Gujarat High Court
State Of Gujarat vs Bhupendrakumar Somabhai Patel on 30 September, 2021
Bench: A. P. Thaker
C/LPA/186/2021 ORDER DATED: 30/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 186 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3398 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 186 of 2021
With
R/LETTERS PATENT APPEAL NO. 192 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3399 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 192 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3399 of 2014
With
R/LETTERS PATENT APPEAL NO. 193 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3397 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 193 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3397 of 2014
With
R/LETTERS PATENT APPEAL NO. 195 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3400 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 195 of 2021
In
SPECIAL CIVIL APPLICATION NO. 3400 of 2014
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STATE OF GUJARAT
Versus
BHUPENDRAKUMAR SOMABHAI PATEL
==========================================================
Appearance:
MR MANAN MEHTA, AGP (1) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR VM DHOTRE(1089) for the Respondent(s) No. 1
MR. MAYUR V DHOTARE(7019) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 30/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
All the above Letters Patent Appeals
C/LPA/186/2021 ORDER DATED: 30/09/2021
constitute a group, since arise out of common
judgment and order dated 25th February, 2020 passed by
learned Single Judge in Special Civil Application
No.3398 of 2014, Special Civil Application No.3399 of
2014, Special Civil Application No.3397 of 2014 and
Special Civil Application No.3400 of 2014
respectively impugned in these appeals.
1.1 Since the facts are similar and the issue is
common, all the Letters Patent Appeals are heard
together and are being treated for disposal by this
common order.
2. Heard learned Assistant Government Pleader
Mr.Manan Mehta for the appellant-State and learned
advocate Mr.V.M. Dhotre for the respondents-original
petitioners, in all the appeals.
3. Noticing the basic facts in the first
captioned Letters Patent Appeal No.186 of 2021
arising from the order relaltable to Special Civil
Application No.3398 of 2014, what was prayed by the
original petitioner in Special Civil Application was
to set aside Resolution dated 03rd June, 2009 of
Agriculture & Co-operation Department of the
appellant-State to the extent that it imposed
condition Nos.1 to 3 in granting regular pay-scale of
2550-3200 of Class IV post of Laboratory Boy, and
further that it granted benefits from prospective
date and not from 30th April, 1994 being the date on
which services of the petitioner came to be
regularised.
C/LPA/186/2021 ORDER DATED: 30/09/2021
3.1 Further prayer was advanced by the
petitioner to make available to the petitioner
regular pay-scale of the aforesaid post including the
revision in pay made from time-to-time from the date
when the services of the petitioner were regularised.
3.2 The case of the petitioner was that having
undergone the process of interview etc., he was
appointed as Laboratory Boy in the fixed pay of
Rs.600/- per month on 25th March, 1992 and the initial
period of two years was treated as probation period.
The services of the petitioner came to be regularised
on 30th April, 1994 as he completed the probation
period successfully. The petitioner made
representation dated 18th October, 1999 along with
other similarly situated employees seeking regular
appointment in the regular pay-scale of the post.
While the said request was not attended to, the
petitioner came to be granted minimum wage as per
Circular dated 20th January, 2001, however the issue
regards grant of pay-scale etc. remained pending with
the State Government.
3.3 It appears that respondent No.2 University
addressed letter dated 17th March, 2005 to the
Agriculture & Co-operation Department, pursuant to
which the aforesaid Resolution dated 03rd June, 2009
came to be passed. The employees named therein came
to be regularised in the regular pay-scale on the
terms and conditions mentioned therein. It further
appears that the said Resolution dated 03rd June, 2009
was not in consonance with the decision of the
C/LPA/186/2021 ORDER DATED: 30/09/2021
Managing Committee of the Navsari University dated
12th May, 2005.
3.4 Therefore, the Managing Committee requested
the Registrar of the University to reconsider the
issue as regards regular pay-scale to be granted to
the petitioner with effect from 01st April, 1994 upon
completion of probation period of two years. In
consequence, order dated 30th October, 2010 came to be
passed by respondent No.2 University granting regular
pay-scale of Rs.2550-3200 with effect from 16th
February, 2011. As the pay-scale came to be granted
from 16th February, 2011 and not from 01st April, 1994
which was the date when the petitioner completed
probation period, writ petition came to be filed by
the petitioner seeking relief.
4. The case of the respondent before the
learned Single Judge was that as per Resolution dated
16th February, 2006 of the Finance Department, the
pay-scale was available only after completion of five
years. This submission of learned Assistant
Government Pleader was not countenanced by learned
Single Judge observing,
"13. A bare glance of the resolution dated
16.02.2006 reveals that the State Government had
promulgated a scheme of appointing the employees of
Class-III and Class-IV posts on a fixed pay. Thus,
the scheme was implemented in order to appoint
Class-III and Class-IV employees and after
completion of 5 years, it was stated that they
shall be placed in a regular pay-scale."
4.1 Learned Single Judge held that the said
Resolution dated 16th February, 2006 did not have the
C/LPA/186/2021 ORDER DATED: 30/09/2021
retrospective effect.
14. Thus, a plain and simple reading of the
resolution dated 16.02.2006 reveals that it does
not have retrospective effect, but the scheme has
been formed by the State Government to appoint
Class-III and Class-IV employees on the fixed pay
basis and only after completion of 5 years, they
were required to be placed in the regular pay-
scale. Thus, the impugned Government Resolution
dated 03.06.2009 incorporating the aforesaid
conditions on the premise of the resolution dated
16.02.2006 is ill-conceived and hence, such
conditions are required to be set aside. The
resolution dated 16.02.2006 will not apply to the
case of the petitioners since they were appointed
in the year 1992 and have successfully completed
the probation on 23.06.1994. The Board Managing
Committee of the respondent-Agricultural University
had also passed Government Resolution dated
12.05.2005 conferring the benefit of regular pay-
scale before the promulgation of the resolution
dated 16.02.2006. ... ... ..."
4.2 Learned Single Judge held that, "Thus, the
State authorities could not have applied the
resolution to the case of the petitioners, whose case
has already been recommended by the University for
conferring the regular pay-scale.".
4.3 Finally, the petition came to be allowed
giving the following directions.
"15. For the foregoing reasons and analysis, the
present writ petitions succeed. The conditions
imposed in the Government Resolution dated
03.06.2009, more particularly condition Nos.1 to 3
are hereby quashed and set aside. The respondents
are directed to confer the benefit of the regular
pay-scale to the petitioners as per the resolution
dated 12.05.2005 passed by the respondent-
University. The respondents are further directed to
fix the retiral benefits of the petitioners
accordingly by conferring the regular pay-scale of
Rs.750-940/- with effect from 01.04.1994, as
envisaged in the resolution dated 12.05.2005.
Necessary consequential benefits and arrears shall
also be paid to the petitioners. Appropriate orders
in terms of the observations made by this Court
C/LPA/186/2021 ORDER DATED: 30/09/2021
shall be passed within a period of 08 (eight) weeks
from the date of receipt of the writ of this
judgment. Rule is made absolute."
4.4 This very order of the learned Single Judge
impugned by the State of Gujarat in these Letters
Patent Appeals was brought under challenge in Letters
Patent Appeal No.10 of 2021 filed by Navsari
Agriculture University - respondent N.2 in the
original petition. Division Bench dismissed the
Letters Patent Appeal. It was observed that the
petitioner had served for many years under the
University since 1992 on fixed wages and it amounted
to exploitation by the University. It was observed
that when the original appointment of the petitioners
provided their appointment on probation for two
years, University ought to have either confirmed
their services or terminated the services at the end
of the probation period, University continued to
exploit the services of the petitioners.
4.5 The Letters Patent Bench observed as under.
"5. In our considered opinion, the University ought
not to have preferred this appeal. It was
University's resolution under which the Court
upheld. If at all, any grievance could be alleged,
it would be at the ends of the of State and not at
the ends of the University. These employees have
worked with the University without any complaints
and they have been regularly continued right from
1992 on fixed wages of Rs.600/- per month after due
selection which itself was exploitation by the
University for so many years. When the original
appointment of all the petitioners clearly provided
that they were on probation for two years, the
University ought to have thereafter proceeded
either to confirm their service or to terminate
their service. But, the University continued to
take their service.
6. We do not find any error in the order passed by
the learned Single Judge. The appeal lacks merits
C/LPA/186/2021 ORDER DATED: 30/09/2021
and accordingly, the same is dismissed."
5. It is pertinent to note that in the main
Special Civil Application, the State Government did
not file its affidavit-in-reply. The reliance was
however placed on behalf of the State Government on
Resolution dated 16th February, 2006 issued by the
Finance Department. The entire case of the original
petitioners rested on the said Government Resolution.
The stand of the Government with regard to the said
Resolution dated 16th February, 2006 has been properly
and elaborately considered by learned Single Judge
and the submissions on behalf of the appellant were
not accepted. The said Government Resolution dated
16th February, 2006 contained a condition that it
would operate prospectively.
5.1 When the very judgment was under challenge
and has been upheld by the Division Bench dismissing
the Letters Patent Appeal as above, may be at the
instance of respondent No.2 University, the assail to
the very order of learned Single Judge at the
instance of State in these Letters Patent Appeals
cannot be entertained. It would amount to sitting in
appeal over the decision of the co-ordinate Bench of
equal strength.
6. When a Division Bench has dealt with the
order in question to confirm the same in another
appeal, it is not permissible for the another
Division Bench to entertain the appeal at the
instance of another respondent, to take different
view. The dictates of law of precedent and the
C/LPA/186/2021 ORDER DATED: 30/09/2021
propriety do not permit us to entertain the Letters
Patent Appeals, more particularly when no such
liberty is reserved for the State to initiate another
challenge to the very order of learned Single Judge.
7. The appeals are dismissed on the aforesaid
count.
(N.V.ANJARIA, J)
(DR. A. P. THAKER, J)
ANUP
