Gujarat High Court
Hamirbhai Kababhai Gohil vs State Of Gujarat on 22 June, 2021
Bench: Bhargav D. Karia
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8506 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 8506 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 714 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 14512 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15073 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
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 ?
==========================================================
MAHESHKUMAR SHANILAL UPADHYAY & 23 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MR KM ANTANI, AGP for the Respondent(s) No. 1,2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/06/2021
ORAL JUDGMENT
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
1. Heard learned advocate Mr. N.K. Majmudar for the
petitioners and learned Assistant Government
Pleader Mr. K.M. Antani for the respondent-State
through video conference.
2. The petitioners in all these petitions have
raised a common issue of not being granted
higher grade pay scale and therefore, the same
were tagged together by this Court. Having
regard to the issue in narrow compass and with
the consent of the learned advocates, the
petitions were taken up for final consideration
today.
3. Rule returnable forthwith. Learned Assistant
Government Pleader Mr K.M. Antani waives service
of notice of rule on behalf of the respondent-
State and its authorities.
4. For the sake of convenience, Special Civil
Application No.8506/2017 is treated as a lead
matter.
4.1) The petitioners are Medical Officers
(class-II) who rendered their services on
permanent sanctioned post. The State Government
by resolution dated 17.10.1994 published the
scheme of granting higher pay scale on
completion of 6, 13 and 19 years of service. The
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
benefit of higher pay scale was granted to the
Medical Officers with M.B.B.S. degree. However,
the same was not granted to the Medical Officers
with Ayurveda degree and therefore, the
petitions were filed before this Court being
Special Civil Application No.11363/2009 and
other allied matters. The said group of
petitions came to be allowed by this Court
directing the Government authorities to extend
the benefits of higher pay scale to all such
petitioners. The Division Bench rejected the
Letters Patent Appeal filed by the State
Government against the judgment of the learned
Single Judge.
4.2) The State of Gujarat vide Government
Resolution dated 31.3.2005 granted the benefits
of higher pay scale to the employees who have
sought voluntary retirement. The petitioners
have sought voluntary retirement as stated in
the statement at Annexure-F to the petition. In
view of Government Resolution dated 21.6.2011,
the benefits of higher pay scale were withdrawn
in case of voluntary retirement and the
petitioners were asked to redeposit the amount
of higher grade pay scale awarded to them.
However, subsequently by Government Resolution
dated 8.8.2011, Government Resolution dated
21.6.2011 was cancelled. The petitioners were
therefore, entitled to higher grade pay scale as
per Government Resolution dated 17.10.1994.
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
4.3) It is the case of the petitioners that
the petitioners are entitled to higher grade pay
scale which were accepted by the State of
Gujarat on recommendation made by Tikku Pay
Commission. But the petitioners were not granted
such higher grade pay scale by the respondents
and the order granting voluntary retirement was
passed imposing condition that benefits of
higher grade pay scale granted under the Tikku
Pay Commission would be liable to be withdrawn.
The petitioners have therefore, approached this
Court with the following prayers :
"A) admit this petition
B)issue appropriate writ, order or direction
and be pleased to direct the respondent
authorities to grant/disburse the benefit of
Higher Pay Scale as per various Resolutions and
the same may be ordered to be granted
considering the initial date of
appointment/date of joining the services and
the same may be ordered to be disbursed with
12% interest and the respondent authorities be
further directed to revise the pension,
retirement dues and the difference of the same
may be ordered to be paid with 12% interest to
the petitioners;
C) issue appropriate writ order direction and
be pleased to quash and set aside illegal,
arbitrary, illogical action of the Respondent
authorities in not including the names if the
petition in the order of not granting higher
pay scale (Annexure EE) to the petitioner and
be pleased to quash and set aside the action of
the respondent authorities treating the
petition to get higher pay scale be quashed and
set aside and said action in violative of
Article 14,16 of the Constitution the same may
be declared violative of the G.R.17.10.1994.
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
D)Be pleased to issue appropriate writ order or
direction to please to direct the authorities
to pass appropriate orders for releasing Higher
Pay Scale to the petitioner considering 6 and
or 13 and or 19 years as per G.R.17/10/1994 and
be pleased to direct the respondent to pass
orders of granting higher pay scale to the
petitioner treating petition as eligible and
entitled to the Higher Pay scale on the basis
of principle of law laid down by the Hon'ble
high Court as per order dated 20.07.2015 in
SCA/10233/2014 as well as SCA/8557/2014
E) grant interim relief and by way of interim
order be pleased to direct the respondent
authorities to pass appropriate order of
granting benefits of Higher Pay Scales to the
petitioners considering their initial dates of
appointment/dates of joining the service,
pending admission and final disposal of this
petition;
F) pass such order as thought fit in the
interest of justice."
5. At the outset learned advocate Mr. N.K. Majmudar
for the petitioners submitted that the prayers
made by the petitioners are required to be
granted in view of the fact that the issue is
covered by the decision of this Court in case of
Harish Dunichand Chandnani v. State of Gujarat
and others dated 20.07.2015 in Special Civil
Application No.12033/2014 and confirmed by the
Division Bench in Letters Patent Appeal
No.1469/2015 decided on 16.01.2017. Reliance was
also placed on the order passed by the co-
ordinate Bench of this Court (Coram : Hon'ble
Mr. Justice N.V. Anjaria) in case of Dr. Jafar
Amadh Hingora v. State of Gujarat rendered in
Special Civil application No. 4676/2019 decided
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
on 9.5.2019 and Letters Patent Appeal
No.1753/2017 in Special Civil Application
No.21654/2016 decided on 6.10.2017 in case of
State of Gujarat and others v. Dr. Arpita
Nitinkumar Dave and Special Civil Application
No.20172/2017 in case of Ganpatram Keshavbhai
Chauhan v. State of Gujarat and others decided
on 16.12.2019.
6. On the other hand, learned Assistant Government
Pleader Mr. K.M. Antani was not able to deny the
fact that the legal issues arising in this group
of petitions is already answered in the decision
in case of Harish Dunichand Chandnani(supra).
7. The petitioners in case of Harish Dunichand
Chandnani(supra) claimed benefit of Tikku Pay
Commission but were denied the same on the
ground that the petitioners had taken voluntary
retirement. Learned Single Judge of this Court
granted such benefits of higher grade pay scale
as per Tikku Pay Commission recommendations and
the said order was challenged in Letters Patent
Appeal No.1469/2015 which was dismissed by the
Division Bench by judgment and order dated
16.1.2017 holding as under :
"7. From a reading of Government Resolution
dated 11.05.2001 it is clear that Medial
Officers are not entitled to dual benefits
of senior scale as well as the benefit of
the recommendations of Tiku Pay Commission.
Without going into the controversy, namely,
whether the period from 14.11.1991 to
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
16.10.1994 applies to the case of the
respondent or not, it is clear from the
Government Resolution itself that it is
issued to clarify that the Medical Officers
are not entitled to the dual benefit of
senior scale as well as the recommendations
of Tiku Pay Commission. As it is not
disputed that the respondent was not
entitled to the benefit of senior scale,
there is no reason or justification for
denying the benefits of the recommendations
of Tiku Pay Commission. When the respondent
original petitioner has not availed any
benefit of senior scale, in which event the
question of double benefit will not arise so
as to apply Government Resolution dated
11.05.2001.
8. There is also yet another reason to
reject this appeal. There is specific
averment made in paras 10 and 11 of the
petition by the respondent- original
petitioner stating that similarly placed
persons to that of the respondent- original
petitioner, namely, (i) Dr.A.J. Oza, (ii)
Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta,
who have voluntarily retired as Class-II
officers were also extended the benefit of
the recommendations of Tiku Pay Commission
for pensionary benefits, but the same was
not dealt with in the reply filed by the
appellants herein in the petition. As much
as the appellants have not rebutted such
allegations in the reply, they have to be
taken as admitted facts. In that view of the
matter there is no reason or justification
to make differentiation among similarly
placed officers for the purpose of extending
the benefit of the recommendations of Tiku
Pay Commission. The learned Single Judge has
also taken note of such discrimination among
similarly placed persons while allowing the
petition filed by the respondent- original
petitioner.
9. It is clear for us that Government
Resolution dated 11.05.2001 cannot be
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
applied to the case of the respondent and
further similarly placed persons to that of
the respondent were already extended the
benefit of the recommendations of Tiku Pay
Commission, we are of the view that there is
no reason or justification in denying such
benefit to the respondent- original
petitioner, who had served the appellant-
Department from September 1985 to 31st
December 2013 as Medical Officer Class-II.
It is needless to observe that he was
compelled to take voluntary retirement in
view of disability suffered by him on
account stroke which resulted into
disability of paralysis to the extent of
75%."
8. The Division Bench of this Court in case of Dr.
Arpita Nitinkumar Dave (supra) has also relying
upon the aforesaid decision of Letters Patent
Appeal No.1469/2015, dismissed the appeal filed
by the State Government rejecting the
distinction sought to be made with regard to the
voluntary retirement of the employee on medical
ground and confirmed the order granting the
Tikku Pay Commission benefits which were denied
on the ground of taking voluntary retirement.
9. It is also pertinent to note that issue has
attained finality before the Apex Court as the
Supreme Court dismissed the case being Diary
No.18150/2017 arising from the judgment of
Letters Patent Appeal No.1469/2015 in Special
Civil Application No.12033/2014.
10. In facts of the present case, the
petitioners were allowed voluntary retirement,
C/SCA/8506/2017 JUDGMENT DATED: 22/06/2021
however, the benefits of Tikku Pay Commission
recommendations was refused and higher pay scale
benefits were also withdrawn. Therefore, in view
of the decisions in case of Harish Dunichand
Chandnani(supra) and Dr. Arpita Nitinkumar Dave
(supra), the impugned orders cannot be
sustained.
11. Accordingly, the respondent authorities are
directed to grant/disburse the benefits of
higher pay scale to the petitioners considering
their date of joining the services by granting
the benefits as per Government Resolution dated
17.10.1994 and not to withdraw the said
benefits, if already granted to the petitioners
and the respondents are further permanently
restrained to effect any recovery from the
petitioners. The retiral benefits of the
petitioners shall be calculated on above basis
without withdrawing the benefits of Tikku Pay
Commission and amount of arrears as may be
payable to the petitioners shall be paid within
a period of 8 weeks from the date of receipt of
a copy of this order.
12. The petitions are accordingly allowed in the
aforesaid terms. Rule is made absolute to
aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
