Gujarat High Court
K K Patel vs Chief Engineer on 4 February, 2022
Bench: A.S. Supehia
C/SCA/16568/2004 ORDER DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16568 of 2004
With
R/SPECIAL CIVIL APPLICATION NO. 16566 of 2004
With
R/SPECIAL CIVIL APPLICATION NO. 16567 of 2004
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K K PATEL
Versus
CHIEF ENGINEER & 2 other(s)
================================================================
Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 04/02/2022
COMMON ORAL ORDER
1. The present writ petitions are filed challenging the action of the
respondent authorities in withdrawing the second higher pay-scale
granted to them, after completion of 18 years of service, for the reason
that they have not passed the departmental examination.
2. It is not disputed by the petitioners that their writ petitions being
Special Civil Application Nos.530, 531, and 532 of 2005 with Special
Civil Application Nos.533 of 2005, 5924 of 2006, and 17521 of 2003
challenging the action of the respondents of withdrawal of the higher pay-
scale granted to them for the reason that they have refused the promotion
to the post of Senior Assistant/Clerk has been dismissed by the order
dated 26.03.2019. The aforesaid judgment was subject matter of
challenge before the Division Bench in Letters Patent Appeal Nos.1554,
1453 of 2019. The Division Bench, by the order dated 21.08.2019 and
24.07.2019 dismissed the LPAs confirming the order passed by the
learned Single Judge.
3. The issue in the said group of petitions was with regard to the
withdrawal of the first higher pay-scale granted to the present petitioners.
C/SCA/16568/2004 ORDER DATED: 04/02/2022
The action of the respondent authority in withdrawing the first higher
pay-scale of the petitioners was held to be justified by this Court in the
aforesaid judgment dated 26.03.2019.
4. Thus, when the action of withdrawing the first higher pay-scale,
which is confirmed by the Division Bench is no more res integra, the
present writ petitions challenging the action of the respondent authorities
in cancelling the second higher pay-scale, which was granted to them
after completion of 18 years, does not merit acceptance and the same is
required to be rejected.
5. This Court in the order dated 26.03.2019 passed in the group of
petitions has held thus:-
"[5.0] I have heard the learned advocate for the respective parties. It is not in
dispute that all the petitioners have refused the promotion to the post of Senior
Assistant. They were also granted the higher pay scale in view of the circular
no. 578 dated 08.04.1993. Clause 10 of the aforesaid circular reads as under;-
Clause 10:- Each employee who avails the benefit of the higher
grade scales under this scheme shall have to given an
undertaking in writing as per Annexure-I appended to this Circular
that he shall not refuse the regular promotion as and when it
becomes due. This is because this scheme is intended to benefit
those who are stagnating beyond a period of 9/18/27 years and it
cannot be extended to those who have relinquished promotion for
any reason. The undertaking may also stated that if for any
reason he declines the promotion when it because due, he shall
forfeit the benefit under this Scheme and shall stand reverted in
the original lower grade from date of promotion order and shall
draw pay which he would have drawn had he not been given the
benefit of the higher grade scale under this scheme. There will,
however, be he recovery on account of reversion of employee to
his original lower grade for the period which he has drawn the pay
and allowances in higher grade scale, till the date of withdrawal of
higher grade.
[6.0] The petitioners accordingly gave an undertaking as per the clause-10 of
the circular no. 578, pursuant to which they were granted the higher grade
scale. The entire scheme of higher pay grade is meant for removing an
employee from stagnation in is service career. The petitioners have refused the
promotion to the post of senior assistant granted to them, and hence they are
not entitled for the higher pay scale as per the aforesaid scheme and as per the
undertaking they have to relinquish the same. The petitioners are not entitled to
higher grade scale once they have refused the promotion. The award dated
30.1.1984 passed by the Industrial court cannot rescue the petitioner since it
appears that the aforenoted Circular dated 578 dated 08.041993 was not the
subject matter of consideration."
C/SCA/16568/2004 ORDER DATED: 04/02/2022
6. It is not in dispute that the designation of the present petitioners,
who were appointed as Typists, was thereafter re-designated as Junior
Assistants and their next promotion would be Senior Assistant and they
would be entitled to the second higher pay-scale of the post of Deputy
Superintendent (Accounts). They were conferred the higher pay-scale
after completion of 18 years of the post of Deputy Superintendent
(Accounts) and for the said claim of higher pay-scale, it is not in dispute
that they are required to pass departmental examination of the post of
Deputy Superintendent (Accounts). Admittedly, they had not cleared the
same.
7. The first higher pay-scale, which was subject matter of scrutiny
before this Court in the group of petitions was withdrawn, because the
petitioners had refused the promotion to the post of Senior Assistant.
After examining Circular No.578 dated 18.04.1993, this Court vide
judgment dated 26.03.2019 has justified the action of the respondent in
withdrawing the first higher pay-scale.
8. As a sequel, the action of withdrawal with regard to the second
higher pay-scale, as prayed in the writ petitions would not make any
difference. So far as the issue of recovery of excess payment is
concerned, this Court, in the earlier order dated 26.03.2019 passed in the
captioned petitions has recorded the statement of learned advocate
Mr.Dave, who has very fairly stated that the respondent authorities will
not affect any recovery in view of the cancellation of the higher pay-scale
since all the petitioners have retired in service.
9. The writ petitions are dismissed. Rule is discharged.
(A. S. SUPEHIA, J)
ABHISHEK/1
