Ashvinkumar Ambalal Chauhan vs State Of Gujarat
2022 Latest Caselaw 8664 Guj

    C/SCA/17150/2019                            JUDGMENT DATED: 30/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17150 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 18659 of 2019
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2864 of 2020
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2868 of 2020
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2870 of 2020
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 3028 of 2020
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 6143 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
                       ASHVINKUMAR AMBALAL CHAUHAN
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1
MS BHARGAVI G THAKAR(5015) for the Petitioner(s) No. 1
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV


                                 Page 1 of 12

                                                     Downloaded on : Sat Oct 01 20:22:35 IST 2022
 C/SCA/17150/2019                           JUDGMENT DATED: 30/09/2022




                       Date : 30/09/2022

                   COMMON ORAL JUDGMENT

1. Heard Ms.Bhargavi Thakar learned advocate for

the petitioners, Mr.Utkarsh Sharma learned AGP

for the respondents State and Mr.H.S.Munshaw

learned counsel for the respondent - District

Development Officer.

2. The details of the petitioners who all were

appointed as Junior Clerks, in each petition are

as under:

    Petitioner of SCA      Date of         Appointed with
    Number                 order           effect from
    17150/2019             30/09/2004 28/10/2004
    18659/2019             25/07/2004 01/11/2004
    2864/2020              25/07/2004 02/11/2004
    2868/2020              04/10/2004 23/11/2004
    2870/2020              12/08/2004 02/11/2004
    3028/2020              21/09/2004 23/11/2004
    6143/2020              13/09/2004 10/02/2005

3. For the purposes of this order, the prayer of

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

Special Civil Application No.17150 of 2019 is

considered.

4. The case of the petitioners is that the

respondents be directed to issue a writ of

mandamus or any other appropriate writ or order

holding that the petitioners are entitled for

regular appointment to the post of Junior Clerk

in the regular pay scale from the date of

appointment and/or joining considering the

Government Resolutions dated 10.03.2000 and

07.09.2002. This is also in accordance with the

decision passed by this Court in Special Civil

Application No.11416 of 2000 dated 31.03.2003.

5. Similar issue came up for consideration before

this Court in group of petitions being Special

Civil Application Nos.14642 of 2019 and this

Court on 18.04.2022, passed the following order:

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

1. Rule, returnable forthwith. Learned Assistant Government Pleaders as well as learned advocates waive service of notice of Rule on behalf of the respective parties.

2. Heard learned advocates Mr.Bhargavi G. Thakar and Ms. Harshal Pandya for the petitioners, learned Assistant Government Pleaders Mr. Kurven Desai, Ms. Surbhi Bhati and Mr. Krutik Parikh for State-respondents as well as learned advocates Mr. H. S. Munshaw, Mr. Devang D. Dave and Mr. Kalpesh N. Shastri for the respective Panchayats in all these petitions.

3. With the consent of the learned advocates appearing for the respective parties, all these petitions are taken up for final hearing today.

4. In all these petitions, under Article 226 of the Constitution of India, the prayer of the petitioners is to hold and declare that they are entitled to the regular scale to the respective posts on which they were appointed on compassionate grounds.

5. For the purposes of this common oral judgment, the facts of Special Civil Application No.14642 of 2019 are considered.

5.1. The case of the petitioner is that on the death of her mother who expired on 5.8.1997 while working as a Primary Teacher under the control of the District Panchayat, Banaskantha. The petitioner applied for appointment on compassionate ground. By an order dated 25.7.2004, the State appointed the petitioner on fixed pay of Rs.2,500/- on Class-III post under the District Panchayat, Banaskantha.

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

5.2. Consequently, the Banaskantha District Panchayat issued a separate order dated 12.10.2004 appointing the petitioner on fixed pay as Panchayat Sahayak under the District Panchayat, Banaskantha. He was subsequently transferred to Gandhinagar. On completion of five years of service, he was appointed on regular pay scale vide an order dated 13.3.2011 with effect from 16.10.2009 in the regular pay scale. Thereafter, in the year 2016, he was promoted as Senior Clerk. The case of the petitioner is that he is entitled to be appointed on compassionate ground on regular scale of pay from his initial date of appointment i.e. from 25.7.2004 effective from 12.10.2004 and not so appointed as on regular pay scale from 16.10.2009.

6. Ms. Thakar, learned counsel for the petitioners would submit that one Mr. Manharbhai Ramanbhai Naik was approached this Court by filing Special Civil Application No.1579 of 2002 assailing his rejection of appointment on compassionate ground, where the Court looking to the change in policy and doing away with the income contrary directed the appointment of that petitioner on compassionate ground. By an order dated 23.7.2004, Mr. Manharbhai Ramanbhai Naik was appointed on fixed pay like the present petitioners under the relevant District Panchayat. Mr. Manharbhai Ramanbhai Naik, then approached this Court by filing Special Civil Application No.22169 of 2017 praying that he be granted the benefit of appointment on regular pay scale since the State had passed an order on 12.6.2019 modifying his order of appointment of 23.7.2004 placing him in regular pay scale, similar benefits ought to be granted to the present petitioners of all these petitions.

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

7. Learned AGPs for the State in all these petitions would submit that the petitions are barred by delay and latches. The appointment of the petitioners was made as is evident from the order dated 25.7.2004 on condition and while relying on the Resolution dated 15.6.2004, which granted such appointment on fixed pay, Mr. Kurven Desai, learned AGP would draw the attention of the Court to the GR dated 15.6.2004 which categorically provided that appointment on compassionate grounds shall be made for candidates on fixed pay for a period of five years. The petitioner having accepted the condition of appointment cannot now turn around and challenge the same. He would further submit that even the petition of Manharbhai Ramanbhai Naik was filed in the year 2002 and in the year 2017, whereas, the present petitioners have come to this Court only in August, 2019.

8. Learned advocates appearing for the respective Panchayats have relied on the affidavits-in- reply filed by them and opposed the petitions on the ground of delay. Mr. H.S. Munshaw, Mr. Devang D. Dave and Mr. Kalpesh N. Shastri, learned advocates appearing for the respondent authorities drawing the attention of the Court to the replies and opposed granting of any relief in favour of the petitioners on the ground that once having accepted the terms of appointment, it is not open for them now to turn around and challenge these appointment conditions.

9. Ms. Harshal Pandya, learned counsel appearing for the petitioner so far as SCA No.14953 of 2020 would submit that though the application for appointment on compassionate ground on

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

the death of the father on 29.10.1999, was made immediately on 25.11.1999. The application remained unattended and in the meantime, the policy of 15.6.2004 came into operation. The petitioner was issued an appointment order on 12.8.2004 based on the policy of 15.6.2004. She would also rely on a decision of this Court in Special Civil Application No.30154 of 2007 dated 6.9.2013, wherein, considering the prayers of similar nature, this Court extensively dealing the policy of 15.6.2004 directed the respondents to issue modified order of appointment, which order was implemented by the State Government on 28.1.2014.

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

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

effect from 1-1-1996.

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.

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

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

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 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

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

copy of this judgment.

15. Rule is made absolute to that extent. Direct Service is permitted. No order as to costs.

6. The decision of this Court was carried in appeal

and Division Bench of this Court in Letters

Patent Appeal No.1152 of 2022 and allied

appeals, has dismissed the appeals of the District

Panchayat holding as under:

"8. We have heard learned advocates for the respective parties.

9. It is an undisputed fact that the policy, which was prevailing in the year 2015, when the respondent employee was appointed, there was no policy of giving appointment on fixed pay for a period of five years, and therefore, the decision in case of the State of Madhya Pradesh (Supra) would squarely apply to the facts of the case, and therefore, the policy, which was prevailing on the date of their appointment would come into play.

10. As far as delay is concerned, it is true that the petitioners have approached after a long period; however, if the order dated 12.06.2019 passed by the concerned authority is perused, the said Manharkumar Ramanlal Nayak, who was appointed on compassionate ground on 23.07.2003 and was given all the benefits

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

subsequent to petition filed by him before this Court in the year 2017, and thus, the State Government itself has condoned the delay with regard to claim put forward by said Manharkumar Ramanlal Nayak, and therefore, all the respondents employee in the appeals herein are also required to be given similar treatment. Learned Single Judge has also kept in mind for filing the petition at belated stage and has observed accordingly. Learned Single Judge has not granted any arrears from their initial date of appointment and has granted the benefits from 01.01.2010, and therefore, no interference is required in the order passed by learned Single Judge. Hence, present appeals stand dismissed.

11. In view of the order passed in Letters Patent Appeals, Civil Applications do not survive and accordingly, the same are disposed of."

7. Having affirmed the order of the learned Single

Judge, the present petitions too are allowed in

terms of the order dated 18.04.2022 as quoted

above.

8. Accordingly, all these petitions are allowed. The

respondents are directed to issue modified

C/SCA/17150/2019 JUDGMENT DATED: 30/09/2022

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 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.

9. Rule is made absolute to that extent. Direct

Service is permitted. No order as to costs.

(BIREN VAISHNAV, J) ANKIT SHAH