Gujarat High Court

Chimanbhai Babarbhai Patel vs State Of Gujarat on 18 August, 2022

Bench: A.Y. Kogje

     C/SCA/16019/2015                              JUDGMENT DATED: 18/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16019 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                    Sd/-
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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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                        CHIMANBHAI BABARBHAI PATEL
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
================================================================
Appearance:
MS RV ACHARYA(1124) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 3
RULE NOT RECD BACK for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 18/08/2022

                               ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of

India is filed with following prayers:-

"B) That this Hon'ble Court be pleased to issue any

C/SCA/16019/2015 JUDGMENT DATED: 18/08/2022

appropriate writ order or direction, directing the respondent authorities herein to grant Higher Pay Scale of the post of Deputy Executive Engineer in the grade of of Rs.8000-13,500/- from the year 1999.

C) The Hon'ble Court be pleased to direct the respondent authorities to grant consequential retiremental benefits after granting higher pay scale of Rs.8,000-Rs.13,500/- from the year 1999 with 24% interest till realization.

1.1 Essentially, the petition is filed to claim higher pay

scale in terms of the policy of the State Government, where a

Government servant has stagnated.

2. Learned Advocate for the petitioner submitted that the

petitioner was initially appointed as a Technical Assistant in the

pay scale of Rs.290-480 on 09.03.1983. It is submitted that

thereafter, the petitioner was given promotion as over seer in the

pay scale of Rs.1,350-Rs.1800-Rs.2200/- on 01.03.1990. After this

promotion, there was a new pay scale introduced in the year 1998.

As per the 5th pay commission, higher pay scale was granted to the

petitioner and he was placed in the pay scale of Rs.5000-Rs.8000

with effect from 15.03.1999.

2.1 It is submitted that the main grievance of the petitioner

is that as per the Government resolution of 1994, higher pay scale

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ought to have been granted to him from 1999. It is submitted that

as per the said Government resolution, higher pay scale means the

pay of next promotional post, meaning thereby the petitioner ought

to have been granted pay scale of Deputy Executive Engineer in the

year 1999.

3. As against this, learned AGP submitted that in the year

1999, the petitioner was very well aware about his service

conditions and never raised any grievance with the respondent

authorities for higher pay scale till filing this petition in the year

2015. It is submitted that petitioner has not raised any grievance

for his higher pay scale for almost 16 years and further, the present

petitioner has taken voluntary retirement in the year 2011. At that

time also, he has not raised any grievance for higher pay scale, but

only after getting all consequential benefits, the petitioner has filed

the present petition belatedly after 16 years and therefore, the

present petition is required to be dismissed on the ground of delay

and laches.

3.1 It is submitted that clause-3 of the Government

resolution of the Finance Department dated 16.08.1994 and clause-

3(1) of the Government resolution of the Finance Department dated

02.07.2007 reflect that in case when a promotional post i.e. Deputy

Executive Engineer has more than one feeder cadre, each having

different pay scale then the employee would get the higher pay

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scale as per the pay scale applicable as per Schedule-1 attached

with both these resolutions rather than the pay scale of the

promotional post.

3.2 It is submitted that the petitioner is granted higher pay

scale as per the Government resolution and further the pay scale of

the feeder cadre of Deputy Executive Engineer, which are Assistant

Engineer, Additional Assistant Engineer and Overseer are totally

different. The pay scale of Overseer is Rs.4500-Rs.125-Rs.7000/-

and therefore, the petitioner was granted first higher pay scale of

Rs.5000-Rs.150-Rs.8000/- in absolute conformity with the rules and

resolutions and as per the schedule attached to the Government

resolutions dated 16.08.1994 and 02.07.2007.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the petitioner

was initially appointed as a Technical Assistant in the pay scale of

Rs.290-Rs.480/- on 09.03.1983 and thereafter, he was given

promotion as Overseer in the pay scale of Rs.1350-Rs.1800-

Rs.2200/- with effect from 15.03.1999 by order dated 08.08.2002.

After considerable years of service, the petitioner requested for

voluntary retirement on 13.11.2011 and pension came to be

released by June-July 2013.

5. It appears that in the year 1999, the petitioner was very

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well aware about his service conditions and never raised any

grievance with the respondent authorities for higher pay scale till

filing this petition in the year 2015. Thus, the petitioner did not

raise any grievance for higher pay scale for almost 16 years and he

chosen to retire voluntarily in the year 2011. At that time also, the

petitioner did not raise any grievance for higher pay scale, but only

after getting all consequential benefits, the petitioner filed the

present petition belatedly after 16 years and therefore, the Court is

of the opinion that the petition deserves to be dismissed on the

ground of delay and laches.

6. For the post of Deputy Executive Engineer, there are 3

feeder cadres, i.e. Assistant Engineer, Additional Assistant

Engineer and Overseer. The minimum education qualification for

each of these feeder cadres is different and method of recruitment

is also different for each of these feeder cadres. The promotion

ratio for the post of Deputy Executive Engineer from these feeder

cadres of Assistant Engineer, Additional Assistant Engineer and

Overseer is 7:4:1 respectively. An employee is granted benefit of

higher pay scale due to non-availability of promotional avenues

subject to the rules and resolutions in regard to higher pay scale.

From the chart attached, it appears that for the cadre of Deputy

Executive Engineer, Assistant Engineer, Additional Assistant

Engineer and Overseer, pay scale is specifically and categorically

C/SCA/16019/2015 JUDGMENT DATED: 18/08/2022

specified and considering these aspects, the petitioner was granted

the first higher pay scale of Rs.5000-Rs.150-Rs.8000/- with effect

from 15.03.1999 as according to the prevalent rules and

resolutions and the petitioner is not entitled for first higher pay

scale in the pay scale of Rs.8000-Rs.275-Rs.13,500/-, i.e. pay for the

post of Deputy Executive Engineer.

7. The clause, relevant in both the Government

resolutions dated 16.08.1994 and 02.07.2007 would read as under:-

"3. General ( Miscellenious)

(1) Higher pay scale means the pay scale of the post of immediate promotion; but if such promotion post is of more than one type in different pay scales, then the pay of the post having the lowest pay scale among such various promotion posts shall be considered for the higher pay scale, which shall be admissible to the employees falling in the post of its feeder cadre.

But, in case where there is no pay scale for promotion, then the pay scale corresponding to the existing pay scale of the employee as specified in Schedule-1 attached to this resolution shall be admissible as higher pay scale.

Further, in case of posts of supplementary cadres with different pay scales, while sanctioning the higher pay scale for such posts, the pay scale as specified in

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Schedule-I annexed to this Resolution corresponding to the existing scale of pay of the employee shall be admissible as the higher pay scale instead of the pay scale of promotion."

8. Accordingly, case of the petitioner is covered under this

clause and schedule-1 is applicable, where the corresponding

higher pay scale is at Sr. No.8, which shows the pay scale of

Rs.4500-Rs.700/- to be given higher pay scale of Rs.500-Rs.8000/-,

which is granted to the petitioner.

9. The chronology of event suggests that the petitioner

was appointed in 1983 as Technical Assistant, promoted to the post

of Overseer on 01.03.1990, he was given higher pay scale on

15.03.1999 and thereafter, promoted as Deputy Executive Engineer

in the year 2006. Thereafter, he took voluntary retirement in 2011.

It is only thereafter that, in 2015, claim is made for higher pay

scale since 1999, i.e. after 16 years. The fact that all this while the