Gujarat High Court

Thakorbhai Vallabhbhai Khalasi vs Gujarat Maritime Borad on 8 July, 2022

Bench: Biren Vaishnav

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11112 of 2020


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 ?

========================================================== THAKORBHAI VALLABHBHAI KHALASI Versus GUJARAT MARITIME BORAD ========================================================== Appearance:

MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 08/07/2022

CAV JUDGMENT

1. Rule. Mr. H.S. Munshaw, learned advocate appearing for the

respondents waives service of notice of rule.

2. By way of this petition, the petitioner has prayed for a declaration

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that he is entitled to receive second higher pay-scale of Rs.9300-34800,

GP - Rs.4400/- by quashing and setting aside the reply dated 02.05.2011.

3. Facts in brief would indicate that the petitioner joined the Gujarat

Maritime Board on 01.05.1982 as a Seaman in the pay-scale of Rs.200-

260. On 08.06.1984, he was promoted as Oilman in the pay-scale of

Rs.210-270 which came to be revised as Rs.800-1150 with effect from

01.01.1986. On completion of 9 years in the same cadre, the petitioner

was granted the first higher grade scale of Rs.1350-2200 from his due

date i.e. 05.08.1993 of the post of Marine Driver. The pay-scale came to

be revised to Rs.4500-7000 with effect from 01.01.1996 and further

revised to Rs.5200-20200, GP - 2800 with effect from 01.01.2006.

3.1 The State Government came out with a policy of the higher grade

pay-scale by resolution dated 02.07.2007 by virtue of which, those who

had received the first higher pay-scale on completion of 9 years in

accordance with the old scheme of 16.08.1994 would be entitled to

receive the second higher pay-scale upon completion of 15 years after the

receipt of the first higher pay-scale. The petitioner was therefore entitled

to receive the second higher pay-scale after 04.08.2008 in the scale of

Rs.5500-9000 (revised Rs.9300-34800, GP-Rs.4400) with effect from

05.08.2008.

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3.2 A detailed proposal was sent by the department which was not

accepted on two counts by the Board. Firstly, it was their case that the

petitioner had received one promotion and one higher pay-scale and

therefore is not entitled to receive the second higher pay-scale. The

second stand was that since the petitioner was a class-IV employee, he is

entitled to a pay-scale of Rs.2610-3540 and Rs.2650-4000 as first and

second higher pay-scale respectively as per para 2(19) of the resolution

dated 02.07.2007 and since the petitioner had already received the

promotional scale of Rs.4500-7000 as first higher pay-scale, he is not

entitled for the benefit. This was communicated to the petitioner on

02.05.2011 which is the subject matter of challenge.

4. Ms. Harshal Pandya, learned advocate for the petitioner would

submit that as per para 2(4)(b), the petitioner was entitled to the second

higher pay-scale. The reliance placed on para 2(3) and 2(19) is

misconceived as not applicable. She would further submit that she had

made representations to the authority, lastly on 14.09.2017 which did not

yield any result after his superannuation on 30.06.2014.

4.1 Ms. Pandya would submit that para 2(3) of the Government

Resolution dated 02.07.2007 is not applicable to the petitioner because it

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is applicable in case of those employees who are going to receive first

higher pay-scale on completion of 12 years after the 2007 resolution.

Para 2(4) of the resolution clearly stipulates that on completion of 15

years of service on having already received the first higher pay-scale, an

incumbent is entitled to second higher pay-scale. A clarification to that

effect has been made on 04.03.2008.

4.2 Reliance placed on para 2(19) of the Government Resolution is

also totally misconceived in the submission of Ms. Pandya. The clause

specifically states that it would apply to only those class-IV employees

who are appointed after 23.05.2006 and are in receipt of pay-scales of

Rs.2550-3200. Those appointed prior to 2006 are to get the benefit of

para 2(4)(a)(b)(c).

4.3 As far as delay is concerned, Ms. Pandya would submit that denial

of higher pay-scale is a continuous cause of action. Reliance was placed

on a decision of this court in the case of Babubhai Ranchhodbhai Patel

vs. State of Gujarat and others reported in 1993(2) GLH 705. She

has also relied on the decision of the Apex Court in the case of Union of

India and Others vs. Tarsem Singh [(2008) 8 SCC 648] and Lajja

Rama and Others vs. Union Territory, Chandigarh and others

[(2013) 11 SCC 235].

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5. Mr. H.S. Munshaw, learned advocate appearing for the respondent

Board would submit that the petition has been preferred more than 6

years after retirement and the communication rejecting the request is of

the year 2011. He would submit that the petitioner was granted the

benefit of promotion to the higher post of Oilman on 02.07.1984 and later

on the benefit of first higher pay-scale for the cadre of Marine Driver. As

per clause 2(3) and 2(19) of the resolution, the proposal is rightly turned

down as the petitioner has been granted promotion from the cadre of

Seaman to Oilman and thereafter given the benefit of first higher pay-

scale on completion of 9 years in the cadre of Oilman.

6. In rejoinder, Ms. Harshal Pandya, learned advocate for the

petitioner would rely on a decision in the case of Keshubhai

Vashrambhai Bhuva vs. Gujarat Maritime Board dated 16.01.2020

rendered in Special Civil Application No. 10318 of 2018 wherein

clause 2(4)(a) and (b) of the resolution dated 02.07.2007 was interpreted.

7. Considering the submissions made by the learned counsels for the

respective parties, the denial to the petitioner of the second higher pay-

scale of Rs.9300-34800, GP Rs.4400 with effect from 05.08.2008 is

misconceived for the following reasons:

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(I) The petitioner was promoted as an Oilman by an order dated

08.06.1984. On completion of 9 years of service in the same cadre and

the same pay-scale, he was granted the first higher grade scale with effect

from 05.08.1993. Clause 2(4)(a) and (b) clearly stipulate that if as per

the old scheme of the resolution dated 16.08.1994, an employee has got

the benefit of the first higher pay-scale, on completion of 9 years as per

the resolution dated 16.08.1994, then the second higher grade scale has to

be computed after 15 years from that date of the first higher pay-scale.

The petitioner therefore would be entitled to receive the second higher

pay-scale of Rs.9300-34800 (GP-4400) with effect from 05.08.2008.

(II) The reliance placed on clause 2(3) of the resolution holding that the

petitioner had got one higher pay-scale and one promotion is a

misreading of the clause. Neither has the petitioner received more than

one promotion or a higher pay-scale. The only promotion that he

received was in the year 1984 as Oilman. On completion of 9 years

thereafter, he received the first higher pay-scale with effect from

05.08.1993. He therefore, received only one promotion and one higher

pay-scale on completion of 9 years. Therefore, in accordance with clause

2(4)(b) on completion of 15 years from 05.08.1993 the petitioner is

entitled to the benefit of the second higher pay-scale on and from

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05.08.2008.

(III) This court in the case of Keshubhai Vashrambhai Bhuva (supra)

has held as under:

"9. Having considered the submissions of the learned advocates for the parties, what needs to be adjudged is whether since the petitioners have earned two promotions and one Higher Grade Scale, they can be deprived of the benefit of the Second Higher Grade Scale.

10. It is in this context that Clause 2, sub-clauses (2), (3) and (4) need to be read. When sub-clauses (2) and (3) are read, they make it clear that only when a beneficiary of the First Higher Grade Scale on completion of 12 years of service in accordance with the Resolution of 02.07.2007 is given such benefit, he is entitled to the benefit of the Second Higher Grade Scale on completion of further 12 years of service. This is subject to a qualification that such an incumbent has not earned more than one promotion and/or First Higher Grade Scale.

11. When in this context, sub-clauses (4)(a) and (b) are read, they specifically provide that when an incumbent earns his first higher scale on completion of nine years of service in accordance with the Government Resolution dated 16.08.1994, he shall earn the Second Higher Grade Scale on completion of 15 years thereafter. There are no riders in the clause that the earning of promotion and/or a higher grade scale would disentitle the incumbent of earning the Second Higher Grade Scale after the First Higher Grade Scale of nine years in accordance with the resolution dated 16.08.1994. Reading of the communication dated 12.09.2014 addressed by the Gujarat Maritime Board asking for its' opinion and the stand of the Government as is evident from the Finance Department's communications dated 04.03.2008 and 22.10.2014 make it clear that interpreting sub-clause 4(b) of Clause-2 of the resolution, the stand of the State is that one who has earned the First Higher Grade Scale on completion of nine years of service in

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accordance with the resolution dated 16.08.1994, is entitled to the Second Higher Grade Scale in accordance with the Government Resolution dated 02.07.2007 after completing 15 years thereafter. This of course is subject to the incumbents satisfying other conditions of the Government Resolution dated 16.08.1994.

12. Keeping these clarifications in mind, the petitioners are entitled to the reliefs prayed for and therefore, the respondents are directed to grant Second Higher Grade Scale of Rs.9300-34800/-, G.P. Rs.4400/- to the petitioners from their due dates with all consequential benefits including arrears and consequential fixation of pay and pension.

13. The petitions are allowed."

(IV) The decision in the case of Keshubhai Vashrambhai Bhuva

(supra) has been confirmed by the Division Bench in Letters Patent

Appeal No. 504 of 2020 on 09.09.2020. Para 2 thereof reads as under:

"2. The learned Single Judge, after considering the relevant Government Resolutions dated 16th August 1994, 2nd July 2007 and other clarifications issued by the Gujarat Maritime Board and the State Government, as also the opinion given by the State Government, came to the conclusion that the writ petitioner (respondent herein) was entitled to the second Higher Grade Scale as per the Government Resolution dated 2nd July 2007 read with earlier Government Resolution dated 16th August 1994. It is admitted fact that the petitioner came to be appointed in 1978, thereafter, got first promotion on 10th September 1980 as Senior Clerk, from the post of Junior Clerk with effect from 26th December 1983.

Thereafter, in 1992, upon completing 9 years of service in the cadre of Senior Clerk, he was granted the first Higher Grade Scale. Later on, in 2005, the petitioner was given promotion as Head Clerk in the same Pay Scale which was given to him as Higher Grade Scale in 1992. Thus, it is clear that the Higher Grade Scale given in 1992 and promotion in

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2005 are in the same Pay Scale. Even from 1992, the writ petitioner has continued in the same Pay Scale and as such, under the Government Resolution referred above, he was entitled to next Higher Grade Scale after completing 15 years of service which would be available to him in 2007. The learned Single Judge has thus, extended the benefit correctly."

(IV) Even the denial of the second higher pay-scale relying on clause

2(19) is misconceived as the petitioner's appointment was much prior to

the cut off date of 23.05.2006.

(V) On the aspect of delay, in the case of Tarsem Singh (supra), the

Apex Court has held that when it is a matter of pay fixation, the

principles underlying continuing wrongs are applicable. Paras 4 to 7 read

as under:

"4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan - [AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963) :

"31. ... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a

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wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

5. In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held :

"5. ... The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited

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extent of proper pay fixation, the application cannot be treated as time barred........."

6. In Shiv Dass vs. Union of India - 2007 (9) SCC 274, this Court held:

"8. ... The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition.......... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception.

If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does

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not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."

(VI) Even in the case of Lajja Ram (supra), the Court has held that

though petitions which are delayed must be discouraged but it must not

always prejudice the aggrieved parties. In the present case, the petitioner

retired on superannuation on 30.06.2014. Representations were made

04.09.2013, 10.09.2015, 01.02.2014, 15.03.2016, 17.11.2017 which

indicate that the petitioner was alive to the cause and was agitating for his

rights. In accordance with the decision in the case of Tarsem Singh

(supra) the relief can be moulded accordingly.

8. On both these counts, therefore, the impugned communication

dated 02.05.2011 is required to be quashed and set aside and accordingly

is quashed and set aside. The petitioner is entitled to the benefit of

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