Gujarat High Court

Ravjibhai Gagjibhai Balondra vs State Of Gujarat on 31 January, 2022

Bench: Biren Vaishnav

     C/SCA/4841/2019                                    JUDGMENT DATED: 31/01/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 4841 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
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 1 Whether Reporters of Local Papers may be allowed to see the                No
      judgment ?

 2 To be referred to the Reporter or not ?                                    No

 3 Whether their Lordships wish to see the fair copy of the                   No
      judgment ?

 4 Whether this case involves a substantial question of law as to the         No
      interpretation of the Constitution of India or any order made
      thereunder ?

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                       RAVJIBHAI GAGJIBHAI BALONDRA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS HINA DESAI(1023) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,2,3,4
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  CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                    Date : 31/01/2022
                   ORAL JUDGMENT

1. Heard Ms. Hina Desai, learned advocate for the

petitioner and Mr. Meet Thakkar, learned Assistant

Government Pleader for the respondents through

Video Conferencing. Perused the record.

2. In this petition, under Article 226 of the Constitution

of India, the prayer of the petitioner is to issue a writ

of mandamus and a direction to quash and set aside

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the orders dated 16.12.2015 and 30.12.2015 passed

by the respondent authorities. By the order

dated ,16.12.2015, an amount of Rs.77,611/- has been

recovered from the petitioner on the ground that the

petitioner is not entitled to the higher grade scale for

a period from 20.9.1989 to 19.10.1994 on the ground

that he had not passed the departmental

examinations that were required to be passed for

being entitled to the benefit of higher pay scale. The

order of recovery was passed on 16.12.2016 and the

petitioner was to retire on 31.3.2016. The amount

was paid by the petitioner as he feared that if that

was not done, his entire pensionary benefits would

not be finalized. As a result of the order of

16.12.2015, the petitioner's request for opting of

increment date of 1st September was rejected. The

order of 30.12.2015 is a consequential order to that

of 16.12.2015.

3. Ms. Hina Desai, learned counsel for the petitioner

would submit that the petitioner was appointed as a

Clerk Typist in the year 1980. He joined service and

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cleared the departmental examination for promotion

to the post of Junior Clerk on 19.3.1994 and that of

the Senior Clerk on 20.10.1994. Since his date of

appointment was 19.7.1980 as Clerk cum Typist,

since the department did not conduct any

departmental examination till the year 1994, the

petitioner was granted the benefit of first higher

grade pay scale from 20.9.1989 on his completing of

9 years. By the impugned orders, such benefit of

grant of higher pay scale has been recovered after a

period of more than 25 years. She would submit that

in case of similarly situated employees, the recoveries

were set aside and, therefore, the issue is squarely

covered in favour of the petitioner who is a senior

citizen.

4. Mr. Meet M. Thakkar, learned Assistant Government

Pleader for the respondents would draw the attention

of the Court to the affidavit-in-reply filed on behalf of

Directorate of Archaeology & Museum. He would

submit that the petitioner is not entitled to the refund

of an amount of Rs.77,611/- which has been

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recovered on the basis of he being not entitled to the

benefit of the higher pay scale. He would submit that

by a GR dated 3.12.1981, Rules for Departmental

Examinations for the posts of Junior Clerk / Karkun

cum Typist / Senior Clerk were notified. As per the

conditions of service relating to the petitioner, the

petitioner was required to pass the examinations of

the 1982 Rules. The resolution dated 16.8.1994 with

respect to higher pay scale benefits, in Clause 3(9)

thereof provided that the higher pay scale can be

granted only to any employee who has cleared the

departmental examinations from the date on which

the result of the examination is declared. Since the

examinations were held in the year 1994, the

petitioner was entitled to the higher pay scale earlier

than that period and, thus, from 20.9.1989, till the

year 1984, the benefit of higher pay scale was

wrongly given and was so rightly withdrawn. That it

was granted by a mistake is also evident from further

affidavit filed by the Department dated 30.3.2015.

5. Ms. Desai, learned counsel for the petitioner in the

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petition drawing the attention of the Court has

extensively referred to the issue being decided in

case of the same department and, therefore, on the

short ground, the petition requires to be allowed.

6. In SCA No.11545 of 2014 filed by one Mr. Nitin

Ramjibhai Bhavsar, the challenge was made to the

orders dated 13.8.2014 and the orders of recovery on

the ground that the higher pay scale was granted in

favour of the petitioner though he had not passed the

departmental examinations.

7. The case of the petitioner there who was of the same

department was that no departmental examinations

were held from the year 1984 to 1993 and it was only

for the first time in the year 1994, the examinations

were held which the petitioner cleared. In that case

the petitioner had already retired from the service.

Considering the decision of the Supreme Court in the

case of State of Punjab v. Rafiq Masih reported in

2015(4) SCC 334, the Coordinate Bench of this High

Court allowed the petition and the order of recovery

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was set aside. The petitioner had once again to

approach this Court by filing Special Civil Application

No.15215 of 2015 where his pension was fixed at the

less than what he was entitled to, this Court in its oral

judgment dated 17.3.2017 considered the earlier

decision and held as under:

"5.1 The petitioner was initially appointed as Clerk cum Typist on 04.12.1979. He was promoted as Senior Clerk on 09.11.1984. He was granted first higher pay scale of the post of Head Clerk on 09.11.1993. He was actually promoted as Head Clerk vide order dated 09.05.2000 and he had joined the post on 22.05.2000. He was further promoted as Administrative Officer on 01.09.2009. He has retired from service on 31.08.2014.

5.2 On 17.03.2015, the respondent Authorities passed an order that, since the petitioner had not passed the departmental examination in the year 1984, he could not have been promoted as Senior Clerk and thus the said promotion was illegal and the same needs to be withdrawn. The consequential effect of the said order is that, the petitioner is treated to have been promoted with effect from 20.10.1994 as Senior Clerk, though his actual date of promotion as Senior Clerk was 09.11.1984. The further consequence thereof would be that he would not be entitled to any higher scale thereafter.

5.3 Thus the respondent Authorities have, after the retirement of the petitioner, withdrawn the promotion of the petitioner after about three decades and have ordered consequential recovery also.

5.4 Thus the respondent Authorities have, after

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retirement, refixed the pay of the petitioner, and the pension is fixed on his reduced pay. It is this action which is under challenge.

5.5 This Court finds that, the action of the respondent Authorities of withdrawing the promotion of the year 1984, in the year 2015, that too after the retirement of the petitioner, itself is unsustainable and the same needs to be set aside.

5.6 Even on merits, the action of the respondent Authorities is unsustainable. The basis for withdrawing the promotion is that the petitioner ought not to have been promoted in the year 1984, since he had not passed the departmental examination at that time. On being asked, learned Assistant Government Pleader, on instructions of the officer who is present before this Court, states that the said examination was first time conducted by the department in the year 1994. The petitioner had appeared and he passed it, at his first attempt. Under these circumstances, the action of the respondent Authorities was bad even on merits. An employee can not be expected to pass the examination which is not conducted by the department. Further promotion of the petitioner in the year 1984 was the necessity of the department and it was not open to the respondent Authorities to hold the petitioner responsible for it.

5.7 So far the contention of learned AGP that the petitioner was working as Administrative Officer at the time of his retirement is concerned, the same would not reduce the illegality which the Authorities have done. The promotion of the petitioner in the year 1984 was from the post of Clerk to Senior Clerk and when this Court has, on merits, found that, there was no illegality in the said promotion, the fact of the petitioner working as Administrative Officer from the year 2009 would not be a relevant factor at all. For this reason, this contention is rejected.

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5.8 The contention of the respondents that there are number of other similarly situated persons to the petitioner also needs to be rejected. If the State Authorities have committed illegality in more than one cases, and according to State also, if they are similarly situated persons, this judgment should be applied in those cases also. At this stage, it is noted that there is a policy of the State that the employees would not be dragged into unnecessary litigation. The said policy needs to be implemented qua those cases also.

5.9 It may be the requirement of the Employer, to give promotion to even those persons, who have not passed the departmental examination. Even if the petitioner had not got promotion as Senior Clerk within 9 years, on completion of nine years of service, he was even otherwise entitled to the first higher grade of Senior Clerk. It is the settled position of law that, non-passing of the departmental examination, which is not held by the department, can not be a ground to deny the higher grade scale to the employee. Reference in this regard can be made to the decision of the Supreme Court of India in the case of K.K. Gohil versus State of Gujarat reported in (2015) 9 SCC 652.

5.10 At this stage, reference also needs to be made to the proceedings of Special Civil Application No.11545 of 2014, which was the earlier round of litigation by the petitioner. That factor would further tilt the balance against the respondent Authorities.

5.11 Considering the totality, this Court finds that the action of the respondent Authorities of passing the order dated 17.03.2015, holding that the promotion of the petitioner as Senior Clerk on 09.11.1984 was illegal, is unsustainable and the same needs to be quashed and set aside. Since all the actions taken by the State Authorities are consequential in nature, including the impugned Pension Payment Order dated 22.04.2015, the same

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are held to be illegal and set aside."

8. Admittedly, therefore, the petitioner of SCA No.15215

of 2015 being of the same department who was

succeeded before this Court in getting the recovery

set aside, the same benefit ought to accrue to the

present petitioner.

9. Accordingly, the orders dated 16.12.2015 and

30.12.2015 are quashed and set aside. The petitioner

shall be refunded an amount of Rs.77,611/- that has

been recovered with interest @ 6% p.a. from the date

on which it has been recovered till the actual date of