H J Desai vs State Of Gujarat
2023 Latest Caselaw 2823 Guj

    C/SCA/22934/2006                                    JUDGMENT DATED: 10/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 22934 of 2006


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                                   Sd/-
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1    Whether Reporters of Local Papers may be allowed                         No
     to see the judgment ?

2    To be referred to the Reporter or not ?                                  No

3    Whether their Lordships wish to see the fair copy                        No
     of the judgment ?

4    Whether this case involves a substantial question                        No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                                H J DESAI
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRATEEK S BHATIA(8629) for the Petitioner(s) No. 1
MR SHRIJIT G PILLAI assisted by MS SHRUTI UMESH for Petitioner No. 1
MR RONAK RAVAL AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                     Date : 10/04/2023
                     ORAL JUDGMENT

The present Special Civil Application is filed praying for the

following reliefs:-

"16(A) Quashing and setting aside the Resolution dt.31.8.2006 (Annexure 'B') and direct the Respondents to grant the first higher grade scale to the petitioner from 15.2.1991 in accordance with the Resolution dt.16.8.1994 and to pay the arrears with 8 percent interest.

C/SCA/22934/2006 JUDGMENT DATED: 10/04/2023

(B) During the pendency and final disposal of this petition, Respondents may be directed to fix the pension of the petitioner as if he is granted the first higher grade scale from 15.2.1991."

2. The factual matrix in the present case is as follows:-

2.1 That the petitioner was appointed as Assistant Agriculture

Engineer at Jamnagar on 15.2.1982 in the pay scale of Rs.425-

Rs.700. By Government Resolution dated 13.1.1983, the

petitioner was transferred to Gujarat State Land Development

Corporation Limited, Ahmedabad on deputation. Thereafter, vide

office order dated 2.4.1983, the petitioner was sent on

deputation to the GSLDC as Field Supervisor (Mechanical) for 2

years w.e.f. 1.2.1983.

2.2 That thereafter the petitioner sent his resignation letter to

the respondent department requesting to accept his resignation

w.e.f. 19.12.1984, but before the resignation was accepted by

the respondents, the petitioner by his communication dated

6.3.1985 withdrew his resignation. That thereafter the petitioner

was not taken back in service. By letter dated 27.4.1992, the

respondent accepted the resignation of the petitioner

retrospectively w.e.f. 19.12.1984.

2.3 Aggrieved, the petitioner filed Special Civil Application

C/SCA/22934/2006 JUDGMENT DATED: 10/04/2023

No.8017 of 1992 challenging the letter dated 27.4.1992 whereby

his resignation came to be accepted with retrospective effect.

That by order dated 19.7.2006, this Court was pleased to allow

the Special Civil Application No.8017 of 1992. Paragraph 11 of

the said order reads as under:-

"11. Considering the facts and circumstances of the case, this petition deserves to be allowed and is accordingly allowed. The respondents are directed to reinstate the petitioner in service and treat him in continuous service. However, the petitioner is not entitled for the arrears of full back wages for the period from 6.3.85 to 27.4.1992, i.e. 6.3.85 when the petitioner submitted his resignation to 27.4.1992 when the resignation was accepted by the authority concerned, but the in the facts and circumstances of this case, petitioner is entitled for 50% of arrears of pay and salary for the period from 27th April, 1992 till he resumed his duties, in case the petitioner has already superannuated, then till the date of his retirement. The petitioner will also be entitled to all consequential benefits including periodical increments, bonus and continuity of service on account of reinstatement as well as all other retiral benefits including pension, gratuity etc. Rule is made absolute accordingly with no order as to costs. The respondents are directed to comply with this judgment within six weeks from today. Direct service is permitted."

2.4 That thereafter vide office order dated 31.1.2002, the

petitioner came to be reinstated in service subject to certain

terms and conditions. Thereafter the petitioner filed another

Special Civil Application No.16646 of 2003 in respect to his pay

fixation which came to be allowed vide order dated 17.2.2005.

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Paragraph 6 and 7 of the said order read thus:-

"6. The condition No.4 of the reinstatement order of the petitioner passed in January, 2002 states that the petitioner will have to pass the Departmental examination and only thereafter his name will be included in the seniority list and in the case the petitioner fails to pass the examination within the prescribed chances, he will be liable to be terminated. I do not find any condition in the said order that the pay- fixation of the petitioner shall not be carried out till passing of the examination. The petitioner's right to seek promotion and continuation on the post in the government service may depend on his passing the examination, but I do not find any material on record which would relate his claim for pay fixation also with passing of such an examination. When this Court had set aside the termination of the petitioner and directed his retirement with continuity of service, the petitioner would be entitled to insist all consequential pay-fixation, as if he was never terminated from service. Additionally when the petitioner himself has dropped his challenge to the requirement of passing of the examination and has shown his willingness to appear at the test that the Government may hold and has in fact applied for the same but no test has been held after that, would be one more ground to convince me that his pay-fixation cannot be delayed any further."

7. In the result, the petition is allowed and the respondents are directed to carry out the pay-fixation of the petitioner on the basis of the decision of this Court dated 19 th July, 2001 in Special Civil Application No.8017 of 1992. The petitioner shall file an undertaking before the Government that he will appear at the examination that the Government may conduct."

2.5 Aggrieved, the respondents had preferred Letters Patent

Appeal No.614 of 2006 challenging the order dated 17.2.2005 in

Special Civil Application No.16646 of 2003. The Division Bench

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vide order dated 21.7.2006 in Letters Patent Appeal No.614 of

2006 was pleased to dismiss the same by recording that the

respondents have decided to withdraw the said appeal.

Accordingly, the said Letters Patent Appeal was disposed of as

withdrawn. Thereafter, the pay fixation of the petitioner came to

be done.

2.6 The petitioner, thereafter, has filed the present Special Civil

Application for grant of first higher grade scale in terms of the

Government Resolution dated 16.8.1994.

3. Mr. Shrijit Pillai, learned advocate appearing on behalf of

the petitioner, submitted that after the order of reinstatement

dated 31.1.2002 and as per the terms and conditions mentioned

therein, the petitioner was entitled for first higher grade scale

from 15.2.1991 in accordance with the G.R. dated 16.8.1994. He

submits that in view thereof, he had made an application to the

respondents for appearing in the examination once the said

benefit is extended to him. He submits that, however, from his

date of reinstatement i.e. 31.1.2002 till grant of his application

for voluntary retirement on 17.8.2006, no departmental

examination was held and therefore, the petitioner could not

C/SCA/22934/2006 JUDGMENT DATED: 10/04/2023

appear in such examination. He submits that the representation

for grant of such higher grade scale came to be rejected by the

impugned order dated 31.8.2006 stating that since the petitioner

had not worked from 19.12.1984 to 31.1.2002, his A.C.Rs. are

not available for 9 years and that he has not passed the

departmental examination and therefore, the said benefit cannot

be granted to him. He submits that as per the G.R. dated

16.8.1994, the benefit of first higher grade scale is to be

extended on completion of service of 9 years. Thereafter, the

employee has to pass the departmental examination within the

stipulated period and in stipulated attempts. He submits that

since the petitioner belongs to reserved category, the petitioner

was entitled to 3 attempts in 2 years, however, since his

reinstatement till his voluntary retirement, no departmental

examination was held and therefore, the petitioner cannot be

denied said benefit for which he is not responsible. He submits

that the present Special Civil Application be allowed and the

order dated 31.8.2006 be set aside.

4. Mr. Ronak Raval, learned AGP appearing on behalf of the

respondents, opposing the present Special Civil Application

submitted that the petitioner had joined the service on

C/SCA/22934/2006 JUDGMENT DATED: 10/04/2023

15.2.1982. Thereafter, as per the G.R. dated 20.8.1976, he had

to pass the departmental examination in 2 attempts within 2

years. He further submits that as per the said G.R., the

departmental examination was held 4 times, however, the

petitioner did not clear the same and therefore, the petitioner is

not entitled for any grant of first higher grade scale. He further

submits that as per clause 3(5) of the G.R. dated 16.8.1994, the

petitioner can be granted such benefit of first higher grade scale

only after he passes the departmental examination. In the

present case, since the petitioner has not cleared such

departmental examination, the petitioner is not entitled to any

benefit of grant of first higher grade scale. He submits that since

the petitioner had not served from 19.12.1984 to 31.1.2002 his

A.C.Rs. were also not available which was also one of the

requirement of considering the grant of first higher grade scale

and therefore also, the petitioner is not entitled to any such

benefit. He submits that the present Special Civil Application is

devoid of merits and the same may be dismissed.

5. Heard learned advocates for the parties and perused the

documents on record.

6. That vide letter dated 27.4.1992, the respondent No.2

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herein has accepted the resignation of the petitioner

retrospectively w.e.f. 19.12.1984 even though the petitioner had

withdrawn such resignation. Thereafter, in Special Civil

Application No.8017 of 1992 this Court vide order dated

19.7.2001 granted the petitioner reinstatement in service and

treated him in continuous service. He was granted all the

consequential benefits including periodical increments, bonus

and continuity of service on account of reinstatement.

Accordingly, vide order dated 31.1.2002, the petitioner came to

be reinstated in service. The condition No.4 in the said

reinstatement order specifically stipulates that the petitioner had

to clear the departmental examination within the stipulated

attempts as available to him within the prescribed time limit

upon which he shall be entitled to seniority and that if he does

not successfully clear the departmental examination, he may be

relieved from service.

7. Mr. Ronakkumar Raval, learned AGP, has relied upon the

G.R. dated 20.8.1976 which stipulates that the employee has to

clear the departmental examination in 3 years and in 3

attempts. Further, for the grant of the benefit of first higher

grade scale in terms of the G.R. dated 16.8.1994, the petitioner

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herein had to clear the departmental examination within 3 years

in 3 attempts. In the present case, accordingly, the petitioner

also applied to the department for appearing in such

examination. It is admitted by the respondents that no

departmental examination has taken place after the

reinstatement of the petitioner since January 2002. In the

present case, this Court is of the opinion that the G.R. dated

20.8.1976 is not applicable in view of the order passed by this

Court in Special Civil Application No.8017 of 1992. The said

order has been implemented and has become final in the case of

the petitioner.

8. A perusal of the G.R. dated 16.8.1994 reveals that the

employees who have completed 9 years, 18 years and 27 years of

service are to be granted higher grade scale. Upon completion of

9 years, benefit of first higher grade scale has to be confirmed

subject to passing of the departmental examination. If the

employee is unsuccessful in passing the departmental

examination within the stipulated attempts within the prescribed

time limit then the said benefit is required to be withdrawn and

the amount is also to be recovered from the said employee. In

the present case, the petitioner had completed 9 years of service

C/SCA/22934/2006 JUDGMENT DATED: 10/04/2023

and he was entitled for first higher grade scale even if 9 A.C.Rs.

of the petitioner were not available. By virtue of the order of this

Court, the petitioner's service was to be treated as continuous

and therefore also, in the opinion of this Court, the petitioner

was entitled to grant of first higher grade scale upon completion

of 9 years of service. The conditions in the reinstatement order

dated 31.1.2002 also stipulates that the benefit shall be granted

to the petitioner subject to his passing the departmental

examination within the stipulated attempts. In view thereof, the

petitioner could not have been denied the benefit of first higher

grade scale.

9. In the present case, the petitioner has also made an

application to the respondent authorities to permit him to

appear in the departmental examination which would be held by

the respondents. However, it is an admitted position that no

departmental examination was held till the acceptance of the

voluntary retirement of the petitioner by the respondents. The

petitioner cannot be made to suffer on account of the fact that

the respondents could not hold the departmental examination

till his retirement. In terms of the G.R. dated 16.8.1994, the

petitioner was entitled to grant of first higher grade scale.

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Thereafter, he was entitled to appear in the departmental

examination which in the present case were never held till his

retirement. Therefore, the order dated 31.8.2006 is not in

accordance with the G.R. dated 16.8.1994 which envisages

granting of such benefits to the employees subject to the passing

of the departmental examination. Therefore, in the opinion of

this Court, the impugned order dated 31.8.2006 deserves to be

interfered with.

10. In view of the aforesaid observations, the impugned order

dated 31.8.2006 is quashed and set aside. The petitioner is

entitled to grant of first higher grade scale. The respondent

authorities are directed to undertake exercise for the grant of

first higher grade scale to the petitioner in accordance with the

G.R. dated 16.8.1994 and the rules. The said exercise be done

within a period of eight weeks from the date of receipt of this

order.

The present Special Civil Application stands disposed of

accordingly. Rule is made absolute to aforesaid extent. No order

as to costs. Direct service is permitted.

Sd/-

(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN