Bharatkumar Ramanbhai Patel vs State Of Gujarat
2023 Latest Caselaw 608 Guj

     C/SCA/515/2022                                 JUDGMENT DATED: 20/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 515 of 2022
                                     With
                 R/SPECIAL CIVIL APPLICATION NO. 588 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                              Sd/-

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1    Whether Reporters of Local Papers may be allowed to see              NO
     the judgment ?

2    To be referred to the Reporter or not ?                              NO

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

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

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                      BHARATKUMAR RAMANBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR. ADITYA PATHAK, AGP for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 20/01/2023

                              ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on

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behalf of the respondent Nos.1 to 3.

2. This two petitions are arising out of the identical facts and are raising the same issues and hence, at the request of both the sides, the same are taken up for joint hearing and final disposal. With consent, the facts are recorded from the lead matter i.e. Special Civil Application No.515 of 2022.

3. This petition under Article-226 of the Constitution of India is filed seeking quashing and setting aside of Communication dated 17-03-2021 and further seeking direction to grant higher pay-scale of Rs.5000-8000 and corresponding pay-scale in 6 th and 7th Pay Commission's recommendations.

4. Learned Advocate for the petitioner has submitted that aforesaid Communication is in contradiction to decision of this Court in case of the petitioner himself passed in Special Civil Application No.10307 of 2009. It is submitted that this Court in Oral Judgment dated 26-09- 2017 in the aforesaid petition and other allied matters, had examined the case of the petitioner on the same issue and had directed that the respondent-Authority to undertake exercise by keeping in view the observations made in the aforesaid Oral Judgment.

5. It is submitted that in the aforesaid judgment, the Court has virtually given directions of granting higher pay-scale by considering the petitioner in the pay-scale of Rs.5000-8000 and thereafter, considered his case for recommendations of 6 th and 7th Pay Commission, despite this, without assigning any reason has passed impugned order.

6. As against this, learned AGP has opposed the petition by submitting that relief prayed for in the present petition was never subject matter of decision in the earlier petition, which is relied upon by the petitioner, as there is no reference to grant of 6 th and 7th Pay Commission. The same being not the subject matter before the Court. It is submitted that entitlement of the petitioner is decided in consonance with the

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Government Resolution applicable to the case of the petitioner and the State has also taken into consideration directions given by this Court in the aforesaid matter.

7. In rejoinder, learned Advocate for the petitioner has submitted that the petitioner who is a Librarian, claims parity with the other Librarians, who have been given benefits. Reference is made to the case of one Prakash Jha, which is squarely applicable to the facts of the petitioner also.

8. Having considered the rival submissions of the parties and having perused the documents on record, it is the case of the petitioner that the petitioner was appointed as Librarian on 04-07-1987 in the pay-scale of Rs.330-560, which came to be revised to Rs.1200-2040. The petitioner was granted first higher pay-scale on 04-07-1996 as per the Government Resolution dated 16-08-1994 and the petitioner was put in the pay-scale of Rs.5000-8000. The petitioner has retired upon attaining the age of superannuation on 31-10-2019. It is the case of the petitioner that the State Government had created the post of Librarian in the year 1997 with pay-scale of Rs.330-560, which came to be revised and the petitioner's pay-scale was also revised. It appears that the petitioner was also one of the petitioners in the group of petitions, which came to be disposed of by Oral Judgment dated 26-09-2017, wherein claim of the petitioner was examined by this Court, wherein this Court has observed in Para-9, 10 and 11 as under:

"9. It is pertinent to note that the entire controversy has arisen from the communication dated 28.04.2009 written by Deputy Secretary, Education Department, to the Information of of Commissioner, Midday Meals and Schools. Acting on this communication, the respondent no.2 - Commissioner, Midday Meals and Schools informed all the District Education Officers to act as per the information provided under the Right to Information Act. Thus, there does not exist any valid order canceling higher pay-scale granted to the petitioners. On the basis of the information provided

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under the Right to information Act pursuant to the application made by one Shri Harshadkumar J. Parekh, the entire exercise of reduction, cancellation of higher pay-scale has been undertaken and further recovery also ordered. The aforesaid communication and the order dated 20.05.2009 is passed in blatant violation of principles of natural justice and administrative law. The State Government who was required to pass separate order giving effect to such instructions under the Right to Information Act. Hence, the proceedings culminating from such information are liable to be quashed and set aside, as the genesis lies in the communication dated 28.04.2009, which is issued under the Right to Information Act.

10. Mr.Soni, learned AGP was unable to distinguish the judgment and order passed by the Tribunal in Application No.142 of 1999 dated 25.02.2008 on the very issue and facts in the case of one librarian Prashantkumar Hasmukhray Jha, who was working as a Librarian. The said judgment was confirmed in Special Civil Application NO.2955 of 2010 vide order dated 08.03.2010 against which Special Leave to Appeal was not entertained.

11. In view of the aforesaid observations and analysis, I am of the view that the orders dated 28.04.2009 passed by the State Government and instructions dated 20.05.2009 passed by the Commissioner, Midday Meals and schools are required to be quashed and aside. The respondent authorities are hereby directed to consider the case of the petitioners in light of the judgment and order of Tribunal dated 25.08.2008 rendered in Application No.142 of 1999 which was confirmed by this Court in Special Civil Application No.2955 of 2010 vide order dated 08.03.2010 and pass appropriate orders granting the high pay scale in case it is found that the issue is covered by the judgment and order of Tribunal and this Court."

9. Considering the observations made by this Court in the aforesaid Oral Judgment particularly in Para-11, the respondent-Authorities are required to consider and follow the directions issued by this Court in the aforesaid Oral Judgment. However, upon perusal of the impugned order, it appears that the respondent-Authorities have not acted in the consonance of the directions issued by this Court in the aforesaid Oral Judgment. The Communication does not indicate any application of

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mind or any reasoning, as to how the granting of higher pay-scale would not be admissible in case of the petitioner after taking into consideration the judgment of the Tribunal dated 25-08-2008 in Application No.142 of 1999, which was confirmed by this Court in Special Civil Application No.2955 of 2010.

10. In view of the aforesaid reasoning, impugned Communication dated 17-

03-2021 is ordered to be quashed and set aside with the directions to the Commissioner of Education Department to undertake the exercise as contemplated in the directions contained in Special Civil Application No.10307 of 2009 and allied matters afresh by giving an opportunity of hearing to the petitioner and such exercise to be conducted within a period of three months from today. The Commissioner of Education Department to assign specific reasons, while taking the decision in case of the petitioner. It is further observed that no recovery be effected upon the petitioner till the Commissioner of Education Department takes decision in connection with the subject matter of the case i.e. entitlement of the petitioner to higher pay-scale and application of 6 th and 7th Pay Commission's recommendations.

11. In view of the aforesaid, both the petitions stand allowed. Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA