Gujarat High Court

Manjulaben Bhimabhai Talariya vs State Of Gujarat on 29 August, 2022

Bench: Biren Vaishnav

    C/SCA/7280/2022                             JUDGMENT DATED: 29/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7280 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7390 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7408 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7407 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7410 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13674 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 14384 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 15046 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7506 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
                      MANJULABEN BHIMABHAI TALARIYA
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MS TEJAL K SHAH(2719) for the Petitioner(s) No. 1 in all petitions
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1 in all petitions
MR HS MUNSHAW(495) for the Respondent(s) No. 2 in all petitions


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    C/SCA/7280/2022                                JUDGMENT DATED: 29/08/2022




MR.R.A.MISHRA with MR.KISHOR PRAJAPATI for the Respondent(s) No. 2
in SCA NO.7410/2022
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 29/08/2022

                          COMMON ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Utkarsh Sharma

learned AGP waives service of notice of Rule on

behalf of the respondent State and

Mr.H.S.Munshaw learned advocate waives

service of notice of Rule on behalf of the

respondent No.2 except Special Civil Application

No.7410 of 2022. Mr.R.A.Mishra with Mr.Kishor

Prajapati learned advocate waive service of

notice of Rule on behalf of the respondent No.2

in Special Civil Application No.7410 of 2022 only.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

3. By way of this petition under Article 226 of the

Constitution of India, the petitioners have prayed

to direct the respondents to hold that the

petitioners are entitled to revise first higher pay

grade pay scale.

4. Ms.Tejal Shah learned advocate for the

petitioners states the the petitions are covered

by the decision dated 17.02.2022 rendered by

this Court in Special Civil Application No.661 of

2021 and allied matters. The said decision reads

as under:

"1. In all these petitions, the petitioners who were initially appointed in the Sarvodaya Scheme ('the scheme' for short) for the activities of the scheme on different dates have prayed for a direction to the respondent authorities to take into account their entire service from 01.09.1981 to 01.04.1987 for the purposes of granting them the benefits of higher pay scales.

2. By notification dated 18.07.1980, the government decided to discontinue the scheme which brought down termination of

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

the employees like the petitioners. Being aggrieved by their termination, some employees approached this court challenging the notification. A compromise was arrived at and the existing employees of the scheme were agreed to be included in the panchayat establishments as ex-cadre employees. The government issued a resolution accordingly on 30.07.1981. The petitioners came to be absorbed in the panchayat service with effect from 01.04.1987. They then retired on superannuation. Their past services with the scheme was ignored for the purposes of regularization and pensionary benefits. This brought them to this court by filing Special Civil Application No. 1696 of 1996 and allied matters. In the said petitions, by a decision of this court dated 16.10.2001, the court directed that the services rendered by the petitioners from their initial date of appointment, when they were absorbed in the panchayat cadre till the date of retirement or otherwise be treated as continuous for the purposes of pension. A circular was issued by the State on 21.06.2012 to calculate 9 years of service from 01.04.1987 for the purposes of granting benefits of higher grade scale. This according to learned Senior Counsel Mr. Shalin Mehta appearing for the petitioners would fall flat on the face inasmuch as once having counted their past services for the purposes of pension, ignoring the same for the benefits of higher grade scale was unjustified.

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

3. Even otherwise, it is evident that in a batch of petitions filed before this court being Special Civil Application No. 1270 of 2013 and allied matters on 03.08.2018 where the petitioners had claimed benefits of higher pay scale as is claimed by the present petitioners, the court observed as under:

"15.It is in these circumstances, the observations which have been made and which have been relied upon in the earlier orders of the High Court could not be distinguished in the manner canvassed. The emphasis on the specific observation that the order of the High Court in SCA 1696/1996 was with regard to counting the continuity of service in case of the employees for the benefit of pension and it could not be counted for the purpose of higher pay scale or the financial benefit cannot be accepted.

Therefore, when such services rendered with the panchayat after the absorption in the year 1981 or prior thereto could be considered for the purpose of pension, there is no justification for not considering the same for the other financial benefits. It is required to be stated that the GR dated 15.12.1987 has been set aside with specific observation that such undertakings given by the

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

respective employees will not have any application. Therefore such services rendered by the employees cannot be ignored."

3.1 The Division Bench on a challenge in appeal by the State being Letters Patent Appeal No. 16 of 2020 and allied matters dismissed the appeal on 06.01.2020 holding as under:

"18. In light of the aforesaid situation, prevailing on the record, in a perusal of the stand of the Government in the affidavit-in- reply, reflecting on page 32, if to be considered, the said stand is found to be vague and not possible to be accepted. A brief affidavit-in- reply is submitted in which, it is asserted that their service tenure has been counted firstly for nine years after 1.4.1987 without any justification. Even independently, we are not in a position to take a different view since the State has not come out succinctly and has tried to bank upon the very same submissions which have been canvassed before and considered by the learned Single Judge.

19. Even in the recent decision delivered on 7.12.2018 in Special Civil Application No.15970 of 2017, relied upon by another learned Single Judge in a decision

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

dated 13.3.2019 in Special Civil Application No.3931 of 2019, a perusal suggests clearly that the view taken by the learned Single Judge is just and proper.

20. So far as the stand regarding depriving the original petitioners from the benefit of a higher pay scale/grade by treating them to be ex-cadre is concerned, we may look at the object of the scheme of the higher grade scale, pronounced by the Government of Gujarat, vide Government Resolution dated 16.8.1994. The ultimate aim is not to create a different class, rather to see that the employees who may not have a chance of further promotion and may be stagnated at the pay at a maximum stage, on account of such lack of promotional avenues are provided for with this higher grade scale in accepting the recommendation of the Central Pay Commission. Undoubtedly, these are the respondents who had been in services under the scheme floated and maintained on a 100% grant by the State Government, absorbed in Panchayat services on the same pay scale and posts. It is highly illogical to count their past services for pensionary benefits but not to count for higher pay scale, especially when these

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

employees have actually worked.

                  Therefore,    we    are    of   the
                  considered    opinion    that   the

extension of such benefit appears to have been rightly granted by the learned Single Judge by looking at past judgments, also referred above.

21. Further, we may also observe that in the Government Resolution dated 15.12.1987 brought before us, clause (8) clearly indicates that these ex-cadre employees were to be absorbed in the respective District Panchayats in the vacant posts. If the posts are not vacant, instructions were passed to create supernumerary posts in the same pay scale of Rs.950-1500. It is not possible to digest that they are to be treated differently simply because they have been ex-cadre employees. 22. One additional issue attempted to be raised by the learned Assistant Government Pleader was that the surplus employees are not entitled to the benefits of higher pay scale. Here, we are not in a position to accept this stand of the learned Assistant Government Pleader. The specific contention raised by the appellant is that the employees have not been declared as surplus; on the contrary they have been absorbed in the aforesaid manner. Clause

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

3/15 which was relied upon, reflected in the resolution placed before us in the translated compilation on internal page 26, reads as under:-

"3(15) The service of surplus employee due to discontinuance of posts in the department/ office in the former department/ office shall not be taken into account."

23. This is a lame excuse which has been attempted to be projected; the service of surplus employees shall not be taken into consideration is not well supported by any of the documentary evidence. There is nothing on record to suggest that the specific order declaring them as surplus is passed by the authority. Therefore, this is another additional factor which cannot be left unnoticed by us. The appellant authority has miserably failed in making out even a prime facie case which can permit us to take a different view.

24. Another circular dated 21.6.2012, is a clarification. As per Clause 3/15 of the Government Resolution dated 16.8.1994, as referred to above, and as per clause 2(11) of the Government

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

Resolution dated 2.7.2007 of the Finance Department, the service of the surplus employees due to non- availability of the posts put in earlier Department cannot be considered. It has no legs to stand on, in view of the fact that these very circulars, i.e. circular dated 16.8.1994, as well as 2.7.2007 have been conjointly read and the benefits have been made available to several employees earlier. In view of this, there seems to be no justification in the stand taken by learned Assistant Government Pleader.

25. In the wake of the aforesaid situation, and the circumstances examined by the learned Single Judge and independently by us, we see no reason to interfere with the discretion exercised by the learned Single Judge. Every aspect has been appropriately dealt with. There seems to be no perversity or material irregularity of any nature. That being the position, we are not inclined to substitute the view taken by learned Single Judge.

26. At this stage, we refer to the relevant proposition of law laid down by the Apex Court on the issue of exercising the appellate jurisdiction. It has been clearly spelt out by the Apex Court that,

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

"Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by learned Single Judge unless both sides agree for a fairer approach on the relief". Considering the aforesaid observation made by the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company reported in (2016)3 SCC 340, contained in para 5, we are not inclined to exercise our appellate jurisdiction. Accordingly, the Letters Patent Appeals, being merit-less, are dismissed with no orders to costs."

4. Accordingly, it is no more in the realm of doubt now that the petitioners who were similarly situated as the petitioners of the petitions filed before this court and were the beneficiaries of the judgement rendered by the co-ordinate bench of this court on 03.08.2018 are entitled to such benefits.

5. Affidavit-in-reply has been filed by the respondent District Development Officer wherein it is stated that the issue is under active consideration and letter has been addressed to the State on 26.08.2019 as it pertains to the policy of the State. Mr. Kurven Desai, learned AGP appearing in these petitions would also submit that the

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

State is in the process of undertaking that exercise which in fact is being undertaken and based on the service details, the benefits to the petitioner shall be extended by counting their services from 01.09.1981 to 01.04.1987 for the purposes of granting them benefit of higher pay scale.

6. Accordingly, these petitions are allowed. The respondents are directed to consider the entire service rendered by the petitioners from 01.09.1981 to 01.04.1987 for the purposes of granting them benefits of higher pay scale. Consequential orders fixing their pay scale in accordance with the directions issued hereinabove and revision and fixation of pension on that basis to the petitioners who have retired and payment of arrears on such refixation shall be done in accordance with law within 12 weeks from the date of receipt of the writ of the order of this court. It shall be open for the petitioners to make an appropriate representation to the authorities so far as interest on the payment is concerned. Direct service is permitted."

5. Accordingly, all the petitions are allowed. The

respondents are directed to consider the entire

service rendered by the petitioners from

01.09.1981 to 01.04.1987 for the purposes of

C/SCA/7280/2022 JUDGMENT DATED: 29/08/2022

granting them benefits of higher pay scale.

Consequential orders fixing their pay scale in

accordance with the directions issued

hereinabove and revision and fixation of pension

on that basis to the petitioners who have retired

and payment of arrears on such refixation shall

be done in accordance with law within 12 weeks