A.J. Upadhyay vs State Of Gujarat
2023 Latest Caselaw 2526 Guj

     C/SCA/3817/2008                                     ORDER DATED: 27/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3817 of 2008
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                              A.J. UPADHYAY
                                   Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR MEET THAKKAR AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                  Date : 27/03/2023
                   ORAL ORDER

1. This Court, vide order dated 13.04.2000 in Special Civil Application No.7447 of 1989, passed the following order :-

"In the result, the petition is allowed. The impugned order dated 18th August, 1989, made by the Deputy Commissioner of Police, Vadodara City is quashed and set aside. Consequently, the appellate orders dated 18th September, 1989, made by the Commissioner of Police, Vadodara City, and 23rd January, 1991, made by the Director General & Inspector General of Police and the revisional order dated 28th August, 1991, made by the State Government are quashed and set aside. The petitioner is ordered to be reinstated in service as Armed Police Constable. The period spent under suspension shall be treated as period of duty. The petitioner shall be paid the consequential difference of salary and shall also be given the other service benefits for the said period. The period from the date of removal from service till the date of reinstatement shall, on the principle of no work no pay, be treated as a period of extra ordinary leave without pay. The petitioner shall be reinstated in service and be given suitable posting within a period of three weeks from the date of the receipt of the writ of this court. In the event, the respondents fail to reinstate the petitioner within the period stipulated hereinabove, the petitioner shall be deemed to have been reinstated in service from the date of this order and shall be held to be entitled to receive pay and allowances and other service benefits from the date of this order. Rule is made absolute in the above terms. The respondents shall pay the cost of this petition. The cost is quantified to be Rs.5000/-. Registry is directed to send the writ forthwith."

2. Thereafter, on 14.07.2000, the petitioner was reinstated in service and the period of removal from 18.08.1989 till 12.04.2000 was treated as extraordinary leave. That thereafter, the pay of the petitioner came to be re-fixed.

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3. It is the case of the petitioner that since no increment during the period from 18.08.1989 till 12.04.2000 was taken into account while re-fixing his pay, he made an appropriate representation to the respondents for taking into consideration the increment for the said period and re-fix his pay. By order dated 02.12.2006, the respondents intimated that since the period from 18.08.1989 till 12.04.2000 is treated as extraordinary leave, the increments are not to be counted for the said period while re-fixing the pay. That thereafter, aggrieved, the petitioner preferred Special Civil Application No.21862 of 2007. By order dated 24.08.2007, this Court passed the following order :-

"3. In view of the aforesaid submissions made by learned advocate Mr. Supehia, the respondents are directed to re-consider the case of the petitioner, whether the petitioner is entitled the re-fixation of the salary on the date on which he was reinstated while considering the interim period as continuous service as per service rules or not and then, pass appropriate reasoned order in accordance with service rules, within a period of three month from the date of receiving the copy of this order and communicate the decision to the petitioner.

4. In view of the above observations and directions, present petition is disposed of without expressing any opinion on merits. Direct service is permitted."

4. Vide order dated 06.10.2007, the respondents passed a detailed order excluding the increments for the period from 18.08.1989 till 12.04.2000 once again, holding that since the said period is considered as extraordinary leave, the petitioner is not entitled for the same.

5. It is pertinent to mention here that in the aforementioned order dated 06.10.2007, there is no compliance of the direction passed by this Court as to the reconsideration that whether the petitioner was entitled to the re-fixation of salary while considering the interim period as continuous service as per the

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service rules or not. There is no adjudication made on this issue in the order dated 06.10.2007.

6. Aggrieved, the petitioner has preferred the present Special Civil Application praying for the following reliefs :-

"(A) Quashing and setting aside the order dt. 6.10.2007 and directing the respondents to grant notional increments to the petitioner for the period from 18.8.1989 to 12.4.2000. In other words, to fix the pay of the petitioner from 13.4.2000 by adding notional increments from 18.8.89 to 12.4.2000. The arrears should be paid with 10% interest.

(B) During the pendency and final disposal of this petition, Respondent no.2 may be directed to fix and pay the petitioner by adding notional increments for the period from 18.8.89 to 12.4.2000.

(C) To grant such other and further relief as may be deemed fit."

7. In the affidavit-in-reply filed by the respondents in the present writ petition, it is submitted in para 6 thereof that the competent authority has passed the said order dated 06.10.2007 in consonance with Rule 39 of Gujarat Civil Services (Pay) Rules, 2002 which in terms states that the period which is treated as extraordinary leave, the same cannot be considered to grant increment. Further, in paragraph 11 of the said affidavit-in-reply, it is stated that the benefit of increment cannot be extended against the said period if it is treated as extraordinary leave period as provided under Rule 39 of Gujarat Civil Services (Pay) Rules, 2002.

8. That thereafter, this Court, on 20.12.2016, passed the following order :-

"It would be appropriate for the respondent to disclose the actual calculation of extending benefit of notional increment to the petitioner pursuant to the judgment dated 13.4.2000 in Special Civil Application No.7447 of 1989. Thereby, respondents have to disclose that when petitioner was removed from services from 18.8.1989 and thereafter, when he was reinstated by order dated 14.7.2000, for such period, how notional increment is being considered. List the

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matter on 28.12.2016."

Pursuant to the said order of this Court, the respondents, vide order dated 06.03.2017, passed an order stating that the period from 18.08.1989 till 12.04.2000 is considered as break in service and the same cannot be considered as continuous service. Thereafter, the said order enumerates calculation of notional increment granted to the petitioner denying any increment from 18.08.1989 till 12.04.2000.

9. Learned advocate Ms. Mamta Vyas appearing on behalf of the petitioner submits that as per the direction of this Court vide order dated 13.04.2000, the period from 18.08.1989 to 12.04.2000 was to be treated as extraordinary leave without pay and the said period about 11 years ought to have been considered for granting the increment upon reinstatement of the petitioner for fixing the pay. She submits that by denying the benefit of the said period, the petitioner who was granted the service benefits for the said period, has been denied the same. It is also submitted that the petitioner has since retired.

10. Per contra, learned Assistant Government Pleader Mr. Meet Thakkar appearing on behalf of the respondents submits that the petitioner had approached this Court for inclusion of the increments considering the period from 18.08.1989 to 12.04.2000 which is treated as extraordinary leave as per the direction of this Court. He submits that at the first time, this Court had directed to reconsider the case of the petitioner without taking into consideration the merits of the case. He further submits that vide order dated 20.12.2016, this Court had once again directed the respondents to disclose how the

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notional increment was being considered. He submits that by way of affidavit, it has been brought on record that the period of removal from 18.08.1989 till 12.04.2000 has been treated as extraordinary leave in terms of order dated 13.04.2000 as well as on interpretation of Rule 39 of the Gujarat Civil Services (Pay) Rules, 2002. The petitioner is not entitled to any benefit for increment for the said period of extraordinary leave. He, therefore, submits that the pay fixation by the respondents without considering any increment for the said period from 18.08.1989 till 12.04.2000 is correct and as per the rules.

11. Heard the learned advocates for the parties and perused the documents on record.

12. It is an admitted position that the petitioner has been reinstated in service on 14.07.2000. It is also noticed that on the said date, the case of the petitioner was governed by the Bombay Civil Service Rules, 1959. Rule 50 of the said rules reads as under :-

"50. The following provisions prescribe the conditions on which service counts for increments in a time scale :

(a) Subject to rules 41, 43, 66 and 67 all duty in a post on a time scale counts for increment in that time scale.

(b) (iii) :Notwithstanding anything contained in sub-clauses (I) and

(ii) where the Government is satisfied that extraordinary leave was taken for any cause beyond the Government servant's control or for prosecuting higher scientific or technical studies it may direct that the period of extraordinary leave shall subject to such conditions as it may impose count for increment."

13. Vide order dated 13.04.2000 in Special Civil Application No.7447 of 1989, this Court had quashed and set aside the order dated 18.8.1989 removing the petitioner from service

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and the subsequent orders so passed by the higher authorities in appeal and revision were also set aside. It was further ordered that the petitioner be reinstated in service and the period spent under suspension from service shall be treated as period of duty. It was directed that the petitioner shall be paid the consequential difference of salary and he shall also be given other service benefits for the said period. It was also clarified that since the petitioner had not worked from his removal from service till his reinstatement, therefore on the principle of "No Work No Pay", the said period from 18.08.1989 till 12.04.2000 be treated as one of extraordinary leave without pay.

14. In the present case, it is revealed that there is non- application of mind with respect to the applicability of the rules governing the case of the petitioner by the respondents. Though the petitioner's case is governed by Bombay Civil Service Rules, 1959, the respondents herein are applying Gujarat Civil Services (Pay) Rules, 2002 which came into force after reinstatement of the petitioner. Further, on the said interpretation of the said rules, the respondents have also denied the petitioner the benefits which had accrued to him. By order dated 13.04.2000, this Court had clearly directed that the petitioner was ordered to be reinstated in service and the period spent under suspension from service be treated as period of duty. The petitioner was also directed to be paid the consequential difference of salary and other service benefits for the said period. With a view to balance the equities, as the petitioner had not worked for the said period on account of his removal from service, the said period from 18.08.1989 till 12.04.2000 was to be considered as extraordinary leave

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without pay as per the principle of "No Work No Pay". However, in the present case, it seems that the respondents are interpreting the rules so as to deny the benefits to the petitioner. A plain reading of Rule 50(b)(iii) of the Bombay Civil Services Rules, 1959 clearly states that where the Government is satisfied that extraordinary leave was taken for any cause beyond the government servant's control, it may direct that the period of extraordinary leave shall be subject to such conditions as it may impose, count for increment. Therefore, the rules clearly stipulates that the period of extraordinary leave can be counted for granting the increment. In the present case, the benefit for the said period has already been granted to the petitioner vide order dated 13.04.2000 by treating the period as period of duty and entitled him for other service benefits along with the payment of consequential difference of pay. In the opinion of this Court, it was imperative upon the respondents to interpret Rule 50 of Bombay Civil Services Rules, 1959 so as to comply with the direction passed by this Court in the order dated 13.04.2000 in Special Civil Application No.7447 of 1989. The respondents cannot and could not have withheld the benefits as directed by this Court by applying Gujarat Civil Service (Pay) Rules, 2002 which are not at all applicable in the present case. Once the order of removal from service in case of the petitioner had been set aside and the period from the order of removal till the reinstatement was to be treated as period of duty coupled with the fact that he was entitled to all the consequential and other service benefits, there was no predicament for the respondents to grant such benefits while interpreting the relevant rules. Even the proviso to Rule 39 of the Gujarat Civil Service (Pay) Rules, 2002 empowers the Government to consider the period

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of extraordinary leave to be entitled for grant of service benefits. However, in the present case, it seems that the respondents want to deny the service benefits to the petitioner despite the order of removal from service being set aside on merits. The respondents are duty bound to implement the order dated 13.04.2000 passed in Special Civil Application No.7447 of 1989 in its true letter and spirit. In the background of the direction passed in the said order, the respondent authorities cannot deny any service benefit to the petitioner when the said period is to be treated as period of duty.

15. In view thereof and the aforesaid observations, the present Special Civil Application deserves to be allowed and the same is allowed accordingly. The respondents are directed to add the notional increments for the period from 18.08.1989 till 12.04.2000 and to re-fix the pay of the petitioner accordingly within a period of eight weeks from the date of receipt of a copy of this order and in any case before 31.05.2023. As a consequence, the arrears so accrued after re- fixing the pay and other consequential benefits shall also be paid to the petitioner within the said period.

Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.)

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