Bhikubha Patramalbha Kara vs State Of Gujarat
2022 Latest Caselaw 8570 Guj

      C/SCA/8247/2022                               ORDER DATED: 28/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 8247 of 2022
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                        BHIKUBHA PATRAMALBHA KARA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 28/09/2022

                                   ORAL ORDER

1. Rule returnable forthwith. Mr. Soaham Joshi,

learned AGP appearing for the respondent State waive

service of notice of rule.

2. In this petition, under Article 226 of the Constitution

of India, the petitioner has prayed that the respondent be

directed to consider the case of the petitioner and extend

the benefits of the Government Resolution dated

17.10.1988 with revision of pay as per the Fifth, Sixth and

Seventh Pay Commission and also to open the GPF

account of the petitioner for the purpose of granting

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pension as per the Old Pension Scheme.

3. Mr. Mishra, learned advocate appearing for the

petitioner would submit that similarly situated employees

have been granted the benefits as prayed for in the

present petition by this court vide order dated 09.06.2021

passed in Special Civil Application No. 5953 of 2017 and

those employees have been paid the benefits pursuant to

the directions issued by this court including that of the 7 th

Pay Commission and opening of GPF Account.

"1. Heard learned advocate Mr. Mukesh Mishra for learned advocate Mr. T R Mishra for the petitioners and learned Assistant Government Pleader Mr. K.M.Antani for the respondent- State through video conference.

of 2021, Special Civil Application is taken up for final hearing with the consent of learned advocates of the respective parties. 3. By way of this petition, the petitioners have prayed as under:

"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction,

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quashing and setting aside the impugned order marked Ann.C to this petition, denying the benefit of revision of pay-scale from Fourth to Fifth and Fifth to Sixth Pay Commission recommendation as per G.R.dated 17.10.1988 which has been accepted by the State of Gujarat;

(B) Direct the respondents to grant the benefit of revision of pay-scale as per the recommendation of Fifth and Sixth Pay commission as per G.R. Dtd 17.10.1988 and pay the same along with 12% interest thereon;

(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to immediately consider the case of the petitioners in view of the fact that the issue has already been decided by the Hon'ble Supreme Court of India;

(D) Any other and such further relief as per the Hon'ble Court deems fit and proper in the interest of justice together with costs."

4. Brief facts of the case are that the petitioners have been working in the regular time scale of pay and are being paid wages as per the 4th Pay Commission Recommendation. The petitioners earlier filed Special Civil Application No. 13051 of 2010 to direct the respondents to revise the basic salary of the petitioners as per the recommendation of the 5th and 6th Pay Commission Recommendation which was accepted by the State of Gujarat. This Court,

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vide order dated 17.07.2015, directed the respondents to consider the case of the petitioners in the said petition.

5. The petitioners therefore, made application to consider case of the petitioners. After filing of contempt petition the case of the petitioners was considered by the respondent and vide communication dated 24.01.2016 being Office Order No. 3 of 2016 Executive Engineer, Jamnagar Irrigation Department, Jamnagar rejected the benefit of revision of pay scale from 4th Pay Commission and 5th and 6th Pay Scale on the ground that the petitioners have been appointed on their original post after 01.10.1988 and therefore, benefit of Government Resolution dated 17.10.1988 cannot be given to the petitioners.

6. Learned advocate Mr. Mukesh Mishra appearing for the petitioners submitted that there were in all 10 petitioners in Special Civil Application No. 13055 of 2010 and allied matters and out of 10 petitioners, 4 petitioners were skilled workers who preferred Special Civil Application No. 6420 of 2017 challenging the Office Order No. 2 of 2016 dated 21.04.2016 passed by the respondent No.3 herein. It was submitted that this Court [Coram: Hon'ble Mr. Justice N.V.Anjaria] by order dated 22.01.2019 allowed the Special Civil Application No. 6420 of 2017 of those 4 skilled workers. It was submitted that the similar order is required to be passed in this petition also as other 6 persons who are

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unskilled workers have preferred this petition.

7. On other hand, learned AGP Mr. K.M.Antani appearing for the respondents could not dispute the fact that the petitioners are similarly situated persons as those of the petitioners of Special Civil Application No. 6420 of 2017 with regard to denial of benefit of the Government Resolution dated 17.10.1988 on the ground that they were appointed after 01.10.1988.

8. In view of the above, it would be germane to reproduce the order passed by this Court allowing the Special Civil Application No. 6420 of 2017 as under:

"2.1 The ground mentioned in the impugned order for denying the benefit is that the appointment of the petitioners was after 01.10.1988, therefore, the petitioners would not be entitled to get benefits flowing from State Government Resolution dated 17.10.1988.

3. Stating only the relevant facts, the petitioners were originally appointed as Daily Wagers who were subsequently granted the benefit of ClassIII category and were given the scale of Rs.9501500 in the year 2006 as per order No.486 of 2006. Thereafter by order No.195 of 2006, the respondent granted the benefit of skilled workers to the petitioners. The petitioners have been working in the regular time scale of pay and they are being paid wages as per the 4th Pay Commission recommendations at present.

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3.1 It appears that the petitioners had earlier filed Special Civil Application No.13051 of 2010 and allied matters praying for revision in the basic salary as per the recommendations of the 5th and 6th Pay Commissions. The State of Gujarat had accepted the recommendations of the 5th and 6th Pay Commissions. This petition was disposed of by this Court on 17.07.2015. Thereafter contempt petition was filed.

4. The impugned order came to be passed with reference to order dated 17.07.2015 passed in Special Civil Application No.13051 of 2010 aforementioned as well as the contempt application. The authorities took a view that the petitioners are not entitled to the revision claimed in view of the fact that their appointments were on 01.10.1988 and since their appointment was after 01.10.1988, they would not be entitled to be considered for benefits under Resolution dated 17.10.1988 and consequential benefits would not flow for them.

5. In Kutch District Panchayat v. Mangalbhai K. Rabari, being Special Civil Application No.15670 of 2005 decided as per judgment dated 08.10.2014, in turn confirmed in Letters Patent Appeal No.1381 of 2015 decided on 04.01.2016, it was observed and held in judgment dated 08.10.2014 as under,

"7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case.

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The so called inapplicability of GR has been answered squarely by the Court as there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page47 Courts attention was drawn to indicate that G.respondent. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter.

8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation.

11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly depreciable.

12. The Court is also of the view that the

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decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely."

5.1 In PWD Employees Union through President v. State of Gujarat, being Special Civil Application No.4662 of 2015, this Court relied on the aforesaid decision in Kutch District Panchayat (supra). PWD Employees Union (supra) had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17.10.1988 on the ground that their appointments were subsequent to the date of Resolution dated 17.10.1988.

6. In view of above position of law, the petitioners could not have been denied the benefit of Resolution dated 17.10.1988 on the ground that their appointment was prior to 01.10.1988. The benefit as would flow from the resolution dated 17.10.1988 have to be made available to the petitioners with all incidents thereof. Resultantly, the petitioners who are already in time scale and are getting the 4th Pay Commission would be entitled to be given the pay scales as per the 5th and 6th Pay Commissions which are accepted by the State Government for its employees.

7. As a result of above discussion, the present petition is allowed. The impugned order, being

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Office Order No.2 of 2016, dated 21.04.2016, passed by the Executive Engineer, Jamnagar Irrigation Department, Jamnagar, is hereby set aside. The authorities shall not deny to the petitioners the benefit of revision of payscales from 4th Pay Commission recommendations to the 5th Pay Commission recommendations as well as the payscales as per the 6th Pay Commission recommendations. Since the petitioners are entitled to receive the scales as revised as per the 5th and 6th Pay Commission recommendations as may be admissible for them, the authorities are directed to pass necessary orders and the arrears which may arise to be paid by virtue of the present directions shall be paid within a period of eight weeks from the date of receipt of writ of the present order. Rule is made absolute in the aforesaid terms. Direct service is permitted."

9. In view of the aforesaid order which squarely covers the facts of the present case, this petition is also allowed. The impugned order being Office Order No. 3 of 2016 dated 21.04.2016 passed by the Executive Engineer, Jamnagar Irrigation Department, Jamnagar is hereby quashed and set aside. The authority shall not deny to the petitioners the benefit of revision of pay scale from 4th Pay Commission Recommendation to the 5th Pay Commission Recommendation as well as the pay scales as per 6th Pay Commission Recommendation as well as the 7th Pay Commission, if applicable to the petitioners since the petitioners are entitled to receive the scales as admissible as per the

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5th and 6th Pay commission recommendation as may be admissible to them. The authorities are directed to pass necessary order and arrears which may arise to be paid by virtue of the present direction shall be paid within 8 weeks from the date of receipt of writ of this order. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted."

4. In view of the above decision, which squarely covers

the facts of the present case, this petition too deserves to

be allowed. Accordingly, the petitioner's case for prayers

made hereinabove with regard to extension of benefits of

resolution dated 17.10.1988 and granting the scales as

admissible as per the Fifth, Sixth and Seventh Pay

Commission benefits accordingly is granted. The GPF

account of the petitioner may also accordingly be opened.

The entire exercise shall be completed within a period of

ten weeks from the date of receipt of the writ of the order

of this court. Petition is accordingly allowed. Rule is

made absolute. No costs. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA