Gujarat High Court

Upendrasinh Ranjitsinh Jadeja vs State Of Gujarat on 20 October, 2022

Bench: Biren Vaishnav

     C/SCA/6635/2022                               ORDER DATED: 20/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6635 of 2022

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                       UPENDRASINH RANJITSINH JADEJA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,6,7,8,9
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 3, 5, 4,6,7
MS NIRALI SARDA, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 20/10/2022

                               ORAL ORDER

1. With the consent of the learned advocates appearing

for the respective parties, the matter is taken up for final

hearing.

2. Rule returnable forthwith. Ms. Nirali Sarda, learned

AGP appearing for respondent State and Ms. Neha

Kayastha, learned advocate appearing for Ms. Sejal

Mandavia, learned advocate for the Maritime Board

waive service of notice of Rule.

C/SCA/6635/2022 ORDER DATED: 20/10/2022

3. In the present writ petition, the petitioners have

prayed for extending the benefit of recommendation of

7th Pay Commission and revised pay-scale with effect

from 01.01.2016.

4. At the outset, learned advocate Ms. Ashlesha Patel,

appearing for the petitioners has submitted that the issue

is squarely covered by various decisions of this Court.

She has placed reliance on the order dated 26.10.2018

passed in Special Civil Application No.3756 of 2018,

which is confirmed by the Division Bench vide order

dated 24.01.2019 passed in Letters Patent Appeal No.231

of 2019. She has submitted that though the petitioners

are entitled to the benefit of 7th Pay Commission, only

because no approval has been sought by the respondent-

Board from the State Authority. She has submitted that

the benefit of 6th Pay Commission is also paid to the

petitioners and the writ petitioners claiming the same

being Special Civil Application No.11339 of 2017 was

already allowed in their favour by the order dated

C/SCA/6635/2022 ORDER DATED: 20/10/2022

12.04.2019 and accordingly, the petitioners have been

granted the benefit of pay as per the 6th Pay Commission.

Thus, she has submitted that once the petitioners are

granted the benefit of 6th Pay Commission, the

respondent-Board is not required to take further approval

from the State for extending the benefit of 7th Pay

Commission.

4.1. Further, reliance is also placed on the resolution

dated 24.05.2018 issued by the State Government with

regard to extending the benefit of 7th Pay Commission to

the employees of the respondent-Board. Thus, she has

submitted that the said resolution is required to be

implemented in the case of the present petitioners

without seeking any approval.

5. In response to the aforesaid submissions, learned

advocate appearing for the respondent-Board has

submitted that looking to the financial restrained of the

Board, it is necessary to take approval from the State

C/SCA/6635/2022 ORDER DATED: 20/10/2022

Authorities and hence, there is no Government Resolution

applicable to the Board to extend the benefit of 6th and

7th Pay Commission to those employees, who are

appointed after 17.10.1988. Thus, she has submitted that

the petitioners are not entitled for the benefit of 7th Pay

Commission.

6. Learned AGP Ms. Nirali Sarda has submitted that the

State has already issued a Government Resolution dated

24.05.2018 clarifying its position and hence, the fixation

of 7th Pay Commission is required to be done as per the

provisions of the aforesaid Government Resolution.

7. I have heard the learned advocates appearing for the

respective parties. The relevant Government Resolutions

are also perused.

8. It is not in dispute that the petitioners were paid the

benefit of 6th Pay Commission pursuant to the order

dated 12.04.2019 passed by this Court in Special Civil

C/SCA/6635/2022 ORDER DATED: 20/10/2022

Application No.1139 of 2017. The said order has become

final and now the issue with regard to payment of 7th Pay

Commission has cropped up and it appears that the same

is not being granted only because there is no approval

sent by the Board or even if it is sent, the State has not

approved it. In a similar issue, the Coordinate Bench vide

order dated 25.09.2019 passed in Special Civil

Application No.12046 of 2019 has directed the

respondents to extend the benefit of 6th and 7th Pay

Commission.

9. The aforesaid order was subject matter of challenge

before the Division Bench in Letters Patent Appeal

No.510 of 2020. By the order dated 08.09.2020, the

Division Bench has held thus:-

"3. Ms. Mandavia, the learned counsel appearing for the appellant Board has invited our attention to the resolution dated 19th September 2017 issued by the State Government in context with the employees of the Gujarat Maritime Board, more particularly, Clause 3 of the condition to be complied with

C/SCA/6635/2022 ORDER DATED: 20/10/2022

by the Board, which reads thus:

"The implementation of this pay revision shall have to be done by the Gujarat Maritime Board from 1st January 2016 as per Gujarat State Service (Revision of Pay) Rules, 2016 and subject to its provisions as per scale to scale basis. Its actual implementation shall be effected from 1st August 2017. With regard to the amount of difference of pay from 1st January 2016to 31st July 2017, its payment shall have to be done when the decision is taken for the employees of the State Government and payment shall be done accordingly."

4. According to the resolution issued by the State Government referred to above, more particularly, clause 3, the benefits of the 7th Pay Commission with effect from 1st January 2016 to 31st July 2017 would be on scale to scale basis. However, the actual effect shall be given from 1st August 2017. Ms. Pandya, the learned counsel appearing for the original writ applicant would submit that the Board may be directed to effect so far as the 7th Pay Commission is concerned from 1st August 2017. She would submit that as and when the issue with regard to the time period between 1st January 2016 and 31st July 2017 is resolved between the Board and the State Government, an appropriate claim may be put forward at an appropriate time.

5. It appears that the circular referred to above

C/SCA/6635/2022 ORDER DATED: 20/10/2022

by us dated 19th September 2017 was not brought to the notice of the learned Single Judge.

6 In such circumstances referred to above, while disposing of this appeal, we modify the order passed by the learned Single Judge to the extent that the petitioner shall be entitled to the 7th Pay Commission recommendations with effect from 1st August 2017. The Board shall, accordingly, extend the benefits at the earliest."

10. With regard to contention raised by the Board for

taking approval, I may in profit to incorporate the

observation of the order dated 24.04.2021 passed in

Letters Patent Appeal No.231 of 2019 by the Division

Bench. The Division Bench in similarly situated set of

facts has observed thus:-

"We find that learned Single Judge has correctly in exercise of powers under Article 226 of the Constitution of India, after considering the entire record, directed the respondent authorities to consider the case of the petitioners for granting the benefits of 6th Pay Commission and 7th Pay Commission and grant the same with arrears.

C/SCA/6635/2022 ORDER DATED: 20/10/2022

The argument advanced by the learned counsel for the Maritime Board that the employees have not made any proposal for getting the benefits pales into insignificance since the learned Single Judge has categorically directed the respondent authorities to consider the case of the petitioners and grant the benefits with arrears without any insistence on the petitioners making any proposal for getting benefits. We further find nothing unusual in the learned Single Judge granting a time-bound direction for the implementation of the directions given in the proceedings in exercise of his discretionary powers. The argument made by the counsel for the appellant-Maritime Board regarding interest being awarded is required to be turned down. Learned Single Judge considering the facts of the case in exercise of his discretionary powers, in the event of the benefits as directed not being paid to the petitioners after the expiry of prescribed time limit, directed payment of interest at the rate of 6% from the date of filing of the petition. We do not think it fit to interfere with the said findings of the learned Single Judge.

11. Thus, the judgment rendered by the learned Single

Judge was confirmed. However, the only aspect, which

was clarified by the Division Bench is that the petitioners

will be entitled to 7th Pay Commission with effect from

01.01.2016. Thus the present petitioners, who are

C/SCA/6635/2022 ORDER DATED: 20/10/2022

similarly situated and form the same class of those

petitioner, the respondents are directed to extend the

benefit of 7th Pay Commission to them with effect from

01.01.2016, however arrears from 01.01.2016 to

31.07.2017 be paid when it is resolved between the Board

and State. Necessary orders shall be passed within a