State Of Gujarat vs Gangaram Mohandas Danidhariya
2023 Latest Caselaw 3376 Guj

       C/LPA/178/2023                                 ORDER DATED: 26/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 178 of 2023
        In R/SPECIAL CIVIL APPLICATION NO. 5429 of 2019
                                With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
            In R/LETTERS PATENT APPEAL NO. 178 of 2023
                                With
              R/LETTERS PATENT APPEAL NO. 503 of 2023
                                  In
           SPECIAL CIVIL APPLICATION NO. 4474 of 2019
                                With
              R/LETTERS PATENT APPEAL NO. 506 of 2023
                                  In
           SPECIAL CIVIL APPLICATION NO. 4471 of 2019
==========================================================
                               STATE OF GUJARAT
                                    Versus
                        GANGARAM MOHANDAS DANIDHARIYA
==========================================================
Appearance in LPA 178 of 2023:
MR RONAK RAVAL, AGP for the Appellant(s) No. 1,2,3
BHAVIN B THAKAR(9371) for the Respondent(s) No. 1
Appearance in LPA 503 of 2023 & 506 of 2023
MR KURVEN DESAI, AGP for the Appellant(s) No. 1,2,3
BHAVIN B THAKAR(9371) for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
           and
           HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 26/04/2023

                    COMMON ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. All these appeals arise out of the common oral judgment dated 07.03.2022 rendered by learned Single Judge in Special Civil Application No.4471 of 2019 and allied matters, whereby, learned Single Judge has allowed the petitions filed by the respective petitioners and thereby the learned Single Judge has

C/LPA/178/2023 ORDER DATED: 26/04/2023

directed the present appellant to extend the benefit of the second higher pay scale to the original petitioners with effect from the date on which they completed 15 years of service from the date of their first higher pay scale. The pensionary benefits shall also be revised. It is also directed that arrears of pay and consequential arrears of pension based on revision of pay, shall be paid within the stipulated time.

2. As the issue involved in all these appeals is similar and when the learned Single Judge passed common judgment, learned advocates appearing for the parties jointly requested that all these appeals be heard together and decided by the common order.

3. For the sake of convenience, the facts, as narrated in Special Civil Application No.4471 of 2019, are taken into consideration.

4. It is the case of the original petitioner that he was appointed as a Forest Guard on 16.07.1974. Thereafter, on 18.12.1992, the petitioner was granted the first higher pay scale with effect from 01.06.1987. Thereafter, on 10.02.2010, the petitioner was granted the second higher pay scale with effect from 01.06.2002 i.e. on completion of period of 15 years of service w.e.f. 01.06.1987. It is the case of the petitioner that, thereafter, vide order dated 04.02.2016, he was granted deemed date of promotion

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to the post of Forester with effect from 11.11.1982. Thus, when he was promoted to the post of Forester, the benefit of first higher pay scale, which was granted to him with effect from 01.06.1987, was cancelled vide order dated 06.09.2016. Thereafter, on 22.12.2017, the petitioner was granted the first higher pay scale with effect from 11.11.1991 i.e. on completion of nine years of service from 11.11.1982.

5. It is further the case of the petitioner that he is entitled to the second higher pay scale with effect from 11.11.2006 i.e. on completion of 15 years of service from the date on which he got first higher pay-scale i.e. from 11.11.1991. However, when the said benefit was not given to him, he preferred the captioned petition before this Court.

6. The learned Single Judge, vide impugned judgment and order dated 07.03.2022, allowed the petitions filed by the respective petitioners and thereby the aforesaid directions have been given by the learned Single Judge. The original respondents - appellants have, therefore, preferred the present appeals.

7. Heard learned Assistant Government Pleader Mr. Ronak Raval for the appellants and learned advocate Mr.Bhavin B. Thakar for the respondents - original petitioners.

8. Learned AGP mainly contended that as per Clause

C/LPA/178/2023 ORDER DATED: 26/04/2023

2(4)(c)(6) of the Government Resolution dated 02.07.2007, petitioner is not entitled to get the second higher pay-scale as he had not cleared the departmental examinations, and therefore, the said benefit was rightly denied to him. In spite of that, the learned Single Judge has passed the impugned common judgment, whereby, the aforesaid direction has been issued to the present appellants. Learned AGP, therefore, urged that the impugned order be set aside.

9. On the other hand, learned advocate Mr. Thakar appearing for the present respondents - original petitioners mainly submitted that the issue involved in the present appeals is squarely covered by order dated 07.09.2017 passed by the Division Bench of this Court in Letters Patent Appeal No.1443 of 2017. Learned advocate Mr. Thakar has, more particularly, placed reliance upon the observations made in para 5 and 6 of the said order. Learned advocate submits that when the deemed date promotion was granted to the petitioner in the year 2016, there was no occasion for the petitioner to appear in the departmental examinations. By order dated 04.02.2016, the petitioner was granted deemed date of promotion to the post of Forester w.e.f. 11.11.1982 and therefore it is not proper on the part of the appellants to contend that petitioner has not passed the departmental examinations, and therefore, he is not entitled to claim the benefit of second higher

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pay-scale. Learned advocate, therefore, urged that all these appeals be dismissed.

10. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner was appointed on the post of Forest Guard on 16.07.1974 and thereafter, the benefit of first higher pay-scale was granted to the petitioner vide order dated 18.12.1992 with effect from 01.06.1987. Thereafter, by another order dated 10.02.2010, the petitioner was granted the second higher pay scale with effect from 01.06.2002 i.e. on completion of period of 15 years of service w.e.f. 01.06.1987. At this stage, it is pertinent to note that for the first time, vide order dated 04.02.2016, the petitioner was granted deemed date of promotion to the post of Forester with effect from 11.11.1982 and therefore the benefit of first higher pay scale, which was granted to the petitioner with effect from 01.06.1987, was cancelled vide order dated 06.09.2016. Once again vide order dated 22.12.2017, the petitioner was granted the first higher pay scale with effect from 11.11.1991 i.e. on completion of nine years of service in the cadre of Forester i.e. from 11.11.1982. It is also relevant to note at this stage that in the meantime the petitioner retired from service on 31.08.2007. Now, it is the case of the petitioner that he is entitled to get the benefit of second higher pay-scale w.e.f. 11.11.2006 i.e. on completion of 15 years of service

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from 11.11.1991 when the first higher pay-scale was granted to him. However, such benefit was denied only on the ground that the petitioner did not pass the departmental examination as per the Government Resolution dated 02.07.2007. The only contention taken by the learned AGP is that the petitioner did not clear the departmental examinations as per Clause 2(4)(c)(6) of the G.R. dated 02.07.2007 and therefore he is not eligible for the aforesaid benefit.

11. We are of the view that aforesaid contention taken by the present appellants is misconceived. As observed hereinabove, the deemed date of promotion was granted to the petitioner on 04.02.2016 w.e.f. 11.11.1982. In the meantime, petitioner retired from service on 31.08.2007 and therefore there was no occasion for the petitioner to appear in the departmental examination for getting second higher pay-scale of ACF.

12. In similar type of case decided by this Court vide order dated 07.09.2017 passed in Letters Patent Appeal No.1443 of 2017, the Division Bench of this Court observed in para 5 and 6 as under:

"5. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the petitioner joined the service of the respondent department as Forest Beat Guard on 17.03.1976. Thereafter, the first higher pay-

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scale of Forester was granted to him by an order dated 12.12.1995 w.e.f. 01.06.1987. At this stage, it is relevant to note that the petitioner was thereafter actually promoted on the post of Forester by an order dated 25.06.1998. Subsequently the respondent by an order dated 10.10.2008 granted him deemed date promotion to the post of Forester w.e.f. 11.11.1982. Therefore the first higher pay- scale which was granted w.e.f. 01.06.1987 to the petitioner was recovered from him as he was in fact promoted to the post of Forester w.e.f. 11.11.1982.

6. At this stage, it is also required to be noted that the petitioner attained the age of superannuation and retired from service on 31.01.2010 and after the date of his retirement the petitioner was granted revised first higher pay-scale of RFO w.e.f. 11.11.1991. The first higher pay-scale of RFO was granted w.e.f. 11.11.1991 because the petitioner completed 9 years of service on the post of Forester from 11.11.1982. Thus, the first higher pay-scale of RFO was granted to the petitioner after the petitioner retired from service. Thus, when the respondent authority has passed the order granting first higher pay-scale of RFO to the petitioner w.e.f. 11.11.1991 by passing the order on 09.09.2010, there was no occasion for the petitioner to appear in the departmental examination for getting second higher pay-scale of ACF. As per the prevalent Rules, petitioner was eligible for second higher pay-scale w.e.f. 11.11.2006 and therefore petitioner raised the demand for second higher pay-scale which was denied to him. Thus, the respondent authorities is not right in contending that as the petitioner has not cleared the departmental examination, he is not eligible for second higher pay-scale."

13. In view of the aforesaid, we are of the view that the issue involved in the present appeals is

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squarely covered by the aforesaid order and therefore learned Single Judge has rightly placed reliance upon the aforesaid order passed by the Division Bench.

14. We are in complete agreement with the reasoning recorded by the learned Single Judge and as the learned Single Judge has not committed any error, we are not inclined to interfere with the impugned judgment and order passed by the learned Single Judge. Accordingly, all these appeals are dismissed.

15. In view of dismissal of the main appeals, civil application does not survive and accordingly stands disposed of.

(VIPUL M. PANCHOLI, J)

(HASMUKH D. SUTHAR,J) LAVKUMAR J JANI