Gujarat High Court
Kerolin Kumudchandra Shah vs State Of Gujarat on 23 February, 2022
Bench: Biren Vaishnav
C/SCA/6731/2019 JUDGMENT DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6731 of 2019
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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KEROLIN KUMUDCHANDRA SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1
MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/02/2022
ORAL JUDGMENT
1. Heard Mr.Ekrama Qureshi learned advocate for the
petitioner and Ms.Surbhi Bhati learned AGP for the
respondent - State.
2. RULE. Ms.Surbhi Bhati learned AGP waives service
of notice of Rule for the respondents - State.
C/SCA/6731/2019 JUDGMENT DATED: 23/02/2022
3. With the consent of the learned advocates for the
respective parties, the petition is taken up for final
hearing.
4. The prayers in the petition are that the petitioner's
leave for the period from 01.09.2009 to 04.07.2010
should be regularized and that the adverse remarks
for that period be not treated as adverse for the
purposes of awarding the grade pay of Rs.8000/-. As
far as the former relief of regularizing the leave
period as aforesaid is concerned, the State has by an
order dated 04.04.2019, regularized the period of
leave by treating the same as Earned Leaves, Half
Pay Leaves etc. The prayer of regularizing the
leaves therefore would no longer survive.
5. The alternative prayer of the petitioner is that for
the period in question, the adverse remarks of the
petitioner was that she had remained absent
continuously unauthorizedly and therefore in
accordance with the resolution of the State
Government in consonance with the policy of the
C/SCA/6731/2019 JUDGMENT DATED: 23/02/2022
AICTE notification dated 04.01.2016, the petitioner
would not be entitled to the grade pay of Rs.8000/-
on completion of five years from 10.06.2006 due to
the adverse remarks for the period from 01.04.2009
to 01.10.2009, from 01.11.2009 to 31.03.2010 and
from 01.04.2010 to 31.08.2010. By the impugned
order dated 02.04.2018, the petitioner's
representation for expunging those adverse remarks
has been rejected.
6. Facts on hand would indicate that for circumstances
beyond her control, the petitioner had to proceed to
Nigeria to attend the health issues of her husband.
She applied for leave. The issue of her leave or her
absence was a subject matter of show cause notices.
Pursuant to disciplinary proceedings, the petitioner
has already been imposed with stoppage of one
increment with future effect by the order dated
22.03.2019 (Annexure:R-I to the affidavit in reply)
and her leave for the period in question has been
regularized. The only issue therefore remains is
whether the periods as aforesaid can be treated as
C/SCA/6731/2019 JUDGMENT DATED: 23/02/2022
adverse remarks for the purpose of declining or not
considering as eligible for the purposes of AGP of
Rs.8000/-.
7. Reliance is placed on Clause-5 of the resolution
dated 07.02.1995 by Ms.Bhati learned AGP to
indicate that if the confidential reports of past five
years are adverse, the incumbent cannot be entitled
to an AGP of a part amount.
8. Evidently in view of the subsequent order of
regularizing the leave of the petitioner, the adverse
remarks for the period in question cannot be treated
as adverse for the purposes of denying an AGP of
Rs.8000/- to the petitioner.
9. Accordingly, the respondents are directed to
consider the case of the petitioner for grant of AGP
on completion of five years with effect from
10.06.2006 in the grade of Rs.8000/- by treating the
remarks for the period in question as not being
'adverse' for the purposes of her consideration of
granting of the grade if she was otherwise eligible in
C/SCA/6731/2019 JUDGMENT DATED: 23/02/2022
accordance with law.
10. The petition is partly allowed. The compliance of the
directions given above shall be done within a period
of eight weeks from the date of receipt of copy of
this order and the consequential revision shall also
be done. Rule is made absolute to the aforesaid
extent.
(BIREN VAISHNAV, J)
ANKIT SHAH
