Kirtikumar Dolatrai Desai vs State Of Gujarat
2021 Latest Caselaw 16464 Guj

     C/SCA/4898/2021                                 ORDER DATED: 21/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4898 of 2021

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                       KIRTIKUMAR DOLATRAI DESAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2,3
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3,4
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 21/10/2021

                                ORAL ORDER

1. By way of this petition, the petitioners have prayed for the following relief.

"(B) Issue appropriate writ, order or direction and be pleased to quash and set aside the illegal, illogical, discriminatory, arbitrary action of the concerned respondent authorities of not extending the benefit of 15 % NPPA from the year 2006 till the date of retirement along with other service and pensionary benefits to the petitioners as per the 6th Pay Commission as the same is granted to other similarly situated persons and in consonance with Special Civil Application No. 14364 of 2016 and other allied matters.

(C) Issue appropriate writ, order or direction and be pleased to direct the concerned respondent authorities to extend the benefit of 15 % NPPA from the year 2006 till the date of retirement along with other service and pensionary benefits to the petitioners as per the 6 th Pay Commission as the same is granted to other similarly situated persons and in consonance with Special Civil Application No. 14364

C/SCA/4898/2021 ORDER DATED: 21/10/2021

of 2016 as well as Letters Patent Appeal No. 907 of 2016 and other allied matters."

2. Learned advocate Mr. Majmudar appearing for the petitioners would submit that the issue raised in the present petition is similar to issue raised in the Special Civil Application No. 10953 of 2014 and cognate matters, which has been decided by the Co-ordinate Bench of this Court (Coram : Hon'ble Mr. Justice J B. Pardiwala) vide common judgment dated 28.03.2016. Learned advocate for the petitioners would further submit that the said decision has been challenged by the State before the Hon'ble Division Bench and whereas Hon'ble Division Bench (Coram : Hon'ble Ms. Harsha Devani and Hon'ble Mr. Justice A.S. Supehia) vide judgement dated 19.07.2018 have been pleased to confirm the decision of the Hon'ble Single Judge. Learned advocate for the petitioners would further submit that the decision of Hon'ble Division Bench confirming the decision of Hon'ble Single has been challenged before the Hon'ble the Supreme Court and whereas the Hon'ble Supreme Court vide order dated 07.09.2020. Hon'ble Apex Court had been pleased to decline condoning delay in the Special Leave Petition (Civil) Diary No. 17681 of 2020.

Learned advocate for the petitioners would further submit that since the respondent authorities were not implementing the decisions of the Hon'ble Division Bench confirming the order of Hon'ble Single Judge, therefore, an application under the Contempt of Courts Act had been preferred and whereas the respondents authorities were directed to make the payment as held to be entitled to by the

C/SCA/4898/2021 ORDER DATED: 21/10/2021

petitioners with 6% interest from the date of filing of the Contempt Application as well as cost of litigation at the rate of Rs. 5,000/- to be paid to each of the applicant.

3. Learned advocate for the petitioners would submit that since the petitioners before this Court and the petitioners referred herein being similarly situated, the benefit as made available to the petitioners in the above referred petitions should be made available to the present petitioners along with the cost of litigation and interest as directed to be paid by the Hon'ble Division Bench vide order dated 07.11.2020 in Misc. Civil Application No. 440 of 2019 of the Contempt of Courts Act, 1988.

4. As against the same, Mr. Utkarsh Sharma, learned Assistant Government Pleader has submitted that asfar as the proposition of law as laid down by Hon'ble Single Judge and the Division Bench, he may not be able to controvert the same and whereas he would strongly oppose the grant of interest and cost to the present petitioners. Learned AGP would submit that the petitioners having approach this Court in the year 2021 seeking benefit of a judgment passed by the Co-ordinate Bench in the year 2016 confirmed by the Hon'ble Division Bench in the year 2019 and not interfered with by the Hon'ble Apex Court in the year 2020, may not be entitled to cost of litigation or for that matter interest upon the arrears.

5. Having regard to the submissions made by the learned advocates for the parties, it prima facie appears that the petitioners before this Court as well as petitioners in the group of petitions referred to hereinabove appear to be similarly

C/SCA/4898/2021 ORDER DATED: 21/10/2021

situated. Having regard to the same, the aspect of similarity requires to be verified at this stage of the Government itself and whereas appropriate directions for granting of benefit as available to the petitioners in Special Civil Application No. 10953 of 2014 are required to be passed.

6. Asfar as the issue with regard to the interest and costs of litigation, this Court finds that while Hon'ble Co-ordinate Bench as well as Hon'ble Division Bench had decided on the aspect of entitlement of the petitioners wherein both the Courts which decided the substantive issue had not thought it appropriate to grant the costs of litigation or interest for delayed payment in favour of the petitioners herein. Perusal of the decision of the Hon'ble Division Bench dated 07.11.2020 in Misc. Application No. 440 of 2019 under the Contempt of Courts Act clearly reveals that the cost of litigation as well as interest was to be paid in context of non-implementation of substantive decisions passed by this Court. Perusal of the Paragraph-12 clearly reveals that intent of the Court inasmuch as the amount of interest at the rate of 6% is directed to be calculated from the date of filing of the application till payment and whereas the cost of litigation was not with regard to the substantive decisions and whereas the cost was with regard to the application under the Contempt of Courts Act only.

7. To substantiate, it clearly appears that the Courts which decided the substantive issue did not hold it appropriate to either grant of cost of litigation or interest to the petitioners and it is only upon non implementation of the decisions which resulted in application under the Contempt of Courts Act, being filed by the petitioners wherein that interest and cost of

C/SCA/4898/2021 ORDER DATED: 21/10/2021

litigation came to be granted. Thus, the interest and cost of litigation are corelatable to the aspect of non-implementation of the decision of this Court and not corelatable to the substantive aspect of entitlement of the petitioner to the benefits, which has been granted by the Hon'ble Single Judge as well as the Division Bench.

8. In view of this matter, the request for grant of interest and cost of litigation is rejected. Insofar as the substantive prayer of the petitioners, the following directions are passed:

8.1 Each of the petitioners to prefer an individual representation to respondent No. 1- The Secretary of Agriculture and Co-operation Animal Husbandry Department and respondent No.2 - The Director of Animal Husbandry Department. Each of the petitioners to prefer such representation within a period of four weeks from the date of receipt of the order of this Court.

8.2 The respondents shall decide such representations in the light of the decisions of this Court dated 28.03.2016 passed in Special Civil Application No. 10953 of 2014 and the decision dated 19.07.2018 passed in Letters Patent Appeal No. 907 of 2016, as regards entitlement of the petitioners to claim extension of benefit of 15% of NPPA.

8.3 Respondents No.1 and 2 shall consider such individual representations and decide the same in the light of the observations of this Court hereinabove within a period of fourteen weeks from the date of representation of each of the petitioners.

          C/SCA/4898/2021                       ORDER DATED: 21/10/2021




8.4       In case, such petitioners were deemed to be entitled for

extension of 15% NPPA, the same shall be paid in the light of the observations of this Court in Special Civil Application No. 10953 of 2014 and cognate matters and Letters Patent Appeal No. 907 of 2016 and cognate matters.

8.5 Sofar as those persons, who are declared not to be entitled for the said benefits, respondents No.1 & 2 shall inform the said petitioners in writing with reasons as regards their no entitlement.

8.6 Such of the petitioners, who are declared to be entitled for the 15% NPPA, the arrears shall be paid within a period of eight weeks from the date of decision of respondents No. 1 & 2 and whereas it is clarified that none of the petitioners would be entitled for cost of litigation the interest thereon upon.

9. It is further clarified that in case the appropriate payments are not made to the persons, who are deemed to be entitled to the benefit of 15% NPPA within a period of eight weeks of the passing of the order by respondents No. 1 & 2, then such petitioners shall be entitled to claim 6% interest from the date of the filing of the petition.

10. With the aforesaid observations and directions, this petition is disposed of.

(NIKHIL S. KARIEL,J) SALIM/