Ashokkumar Vithaldas Modh vs State Of Gujarat
2023 Latest Caselaw 671 Guj

Citation : 2023 Latest Caselaw 671 Guj
Judgement Date : 25 January, 2023

Gujarat High Court

Ashokkumar Vithaldas Modh vs State Of Gujarat on 25 January, 2023

Bench: Sandeep N. Bhatt

     C/SCA/9776/2011                              JUDGMENT DATED: 25/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9776 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       ASHOKKUMAR VITHALDAS MODH
                                  Versus
                        STATE OF GUJARAT & 4 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS SHIKHA PANCHAL
WITH MS VIDHI J BHATT(6155) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4,5
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 25/01/2023

                             ORAL JUDGMENT

1. The present petition is filed by the petitioner

C/SCA/9776/2011 JUDGMENT DATED: 25/01/2023

with the following reliefs:

"14(A) Quashing and setting aside the circular dt.27.5.2011, order dt.26.7.2011 and the Resolution dt.21.5.2011 and directing the Respondents to grant the benefit of 6 th Pay Commission w.e.f. 1.1.2006 and refund the amount if any recovered from the petitioner, with 8% interest.

(B) During the pendency and final disposal of this petition the respondent nos.3 and 5 may be restrained from implementing the circular dt.27.5.2011 and 26.7.2011.

(C) During the pendency and final disposal of this petition, the Respondents may be restrained from affecting any recovery and refixing the pay pursuant to the Order dt.26.7.2011.

(D) To grant such and further relief as may be deemed fit and proper."

2. The petitioner's case in brief is that the

petitioner was appointed as Junior Clerk on 20.9.1984

under the respondent no.3-board and he worked as such,

from 20.9.1984 to 30.4.2006. Thereafter, from 1.5.2006, he

was sent on deputation to Adijati Vikas Commissioner,

Gandhinagar. He was relieved on 14.2.2007 and

C/SCA/9776/2011 JUDGMENT DATED: 25/01/2023

thereafter he joined Civil Hospital, Ahmedabad on

15.2.2007. Thereafter, from 1.5.2008, the petitioner is

working as Junior Clerk under respondent no.5-college.

He was sent on deputation on the basis of resolution

dated 8.5.2007 passed by respondent no.1. Thereafter, by th resolution dated 20.3.2009 passed by respondent no.1, 6

pay commission was implemented qua the petitioner.

Accordingly, the pay of the petitioner was fixed with

effect from 1.1.2006 and was paid all benefits and all

arrears, in accordance with the aforesaid resolution vide

order dated 23.4.2009. Thereafter, the respondent no.2

issued resolution dated 21.5.2011 stating that pay

revision will be applicable from 1.1.2009 instead of

1.1.2006. Pursuant to the said resolution dated 21.5.2011, respondent no.3 issued circular dated 27.5.2011 stating

that pay revision will be applicable from 1.1.2009 and

accordingly, respondent no.5 passed order on 26.7.2011 th withdrawing the benefit of 6 pay commission and placed th the petitioner in the pay scale of 5 pay commission

with effect from 1.7.2011 in pay scale of Rs.4000-6000/-

and his pay was fixed at Rs.5500/- and recovery of the

pay granted from 1.1.2006 to 31.12.2008 was ordered.

Therefore, the present petition is filed with the aforesaid

C/SCA/9776/2011 JUDGMENT DATED: 25/01/2023

prayers.

3. This Court initially issued notice vide order

dated 1.8.2011, which reads as under:

"Heard learned advocates appearing on behalf of respective

parted (sic. parties).

Considering submissions made by both learned

advocates, issue NOTICE to respondents returnable on 2 nd

September, 2011.

Meanwhile, no recovery is to be effected from salary

of petitioner in pursuance of order dated 26 th July, 2011 till

nd September, 2011.

Direct service is permitted."

4. Thereafter, vide order dated 16.8.2012 admitted

the petition. Thereafter, on an application made by the

Gujarat Housing Board being CA (for direction) No.8232

of 2015 in the present petition, this Court passed order

on 20.10.2015, which reads as under:

"By way of this Civil Application request is made to permit

C/SCA/9776/2011 JUDGMENT DATED: 25/01/2023

re-fixation of pay of opponent No.5-original petitioner in the Sixth Pay Commission from 1.1.2009 and to pay him salary in accordance with the re-fixed amount, every month.

Heard both the sides. Learned advocate Ms.Vidhi Bhatt urged to refix the salary of the petitioner on the line of application. Learned advocate Mr.A.S.Supehia appearing for the respondent No.5 has no objection to the re-fixation made from 1.1.2009 and if the original petitioner be paid as per re-fixed amount, as per communication dated 7 th September, 2015.

As no objection is raised to the request by the Opponent No.5, the applicant shall be paid salary as per the re- fixation made from 1st November, 2015. However, the respondent-Board shall not recover any amount till the outcome of the main petition, in light of the decision of the Apex Court rendered in case of State of Punjab Vs.Rafik Masih reported in 2014(14) Scale 300.