Gujarat High Court
Nazirkhan Ahmedkhan Pathan vs State Of Gujarat on 18 July, 2022
Bench: A.J.Desai
C/LPA/589/2016 ORDER DATED: 18/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 589 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 6655 of 2015
With
R/LETTERS PATENT APPEAL NO. 590 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6656 of 2015
With
R/LETTERS PATENT APPEAL NO. 591 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6657 of 2015
With
R/LETTERS PATENT APPEAL NO. 592 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6658 of 2015
With
R/LETTERS PATENT APPEAL NO. 593 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6659 of 2015
With
R/LETTERS PATENT APPEAL NO. 594 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6660 of 2015
With
R/LETTERS PATENT APPEAL NO. 595 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6661 of 2015
With
R/LETTERS PATENT APPEAL NO. 596 of 2016
In
SPECIAL CIVIL APPLICATION NO. 6662 of 2015
===============================================================
NAZIRKHAN AHMEDKHAN PATHAN
Versus
STATE OF GUJARAT & 2 other(s)
===============================================================
Appearance:
MR GM JOSHI SR. ADV.
for MR VYOM H SHAH (9387) for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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C/LPA/589/2016 ORDER DATED: 18/07/2022
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 18/07/2022
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeals under Clause 15 of Letters
Patent, the original petitioners have challenged the common
oral order dated 26.4.2016 in captioned writ petitions by
which the learned Single Judge had refused to accept the
prayer of the petition to grant 1 st Higher Pay Scale on
completion of their 12 years on the post of Laboratory
Technician.
2. Learned Single Judge disposed of the petitions by
common order by stating the facts of one of the appellant
namely, Nazirkhan Ahmedkhan Pathan. However, we would
like to elaborate the details about the appellants, about grant
of 1st Higher Pay Scale as per the Government Resolution dated
16th August, 1994, the date of refusing to accept the promotion
from the Laboratory Assistant to Laboratory Technician, which
is as under:
C/LPA/589/2016 ORDER DATED: 18/07/2022
Sr. LPA No. Name of the employee Date of Date on which Date on
st
No. appointment as the 1 9 yrs which the
Laboratory completed as first Non
Assistant per Resolution Acceptance
dated for the post
16.8.1994 of Laboratory
Technician
(4500-7000)
1. LPA Shri N.A. Pathan 21.1.87 21.1.96 09.6.98
No.589/16
2. LPA Shri Pankaj A. Rami 05.1.87 05.1.96 26.5.98
No.590/16
3. LPA Smt. Rupal P. Sheth 23.1.87 23.1.96 9.6.98
No.591/16
4. LPA Shri M.G.Shaikh 21.1.87 21.1.96 9.6.98
No.592/16
5. LPA Miss Dipti P. Mehta 7.10.83 7.10.92 4.4.97
No.593/16
6. LPA No. Shri Surendra D. Raghu 9.10.84 9.10.93 11.11.97
7. LPA No. Smt. S.K.Doshi 2.4.83 2.4.92 4.4.97
8. LPA Shri Ashok S.Bhatt 23.5.83 23.5.92 4.4.97
No.596/16
9. Shri B.K.Surti (soni) 22.1.87 30.1.96 9.6.98
3. Since the appellants - petitioners refused the promotion
on the post of Laboratory Technician on the date as referred
herein above, an order was passed by the competent authority
cancelling the 1st Higher Pay Scale to each of the petitioners in
the year 1998 itself and then they were put to their original
pay-scale of Rs.3050-4590.
C/LPA/589/2016 ORDER DATED: 18/07/2022
4. Thereafter, the petitioners accepted their promotion as
Laboratory Assistant on following dates.
Sr. LPA No. Name of the employee Laboratory Technician (4500-
No. 7000) 2nd (acceptance)
1. LPA Shri N.A. Pathan 13.6.2000
No.589/16
2. LPA Shri Pankaj A. Rami 13.6.2000
No.590/16
3. LPA Smt. Rupal P. Sheth 13.6.2000
No.591/16
4. LPA Shri M.G.Shaikh 13.6.2000
No.592/16
5. LPA Miss Dipti P. Mehta 9.6.2000
No.593/16
6. LPA No. Shri Surendra D. Raghu 13.6.2000
7. LPA No. Smt. S.K.Doshi 9.6.2000
8. LPA Shri Ashok S.Bhatt 9.6.2000
No.596/16
9. Shri B.K.Surti (soni) 13.6.2000
5. On completion of 12 years on the post of Technical
Assistant and relying upon the Government Circular dated 2 nd
July, 2007, the appellants - petitioners made a representation
to the respondent authorities to grant 1 st Higher Pay Scale
which was not considered and, therefore, writ petition being
Special Civil Application No. 14600 of 2014 was filed by some
of the appellants which was disposed of on 17.10.2014 asking
C/LPA/589/2016 ORDER DATED: 18/07/2022
the authority to decide the representation in accordance with
law within a period of eight weeks from the date of receipt of
copy of such representation.
6. In compliance of the order passed by the learned Single
Judge, a reasoned order dated 4.2.2015 was passed by the
authority refusing the same relying upon the Resolution dated
16th August, 1994 and particularly, condition No. 3 (20) of the
said Resolution.
7. Being aggrieved by the said decision, petitions came to
be filed. In response to the notice issued by learned Single
Judge, a detailed reply was filed by the authority opposing the
grant of stay claimed by the petitioners and mainly relying
upon the Government Resolution dated 16 th August, 1994 as
well as 2nd July, 2007. The learned Single Judge after
considering the facts of the case and interpreting several
clauses, particularly, 3(20) of Resolution dated 16 th August,
1994 rejected the petitions.
Hence, these appeals.
8. Mr. G.M.Joshi, learned senior counsel for Mr. Vyom Shah
for the appellants has vehemently submitted that the
respondents have misinterpreted several clauses of Notifications
dated 16th August, 1994 as well as 2nd July, 2007. He submits
C/LPA/589/2016 ORDER DATED: 18/07/2022
that it is undisputed fact that the appellants have joined the
services on different dates as mentioned between the year 1983
and 1987 and accordingly, as per the resolution dated 16 th
August, 1994, they were given 1st Higher Pay Scale on
respective dates. However, when they were promoted to the
post of Laboratory Technician in the year 1997-1998
respectively, due to their personal reasons, they did not accept
the promotion and as per clause 3(20) of the Resolution of
1994, they were reverted to the original pay-scale and had
given undertaking as per the form of Schedule II and
accordingly, the order of granting the 1 st Higher Pay Scale was
withdrawn by the authority by order dated 10.8.1998. He
submits that all the appellants were thereafter promoted to the
post of Laboratory Technician on different dates of 2000 and
continued on the post of Laboratory Technician till their
retirement except one of the appellant Smt. Rupal P.Sheth (still
in service). He submits that as per the scheme introduced by
the State authorities vide Government Resolution dated 2 nd
July, 2007 directed to grant 1st Higher Pay Scale, each of the
appellants who completed 12 years of service made
representation. He submits that the appellants have requested
for 1st Higher Pay Scale only on completion of 12 years service
on the post of Laboratory Technician for the first time after
promoted on the said post. He would submit that as per the
Government Resolution dated 2nd July, 2007, the employees
would be entitled for 1st Higher Pay Scale on completion of 12
C/LPA/589/2016 ORDER DATED: 18/07/2022
years and 24 years service respectively, if they have continued
on the said post and have become stagnant in the service. By
taking us through the said resolution, he submits that the
reason for issuing notification dated 2 nd July, 2007 is to grant
Higher Pay Scale on completion of 12 and 24 years service on
the same post instead of 9, 18 and 27 years as referred in
notification dated 16th August, 1994. He would submit that it
is an undisputed fact that the appellants are claiming their
Higher Pay Scale for the first time after a period of 12 years
service on the post of Technical Assistant and had never
claimed any Higher Pay Scale as Laboratory Assistant which
was withdrawn way back in the year 1998.
9. Mr. Joshi, learned senior counsel further submits that the
interpretation put forth by the State authority that once
promotion is refused by an employee, he would be
permanently barred from getting Higher Pay Scale even on
another post or on promotional post and that too in
accordance with the Government Resolution issued by the State
authorities. By taking us through the order impugned in this
appeal of the learned Single Judge he would submit that
though the English version of the undertaking is part of the
Resolution Dated 16th August, 1994 which is to be submitted
by the employee at the time of refusing the promotion is
reproduced in translated version, however, the undertaking
does disclose the name and signature of the employee as well
C/LPA/589/2016 ORDER DATED: 18/07/2022
as the post on the date of filing such undertaking that he will
not claim any 1st Higher Pay Scale in future. He, therefore,
submits that this cannot be applied when an employee is
already promoted and is claiming his right only after
completion of 12 years service as per Resolution dated 2 nd
July, 2007 on the promotional post. He, therefore submits
that the judgment and order be quashed and set aside and
appeals be allowed and they may be granted 1 st Higher Pay
Scale on completion of 12 years from the date of actual
promotion in the year 2000.
10. On the other hand, Mr. Tirthraj Pandya, learned AGP has
supported the decision of the learned Single Judge. Mr.
Pandya, has taken us to the affidavit filed by the authority,
Resolutions dated 16th August, 1994 and 2nd July, 2007. He
submits that it is undisputed fact that the petitioners had
refused their promotion in the year 1997-1998 as the case may
be and submitted their undertakings that they shall not claim
1st Higher Pay Scale in future. He submits that as per
Resolution dated 2nd July, 2007 and particularly, proviso to
clause 2(2) it specifies that those employees shall not be
entitled to Higher Pay Scale if they are promoted more than
once. In support of his submissions, he submits that if an
employee refuses promotion, it is required to be treated as if
he is promoted and therefore, subsequent promotion in the
present case i.e. in the year 2000 for each employee is a 2 nd
promotion and, therefore, they were not entitled for any
C/LPA/589/2016 ORDER DATED: 18/07/2022
Higher Pay Scale. He, therefore, submits that appeals be
dismissed.
11. We have heard learned advocates appearing for the
respective parties. It is undisputed fact that each of the
appellants who were granted 1st Higher Pay Scale on
completion of 9 years service as per the Resolution dated 16 th
August, 1994 refused promotion to the post of Laboratory
Technician in the year 1997-1998 and had filed an undertaking
as provided in the said Notification of 1994. It appears that
when the learned Single Judge reproduced the Schedule II of
Government Resolution dated 16.8.1994, the aspect about the
designation or post of an employee is not reproduced.
Therefore, we would like to reproduce the entire
undertaking which reads as under:
Schedule-2
Form of Undertaking
(See para 3(20) of the Scheme)
To,
-------
------
-----
I am working as ___________ in the office of
__________at______ have gone through the provisions of
Government Resolution, Finance Department No.PAY-1194/44/11,
dtd. 16.8.94 and hereby agree to the terms and conditions as stated
therein. I further hereby give an undertaking to the effect that I
shall not refuse the regular promotion as and when it becomes due
C/LPA/589/2016 ORDER DATED: 18/07/2022
to me. If for any reason I decline the regular promotion when it
becomes due to me I shall forfeit the benefit admissible under
"revised higher grade scale scheme" and shall revert back in the
original lower grade scale and shall draw the pay in original lower
grade which I would have drawn had I not been given the benefit
of the "Higher Grade Scale Scheme".
Place:------ Signature of Employee--------
Date:------- Name of Employee------------
Designation of Employee-------
Office:----------------
12. We are of the opinion that when an employee files the
aforesaid undertaking he is fully aware that if he does not
accept the promotion he has to loose the 1st Higher Pay Scale
which was granted on completion of his 9 years service.
However, the same cannot be treated as if he is permanently
debarred from getting any Higher Pay Scale in case if he is
subsequently promoted to the post and has completed the
requisite year for getting Higher Pay Scale on the said post.
Therefore, the submission made by learned AGP that once he
has refused the promotion and has subsequently accepted the
said post and subsequently promoted on the said post would
be case of two promotion and, therefore we discard his
submission. The Notifications issued in the year 1994 and
2007 cannot be read as if an employee who had worked on
either post or promotional post would not be entitled for
Higher Pay Scale on completion of requisite experience on the
promotional post. Promotional post is an independent post
and therefore, an employee who complete 12 years service and
C/LPA/589/2016 ORDER DATED: 18/07/2022
thereafter 24 years service on the same post, he would be
entitled for higher grade scale as per the Resolution of 2007
read with 1994.
13. Hence, the appeals are allowed.
14. The order of the learned Single Judge dated 26.4.2016
passed in captioned writ petitions is hereby quashed and set
aside and we direct the respondents to grant benefit of 1 st
Higher Pay Scale to the appellants as per Resolution dated
2.7.2007 on completion of 12 years service from the actual
date of promotion and pay the benefits accordinlgy.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
