Gujarat High Court
Yunus Mamad Dodepotra vs State Of Gujarat on 20 October, 2023
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/20871/2022 ORDER DATED: 20/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20871 of 2022
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YUNUS MAMAD DODEPOTRA
Versus
STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1
MS NEHA KAYASTH FOR MS SEJAL K MANDAVIA(436) for the Respondent(s)
No. 2,3
MS NIRALI SARDA AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/10/2023
ORAL ORDER
1. Heard learned Advocate Ms. Ashlesha Patel on behalf of the
petitioner, learned Assistant Government Pleader Ms. Nirali Sarda on behalf
of respondent no.1- State and learned Advocate Ms. Neha Kayasth for
learned Advocate Ms. Sejal Mandavia on behalf of respondents no. 2 and 3.
2. Rule returnable forthwith. Learned AGP Ms. Sarda on behalf the
respondent- State and learned Advocate Ms. Neha Kayasth on behalf of
respondents no. 2 and 3 waive service of rule.
3. Considering the submissions made by learned Advocate more
particularly the submission that similar issue had been decided by learned
Co-ordinate Bench of this Court in Special Civil Application No. 13046 of
2020 vide order dated 15.03.2022 and whereas according to learned
Advocates, the only difference being that in a case before the learned Co-
ordinate Bench, the widow of the employee had approached this Court
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more particularly praying for refixation of pension whereas the present
petitioner, is still in service and seeks refixation of salary and other
emoluments.
4. Considering such submissions, this Court seeks to rely upon
observations of learned Co-ordinate Bench in Special Civil Application No.
3756 of 2018 dated 26.10.2018 referred to by learned Coordinate bench in
decision dated 15.03.2022 in Special Civil Application No. 13046 of 2020.
The same is reproduced hereinbelow for the benefit:
"6. The coordinate bench of this Court by the oral order dated 26.10.2018
rendered in Special Civil Application No.3756 of 2018, examined the issue of
denial of 6th pay commission to post-17.10.1988 appointed daily wagers and held
as under:
"4. Learned advocate for the petitioner relied on the decision of this
Court in Maganbhai Durlabhbhai Koladiya and others vs. State of
Gujarat, being Special Civil Application No.6083 of 2017 decided on
23.01.2018 in which case the benefits to the said petitioners were denied
on the ground that they were appointed after 1988, that is after relevant
date under resolution dated 17.10.1988. Those petitioners were
appointed between the years 19901991, the present petitioners are
identically situated. Merely because they came to be appointed after
17.10.1988, they could not have been denied the benefit.
4.1 The parties appearing through their respective learned advocates
could not dispute the position that the decision in Maganbhai
Durlabhbhai Koladiya (supra) would apply to the present case.
5. From Maganbhai Durlabhbhai Koladiya (supra), following
observations and findings are extracted to be relevant for the present
case as well,
"5. The denial of benefits of the 6th Pay Commission to the
petitioners is thus on the ground that the petitioners were
appointed after 17th October, 1988 and as per the instructions,
in view of the said cutoff date, petitioners are considered not
entitled to get 6th Pay Commission payscale and benefits.
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6. The identical issue arose in case of Kalubhai Nathubhai Sonegara v.
State of Gujarat being Special Civil Application No.2700 of 2016
decided on 30th November, 2017 by this Court. What is discussed,
observed and held in paragraphs 5.1 to paragraph 6 in decision in
Kalubhai Nathubhai Sonegara (supra) directly applies to the present
case. They are as under.
"5.1 In Patel Tarunkumar Shankarlal v. State of Gujarat being
Special Civil Application No.12527 of 2013 with cognate
petition, the petitioners were the employees of Gujarat Maritime
Board who were workcharge employees appointed after 31st
March, 1989. Their grievance was similar to one involved in the
present petition and that they were not given benefits of 6th Pay
Commission, although all the workcharge employees appointed
prior to 31st March, 1989 were granted the benefits. While
contesting the said petition, respondents relied on Circular dated
31st March, 1989 of the Road & Building Department adopted
by it, which was in connection with the State Government
Resolution dated 17th October, 1988 and according to the said
Circular, conversion from dailywagers to workcharge was
restricted after 31st March, 1989 and appointment of dailywagers
was prohibited. Raising the said cutoff date, those petitioners
were denied the benefits of 6th Pay Commission that they
were appointed after the said date. The direction was prayed
before the Court for grant of 6th Pay Commission benefits.
The said petition came to be allowed by judgment dated 06th
August, 2015. Learned Single Judge observed that it was
incomprehensible that after having extending the benefits of 5th
Pay Commission recommendations with effect from 1998 for the
petitioners, 6th Pay Commission benefits were denied and it
was further observed that there was no rationale or basis for
placing reliance on Circular dated 31st March, 1989. the decision
in Patel Tarunkumar Shankarlal (supra) came to be confirmed in
Letters Patent Appeal No.1230 of 2015, decided on 23rd
September, 2015 wherein the Court emphasise the equal
treatment to be accorded to the homogeneous class of persons
and disapproved the prescription of cutoff date. Special Leave
Petition Nos.3435234353 of 2015 came to be dismissed by the
Apex Court on 04th January, 2016. The principle in the aforesaid
decision directly applies to the case of the present petitioner.
5.2 Exactly similar was the case of Mansukh Arjanbhai
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Bhakhotara v. State of Gujarat being Special Civil Application
No.2723 of 2016 decided on 23rd March, 2016. Those
petitioners were identically placed with the present petitioners,
who were dailywagers of the Irrigation Department as the
present petitioner is, and claimed benefit of 6th Pay Commission
as per the State Government Resolutions dated 27th February,
2009 and 15th March, 2010. The said petition was allowed by
negativing same defence raised and the respondents were
directed to calculate and pay the necessary benefits as per the 6th
Pay Commission recommendations.
5.3 Decision in Mansukh Arjanbhai Bhakhotara (supra) was
carried in Letters Patent Appeal No.768 of 2016 which was
decided and dismissed as per order dated 07th July, 2017. While
dismissing the Letters Patent Appeal, the Court relied on Patel
Tarunkumar Shankarlal (supra).
6. In view of the above settled legal position, there is no
gainsaying that the petitioner herein belongs to the similar class
of person to be treated equally with Patel Tarunkumar Shankarlal
(supra) and Mansukh Arjanbhai Bhakhotara (supra), to be
extended the benefits of 6th Pay Commission recommendations.
Denial of benefits to the petitioner is violation of fundamental
rights of the petitioner under Articles 14 and 16 of the
Constitution."
5.1 The aforesaid decision in Maganbhai Durlabhbhai Koladiya (supra)
was carried in Letters Patent Appeal No.1101 of 2018 which came to be
dismissed by the Division Bench on 24.08.2018 and the judgment in
Maganbhai Durlabhbhai Koladiya (supra) was confirmed. The Division
Bench observed and held as under,
"4. We have carefully perused the judgment and order passed by
the learned Single Judge. The learned Single Judge, after placing
reliance on various decisions of this court as well as the decision
of a Division Bench of this court rendered on 23.9.2015 in
Letters Patent Appeal No.1230 of 2015, entertained the writ
petition and directed the present appellants to grant the benefits
as prayed for in the writ petition. It is undeniable fact that the
respondents herein are appointed between the year 1990 and
1991 and that they have also been paid the benefit of the Fifth
Pay Commission. The employees who are appointed prior to the
Resolution dated 17th October, 1988, have already been granted
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the benefit Sixth Pay Commission. Thus, the present appellants
who are subsequently appointed in the year 1990 and 1991 and
are similarly situated to the employees appointed prior to
17.10.1988 cannot be discriminated in conferring the benefit of
Sixth Pay Commission in wake of the fact they are already paid
the benefit of Fifth Pay Commission."
6. In view of above, the petitioners are entitled to succeed. The denial to
the petitioner the benefits of 6th Pay Commission and 7th Pay
Commission cannot stand valid in eye of law. The decision in not
extending the benefit is illegal and arbitrary.
6.1 The State Government is directed to consider the case of the
petitioners for grant of 6th Pay Commission benefits as well as 7th Pay
Commission benefits and all consequential benefits arising therefrom.
The respondents are further directed to take the necessary decision and
pay to the petitioners within ten weeks from the date of receipt of this
order the amount payable to the petitioners on the basis of the 6th Pay
Commission payscale and revised as per the 7th Pay Commission
payscales.
6.2 The arrears which may be payable shall also be paid within ten
weeks from the date of receipt of this order. 6.3 It is further directed that
if the benefits as directed above are not paid to the petitioners after
expiry of the ten weeks period stipulated above, it shall carry interest at
the rate of 6% from the date of filing of the petition that is 08.03.2018."
5. Considering the observations of the learned Co-ordinate Bench it
would appear that the entitlement of the petitioner for the fixation of salary
as per the 6th Pay Commission is not in question and whereas the petitioner
is entitled to be extended benefits of 6 th Pay Commission with effect from
01.01.2006. Furthermore as far as extension of benefit of 7 th Pay
Commission is concerned, learned Advocate Ms. Patel would rely upon
decision of learned Co-ordinate Bench dated 01.10.2021 passed in Special
Civil Application No. 16179 of 2019 more particularly opposed by the same
respondents. It would appear that learned Co-ordinate Bench considering
the law laid down in Letters Patent Appeal No. 231 of 2019, had clarified
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that the petitioner therein would be entitled to benefit of 7 th Pay
Commission with effect from 01.08.2017 and whereas considering the same,
the present petitioner also requires to be granted the same benefits.
6. Having regard to the same, the respondents are directed to issue
necessary orders for refixation of the salary of the present petitioner on
basis of the revision of pay available to the petitioner upon the
implementation of 6th Pay Commission with effect from 01.01.2006 and 7 th
Pay Commission with effect from 01.08.2017 and whereas appropriate
orders shall be passed within a period of three months from the date of
receipt of this order, failing which the arrears shall carry interest at the rate
of 6% frorm the date of filing of the petition.
7. With the above observations and directions the present petition
stands disposed of allowed. Rule is made absolute to the above extent.
(NIKHIL S. KARIEL,J)
NIRU
