Harishkumar Kanaiyalal Chauhan vs State Of Gujarat
2023 Latest Caselaw 3040 Guj

     C/SCA/20870/2022                            ORDER DATED: 19/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 20870 of 2022
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                    HARISHKUMAR KANAIYALAL CHAUHAN
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1
MS REETA CHANDARANA(3023) for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 19/04/2023
                             ORAL ORDER

1. With the consent of learned advocates appearing for the parties, the present Special Civil Application is taken up for final hearing.

2. Rule returnable forthwith. Learned AGP Mr. Ayaan Patel waives service of notice of rule on behalf of the respondent No.1.

3. The present Special Civil Application is filed praying for the following reliefs:-

"12A. Your Lordship be pleased to Issue an order, writ in the nature of mandamus and/or Certiorari or any other appropriate writ/order or direction declaring the impugned action of respondents in not granting the benefit of 7th pay commission to the petitioner as such benefit has been extended to the similarly situated employees is discriminatory, illegal, unjust, arbitrary and violation of Article-14 & 16 of Constitution of India.

C/SCA/20870/2022 ORDER DATED: 19/04/2023

B. Your Lordship be pleased to direct respondent board to extend the benefits of 7th pay commission to present petitioner from 01.01.2016 with 12% interest.

C. Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents to consider the case of petitioner in light of order dated 15.03.2022 (Annexure-D).

D. Be pleased to pass any other further order as may be deemed fit, just and proper in facts and circumstances of the case and in the interest of justice."

4. It is submitted by learned counsel appearing for the petitioner Ms. Ashlesha M. Patel that the issue with respect to the grant of benefits of the 7 th Pay Commission is squarely covered by the various decisions rendered by this Court. She has placed reliance on the order dated 26.10.2018 in Special Civil Application No.3756 of 2018 in paragraph No.4 in case of Maganbhai Durlabhbhai Koladiya and others vs. State of Gujarat , being Special Civil Application No.6083 of 2017 decided on 23.01.2018 in which case the benefits to the said petitioners were denied on the ground that they were appointed after 1988, that is after relevant date under resolution dated 17.10.1988. Those petitioners were appointed between the years 1990-1991, the present

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petitioner is identically situated. Merely because he came to be appointed after 17.10.1988, he could not have been denied the benefit.

4.1 The parties appearing through their respective learned advocates could not dispute the position that the decision in Maganbhai Durlabhbhai Koladiya (supra) would apply to the present case.

5. She further submits that though the petitioners are entitled for the benefit of the 7th Pay Commission. No approval has been sought by the respondent - Gujarat Maritime Board from the State Government. She submits that the benefits of the 6th Pay Commission have been extended to the petitioner. She submits that once the employee has been extended the benefits of 6th Pay Commission, the respondent - Gujarat Maritime Board is not required to take any further approval from the State Government for extending the benefits of the 7 th Pay Commission. She has further placed reliance on the Resolution dated 24.05.2018 issued by the State Government with regard to extending the benefits of 7 th Pay Commission to the employees of the respondent - Gujarat Maritime Board. She submits that the respondent

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- Gujarat Maritime Board is required to implement the said Resolution in case of the present petitioner also.

6. Learned advocate Ms. Rita Chandarana appearing on behalf of the respondent No.3 - Gujarat Maritime Board submits that the petitioner was paid the benefit of 6 th Pay Commission pursuant to the order passed by this Court. She submits that the said order has also been implemented and the petitioner has been extended the benefits of 6 th Pay Commission. The learned counsel does not dispute that the case of the petitioner is covered by the earlier orders passed by this Court in similar circumstances extending the benefits of 7th Pay Commission to the other similarly situated employees of the Gujarat Maritime Board.

7. This Court in Special Civil Application No.6635 of 2022 has passed the following order:-

"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 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

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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 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

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the State Government, an appropriate claim may be put forward at an appropriate time.

5. It appears that the circular referred to above 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. 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.

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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 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 period of three months from the date of receipt of the writ of this order."

8. The learned counsel for the respondents do not dispute that the aforementioned order has been passed in case of similar situated employees of the Gujarat Maritime Board.

9. In view thereof, the present Special Civil Application is disposed of in terms of the aforesaid judgment in Special Civil Application No.6635 of 2022 as it squarely covers the case of the petitioner herein.

C/SCA/20870/2022 ORDER DATED: 19/04/2023

10. The respondents are directed to extend the benefits of the 7th Pay Commission to the petitioner with effect from 01.01.2016, however, arrears for the period 01.01.2016 to 31.07.2017 shall be paid as and when the said issue is resolved between the Gujarat Maritime Board and the State Government.

11. The respondent No.3 is directed to pass the necessary orders within a period of eight weeks from the date of receipt of this order.

12. If the needful is not done within the stipulated period then the respondent No.3 shall pay an interest at the rate of Rs.6% from the date of filing of the petition till the date of the payment on the amount due.

13. The Special Civil Application stands disposed of accordingly. No order as to costs. Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.)

Manoj Kumar Rai