issued by the present respondent No. 2 which is at Annexure-J to this petition.

B. Your Lordships may kindly be pleased to direct the respondents to step up the Entry Level Pay of the present petitioner to Rs. 12,540/- in pay band of Rs. 9300-34,800/- with the Grade Pay of Rs. 4600/ w.e.f. 16.03.2009 ( from the date of the promotion to the post of Gujarati Stenographer Grade- II) at par with the junior direct recruits working in the same cadre in the Metropolitan Magistrate Courts, Ahmedabad and further be pleased to direct the present respondents to pay the difference of salary along with the arrears to the present petitioner alongwith 12% interest, after revising the pay scale by extending the benefit of Entry Level Pay Scale to Rs. 12540/- with Grade pay of Rs. 4600/- to the present petitioner.

C. Your Lordships may kindly be pleased to issue a Writ of mandamus and/or writ of any other appropriate writ, direction and order to quash and set aside the Government Resolution dated 14.09.2011 issued by the Finance Department, Govt. of Gujarat to the extent that it is applicable only to the direct recruits, not to the employees those who have been promoted on the post of Stenographer Grade-II, by holding and declaring that the same is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India. "

5. It appears that before filing of the present petition, the petitioner along with another employee had preferred Special Civil Application No. 20749 of 2016 seeking the following prayers:

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

"[A] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to step up the entry level pay of the petitioners to Rs. 10810/- in the pay band of Rs. 9300- 34800/- along with grad pay of Rs. 4400/- with effect from the date of promotion of the petitioners to the post of Gujarati Stenographer Grade-II, in parity with the pay of the direct recruits in light of the Government Resolution dated 14.09.2011.

[B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the Government Resolution No. PGR/102010/64 Pay Cell (M) dated 14.09.2011 issued by the Finance Department Government of Gujarat to the extent that it is applicable only to the direct recruits only and not to the employees who have been appointed by way of promotion ( at Annexure A);

[BB] The Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the resolution dated 27.02.2017 passed by the Advisory Committee of the Metropolitan Magistrate Court, Ahmedabad.

[C] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to grant arrears to the petitioners in view of the Government Resolution dated 14.09.2011."

6. It appears that learned Co-ordinate Bench of this Court ( Coram:

A.S. Supehia, J.) vide order dated 29.04.2019 had been pleased to allow the

said petition.

       C/SCA/6653/2020                                JUDGMENT DATED: 10/12/2021




6.1      At this stage it needs to be mentioned that the petitioner was working

as Assistant ( Junior Clerk) in the Account Branch with the establishment of

Metropolitan Magistrate Court, Ahmedabad and subsequently the petitioner

was promoted to the post of Gujarati Stenographer Grade II in the pre-

revised pay scale of Rs. 5500-175-9000/-. The said pre- revised pay scales

were revised vide the Gujarat Civil Services ( Revision of Pay) Rules, 2009

( GCSR) by Notification dated 27.02.2009 with effect from 01.01.2006.

Subsequently vide Government Resolution dated 14.10.2010, grade pay for

pre-revised scales of (i) Rs. 5500-9000 and (ii) 6500-10500/- was fixed at the

rate of Rs. 4400/- and Rs. 4600/- respectively. Consequent thereto grade

pay of the petitioner was revised to Rs. 4400/- with pay band of Rs. 9300-

34800/-.

6.2 The present petitioner and his co-petitioner had preferred Special

Civil Application No. 20749 of 2016 inter alia claiming to be entitled to

entry level pay scale of Rs. 10810/- in pay band of Rs. 9300-34000 (PB-2)

instead of entry level pay scale of Rs. 9300. This grievance was raised in

context of Government Resolution dated 14.09.2011 by the Government of

Gujarat whereby the entry level pay scale payable under Rule 8 of the

Gujarat Civil Services ( Revision of pay) Rules, 2009 had been revised for

direct recruitees. As per the Government Resolution entry level pay for

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

direct recruitees appointed on or after 01.01.2006 in the grade of Rs. 4400/-

was revised of Rs. 10810/- and for direct recruitees appointed in the grade

pay of Rs. 4600/-, the entry level pay was revised to Rs. 12540/-. The

petitioner by way of Special Civil Application No. 20749 of 2016 had

claimed that instead of entry level pay of Rs. 9300/- he would be entitled to

entry level pay scale of Rs. 10810/- as entitled to by direct recruitees who

are appointed in the grade pay of Rs. 4400/- which was the grade pay made

available to the petitioner at the relevant point of time. The petitioner had

made the said prayers in context of and relying upon the decision of learned

Co-ordinate Bench of this Court in Special Civil Application No. 12207 of

2014 where learned Co-ordinate Bench was examining the identical issue in

case of English Stenographer Grade II. Vide decision dated 19.10.2015

learned Co-ordinate Bench in Special Civil Application No. 12207 of 2014

had inter alia held that the action of granting direct recruitees after

01.01.2006 an entry level pay of Rs. 10810/- and Rs. 12540/- respectively

for grade pay of Rs. 4400/- and Rs. 4600/- and placing seniors appointed

prior to 01.01.2006 in pay band of Rs. 9300/- and Rs. 12090/- as against Rs.

10810/- and Rs. 12540/- was anomalous and discrimination. The said

decision had been challenged before Hon'ble Division Bench and whereas

vide judgement dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016

and allied matters the Hon'ble Division Bench had partly allowed the

decision of learned Co-ordinate Bench dated 19.10.21015 to the extent that

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

instead of arrears to be paid from 01.01.2006 and whereas arrears were

payable since 01.04.2010.

7. Co-ordinate Bench of this Court considering Special Civil Application

No. 20749 of 2016 preferred by the petitioner and another employee had

been pleased to allow the said petition vide order dated 24.09.2019 and

whereas the following directions were issued:

"10. In the considered opinion of this Court, the petitioners would be entitled to actual rise with effect from 01.01.2010 as per the Government Resolution dated 14.09.2011, in light of the observations made by the Division Bench of this Court vide judgement dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016 with aligned matters. The period from 03.10.2008 (i.e. the date of promotion of petitioner No.1) and 16.03.2009 ( i.e date of promotion of petitioner No.2) till 31.03.2010 shall be treated as notional. Appropriate order for re-fixing the pay of Rs. 10810/- in the pay band of Rs. 9300- 34800/- along with grade pay of Rs. 4400/- and grant of actual rise from 01.04.2010 shall be passed by the respondent authorities within a period of two (2) months from the date of receipt of this writ of this order. The petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted."

8. It appears that the petitioners had not informed learned Co-ordinate

Bench about an important development which had taken place in the

interregnum inasmuch vide an order no. 195/ 2016 dated 30.04.2016, the

Chief Metropolitan Magistrate, Ahmedabad had revised the pay scale inter

alia of Gujarati Stenographer Grade II and whereas the petitioner was

entitled to pay scale of Rs. 9300-34800 with grade pay of Rs. 4600/- ( PB -

II) with effect from the date of his actual promotion which was as

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

mentioned in Annexure E of the said order. Thus the petitioner was entitled

to pay scale of Rs. 9300-34800 with grade pay of Rs. 4600/- with effect

from 16.03.2009. It appears that after order dated 29.04.2019 in Special

Civil Application No. 20749 of 2016 the petitioner had preferred Misc. Civil

Application No. 1 of 2019 for modification inter alia requesting learned Co-

ordinate Bench to modify the said order in terms of directing the

respondents to re-fix entry level pay of the petitioner at Rs. 12540/- in the

pay scale of Rs. 9300-34800 along with grade pay of Rs. 4600/- and whereas

actual arrears were requested to be paid from 01.04.2010. It appears that

vide an order dated 18.07.2019 learned Co-ordinate Bench had rejected such

a request since according to learned Co-ordinate Bench a new prayer had

been sought for by the petitioner. The petitioner had therefore preferred

Letters Patent Appeal No. 1588 of 2019 challenging the refusal of the

learned Co-ordinate Bench for modification in the order dated 29.04.2019

and whereas Hon'ble Division Bench vide an order dated 18.09.2019 had

inter alia recorded that entire pleadings contained in the petition was with

regard to grade pay of Rs. 4400/- and consequent entry level pay of Rs.

10810/- and appropriate modification in the salary of the petitioner. It

further appears that the Hon'ble Division Bench had also noted that the

modification by the petitioner was with regard to grade pay of Rs. 4600/-

and corresponding pay band. Having noted the same Hon'ble Division

Bench had rejected the appeal with a liberty that the petitioner could raise a

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

fresh claim before this Court or before any other appropriate authority, for

his claim with regard to corresponding pay band in grade pay of Rs. 4600/-

and whereas the observations made by the Hon'ble Single Judge while

rejecting the modification application would not come in the way of the

petitioner.

8.1 It is consequent to the observations of the Hon'ble Division Bench

vide order dated 18.09.2019 that the present petitioner preferred the present

petition.

9. It would be pertinent to mention here that Special Civil Application

No. 20749 of 2016 had been decided vide order dated 24.09.2019 upholding

the claim of the petitioner for being placed in entry level pay of Rs. 10810/-

as grated to direct recruitees vide Government Resolution dated 14.09.2011.

The claim of the petitioner in the present petition being that since the grade

pay of Rs. 4400/- had been revised to Rs. 4600/- vide order dated

30.04.2016 consequent to recommendation of the First National Judicial

Pay Commission ( Shetty Pay Commission) and since the Government

Resolution dated 14.09.2011 grants entry level pay of Rs. 12540/- for direct

recruitees after 01.01.2006 in the grade pay of Rs. 4600/- and since

consequent to the revision in case of the petitioner he was placed in the pay

band of Rs. 12090/-, therefore a discrimination has taken place and the

C/SCA/6653/2020 JUDGMENT DATED: 10/12/2021

petitioner would be entitled to be placed in the pay band of Rs. 9300-

34800/- with grade pay of Rs. 4600/- with the entry level pay of Rs. 12540/.

10. This Court finds that learned Co-ordinate Bench in Special Civil

Application No. 20749 of 2016 in decision dated 24.09.2019 relying upon

earlier decision of this Court in Special Civil Application No. 12207 of 2014

dated 19.10.2015 modified partly by the Hon'ble Division Bench vide

jdugement dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016. In

the said judgement, the Court was concerned with two separate sets of

petitions where employees in pay band of Rs. 9300-34800 in grade pay of

Rs. 4600/- had requested to be placed at entry level pay of Rs. 12540/- from

01.04.2010 and employees in pay band of Rs. 9300-34800 in the grade pay

of Rs. 4400/- had requested for placing them at entry level pay of Rs.

10810/- with effect from 01.04.2010. Since benefits corresponding to grade

pay of Rs. 4400/- had been sought for in Special Civil Application No.

20749 of 2016 and learned Co-ordinate Bench had relying upon the decision

referred to hereinabove granted such a prayer. Now the petitioner is seeking

for benefits corresponding to grade pay of Rs. 4600/-. It clearly appears

that reasoning for grant of benefits of being given entry level pay as direct

recruitees after 01.01.2006 corresponding to grade pay of Rs. 4400/- or

grade pay of Rs. 4600/- by the Co-ordinate Bench and the Hon'ble

Division Bench in the decision relied upon order dated 24.09.2019 in Special

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Civil Application No. 20749 of 2016 are common. The grievance was also

raised in context of Government Resolution dated 14.09.2011 by which

direct/fresh recruitees after 01.01.2006 in grade pay of Rs. 4400/- or Rs.

4600/- would be paid entry level pay of Rs. 10810/- or Rs. 12540/-

respectively. The learned Single Judge and Hon'ble Division Bench in

decision referred to in order 24.09.2019 directed inter alia that petitioners

who were promotees appointed prior to 01.01.2006 would be discriminated

by placing them in the pay band of Rs 9300/- or Rs. 12090/-

corresponding to grade pay of Rs. 4400/- and Rs. 4600/- respectively.

11. Learned Co-ordinate Bench in Special Civil Application No. 20749 of

2016 vide decision dated 24.09.2019 had accepted the claim of the petitioner

for re-fixation of entry level pay of Rs. 10810/- in pay band of Rs. 9300/-

with grade pay of Rs. 4400/-. The fixation of entry level pay of Rs.10810/-

was in context of grade pay drawn by the petitioner at the rate of Rs. 4400/-

at that relevant point of time. Subsequently as noted hereinabove grade pay

of petitioner had been revised to Rs. 4600/- with effect from 16.03.2009 i.e.

the date of promotion of the petitioner as Stenographer Grade II. Thus

since decision of the learned Co-ordinate Bench of this Court in Special

Civil Application No. 12207 of 2014 vide order dated 19.10.2015 partly

modified by the Hon'ble Division Bench in Letters Patent Appeal No. 652

of 2016 and allied matters had upheld the claim of employees who had been

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appointed before 01.01.2006 for being granted the entry level pay at the rate

of Rs. 12540/- corresponding to grade pay of Rs. 4600/- and Rs. 10810/-

corresponding to grade pay of Rs. 4400/- as made available to the direct

recruitees after 01.01.2006 as entry level pay vide Government Resolution

dated 14.09.2011 and since learned Co-ordinate Bench of this Court had

upheld the claim of the petitioner for grant of entry level pay of Rs. 10810/-

corresponding to grade pay Rs. 4400/- relying upon earlier decision referred

to hereinabove. Furthermore the reasons with regard to entry level pay at

the rate of Rs. 10810/- corresponding to grade pay of Rs. 4400/- and Rs.

12540/- corresponding to grade pay of Rs.4600/-to be granted in favour of

pre 01.01.2006 employees being similar, and since the decision of learned

Co-ordinate Bench not having been challenged by the respondents and thus

having become final between the parties more particularly since benefits as

available vide order dated 29.04.2019 appears to have been paid to the

petitioner, therefore in the considered opinion of this Court the petitioner

would be consequently entitled to benefit of entry level pay of Rs. 12540/-

in pay scale of Rs 9300-34800 with the grade pay of Rs. 4600/-.

12. It requires to be mentioned herein that though learned Advocate Ms.

Trusha Patel on behalf of respondent no.2 had attempted to contend that

petitioner would not be entitled to entry level pay of Rs. 12540/-

corresponding to entry level pay granted to direct rectuitees after 01.01.2006

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appointed in grade pay of Rs. 4600/- in the considered opinion of this

Court, since order dated 29.04.2019 having not been challenged by

respondent no.2 and rather the said order having been implemented, and as

noted hereinabove the reasoning for grant of entry level pay of Rs. 10810/-

in pay band/scale of Rs. 9300-34800/- in grade pay of Rs. 4400/- as

directed by the learned Co-ordinate Bench being the same reasoning as

mentioned by the learned Single Judge as well as Hon'ble Division Bench in

the earlier petitions, such submission of learned Advocate Shri Patel cannot

be countenanced.

13. In the result petition is allowed. The petitioner would be entitled to

refixation of entry level pay of Rs. 12540/- in the pay band/scale of Rs.

9300-34800 along with grade pay of Rs. 4600/- and that arrears and its

periodical rise with effect from 01.04.2010, such arrears shall be paid by the

respondent authorities within a period of two months from the date of

receipt fo this order. It is clarified that the petitioner having been paid the

benefits as available vide order dated 29.04.2019, the petitioner would be

entitled to the difference. Rule is made absolute in above terms. No order

as to costs.

(NIKHIL S. KARIEL,J) NIRU