Gujarat High Court

Gordhan Ghusa Khatra (Since Decd) ... vs State Of Gujarat on 20 October, 2022

Bench: Biren Vaishnav

     C/SCA/21429/2022                             JUDGMENT DATED: 20/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21429 of 2022
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 21598 of 2022

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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      GORDHAN GHUSA KHATRA (SINCE DECD) THROUGH GORDHAN
                           KHATRA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
for the Respondent(s) No. 2,3,4
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 20/10/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai learned

Assistant Government Pleader waives service of

C/SCA/21429/2022 JUDGMENT DATED: 20/10/2022

notice of Rule for the respondent - State.

2. With the consent of the learned advocates for the

respective parties, the petitions are taken up for

final hearing today.

3. In these petitions, under Article 226 of the

Constitution of India, the petitioners have prayed for

a direction to the respondent to grant the benefits of

higher grade pay scale as per the GR dated

1.3.1993.

4. Mr. Asthavadi, learned counsel for the petitioners

would draw the attention of the Court to the Oral

Judgment dated 9.8.2016 passed in SCA No.7071 of

1997 and allied matters of the Division Bench of this

Court and submit that the petitioners of those

petitions had approached this Court who were also

like the present petitioners retired Agricultural

Assistants and Agricultural Supervisors. They had

C/SCA/21429/2022 JUDGMENT DATED: 20/10/2022

approached the Court for granting the benefit of the

Resolution dated 1.3.1993. Relevant paragraphs of

the judgment dated 9.8.2016 are reproduced

hereunder:

7.00. Heard the learned advocates appearing on behalf of the respective parties at length.

7.01. At the outset, it is required to be noted that by way of this petition under Article 226 of the Constitution of India, the respective petitioners who are retired as Agricultural Assistants / Agricultural Professors have, as such, prayed higher grade scale on completion of 9/18/27 years of service as per Government Resolution dtd. 1/3/1993. It is required to be noted that the respective petitioners are not claiming higher grade scale as per Government Resolution dtd. 5/7/1991. Under the circumstances, as such the conditions stipulated in the Government Resolution dtd. 5/7/1991 shall not be applicable when the claim of the respective petitioners for higher pay grade was was not pursuant to the Government Resolution dtd. 5/7/1991 but it was under Government Resolution dtd. 1/3/1993.

7.02. It is required to be noted that Government Resolution dtd. 1/3/1993 under which the respective petitioners are claiming benefits of higher pay scale, has been issued with respect to the particular department and particular post and was issued in the peculiar facts and circumstances and having noticed that in view of the decision taken by the Government to fill up 100% posts of Agricultural Officer, Class-II by direct recruitment, the employees like the petitioners - Agricultural Assistants / Agricultural Supervisors may not get promotion and therefore, a special higher grade scale has been fixed. It is required to be noted and it is not in dispute that the higher grade scale provided in the

C/SCA/21429/2022 JUDGMENT DATED: 20/10/2022

Government Resolution dtd. 1/3/1993 and the higher grade scale of the next promotional post i.e. Agricultural Assistants / Agricultural Supervisors is altogether different. It is required to be noted that in the Government Resolution dtd. 1/3/1993, of which the respective petitioners are claiming benefits of higher grade scale, no such conditions have been mentioned which are there in the Government Resolution dtd. 5/7/1991. Under the circumstances, to deny the benefits of higher grade scale as per Government Resolution dtd. 1/3/1993 relying upon the conditions stipulated in Government Resolution dtd. 5/7/1991 would be illegal and arbitrary and as such contrary to the object and purpose of issuing Government Resolution dtd. 1/3/1993. It is required to be noted that even Government Resolution dtd.1/3/1993 was issued after considering Government Resolution dtd. 5/7/1991 and even the same was sent to the Finance Department also. Under the circumstances, to deny benefits of higher grade scale provided under Government Resolution dtd. 1/3/1993 on completion of service of 9/18/27 years would be illegal and arbitrary.

7.03. At this stage, it is required to be noted that some of the employees in other Divisions, like Rajkot, etc., who were similarly situated to the petitioners, were granted benefits of Government Resolution dtd. 1/3/1993. Therefore, denial of the benefits of higher grade scale as per Government Resolution dtd. 1/3/1993 would be violative of Article 14 of the Constitution of India.

7.04. Under the aforesaid circumstances, as such we are of the opinion that there is no conflict between the decision of the learned Single Judge in the case of Khodidas M. Parmar Versus State of Gujarat and others rendered in Special Civil Application No. 3150 of 1998 and decision of the learned Single Judge in the present case. As observed hereinabove, the learned Single Judge in the case of Khodidas M Parmar (supra) was considering the grant of benefits under Government Resolution dtd. 5/7/1991 and not benefits flowing under Government Resolution

C/SCA/21429/2022 JUDGMENT DATED: 20/10/2022

dtd. 1/3/1993 which as observed hereinabove was issued in the peculiar facts and circumstances of the case narrated in the said Government Resolution dtd. 1/3/1993 and said Government Resolution was issued as a special case with respect to a particular department and particular post.

8.00. In view of the above and for the reasons stated above, all these appeals succeed. The impugned action of the respondent denying benefits of higher pay scale to the respective petitioners as per Government Resolution dtd. 1/3/1993 on completion of service of 9/18/27 years, as the case may be, is hereby quashed and set aside and it is held that the respective petitioners shall be entitled to benefits of higher pay scale / higher grade scale as per Government Resolution dtd. 1/3/1993. The concerned respondents are directed to grant benefits of higher pay scale as per Government Resolution dtd. 1/3/1993 to the respective petitioners on their completion of 9/18/27 years' and calculate the pension and pay arrears accordingly within a period of three months. Rule is made absolute to the aforesaid extent in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs."

5. In the contempt proceedings filed by the concerned

petitioners, the benefits were extended to the

petitioners by virtue of the decision of the Division

Bench of this Court.

6. Mr. Asthavadi would also rely on an Oral Judgment

dated 17.2.2022 passed in SCA No.1205 of 2020 of

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this Court, by which, the respondents were directed

to consider the case of those petitioners keeping in

mind the parity principle laid down by this Court in

the decision of Vipulkumar Atmaram Parekh v.

State of Gujarat through Secretary and others

in SCA No.1314 of 2009. Paras 8 to 10 of the

decision dated 17.2.2022 passed in SCA No.1205 of

2020 are reproduced hereunder:

"8. Considering the issues raised in the petition and the decisions as aforesaid, the communication dated 18.10.2019 is quashed only on the ground of rejecting the case of the petitioner on the ground that he was not the petitioner before this Court in decision dated 09.08.2016.

9. It will be open for the respondents to consider the matter afresh and take a fresh decision in accordance with law within a period of eight weeks from the date of receipt of copy of this order.