Gujarat High Court
Labhshankar Dayaljibhai ... vs Gujarat Maritime Board on 13 October, 2023
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15484 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LABHSHANKAR DAYALJIBHAI GANDHIYAT
Versus
GUJARAT MARITIME BOARD
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 3
MR SANJAY UDHWANI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/10/2023
CAV JUDGMENT
Heard learned advocate Ms.Harshal Pandya for the
petitioner, learned Assistant Government Pleader Mr.Sanjay
Udhwani for the respondent State and learned advocate
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Ms.Sejal Mandavia for the respondent No.3 - Gujarat Maritime
Board.
2. By filing the present petition under Article 226 of the
Constitution of the Constitution, the petitioner has prayed to
hold and declare that the petitioner is entitled to get second
higher grade scale upon completion of 15 years of service from
the date of receipt of the first higher grade in view of Resolution
dated 2.7.2007 of the State Government read with clarification
dated 4.3.2008 of the Finance Department. It is prayed to direct
the authorities to grant the second higher grade of Rs.9300-
34800, with grade pay Rs.4400, from the date it became payable
with consequential benefits, grant of interest also, as the
payable amount.
3. Noticing the facts, the petitioner joined his services in the
Gujarat Maritime Board as Clerk cum Typist on 9.4.1980 in the
pay scale of Rs.260-400. The petitioner was promoted as Senior
Clerk in the year 1990 to be placed in the pay scale of Rs.330-
560. Subsequently he was granted the deemed date on
26.12.1983 of promotion in the cadre of Senior Clerk. The
petitioner worked as Deputy Accountant which is equivalent to
Senior Clerk.
3.1 The pay scale of the petitioner Rs.330-560 was revised to
Rs.1200-2040 with effect from 1.9.1986 pursuant to the Revision
of Pay Rules, 1987. The petitioner completed 9 years of service
in the same cadre of Senior Clerk and in same pay scale.
Therefore he was granted higher grade scale of Rs.1400-2600
with effect from 26.12.1992 which was of the cadre of Head
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Clerk. The said scale was revised, pursuant to the 5 th Pay
Commission, to Rs.5000-8000.
3.2 After the petitioner received the first higher grade scale,
he was actually promoted to the post of Supervisor at par with
Head Clerk on 13.4.2011 by order dated 6.4.2011. It is to be
noted that the pay scale was further revised to Rs.9300-34800
with grade pay of Rs.4200 as per the 6 th Pay Commission. Finally
the petitioner was promoted as Superintendent. Having served
for long 33 years, the petitioner retired on 31.5.2013 upon
attaining the age of superannuation.
3.3 The Scheme in the Resolution of the Finance Department
dated 16.8.1994, as revised in Resolution 2.7.2007 provided for
granting higher grade scale to the government servant. The
Scheme offered under Resolution dated 16.8.1994 was known 9-
18-27 years Scheme for grant of higher scale at such intervals,
whereas in the Resolution of 2007 criterion of 12 and 24 years
was introduced. The Resolution dated 17.12.2009 passed by the
Port and Transport Department extended the scheme to the
Gujarat Maritime Board. The Gujarat Maritime Board issued
consequential Circular dated 11.8.2011 providing for
implementation of the grant of higher grade scale by making
necessary proposals for eligible employees.
3.4 The petitioner rendered 15 years of service counted from
the date of receipt of the first higher pay grade scale. The
petitioner had received the first higher grade scale in
accordance with and under the Scheme of Resolution dated
16.8.1994 at the end of completion of 9 years of service.
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3.5 Resolution dated 2.7.2007 inter alia provided in its Clause
4(b) that the employee who had received first higher pay scale at
the completion of 9 years under Resolution dated 16.8.1994
would be entitled to receive the second higher grade scale under
revised Resolution of 2007, upon completion of 15 years of
service from the date of receipt of first higher pay scale under
the scheme of 1994 Resolution.
4. It is the grievance of the petitioner that under the
aforesaid Resolution and the policy decision adopted by Gujarat
Maritime Board, he is entitled to receive second higher pay
scale, however the same was not granted. It was stated by the
petitioner that the ground put forth by the respondent
authorities in not considering the petitioner to be entitled to the
second higher grade scale was that the Finance Department by
letter dated 4.3.2008 stated that as per the para 2.4(b) of the
Resolution dated 2.7.2007, those government servants who had
received two promotions and one higher grade scale would be
entitled to receive higher grade scale upon completion of 15
years of service subject to fulfillment of other conditions. It was
the grievance that despite the above clarification, the petitioner
was not granted the second higher pay scale for the reasons best
known to the board authorities.
5. The denial of benefit of second higher pay scale appears to
be based on applying Clause 2(3) of the Resolution dated
2.7.2007. The said Clause provides that the second higher pay
scale grantable at the end of 24 years will be extended after 12
years from the date of receipt of the first higher pay scale. The
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said clause indeed does not have application in the facts of the
present case. What is applicable is Clause 2(4)(b). At the cost of
repetition, it may be stated that according to the said condition
or Clause in cases of employees who has received the first
higher pay scale at the end of 9 years under Resolution dated
16.8.1994, will be getting the second higher pay scale after 15
years counted from the date of receipt of first higher pay scale at
the end of 9 years, in other words, at 24 th's years reckoned from
the date of first benefit.
5.1 It may be noted that in the inter se correspondence, the
authorities referred to the said clause 2(4)(b), however,
misdirected not to apply the same to give benefit to the
petitioner. It is to be recollected that the first higher pay scale
was received by the petitioner under the previous policy of
Resolution dated 16.8.1994 at the end of 9 years on 26.12.1992.
As per the clause 2(4)(b) of the new policy, 15 years would
expire on 26.12.2007, which would make the petitioner eligible
to get the second higher pay scale. It is to be held that the
petitioner became entitled to the second higher pay scale which
was wrongly denied to him.
5.2 Having noticed from the undisputed facts as above that the
petitioner has been wrongly denied the benefit of higher pay
scale for which his entitlement remained continuous, the
contention raised on behalf of the respondent about the delay
may be dealt with. It was contended that after receipt of first
higher pay scale on 26.12.1992, the petitioner came to be
promoted to the post of Supervisor on 13.4.2011 and retired
from service on 31.5.2013 and that he gave application for
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getting second higher pay scale in April, which was after
passage of 9 years.
5.3 The ground of delay and latches raised by the respondent
authorities to refute the legitimate entitlement of the petitioner,
which is devoid of substance, may be dealt with and disposed of
at the outset. It is to be observed that the policy of granting the
higher pay scale reflected in the Resolution dated 16.8.1994 and
revised Resolution dated 2.7.2007 is by the authorities and
obligation is cast thereunder on the respondents to extend the
benefits to the eligible employees therein.
5.4 When the employer takes a decision to grant some
benefits, obligation would lie on the employer to extend and give
such benefits as per the policy to the eligible employees who
fulfill the criteria. An entitlement is to be given to the employee
and the employee is not to be compelled to seek for it once it is
the right of the employee to get the benefit. And in the present
case the circular dated 11.8.2011 of the Gujarat Maritime Board
clearly contemplated that the proposals of eligible employees for
grant of higher pay scale under the Scheme would be required
to be processed and forwarded to the head office.
5.5 Even otherwise, the denial of second higher pay scale,
which was the entitlement of the petitioner could be viewed as a
recurring injury for the petitioner, therefore, the cause of action
had been repeating itself continuously. The factor of delay would
not come in way where the injury is of recurring nature.
5.6 Delay in the present case may be appropriately viewed by
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applying the principles underlying the concept of continuing
wrongs or successive wrongs as applied to the service law
disputes. In Bal Krishna S.P. Waghmare Vs. Shree
Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798],
explaining in the context of Section 22 of the Limitation Act,
1952 (old Section 23 Limitation Act, 1908), what amounts to
continuing wrong.
"It is the very essence of a continuing wrong
that it is an act which creates a continuing
source of injury and renders the doer of the act
responsible and liable for the continuance of the
said injury. If the wrongful act causes an injury
which is complete, there is no continuing wrong
even though the damage resulting from the act
may continue. If, however, a wrongful act is of
such a character that the injury caused by it
itself continues, then the act constitutes a
continuing wrong. In this connection, it is
necessary to draw a distinction between the
injury caused by the wrongful act and what may
be described as the effect of the said injury."
(para 31)
5.7 In another decision in M.R.Gupta Vs. Union of India
[(1995) 5 SCC 628], the grievance of the appellant before the
High Court, raised in the year 1989, was with regard to the
initial pay fixation with effect from 1.8.1978. The High Court
rejected the claim on the ground that it was raised after 11
years. The Apex Court applied the principle of recurring wrong.
Reversing the decision of the High Court, it was held and
observed thus,
"The appellant's grievance that his pay fixation
was not in accordance with the rules, was the
assertion of a continuing wrong against him
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which gave rise to a recurring cause of action
each time he was paid a salary which was not
computed in accordance with the rules. So long
as the appellant is in service, a fresh cause of
action arises every month when he is paid his
monthly salary on the basis of a wrong
computation made contrary to rules. It is no
doubt true that if the appellant's claim is found
correct on merits, he would be entitled to be
paid according to the properly fixed pay scale in
the future and the question of limitation would
arise for recovery of the arrears for the past
period. In other words, the appellant's claim, if
any, for recovery of arrears calculated on the
basis of difference in the pay which has become
time barred would not be recoverable, but he
would be entitled to proper fixation of his pay in
accordance with rules and to cessation of a
continuing wrong if on merits his claim is
justified. Similarly, any other consequential relief
claimed by him, such as, promotion etc., would
also be subject to the defence of laches etc. to
disentitle him to those reliefs. The pay fixation
can be made only on the basis of the situation
existing on 1.8.1978 without taking into account
any other consequential relief which may be
barred by his laches and the bar of limitation. It
is to this limited extent of proper pay fixation,
the application cannot be treated as time
barred........." (para 5)
5.8 The aforesaid propositions of law were reiterated by the
High Court in Union of India Vs. Tarsem Singh [(2008) 8
SCC 648] in which it was observed to explain the continuing
wrong that, "A 'continuing wrong' refers to a single wrongful act
which causes a continuing injury. `Recurring/successive wrongs'
are those which occur periodically, each wrong giving rise to a
distinct and separate cause of action." It was further held that
where a service related claim is based on continuing wrong,
relief can be granted even there is a long delay in seeking
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remedy, with regards to the date on which the continuing wrong
commenced, if such continuing wrong or recurring wrong
becomes a continuing source of injury.
5.9 The denial of higher pay scale benefit to a government
servant or an employee when he is entitled to under the
conditions and provisions of the Scheme for grant of higher pay
scale, is a recurring injury to the government servant. It is a
continuing wrong committed by a employer.
6. This takes the court to the case projected by the
respondents that the petitioner had received two promotions due
to which the denial of the benefit of higher pay scale was
justified. It is to be noted in this regard that while the petitioner
received two promotions, the actual promotion to the post of
Head Clerk or its equivalent did not fetch for the petitioner any
actual monetary benefits. It was because prior to the promotion
he has already received first higher grade scale of the
promotional post. The submission could be countenanced that in
that view, the event of promotion should not be counted as
separate one because the higher grade scale is given in view of
the non-availability of the promotional avenue.
6.1 The case involving similar facts and circumstances was
dealt with by this court in Keshubhai Vashrambhai Bhuva Vs.
Gujarat Maritime Board And Others, which was Special Civil
Application No.10318 of 2018. The question addressed therein
was whether the petitioners who had earned two promotions and
one higher pay grade scale could be deprived of second higher
grade scale.
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6.1.1 This court examined the operation of Sub clause (2),
(3) and (4) of Clause 2 of Policy Resolution dated 2.7.2007 to
observe thus in para 10,
"It is in this context that Clause 2, subclauses
(2), (3) and (4) need to be read. When sub-
clauses (2) and (3) are read, they make it clear
that only when a beneficiary of the First Higher
Grade Scale on completion of 12 years of
service in accordance with the Resolution of
02.07.2007 is given such benefit, he is entitled
to the benefit of the Second Higher Grade Scale
on completion of further 12 years of service.
This is subject to a qualification that such an
incumbent has not earned more than one
promotion and/or First Higher Grade Scale."
6.1.2 Sub clause (4) (a) and (b) were also considered when
in the context, extracting from para 11, it was stated,
"When in this context, sub-clauses (4)(a) and (b)
are read, they specifically provide that when an
incumbent earns his first higher scale on
completion of nine years of service in
accordance with the Government Resolution
dated 16.08.1994, he shall earn the Second
Higher Grade Scale on completion of 15 years
thereafter. There are no riders in the clause that
the earning of promotion and/or a higher grade
scale would disentitle the incumbent of earning
the Second Higher Grade Scale after the First
Higher Grade Scale of nine years in accordance
with the resolution dated 16.08.1994.
6.1.3 The court further stated in the same
paragraph,
"Reading of the communication dated
12.09.2014 addressed by the Gujarat Maritime
Board asking for its' opinion and the stand of the
Government as is evident from the Finance
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Department's communications dated 04.03.2008
and 22.10.2014 make it clear that interpreting
sub-clause 4(b) of Clause-2 of the resolution, the
stand of the State is that one who has earned
the First Higher Grade Scale on completion of
nine years of service in accordance with the
resolution dated 16.08.1994, is entitled to the
Second Higher Grade Scale in accordance with
the Government Resolution dated 02.07.2007
after completing 15 years thereafter. This of
course is subject to the incumbents satisfying
other conditions of the Government Resolution
dated 16.08.1994."
6.2 The aforesaid decision was carried in Letters Patent
Appeal No.506 of 2020. The Division Bench by order dated
9.9.2020 gave its own reasoning to endorse to the view taken by
learned single Judge on the said count to observe thus in para 2,
"The learned Single Judge, after considering the
relevant Government Resolutions dated 16th
August 1994, 2nd July 2007 and other
clarifications issued by the Gujarat Maritime
Board and the State Government, as also the
opinion given by the State Government, came to
the conclusion that the writ petitioner
(respondent herein) was entitled to the second
Higher Grade Scale as per the Government
Resolution dated 2nd July 2007 read with earlier
Government Resolution dated 16th August 1994.
It is admitted fact that the petitioner came to be
appointed in 1978, thereafter, got first
promotion on 10th September 1980 as Senior
Clerk, from the post of Junior Clerk with effect
from 26th December 1983. Thereafter, in 1992,
upon completing 9 years of service in the cadre
of Senior Clerk, he was granted the first Higher
Grade Scale. Later on, in 2005, the petitioner
was given promotion as Head Clerk in the same
Pay Scale which was given to him as Higher
Grade Scale in 1992.
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6.2.1 It was further explained,
"Thus, it is clear that the Higher Grade Scale
given in 1992 and promotion in 2005 are in the
same Pay Scale. Even from 1992, the writ
petitioner has continued in the same Pay Scale
and as such, under the Government Resolution
referred above, he was entitled to next Higher
Grade Scale after completing 15 years of service
which would be available to him in 2007. The
learned Single Judge has thus, extended the
benefit correctly."
6.3 Therefore, where the higher grade scale was earlier given
and the promotion was given subsequently but in the same pay
scale, such event of promotion could not have been considered
as disentitling factor to receive the second higher pay scale, the
object behind which is to obviate the stagnancy in the same
cadre and non-earning of promotion for the for the length of
service in the cadre as prescribed in the policy for grant of
higher pay scale.
6.4 For the forgoing reasons and discussion, the petitioner is
held entitled to receive second higher grade scale under the
Resolution dated 2.7.2007 of Rs.9300-34800 with grade pay of
Rs.4400, upon completion of 15 years of service from the date of
receipt of the first higher grade scale which was received in the
year 26.12.1992.
6.5 All the consequential benefits therein and the arrears
payable thereby shall be paid to the petitioner and fixation of
pay and pension shall be accordingly done.
6.6 All these compliance shall be ensured and done by the
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respondent authorities within a period of 6 weeks from the date
of receipt of this order.
6.7 If such time limit is not adhered to in conferring the
benefits to the petitioner, the amount becoming payable shall be
paid with the interest at the rate of 8% from the date of filing of
the petition that is from 4.8.2022.
7. The petition is allowed as above.
(N.V.ANJARIA, J)
Manshi
