Gujarat State Panchayat ... vs State Of Gujarat
2021 Latest Caselaw 13268 Guj

     C/SCA/21076/2018                            JUDGMENT DATED: 02/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21076 of 2018

                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 21076 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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

2     To be referred to the Reporter or not ?                         NO

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

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

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GUJARAT STATE PANCHAYAT TECHNICAL EMPLOYEES FEDERATION
                         Versus
               STATE OF GUJARAT & 4 other(s)
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Appearance:
DIPESH D CHHAYA(8075) for the Petitioner(s) No. 1
KHUSHBU D CHHAYA(8093) for the Petitioner(s) No. 1
MR KURVEN DESAI, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,5
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 02/09/2021
                             ORAL JUDGMENT

Heard learned advocate Mr.Khushboo Chhaya for the petitioner and learned Assistant Government Pleader Mr.Kurven Desai for the respondents.

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2. Rule returnable forthwith. Learned AGP Mr.Desai waives service of notice of rule for the respondents.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed as under :

"A) The Hon'ble Court be pleased to admit the petition and also,

B) Issue appropriate writ, order or directions and be pleased to direct the respondent authorities to pass appropriate order for granting the pay scale of 1640-2900 (pre-revised) to the members of the petitioner serving and appointed in Panchayat service as Additional Assistant Engineer on the basis of the G.R. dated 28/7/2015 and difference of salary may kindly be paid to the petitioners members serving and retired as well as to the legal heirs who have died alongwith the interest of 18%.

C) To pass such orders as deemed fit in the interest of justice."

4. The brief facts of the case are as under :

4.1 The petitioner is a federation of Panchayat Technical Employees having being approved by the State Government by resolution dated 31st January, 1975. The members of the petitioner have filed this petition so as to get the pay scale of 1640-2900 w.e.f. 1st January, 1986 on the basis of G.R. dated 28 th July, 2015 on the ground that though the members of the

C/SCA/21076/2018 JUDGMENT DATED: 02/09/2021

petitioner and other similarly situated Additional Assistant Engineers preferred representations, the same have not been considered by the respondents.

4.2 The petitioner also preferred Special Civil Application No.7238 of 2018, which was disposed of by this Court vide order dated 12th June, 2018 directing the petitioner to make representation before the office of the respondent and the respondent was directed to decide the same within a period of six months. However, the respondent rejected the representation of the petitioner by letter dated 29th August, 2018.

4.3 The petitioner has therefore, preferred this petition with the aforesaid prayers.

5. Learned advocate Ms.Chhaya appearing for the petitioner submitted that the members of the petitioner are identically situated to that of the petitioners of Special Civil application No.804 of 2017, which is decided by this Court vide order dated 18th June, 2021 and the case of the petitioner is squarely covered by the said decision, wherein it is held that the benefits of revised pay scale is required to be granted to the members of the petitioner in view of the order passed by the Division Bench of this Court in Letters Patent Appeal No.834 of 2012 and to

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confer the benefit of the revised pay scale w.e.f. 1st January, 1986 on notional basis and on actual basis w.e.f. 1st April, 1992.

5.1 It was submitted that the facts of the case of the petitioner are identical as the members of the petitioner are appointed by following regular recruitment procedure undertaken by the Gujarat Panchayat Service Selection Board and all the members of the petitioner are designated and posted as Additional Assistant Engineers serving on the same post at the different places of Gujarat State under district panchayat.

5.2 It was further submitted that the nature of duties of the members of the petitioner serving in district panchayat as well as the duties of the Additional Assistant Engineers in irrigation department in the State of Gujarat are identical and even eligibility criteria including upper age limit criteria, qualification seeking appointments for the post of Supervisor / Additional Assistant Engineers in District Panchayat as well as criteria for getting appointments in irrigation department of the State are also same. Moreover, the nature of work is also same and both the categories of employees are identically situated.

5.3 Learned advocate Ms.Chhaya also relied

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upon the decision of the Division Bench in Letters Patent Appeal No.834 of 2012 as well as the order passed in contempt petition being Misc. Civil Application No.1868 of 2015. Reliance was also placed on the Government Resolution dated 28th July, 2015 granting pay scale of 1640-2900 (pre-revised) w.e.f. 1st January, 1986 to the Additional Assistant Engineers of the State Government.

5.4 Learned advocate Ms.Chhaya also referred to the Circular dated 22nd August, 2014 to submit that similarly situated employees were to be given the same treatment and therefore, the members of the petitioner ought to have been given the same pay scale which came to be given to the Additional Assistant Engineers of the State Government Department on the basis of the G.R. dated 28th July, 2015.

5.5 It was submitted that the Additional Assistant Engineers were serving in Panchayats (Irrigation Department) and/or under R & B department in Panchayat or in Irrigation Department and/or R & B department under State Services are considered as same cadre posts and therefore, the members of the petitioner are entitled to pay scale of 1640-2900 w.e.f. 1st January, 1986.

6. On the other hand, learned AGP Mr.Desai

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submitted that in view of the order passed by this Court in Special Civil Application No.804 of 2017, petitioners are similarly situated to that of the petitioners of Special Civil Application No.804 of 2017 and therefore, the same order may be passed granting benefit of pay scale of 1640- 2900 to the petitioners w.e.f. 1st January, 1986 on notional basis and on actual basis w.e.f. 1st April, 1992.

7. Having heard the learned advocates for the respective parties, it appears that the members of the petitioner who are Additional Assistant Engineers are similarly situated persons to that of the petitioners of Special Civil application No.804 of 2017, wherein it is held as under :

"12. Having heard learned advocates for the respective parties and having gone through the materials on record as well as the decision of the Division Bench in Letters Patent Appeal No. 834 of 2012 in case of Additional Assistant Engineers Association and others (supra), I am of the opinion that the petitioner is entitled to the benefit of revised pay scale as per the judgement of the Division Bench which is already confirmed and approved by the Apex Court by dismissing the Special Leave Petition No. 29901 of 2015 vide order dated 01.10.2015.

13. The Division Bench has held after examining the issue of fixation of revised pay scale of the similarly situated persons who had already worked with the Narmarda Water Resources Water Supply and Kalpsar Department of the Government prior to the transfer with respondent No.2- Gujarat Water Supply and Sewerage Board as Additional Assistant Engineer

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are entitled to revised pay scale. The Division Bench while allowing the Letters Patent Appeal has held as under:

"11. We have heard learned counsel for the respective parties at length and in great detail. We have also perused the documents on record as well as the order passed by the learned Single Judge. It reveals from the record that the petitioners members were always treated along with the category of Engineers of same department and for the first time they were not treated along with the Assistant Engineers.

12.In light of this back ground, we are of the opinion that the members of the Petitioner Association ought to have been treated equally w.e.f. 1.1.1986. In view of this fact, we are of the opinion that the end of justice would be served if the respondents are directed to give notional revised pay scale to the members of the association w.e.f. 1/1/1986 and make actual payment from 1/4/1992.

13. In the result, the appeal is allowed in part. The respondents are directed to in give notional revised pay scale w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/1992 to the members of the appellate Association. Parties to bear their own costs."

14. It is also not in dispute that by resolution dated 28.07.2015 passed by the Finance Department, the State Government accepted the decision of the Division Bench and accordingly, conferred the pay scale of Rs. 1640-2900/- w.e.f. 01.01.1986 to all the Additional Assistant Engineers and thereafter Narmarda Water Resources, Water Supply and Kalpsar Department also by communication dated 07.08.2015 addressed to all heads of the department clarified that the decision of the Division Bench as well as the resolution dated 28.07.2015 would be applied to the Assistant Engineers subject to the result of

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Special Leave Petition filed before the Supreme Court. Thus, the decision of the Division Bench was made applicable to all the Assistant Engineers working under all the departments. The subsequent order passed by the Finance Department on 14.03.2016 is therefore, contrary to the Government resolution dated 28.07.2015 which was already implemented by all the departments and such resolution could not have been cancelled only on the ground that there was no sanction of the Finance Department. Finance Department could not have issued Government Resolution dated 28.07.2015 granting benefit to all Assistant Engineers as per the direction of the Division Bench without sanction.

15. The Coordinate Bench of this Court also in case of Vinodchandra Devprasad Shukla and ors vs. State of Gujarat and ors by order dated 09.10.2019 in Special Civil Application No. 2889 of 2016 has granted similar benefits relying upon the decision of the Division Bench.

16. In view of the above, the contentions raised by the learned advocate Mr. Meena as well as learned AGP Mr. Parikh with regard to the applicability of the decision of the Division Bench to the persons of the member of association only or with regard to the delay and laches or inasmuch do not merit acceptance as it cannot be said that the petitioner is not entitled to the benefit of the decision of the Division Bench in view of the principle of estoppel.

17. In view of the foregoing reasons, the impugned order dated 27.09.2016, whereby the benefit of revised pay scale is denied to the petitioner, is held to be contrary to the order of the Division Bench which is confirmed by the Supreme Court and therefore, the same is liable to be quashed and set aside.

18. The petition therefore, succeeds and the respondents are directed to examine the case of the petitioner as per the order passed by the Division Bench in Letters Patent Appeal No. 834 of 2012 and

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to confer the benefit of the revised pay scale w.e.f. 01.01.1986 on notional basis and on actual basis w.e.f. 01.04.1992. Therefore, respondents are further directed to pass necessary orders within a period of eight weeks from the date of receipt of this order revising the pay scale of the petitioner if it is found that the petitioner is identically situated with such persons who have been granted such benefit. Rule is made absolute to the aforesaid extent. No order as to costs."

8. In view of the above, the petition is allowed and the respondents are directed to examine the case of the members of the petitioner as per the order passed by the Division Bench in Letters Patent Appeal No.834 of 2012 and to confer the benefit of the revised pay scale w.e.f. 1st January, 1986 on notional basis and on actual basis w.e.f. 1st April, 1992. Respondents are further directed to pass necessary orders within a period of eight weeks from the date of receipt of this order revising the pay scale of the members of the petitioner if it is found that the members of the petitioner are identically situated with such persons who have been granted such benefit. Rule is made absolute to the aforesaid extent. No order as to costs.

9. In view of the disposal of the main petition, the civil application stands disposed of.

(BHARGAV D. KARIA, J) dolly