Gujarat High Court
State Of Gujarat vs Smitaben R. Parikh on 5 October, 2023
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1239/2023 ORDER DATED: 05/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1239 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 1100 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1239 of 2023
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STATE OF GUJARAT
Versus
SMITABEN R. PARIKH
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Appearance:
MR MANAN MEHTA, AGP for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 05/10/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr.Manan
Mehta for the appellant State.
2. What is sought to be challenged by the appellant in this
Letters Patent Appeal is judgment and order dated 4.7.2022 of
learned single Judge. Thereby learned single Judge confirmed
the order dated 19.6.2018 of the Gujarat Civil Services Tribunal,
Gandhinagar, whereby the respondent - government servant
was held entitled to the first higher pay grade scale to be so
entitled under the policy Resolution dated 2.7.2007.
3. Noticing the facts in the background, the respondent who
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was initially appointed as Junior Clerk on 18.12.1984 was
granted the first higher pay scale under the Resolution dated
16.8.1994 upon completion of 9 years of service. The first higher
pay scale granted with effect from 18.2.1994, was subsequently
sought to be withdrawn from 10.6.1997, on the ground that she
refused to accept the promotion when offered in the year 1997.
The promotion was not accepted by the employee, on the ground
of she having responsibilities of children and elder members in
the family. Be as that may.
3.1 The scheme of granting higher pay scale has the
underlying object of ensuring that the government servant do
not suffer because of his stagnation in particular cadre. The
scheme under Resolution dated 16.8.1994 contemplated grant of
higher pay benefit at the completion of 9-18-27 years. This
scheme came to be substituted and revised under the Finance
Department Resolution dated 2.7.2007, whereunder the benefit
was available at the end of completion of 12 and 24 years of
service respectively, in the same cadre.
3.2 The tribunal was approached by the applicant against the
order of the authorities dated 9.1.2015 whereby she was denied
the benefit of first higher pay scale upon completion of 12 years
under the revised scheme in Resolution dated 2.7.2007. The
ground on which the first higher pay scale was withdrawn from
the respondent employee was that she had once refused the
promotion offered to her. Therefore under the condition
No.3(20) of scheme in Resolution dated 16.8.1994, she was
treated to be ineligible to be granted the first higher pay scale.
The Tribunal however in its order held the respondent to be
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entitled to be granted the first higher pay scale for the reasons
recorded in the order.
4. When the State challenged the order of tribunal by filing
Special Civil Application, learned single Judge did not accept the
stand of the Department, dismissing the Special Civil
Application, reasoning inter alia thus, extracted from the para 7
of the order,
"On completion of 9 years of service in
accordance with the Resolution of 16.08.1994,
the respondent was granted the benefit of the
first higher pay-scale on 18.02.1994. She having
refused promotion to the post of Senior Clerk on
10.06.1997, the higher pay-scale granted to her
was withdrawn on 24.11.1997. This action of
the department was in consonance with the
policy, particularly, para 3(20) of the
Government Resolution dated 16.08.1994. The
first higher pay-scale was therefore rightly
withdrawn. That was not even a subject matter
of challenge before the Tribunal."
4.1 Learned single Judge further ordered,
"Before the Tribunal, the question was whether
after promotion to the post of Senior Clerk in
the year 2002, was the respondent entitled to
the benefit of the first higher pay-scale on
completion of 12 years thereafter. It was in light
of this issue that the Tribunal held that the
refusal of promotion prior thereto which had
already resulted in withdrawal of the first higher
pay-scale cannot deny an incumbent to the first
higher pay-scale on he/she having completed the
requisite number of years i.e. 12 in the post on
which he or she was working."
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4.2 Learned single Judge was justified in observing that the
clause 3(20), which was taken shelter of by the respondents to
deny the benefits of first higher pay scale was under the
Resolution dated 16.8.1994, which policy was already
substituted by subsequent Resolution dated 2.7.2007.
5. While this court is in agreement with the reasons supplied
by learned single Judge, it is to be additionally observed that the
respondent was denied the benefit of first higher pay scale in the
year 1997 when the policy prevalent was under the Resolution
dated 16.8.1994. Thereafter not only that the new policy as per
the Resolution dated 2.7.2007 was brought into play, another
event also took place which was the promotion in the year 2002
of the respondent - employee to the post of Senior Clerk.
5.1 The denial of benefit of first higher pay scale to the
respondent employee could be readily faulted on two obvious
considerations. Firstly, that the scheme under Resolution dated
16.8.1994 was no more in vogue and new scheme was
introduced. When the petitioner completed requisite number of
years in particular cadre and when at that point of time the 2007
scheme was to be applied, upon fulfillment of condition of 12
years of service, the petitioner was entitled to get the benefit.
5.2 The respondents could not have imported the notion of
debility under clause 3(20) which was in the old scheme, no
more in force. When the new scheme was introduced, the benefit
thereof was required to be given to the applicant at the juncture
when the case of the respondent was to be considered for the
grant of benefit. Secondly, the respondent employee was already
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promoted as Junior Clerk in the year 2002. Reckoning from the
said date of promotion as Senior Clerk also, she completed 12
years of service in the same cadre to be eligible for the first
higher pay scale under the conditions of the Resolution dated
2.7.2007 to be applied in her case.
6. For the reasons recorded by learned single Judge and
additional reasons recorded by this court, the impugned
judgment and order of learned single Judge does not book any
error whatsoever.
7. The present Letters Patent Appeal is dismissed.
The Civil Application will not survive in view of disposal of
the Appeal.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
Manshi
