Gujarat High Court

Dave Manishbhai Dilsukhbhai vs State Of Gujarat on 30 August, 2022

Bench: Biren Vaishnav

     C/SCA/10085/2021                             JUDGMENT DATED: 30/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10085 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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                        DAVE MANISHBHAI DILSUKHBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 2,3
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 30/08/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Soaham Joshi, learned

Assistant Government Pleader waives service of notice

C/SCA/10085/2021 JUDGMENT DATED: 30/08/2022

of Rule for the respondent No.1, while Ms. Sejal

Mandavia, learned advocate waives service of notice of

Rule for the respondent Nos.2 and 3.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. The prayer in this petition is to direct the respondents

to extend the benefits of 6th pay commission with effect

from 1.1.2006. He was appointed in the year 1987 with

the respondent - Board. On termination from service

on 22.09.1993, the petitioner had approached the

Labour Court by filing a Reference Case No.29 of 1995

which was renumbered as Case No.420 of 1998, in

which, the labour Court by an award directed

reinstatement with continuity of service. Challenge to

the award by the Board was partly successful,

inasmuch as, the award of the labour Court was

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modified by direction that the petitioner shall not be

entitled to any back wages. The Letters Patent Appeal

filed by the Board was also dismissed.

4. Ms. Ashlesha Patel, learned counsel for the petitioner

would submit that in light of a decision of this court in

SCA No.2700 of 2016 dated 30.11.2017, the petitioner

is entitled to the benefits of 6 th Pay Commission. The

order reads as under:

"Heard learned advocate Mr. Mukesh Rathod for the petitioner and learned Assistant Government Pleader Ms.Megha Chitaliya for respondent - State and its authorities.

2. By filing the present petition under Article 226, the petitioner has prayed for a direction against the respondent authority to extend to the petitioner the benefits of 6th Pay Commission on the basis of Government Resolutions dated 27th February, 2009 and 24th August, 2009, with effect from 01st January, 2006 and to further direct the respondents to pay all the consequential benefits including the arrears.

3. The petitioner was appointed with effect from 05th December, 2008 under the respondent Deputy Executive Engineer, Irrigation Sub-

C/SCA/10085/2021 JUDGMENT DATED: 30/08/2022

Division, Halvad Section at Halvad, District Surendranagar. Services of the petitioner came to be terminated in the year 1990. The petitioner along with his co-employee one Jagjivanbhai Gordhanbhai Hulani raised industrial dispute before the Labour Court, Rajkot. Reference (LCR) No.239 of 1991 came to be allowed by the Labour Court and as per the judgment and award dated 09th April, 1995, the order of termination was quashed. The Labour Court directed respondent No.4 - employer to reinstate the petitioner and his abovenamed coemployee on their original posts with continuity of service within 30 days from the date of award. The respondent authorities preferred Special Civil Application No.4657 of 2001 before this Court seeking to challenge the aforesaid judgment and award, which petition came to be dismissed by order dated 27th February, 2003. Letters Patent Appeal No.1200 of 2003 was also dismissed on 24th November, 2003. Thereafter further challenge also failed finally as the Special Leave Petition No.493 of 2004 came to be dismissed on 12th July, 2004 by the Supreme Court. The petitioner and the said co-employee were reinstated in service with effect from 28th October, 2004. They were paid arrears of salary.

3.1 The petitioner as well as the said employee came to be extended the benefit of the Government Resolution dated 17th October, 1988 upon their completion of five years and ten years continuous service and they were granted pay- scale of Rs.2550- 3200. The respondents thereafter extended the benefits of 5th Pay Commission. The said co-employee Jagjivanbhai Gordhanbhai Hulani was given 6th Pay Commission benefits also by order dated 01st

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June, 2010. However, the present petitioner was not favoured with the said benefits of 6th Pay Commission and the same was not extended to him, though extended to the said co-employee. It is the case of the petitioner that he made several requests orally as well as in writing, and also served legal notice dated 22nd November, 2014 but all those efforts yielded nothing.

4. The aggrieved petitioner filed present petition seeking to ventilate grievance before this court. The respondent No.4 contested the petition by filing affidavit-in-reply. In the affidavit-in-reply it was admitted that petitioner was extended benefits of Resolution dated 17th October, 1988 as was also giving 5th Pay Commission pay- scales. The objection to the prayer of the petitioner was raised in the affidavit apparently on two grounds as are revealed from the contents of the reply. Firstly, it was submitted that Resolution dated 27th February, 2009 pertained to the grant of benefits of 6th Pay Commission benefits to the employees of the Corporations and Boards and the same cannot be applied to the present petitioner. The second and manifestly principal ground on which the benefits of 6th Pay Commission is disputed for the petitioner on the ground that the said Resolutions were applicable to the employees appointed prior to 17th October, 1988 and since the petitioner was appointed on 05th December, 1988, the cut-off date would apply. It was sought to be contended that as per clause (2) of Resolution dated 17th October, 1988, appointments of daily-wagers after 01st October, 1988 was prohibited and in view of said prohibition, petitioner would not be entitled to the benefits claimed for as was appointee post-01st October, 1988. A closure look

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of the affidavit-in-reply and the nature of defence raised would reveal that the same is filed for the sake of raising false defence and the contentions raised stand without application of mind and in ignorance of the law, and further disregards the principal of equal treatment to be given to the similarly situated persons.

5. The denial of benefits of the 6th Pay Commission to the petitioner is thus on the ground that the petitioner was appointed after 01st October, 1988 and as per the instructions, in view of the said cut-off date, petitioner is considered not entitled to get 6th Pay Commission pay-scale and benefits.

5.1 In Patel Tarunkumar Shankarlal v. State of Gujarat being Special Civil Application No.12527 of 2013 with cognate petition, the petitioners were the employees of Gujarat Maritime Board who were workcharge employees appointed after 31st March, 1989. Their grievance was similar to one involved in the present petition and that they were not given benefits of 6th Pay Commission, although all the work-charge employees appointed prior to 31st March, 1989 were granted the benefits. While contesting the said petition, respondents relied on Circular dated 31st March, 1989 of the Road & Building Department adopted by it, which was in connection with the State Government Resolution dated 17th October, 1988 and according to the said Circular, conversion from dailywagers to work-charge was restricted after 31st March, 1989 and appointment of daily-wagers was prohibited. Raising the said cut-off date, those

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petitioners were denied the benefits of 6th Pay Commission that they were appointed after the said date. The direction was prayed before the Court for grant of 6th Pay Commission benefits. The said petition came to be allowed by judgment dated 06th August, 2015. Learned Single Judge observed that it was incomprehensible that after having extending the benefits of 5th Pay Commission recommendations with effect from 1998 for the petitioners, 6th Pay Commission benefits were denied and it was further observed that there was no rationale or basis for placing reliance on Circular dated 31st March, 1989. the decision in Patel Tarunkumar Shankarlal (supra) came to be confirmed in Letters Patent Appeal No.1230 of 2015, decided on 23rd September, 2015 wherein the Court emphasise the equal treatment to be accorded to the homogeneous class of persons and disapproved the prescription of cut-off date. Special Leave Petition Nos.34352-34353 of 2015 came to be dismissed by the Apex Court on 04th January, 2016. The principle in the aforesaid decision directly applies to the case of the present petitioner.

5.2 Exactly similar was the case of Mansukh Arjanbhai Bhakhotara v. State of Gujarat being Special Civil Application No.2723 of 2016 decided on 23rd March, 2016. Those petitioners were identically placed with the present petitioners, who were daily wagers of the Irrigation Department as the present petitioner is, and claimed benefit of 6th Pay Commission as per the State Government

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Resolutions dated 27th February, 2009 and 15th March, 2010. The said petition was allowed by negativing same defence raised and the respondents were directed to calculate and pay the necessary benefits as per the 6th Pay Commission recommendations.

5.3 Decision in Mansukh Arjanbhai Bhakhotara (supra) was carried in Letters Patent Appeal No.768 of 2016 which was decided and dismissed as per order dated 07th July, 2017. While dismissing the Letters Patent Appeal, the Court relied on Patel Tarunkumar Shankarlal (supra).

6. In view of the above settled legal position, there is no gainsaying that the petitioner herein belongs to the similar class of person to be treated equally with Patel Tarunkumar Shankarlal (supra) and Mansukh Arjanbhai Bhakhotara (supra), to be extended the benefits of 6th Pay Commission recommendations. Denial of benefits to the petitioner is violation of fundamental rights of the petitioner under Articles 14 and 16 of the Constitution.

7. As a result of above discussion, the present petition is allowed. The petitioner shall be entitled to the benefits of 6th Pay Commission recommendations with effect from 01st January, 2006. The respondents are directed to calculate and pay the benefits flowing from 6th Pay Commission recommendations in relation to the pay-scale and other benefits from the said date and such payment, with consequential benefits including the arrears, shall be paid to the petitioner within a period of 10 weeks from the date of receipt of this order. It is further provided

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that if the benefits are not provided within the period prescribed, it shall carry interest at the rate of 6% from the date of filing of petition, that is from 03rd February, 2016. The petition is allowed accordingly. Direct service is permitted."

5. Reading the oral oral dated 30.11.2017 passed in SCA

No.2700 of 2016, it is clear that the petitioner is

entitled to same benefits.

6. As a result of above discussion, the present petition is

allowed. The petitioner shall be entitled to the benefits

of 6th Pay Commission recommendations with effect

from 01st January, 2006. The respondents are directed

to calculate and pay the benefits flowing from 6th Pay

Commission recommendations in relation to the pay-

scale and other benefits from the said date and such

payment, with consequential benefits including the

arrears, shall be paid to the petitioner within a period