Gujarat High Court

Pithadiya Vijaybhai ... vs State Of Gujarat on 19 September, 2022

Bench: Biren Vaishnav

     C/SCA/10916/2020                              ORDER DATED: 19/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10916 of 2020

                               With
          R/SPECIAL CIVIL APPLICATION NO. 10313 of 2017
                               With
 CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
         In R/SPECIAL CIVIL APPLICATION NO. 10313 of 2017
==========================================================
                    PITHADIYA VIJAYBHAI MAHENDRABHAI
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 19/09/2022

                              ORAL ORDER

1. Heard Mr. N.K. Majmudar, learned advocate for the

petitioners and Mr. Kurven Desai, learned AGP for the

respondent State.

2. By way of these petitions, the petitioners have

prayed for giving them regular pay scales as applicable to

them from the date they were appointed as per the

tabular statement annexed at Annexure A to Special Civil

C/SCA/10916/2020 ORDER DATED: 19/09/2022

Application No. 10916 of 2020 i.e. from the initial dates of

their appointment and also to pass appropriate orders

granting them the consequential benefits arising

therefrom.

3. Mr. Majmudar, learned advocate appearing for the

petitioners would rely on an order passed by this court in

Special Civil Application No. 14642 of 2019 and allied

matters which has been confirmed by way of Letters

Patent Appeal No. 855 of 2022 and allied matters. He

submitted that therefore similar order be passed in the

present matters.

4. Mr. Kurven Desai, learned AGP would fall back upon

the reply filed by the State and submit that it is

specifically stated in the appointment orders that the

service of the petitioners will be governed by the

Government Resolution dated 15.06.2004 which states

that all the employees were appointed for a period of five

years for fixed pay and on the completion of those five

C/SCA/10916/2020 ORDER DATED: 19/09/2022

years, their services will be considered as regular service.

5. This court in para 10 of the decision rendered in

Special Civil Application No. 14642 of 2019 has observed

as under:

"10. Considering the submissions made by the learned advocates for the respective parties, it appears that Mr. Manharbhai Ramanbhai Naik, who was denied appointment on compassionate ground as a result of the ceiling of income limit prevalent at the time of his application, approached this Court when his case for appointment was rejected. Considering the policy as per the GR dated 10.3.2000 and 7.9.2002, the Court set aside the stand of the State Government in not considering the case of the petitioner for appointment on compassionate ground. The relevant portion of the order dated 7.10.2002 passed in Special Civil Application No.1579 of 2002 reads as under:

"4. At the hearing of the petition, the learned counsel for the petitioner relies on the Government Resolution dated 7-9-2002 laying down that the Government Resolution dated 10- 3-2000 doing away with the income limit in matters of compassionate appointment shall be given effect from 1-1-1996.

C/SCA/10916/2020 ORDER DATED: 19/09/2022

5. In view of the aforesaid resolution, it is clear that in cases where deceased expired on or after 1-1-1996, the compassionate appointment cannot be refused on the ground of the income of the families exceeding the prescribed limit as no limit would now be applicable.

6. In view of the statement being made by the learned counsel for the petitioner that the death of the father of the petitioner took place while holding office and on or after 1-1-1996 i.e. on 19-6-1999, it is obvious that the present case will be governed by the Government Resolution dated 10-3-2000 read with the Government Resolution dated 7-9-2002."

11. Based on these directions, Mr. Manharbhai Ramanbhai Naik was appointed on compassionate ground by an order dated 23.7.1994 on fixed pay of Rs.2,500/-. That his appointment was on fixed pay similar to the one in case of the petitioners is evident from the modified order issued by the State on 12.6.2019. Reading the order of 12.6.2019 would indicate that the State Government considering the spirit of the order passed in Special Civil Application No.1579 of 2002 dated 7.10.2002 modified the order appointing that petitioner in fixed pay of Rs.2,500/- and backing his appointment as one in the regular scale of pay from his initial date of appointment and not after completion of five years.

C/SCA/10916/2020 ORDER DATED: 19/09/2022

12. The facts on hand in the present cases would indicate that the case of the petitioners is similar to that of the petitioner of Special Civil Application No.1579 of 2002. The petitioners in the cases as argued by Ms. Thakar who were appointed on 25.7.2004 and 19.4.2005 and in the case of Ms. Harshal Pandya, the petitioner so far as SCA No.14953 of 2020 was appointed on 12.8.2004. Perusal of all these orders would indicate that the petitioners were appointed on compassionate ground on fixed pay of Rs.2,500/- as that of the petitioner of SCA No.1579 of 2002. It was on 12.7.2019 that petitioner Mr. Manharbhai Ramanbhai Naik for the benefit of being appointed on regular pay scale from his initial date of appointment and not on completion of five years and the order was so modified. It is based on these orders that the petitioners are promoted to approach this Court in the year 2019-2020 claiming similar benefits.

13. The objection of delay on the part of the respondents therefore that having accepted that appointments in 2004, the petitions are delayed, is an objection which is misconceived.

14. Accordingly, all these petitions are allowed. The respondents are directed to issue modified orders of appointment in case of all the petitioners and place them in the regular scale of pay from their initial date of appointment in the respective cadres of Junior Clerks / Panchayat Sevak and / or as a Peon as is the case so far as SCA No.14953 of 2020. The

C/SCA/10916/2020 ORDER DATED: 19/09/2022

fixation of pay based on their the basis of the benefit granted by virtue of this judgment shall be done from the date of their initial appointment for all purposes. As far as arrears are concerned, the benefits shall be given to the petitioners only with effect from 1.1.2020. The order shall be implemented within a period of three months from the date of receipt of copy of this judgment."

6. The aforesaid view has been confirmed by the

Division Bench of this court in the Letters Patent Appeals

vide order dated 05.09.2022.

7. In view of the above, the petitions are allowed. The

respondents are directed to issue modified orders of

appointment in case of all the petitioners and place them

in the regular scale of pay from their initial date of

appointment in the respective cadres. The fixation of pay

based on their the basis of the benefit granted by virtue

of this judgment shall be done from the date of their

initial appointment for all purposes. As far as arrears are

concerned, the benefits shall be given to the petitioners