Pragnaben Jagdishbhai Shah vs State Of Gujarat
2022 Latest Caselaw 895 Guj

       C/SCA/8012/2019                               ORDER DATED: 28/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8012 of 2019
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                         PRAGNABEN JAGDISHBHAI SHAH
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 28/01/2022
                       ORAL ORDER

1. The present writ petition has been filed seeking directions directing the respondent authorities to grant higher payments on the basis of the resolution dated 17.10.1994 and to quash Circular No.32 dated 30.07.2013.

2. The petitioner was appointed as a Medical Officer (Class-II) under the respondent-Corporation by a resolution dated 13.04.1978 and she retired on attaining the age of superannuation on 31.07.2001. The State Government issued a resolution dated 17.10.1994 extending the benefit of higher pay-scale to the Medical Officers, who have remain stagnated throughout their career. The petitioner was also granted the revision of pay commissions.

3. Learned advocate Mr.N.K.Majmudar appearing for the petitioner has submitted that similarly situated employees to the petitioner in the writ petition being Special Civil Application No.14506 of 2008 seeking benefit of higher pay-scale. It is submitted by the order dated 30.03.2016, the said writ petition was disposed of since during the pendency of the petition, the Corporation passed a Circular dated 30.07.2013. He has submitted that some of the petitioners withdrew that petition.

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4. Learned advocate Mr.Majmudar for the petitioner has submitted that the petitioner is not conferred the benefit of higher pay-scale as envisaged in the circular dated 30.07.2013 on the ground that she has retired from service before 01.01.2006. He has submitted that the aforesaid resolution dated 30.07.2013 is required to be set aside as the same discriminated in nature. It is submitted that the petitioner may be conferred the benefit of the Government Resolution dated 17.10.1994. No further submissions are advanced.

5. Per contra, learned advocate Mr.Satyam Chhaya has submitted that the petitioner would not be entitled to any benefit of the circular dated 30.07.2013 since she has already retired from the service in the year 2001. The Corporation, looking to its financial restrain, has decided to implement to grant the higher pay-scale to those employees, who are in service. It is submitted that the benefit is conferred notionally from 01.01.2006 and in cash from 01.04.2013 and since the petitioner has already retired in 2001, she is not entitled to the benefit of the circular dated 30.07.2013.

6. I have heard the learned advocates appearing for the respective parties.

7. The petitioner is seeking two prayers -- one for seeking benefit of the Government Resolution dated 17.10.1994 and simultaneously, challenging the circular dated 30.07.2013 issued by the respondent- Corporation.

8. It appears that, some of the Medical Officers serving in the respondent-Corporation had filed Special Civil Application No.14506 of 2008 seeking a prayer for implementation of the Government Resolution

C/SCA/8012/2019 ORDER DATED: 28/01/2022

dated 17.10.1994. During the pendency of the aforesaid writ petition, the respondent-Corporation issued a circular dated 30.07.2013 adopting the policy of the State Government dated 17.10.1994 in part. It was decided by the respondent-Corporation to grant benefit of higher pay-scale to its employees notionally from 01.01.2006 and in cash from 01.04.2013.

9. In view of the aforesaid resolution, out of 53 petitioners of the writ petition being Special Civil Application No.14506 of 2008, 45 petitioners were granted the benefit and they got themselves deleted from the writ petition. Only 8 petitioners were left out and the writ petition was disposed of by observing that the Commissioner, Ahmedabad Municipal Corporation may consider grant of benefits according to the resolution to the other 8 employees, who were left out.

10. The petitioner cannot be conferred the benefit of higher pay-scale in view of the Government Resolution dated 17.10.1994 since the same would be applicable to the Government employees and not to the employees of the respondent-Corporation, which is a statutory body. The Coordinate Bench of this Court, while disposing of the writ petition, has not issued any directions to the respondent-Corporation to confer the benefits as per the Government Resolution dated 17.10.1994. With regard to the prayer conferring of the benefit of the Government Resolution dated 17.10.1994 the same does not merit acceptance as such resolution will not apply to the petitioner, who was the employee of the respondent- Corporation. With regard to the prayer challenging the Circular No.32 dated 30.07.2013 to the extent that it creates unreasonable classification among similarly situated Medical Officers, the said prayer also does not merit acceptance.

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11. The respondent-Corporation, while adopting the scheme of the State Government for conferring the higher pay-scale to the Medical Officers looking its financial restrain and condition, has decided to implement the scheme of granting higher pay-scale with effect from 01.01.2006 as notionally and in cash from 01.04.2013.

12. At this stage, it would be apposite to refer to the decision of the Supreme court in the case of State of Punjab And Others vs. Amar Nath Goyal And Others, (2005) 6 SCC 754. The Supreme Court has held thus:-

"25. The only question, which is relevant and needs consideration, is whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity, was irrational or arbitrary.

26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/ State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.

32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including in the following two cases. In State of Rajasthan and Anr. v. Amritlal Gandhi & Ors., this Court went so as far as to note that:

"Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1.1.1986 for 1.1.1990"

33. More recently, in Veerasamy (supra), this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1.7.1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.

34. In State of Punjab and Ors. v. Boota Singh and Anr., ("Boota Singh") after considering several judgments of this Court in D.S. Nakara (supra) to K.L. Rathee v. Union of India, it was held that D.S. Nakara (supra) should not be

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interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the same.

35. In State of Punjab and Anr. v. J. L. Gupta and Ors., where one of us was on the Bench (Sabharwal, J.), the views expressed in Boota Singh (supra) were reiterated, and it was held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.

36. In Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors., a Division Bench of this Court said, even for the purpose of effecting promotion, the fixing of a cut-off date was neither arbitrary, unreasonable nor did it offend Article 14 of the Constitution. Moreover, the Court held that possible hardship to be endured by a person as a result did not make cut-off dates violative of Article 14.

37. In the instant case before us, the cut-off date has been fixed as 1.4.1995 on a very valid ground, namely, that of financial constraints. Consequently, we reject the contention that the fixing of the cut-off date was arbitrary, irrational or had no rational basis or that it offends Article 14."

13. The observations made by the Apex Court manifest that the importance of considering the financial implication while providing the benefit for employees, are very relevant in germane for any policy decision attaching the administration of the Government. The Supreme Court has also, after survey of various judgments, has upheld the decision of providing cut-off date in similar class of employees.

14. In the present case, the petitioner has already retired from service in the year 2001 and she would not fall within the cut-off dates stipulated in the Circular dated 30.07.2013. Such cut-off dates cannot be considered as arbitrary, unreasonable nor it will offend Article 14 of the Constitution of India since the Corporation has fixed such dates on a valid ground looking to its financial constraints.

15. In the result, the present writ petition fails and the same is dismissed. Rule is discharged.

(A. S. SUPEHIA, J) ABHISHEK