Umesh Chhotabhi Patel vs State Of Gujarat
2021 Latest Caselaw 6763 Guj

     C/SCA/9959/2017                                   JUDGMENT DATED: 23/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9959 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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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                       UMESH CHHOTABHI PATEL & 2 other(s)
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1,2,3
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
MR SHIVANG THACKER FOR MR AR THACKER(888) for the
Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 23/06/2021

                                ORAL JUDGMENT

1. Heard learned advocate Mr. T.R. Mishra for the petitioners, learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent- State and learned advocate Mr. Shivang Thacker

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with learned advocate Mr. A.R. Thacker for respondents no. 2 and 3 through video conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Jayneel Parikh waives service of notice of rule on behalf of respondent-State and learned advocate Mr. Shivang Thacker waives service of notice of rule on behalf of respondent nos. 2 and 3.

3. By this petition under Article 226 of the Constitution of India, the petitioners have 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 immediately grant benefit of higher grade on completion of 9,18 & 27 years of service, as has been granted to other similarly situated employees and Your Lordships be further pleased to directed the respondents to pay the aforesaid benefits with 12% interest thereon;

(B) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to immediately grant the said benefits prospectively, forthwith;

(C) Any other and further relief as may be deemed fit just and proper may be granted in the interest of justice;"

4. Brief facts of the case are that the petitioners were appointed through employment exchange.

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Petitioner nos. 1 and 2 are working as typist whereas petitioner no.3 is working as peon with the respondents. Petitioner no.1 and 2 were initially appointed as typist in scale of Rs.260-400 on 5.10.1983 which was subsequently revised to Rs.950-1500 and further revised as per the 6th Pay Commission recommendations to Rs.3050-4590. The petitioner nos. 1 and 2 are presently working in the pay scale of Rs.5200- 20,200.

4.1) The petitioner no.3 is working as a peon from his initial date of appointment in the pay scale of Rs.750/- which was revised as per the 6th Pay Commission recommendation to Rs.4440- 7440 with grade pay of Rs.1400/-. The petitioners are getting the benefits of regular employees and have been given revised pay scale with all incremental benefits of various Pay Commission recommendations upto 6th Pay Commission. However, the petitioners are not treated as regular employees and therefore, they have been denied the benefits of higher grade pay scale on completion of 9, 18 and 27 years of service. According to the petitioners, the issue of giving higher grade pay scale has been resolved by the judgment of Supreme Court.

4.2) The petitioners made representations before respondent no.3-Superintendent Engineer and pursuant to the representations, respondent

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no.3 recommended the names of the petitioners to be included in the seniority list vide letter dated 3.2.1993 addressed to respondent no.2- Chief Administrative Officer. Respondent no.3 again by letter dated 30.1.1996 recommended the names of the petitioners to grant higher grade pay scale. The Executive Engineer also recommended the names of the petitioners to convert their services from irregular appointment to regular appointment by letter dated 25.3.2009 to respondent no.3 and in turn, respondent no.3 recommended the names of the petitioners to respondent no.2 by letter dated 4.4.2009. According to the petitioners similarly situated persons have been granted the benefits of higher grade pay scale. The petitioners relied upon the various orders passed by this Court in case of similarly situated persons as under :

i) Rashmikaben Trikamlal and others v. State of Gujarat and others (judgment dated 21.1.2011 rendered in Special Civil Application No.7464/1996).

ii) State of Gujarat and others v. T.P. Patel and others (judgment dated 17.10.2011 rendered in Letters Patent Appeal No.1360/2011 in Special Civil Application No.7464/1996).

iii) Order of Supreme Court dated 5.10.2012

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dismissing SLP (CC) No.17221/2012 confirming the order of Division Bench in Letters Patent Appeal.

iv) Sharalal Mulshankar Raval v. Gujarat Water Supply and Sewarage Board and others (judgment dated 9.10.2015 in Special Civil Application No. 13785/2013 and allied matters)

v) Gujarat Water Supply & Sewarage Board & others v. Sharalal Mulshankar Raval (order dated 22.3.2016 rendered in Letters Patent Appeal No. 40/2016 and other allied matters.

vi) Order of Supreme Court dated 22.8.2016 dismissing Special Leave Petition No.14700- 14711/2016 arising out of Letters Patent Appeal No.40/2016 and other allied matters.

5. Relying upon the above judgments, it was submitted by learned advocate Mr. Mishra that pursuant to the aforesaid orders, similarly situated employees are granted the same benefits without approaching the Court as per Government Resolution dated 22.8.2014.

5.1) It was submitted by learned advocate Mr. Mishra that the petitioners have completed 9,18 and 27 years of service and as such they are entitled to higher grade pay scale as held by this Court from time to time.

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6. On the other hand, learned Assistant Government Pleader Mr. Jayneel Parikh submitted that the petitioners are not entitled to get higher grade pay scale as the services of the petitioners have never been regularised as their appointment was for temporary period. Therefore, they are not qualified as per the rules for higher grade pay scale.

7. Learned advocate Mr. Shivang Thacker with learned advocate Mr. A.R. Thacker appearing for respondents no. 2 and 3 relied upon the averments made in the affidavit in reply and submitted that the petition is not maintainable as the facts of each of the petitioners are different and as each one has separate cause of action. It was submitted that petitioner no.1 is working as temporary typist and he is not fulfilling the criteria of having passed the departmental examination to claim regularisation and therefore, no prayer can be granted for higher grade pay scale as he is not qualified as per the Rules for the same. It was submitted that the name of petitioner no.1 does not figure in the seniority list and as such, no benefit can be given to petitioner no.1 for higher grade pay scale.

7.1) Learned advocate Mr. Thacker further submitted that petitioner nos. 2 and 3 are

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appointed for a temporary period and therefore, higher grade pay scale and other benefits which are given to the regular employee cannot be extended to them as services of petitioner nos. 2 and 3 have never been regularised. It was therefore, submitted that the petitioners have not challenged the seniority list in which their names are not included and as such, the reliance placed by the petitioners on various orders passed by this Court as well as the Supreme Court are not applicable in facts of the present case.

8. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioner nos. 1 and 2 are appointed in the year 1983 whereas petitioner no.3 is appointed in the year 1985 and they are continuously discharging their services with respondent nos. 2 and 3 - Gujarat Water Supply & Sewerage Board. Similarly, situated persons had preferred Special Civil Application No. 13785/2013 as the benefits of first and second higher grade pay scale was not granted by Gujarat Water Supply & Sewerage Board. This Court (Coram : Hon'ble Ms. Justice Sonia Gokani) allowed the petition holding that the services of the petitioners are required to be regularised as one time measure relying upon paragraph no. 53 of the decision of Apex Court in case of Secretary, State of

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Karnataka & ors. v. Umadevi (3) & ors. reported in (2006) 4 SCC 1 and also further to grant first and second higher grade pay scale in accordance with their services.

9. The Division Bench while confirming the order passed in Special Civil Application No. 13785/2013 and other allied matters held as under :

"7. In view of the aforesaid facts and submissions canvassed by the learned advocates appearing for the parties, the sole question which is required to be decided in the present group of appeals is as to whether the present appellant - Board is justified in not granting the second higher grade scale or first and second higher grade scale to the concerned petitioners by relying upon the resolution dated 28.03.2013?

8. On perusal of the material placed on record, it has emerged that the original petitioners were appointed by the State Government somewhere in the year 1979 as temporary Mistry or Karkoon or Chokidar. Thereafter, their services were transferred to the appellant - Board after the creation of the appellant -

Board. The original petitioners were absorbed as Jr. Clerks somewhere in the year 1985. They have also passed preservice training examination. The original petitioners were working on the concerned post since then. A copy of the service-book of each of the petitioners is placed on record by the learned advocate of the appellant as per the direction given by this Court. From the perusal of the service-book, it is revealed that the concerned petitioners were appointed as Mistry or Chokidar or Karkoon, as the case may be, on temporary basis and thereafter they were absorbed as Jr. Clerk in the pay-scale of Rs.260-400 when they transferred to the appellant - Board. It is also revealed from the service-book that preservice training was also

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cleared by the concerned petitioners. In some of the cases, the petitioners passed lower grade clerk examination also. In some of the cases, the appellant has also granted the benefit of first higher grade scale as per the resolution passed by the Government. The appellant Board has never raised any objection that the petitioners were not appointed after following due procedure and their appointments were irregular. Most of the petitioners have worked since 1979 - 1981 till the date of their retirement. Some of the petitioners had retired before filing of the petition and some had retired before the judgment is delivered by the learned Single Judge. Thus, from the record, it is clear that the objection raised by the appellant Board is nothing but an eyewash and such contention is taken only with a view to deny the benefit of higher grade scale to the original petitioners. When the appellant Board has given the benefit of first higher grade scale to some of the petitioners, at that juncture, such contention was not raised and at the time of granting the second higher grade scale such type of contention is raised. This Court in the case of Mr. S.K.Rajgor, co- employee of the petitioners, had already directed the Board to give the benefit of higher grade scale to the said employee. The said direction is already implemented by the Board.

9. We have also gone through the reasoning given by the learned Single Judge while allowing the petitions. In the facts and circumstances of the present case, we are of the opinion that the learned Single Judge has not committed any error while giving direction to the appellant Board to grant the benefit of higher grade scale to the concerned petitioners. Hence, no interference is required by this Court. The present appeals being devoid of merits are dismissed."

10. The aforesaid decision of the Division Bench is also not interfered by the Apex Court by dismissing the SLP preferred by respondent nos. 2 and 3 vide order dated 22.8.2016.

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11. In view of above facts and circumstances, the petitioners are similarly situated persons as that of the petitioners of Special Civil Application No. 13785/2013 and allied matters and as such, the petitioners are entitled to the benefits of regularisation as well as higher grade pay scale as they are discharging their services since 1983/1985 respectively and further are also entitled to first and second higher grade pay scales as per the tenure of services of the respective petitioner.

12. For the foregoing reasons, the petition is allowed. The respondents are directed to grant similar benefits of higher grade pay scale to the petitioners as has been granted to other similarly situated employees within a period of 12 weeks from the date of receipt of a copy of this judgment, failing which, the petitioners shall be entitled to get interest at the rate of 9% per annum on the arrears to be paid by respondent no.2 and 3.

13. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR