Gujarat High Court
Jay Dilipbhai Vaniya(Jay Govindbhai ... vs State Of Gujarat on 4 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/19838/2023 ORDER DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19838 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20116 of 2023
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JAY DILIPBHAI VANIYA(JAY GOVINDBHAI VANIYA)
Versus
STATE OF GUJARAT
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Appearance:
MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR AYAAN PATEL AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 04/12/2023
ORAL ORDER
1. Heard learned advocate Ms. Bhargavi Thakar on behalf of
learned advocate Mr. Gunvant Thakar for the petitioners and
learned AGP Mr. Ayaan Patel for the respondent- State.
2. Since the prayers made in all the petitions are more or less
same Special Civil Application No.19869 of 2023 is treated as lead
matter and the prayers made in the said petition are reproduced
herein below for benefit.
"(a) allow this petition with cost; and / or
(b) hold and declare that petitioner is entitled for regular
appointment to the post of Junior Clerk/ Kacheri Sahayak in
the regular pay scale from date of appointment / joining ie,
16.10.2004 considering G.R dated 10.03.2000 and
07.09.2002 issued by General Administration Department
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C/SCA/19838/2023 ORDER DATED: 04/12/2023
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and the oral judgment dated 07.10.2002 passed in SCA No.
1579 of 2002, oral order dated 27.06.2001 passed in SCA No.
11416 of 2000 of the Hon'ble High Court and C.A.V Common
Judgment dated 31.03.2003 in LPA No. 344 of 2002 in SCA
No. 11416 of 2000 and group matters; and or (Ann "J" Colly,
"A" and "D" Colly, respectively).
(c) direct the respondent no.1 and 2 to modify the order
dated 27.11.2009 (Annexure- B Colly) issued by respondent
no.2 giving regular appointment to the petitioner to the post
of Junior Clerk / Kacheri Sahayak w.e.f 16.10.2009 in the
regular pay scale; and / or
(d) direct the respondent no.1 and 2 to issue fresh order
giving regular appointment to the petitioner to the post of
Junior Clerk / Kacheri Sahayak in the regular pay scale w.e.f
16.10.2004 instead of 16.10.2009; and / or
(e) direct the respondent no.1 and 2 to grant and pay
difference of pay and allowances attached with the post of
Junior Clerk / Kacheri Sahayak to the petitioner w.e.f
16.10.2004 with benefit of seniority, pension and other
consequential benefits ; and / or
(f) pending admission and final hearing of this petition, the
Hon'ble Court may be pleased to direct the respondent no.1
and 2 to re-fix the pay and allowances attached with the post
of Junior Clerk / Kacheri Sahayak w.e.f 16.10.2004 in favour
of the petitioner; and / or
(g) grant any other relief or pass any other order which the
Hon'ble Court may consider as just and proper in the facts,
circumstances and grounds of the case."
3. Rule. Learned APP waive service of notice of rule on behalf of
respondent-State.
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C/SCA/19838/2023 ORDER DATED: 04/12/2023
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4. Learned advocate Ms. Thakar would submit that the issue in
question is squarely covered by decision of this Court more
particularly by decision of Division Bench by this Court in LPA No.
1153 of 2022 dated 09.09.2022 as modified vide order dated
19.09.2022 inasmuch as the petitioners who were given
appointment on compassionate basis, more particularly, such
appointment being on fixed pay basis for a period of five years had
sought for grant of regular pay scale from the date of their
appointment which had been upheld. Learned advocate would also
draw the attention of this Court of various Co-ordinate Benches
where a similar view has been taken.
5. On the other hand, learned AGP for respondent-State would
submit that the present petitions are barred by res judicata more
particularly according to learned AGP, the petitioners had
approached this Court and praying for the very same reliefs in the
year 2014, when a learned Co-ordinate Bench of this Court had
rejected their petitions on the ground of delay and whereas the
same has been confirmed by the Division Bench of this Court in an
appeal preferred by the present petitioners. Learned AGP would
submit that the petitioners have been approached this Court for the
very same reliefs and their petitions had been rejected and the
same being confirmed in appeal and the petitioners have chosen
not to challenge the same before the Hon'ble Apex Court therefore
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C/SCA/19838/2023 ORDER DATED: 04/12/2023
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the said decision has become final and whereas the present
petitioners are clearly barred by res judicata.
6. As against the same, learned advocate Ms. Thakkar for the
petitioner, would again rely upon the decision arrived by the
Division Bench in LPA No. 11512 of 2022 not particularly
submitting that the argument of delay, had not been countenanced
by the Division Bench whereas this Court may not take the same
into consideration.
7. Heard learned advocates appearing for the respective parties
and perused the record. The short question which requires
consideration of this Court is whether the petition would be barred
by res judicata or would be maintainable.
8. Undisputedly, all the petitioners in the present group of
petitions had approached this Court earlier, and for the sake of
convenience taking into consideration the case of petitioner of SCA
No. 19829 of 2023, who had approached this Court by preferring
SCA No. 7758 of 2014, it appears that the said petition had been
rejected vide order dated 10.07.2014 by a learned Co-ordinate
Bench, more particularly on the ground of delay. The learned Co-
ordinate Bench having come to a conclusion that the petitioner
ought to have approached this Court at the relevant point of time
i.e, near about the date of appointment of the petitioner and not
after a delay of 10 years. It would appear that the said decision has
been questioned by the present petitioner, by preferring LPA No.
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985 of 2014 and vide order dated 02.12.2014, a Division Bench of
this Court had rejected the appeal and confirmed the decision of
learned Co-ordinate Bench.
9. As against the same, learned advocate for the petitioner has
relied upon the observations of the Division Bench in LPA No. 1152
of 2022 dated 09.09.2022, more particularly, observations at
paragraph no. 10, whereby, the Division Bench has relied upon an
order dated 12.06.2019 passed by the State-authorities granting
appointment in regular pay to an employee who has been originally
appointed in compassionate ground in the year 2003 on fixed pay
had rejected the ground of delay more particularly, holding that
the State could not take different stands in case of its employees.
10. In the considered opinion of this Court, while the present
petitions clearly appeared to be barred by res judicata, it would
also appear that observations of Division Bench of this Court in LPA
NO. 1152 of 2022, would not advance the cause of the present
petitioners. The reason for such a conclusion being that in case of
the present petitioners the issue had been settled as far as back in
the year 2014, inasmuch as the petitions having been rejected on
the ground of delay, the same had been confirmed by the Division
Bench of this Court. The petitioners, merely because the ground
delay had not in countenanced by a Division Bench in the
subsequent group of petitions would not be entitled to claim that
they ought to have been given similar treatment.
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C/SCA/19838/2023 ORDER DATED: 04/12/2023
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10.1 If the petitioners were aggrieved by the order of the Division
bench of the year 2014 whereby the LPA had been rejected, then
the remedy open to the petitioners was to approach the Hon'ble
Apex Court and whereas, having not approached the Hon'ble Apex
Court the decision has attained finality inter party.
10.2 Once the petitions had been rejected on the ground of delay
and the same has been confirmed in appeal a later decision more
particularly, not considering the ground of delay raised by the
respondent in a similar situation would not in any way help the
petitioners to submit that their petitions and consequent appeals
ought not to have dismissed in the year 2014 or the same would
pale into insignificance on the ground of later decisions of the
Division Bench.
10.3 Furthermore, it also requires to be noted here that the
decision in the case of the petitioners at the stage of the LPAs also
does not appear to have been considered and distinguished by the
Division Bench of this Court in LPA No. 1152 of 2022 and whereas
as noted herein above, the Division Bench had not countenanced
the submission of delay raised by the respondent- State on the
ground that since a similarly situated employee had been given
benefit of regular pay scale with effect from the year 2019, not
withstanding, his original appointment on fixed pay in the year
2003, therefore, it was observed that similar treatment was also
required to be given to other employees. Thus the later decision of
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the Division Bench did not dilute or distinguish the decision of the
Division Bench in case of the petitioners. Such an observation
notwithstanding the position that even if the later decision had
distinguished the earlier decision then also the same would not
have ennured in favour of the affected party in the former decision.
11. The present petitioners having approached this Court in the
year 2014 and whereas the writ petition as wells as the Letters
Patent Appeal preferred by the petitioners having been rejected in
the considered opinion of this Court, the present petitions would
clearly stand barred by res judicata and whereas in the considered
opinion of this Court the petitions, therefore, does not require any
interference, hence, the petitions stands rejected.
(NIKHIL S. KARIEL,J)
Radhika
