Gujarat High Court
Jyotikaben Dilipbhai Darji vs State Of Gujarat on 20 February, 2024
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C/SCA/7032/2012 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7032 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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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JYOTIKABEN DILIPBHAI DARJI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MS NIRALI SARDA AGP for the Respondent(s) No. 1
MR HARESH J TRIVEDI(927) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 20/02/2024
ORAL JUDGMENT
1. By way of present petition, under Articles 14, 16 and
226 of the Constitution of India, the petitioner has
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challenged order/communication dated 13.2.2012 passed
by the Administrative Officer, Nagar Prathmik Sikshan
Samiti, Vadodara whereby the representation made by
the petitioner requesting the concerned authorities to
rectify the mistake in taking into account the date of
1.2.2002 instead of 20.7.2001 while extending the benefit
of Second Higher Pay Scale has been turned down.
2. With aforesaid grievance, the petitioner, in present
petition, has prayed inter alia that:-
"7(A) Be pleased to admit this petition;
(B) Be pleased to issue appropriate writ, order or
direction, quashing and setting-aside the
communication/order dated 13.2.2012 made by
respondent No.3 whereby the representation made by
the petitioner for rectification of error crept up by the
authorities while extending the benefit of 2nd higher pay
scale w.e.f. 20.7.2001 instead of 1.2.2002 has been
turned down and be pleased to hold that the petitioner is
entitled to get the benefit of 2nd higher pay scale w.e.f.
28.7.2001 in the aforesaid peculiar facts and
circumstances of the case;
(C) Be pleased to issue appropriate writ, order or
direction, directing the concerned respondent
authorities to extend the benefit of 2nd higher pay scale
w.e.f. 20.7.2001 with all the consequential benefits in
the aforesaid peculiar facts and circumstances of the
case;
(D) Be pleased to pass such other and further orders as
may be deemed fit in the interest of justice"
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3. The brief facts giving rise to present petition are
that the petitioner was initially appointed as Assistant
Teacher by an order dated 17.7.1981. The petitioner was
given appointment on adhoc basis by the aforesaid order.
The petitioner had resumed her duties w.e.f. 20.7.1981.
In view of the fact that the pay scale of one junior
Assistant Teacher, namely, Shri Mahavir Prasad was
more than that of the pay scale of the petitioner, the case
of the petitioner was required to be considered for
stepping up and accordingly by an order dated 13.3.1996,
the petitioner was granted the benefit of stepping up
w.e.f. 1.2.1986.
3.1 Thereafter, the State Government had floated the
scheme for extending the benefit of higher pay scale to
the employees serving in the various cadres in State
Government and Panchayat Department. The petitioner
had completed 9 years service on 20.7.1990 and she had
become entitled to get the benefit of First Higher Pay
Scale on completion of 9 years service on 20.7.1990.
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Therefore, petitioner was extended the benefit of First
Higher Pay Scale w.e.f. 20.7.1990 by an order dated
1.9.1993. Thereafter, petitioner had completed 20 years
service on 20.7.2001. Therefore, as per the scheme
floated by the State Government, the petitioner had
become entitled to get the benefit of Second Higher Pay
Scale w.e.f. 20.7.2001 on completion of 20 years service.
3.2 Thus, the petitioner was required to be extended the
benefit of Second Higher Pay Scale w.e.f. 20.7.2001.
However, the petitioner was extended the benefit of
Second Higher Pay Scale w.e.f. 1.2.2002. Therefore, the
petitioner made representations dated 8.12.2008 and
5.2.2009 requesting the respondent No.3 to rectify the
mistake while extending the benefit of Second Higher Pay
Scale and to extend the benefit of Second Higher Pay
Scale w.e.f. 20.7.2001 instead of 1.2.2002. However, the
aforesaid representations made by the petitioner went in
vain and, therefore, petitioner was constrained to prefer
Special Civil Application being No.1179 of 2010 before
this Court seeking directions upon the concerned
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respondent authorities to rectify the error crept up by
them in taking into account the date of 1.2.2002 instead
of 20.7.2001 while extending the benefit of Second
Higher Pay Scale to the petitioner.
3.3 In the aforesaid petition, order came to be passed by
this Court on 22.3.2010 whereby the petitioner was
permitted to withdraw the said petition with a view to
make representation before the authorities concerned
and authorities concerned were directed to consider the
representation, if it is made by the petitioner. Therefore,
pursuant to the aforesaid order, petitioner had made
representation dated 13.7.2010. However, the concerned
respondent authorities were not decided the
representation made by the petitioner dated 13.7.2010.
Therefore, the petitioner was constrained to prefer
Special Civil Application No.1258 of 2011 before this
Court seeking directions upon the concerned respondent
authorities to decide the representation made by the
petitioner dated 13.7.2010 with regard to rectification of
date while extending the benefit of Second Higher Pay
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Scale to the petitioner.
3.4 Ultimately, in the aforesaid petition, an order came to
be passed by this Court dated 10.2.2011 whereby the
respondent No.2 was directed to consider and decide the
representation made by the petitioner dated 13.7.2010
within a period of three months from the date of the
receipt of the copy of the order. The aforesaid order came
to be served upon the concerned respondent authorities.
Ultimately, by an order dated 13.2.2012, the
representation made by the petitioner dated 13.7.2010
has been turned down and petitioner has been informed
that she has been rightly extended the benefit of Second
Higher Pay Scale w.e.f. 1.2.2002 and petitioner cannot be
extended the benefit of Second Higher Pay Scale w.e.f.
20.7.2001. The petitioner was initially appointed as
Assistant Teacher by an order dated 17.7.1981 and
petitioner had resumed her duty w.e.f. 20.7.1981 and
petitioner had completed 9 years service on 20.7.1990
and she came to be extended the benefit of First Higher
Pay Scale w.e.f. 20.7.1990 and, therefore, the petitioner
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had become entitled to get the benefit of Second Higher
Pay Scale w.e.f. 20.7.2001 i.e. on completion of 20 years
service. However, the petitioner has been extended the
benefit of Second Higher Pay Scale w.e.f. 1.2.2002.
3.5 Therefore, the petitioner had rightly requested the
concerned respondent authorities to rectify the mistake
crept up by them in taking into account the date of
1.2.2002 instead of 20.7.2001 while extending the benefit
of Second Higher Pay Scale to her. However, on the
ground that the pay scale of Rs.1440/- was fixed on
1.2.1991, while granting her the benefit of stepping up,
her representation dated 13.7.2010 for extending her the
benefit of Second Higher Pay Scale w.e.f. 20.7.2001 has
been turned down by respondent authority vide a
communication/order dated 13.2.2012.
4. In view of the aforesaid facts, the petitioner has
preferred present petition seeking quashment of an
order/communication dated 13.2.2002.
5. Heard Mr. N.K. Majmudar, learned Counsel for the
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petitioner, Mr. Haresh Trivedi, learned Counsel for the
respondent No.2 and Ms. Nirali Sarda, learned Assistant
5.1 Mr. N.K. Majmudar, learned Counsel for the
petitioner has submitted that the petitioner was legally
appointed on the post of Assistant Teacher and the
petitioner had completed service of 20 years w.e.f.
20.7.2001, therefore he is entitled to get benefit of
Second Higher Pay Scale w.e.f. 20.7.2001, however
instead of that he was granted benefit of Second Higher
Pay Scale from 1.2.2002. He has further submitted that
the petitioner is suffering from huge financial loss due to
impugned decision of the respondent authority.
5.2 Mr. N.K. Majmudar, learned Counsel for the
petitioner has submitted that the petitioner had also
made representation to that effect, however without any
justifiable reason, the request of the petitioner was
turned down.
5.3 In view of the above, Mr. N.K. Majmudar, learned
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Counsel for the petitioner urges that present petition may
be allowed and the impugned communication / order
dated 13.2.2012 may be quashed and set aside and the
petitioner may be granted benefit of Second Higher Pay
Scale w.e.f. 20.7.2001 instead of 1.2.2002.
6. On the other hand, Mr. Haresh J. Trivedi, learned
Counsel for the respondent has raised objection against
present petition. He has relied upon an affidavit-in-reply
dated 14.8.2012 filed by the respondent No.3.
6.1 Mr. Haresh J. Trivedi, learned Counsel for the
respondent has submitted that the petitioner has already
availed the benefit of stepping up with retrospective
effect and therefore, the petitioner is entitled to get
Second Higher Pay Scale benefit from 1.2.2002 and not
from 20.7.2001 and therefore, the petitioner is not
entitled to get any benefits as prayed for in the petition
and there is no any infirmity in the impugned order of
respondent.
6.2 Mr. Haresh J. Trivedi, learned Counsel for the
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respondent has further submitted that the respondent has
rightly considered the request made by the petitioner by
taking into account all the relevant documents. He has
submitted that the petitioner has already availed the
benefit of stepping up at the relevant point of time and on
the basis of that the option was submitted by the
petitioner, wherein it was clearly mentioned that after
submission of the option form, the date will not be
changed and in that form the date was mentioned
considering the total period of service of 11 years i.e.
1.2.2002. He has further submitted that even after taking
into account the resolution dated 16.8.1994, the
respondent has rightly considered the case of the
petitioner and passed the impugned communication/order
dated 13.2.2012, relevant part of which, reads as under:-
"It is to state that the Hon'ble High Court has disposed
of the application being Sp.C.A. No.1197/2010 vide
Order dated 22/03/2010 as withdrawn as per your
prayer. Moreover, the Hon'ble Court directed the
Competent Officer to take action as per law if any
application is made from your end.
Please take note about the following details
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with regard to your application dated 13/07/2010.
1) You have mentioned that date of your joining
the department is 20/07/1981 and
accordingly, you submitted that you are
entitled to first higher pay scale upon
completion of 9 years i.e. on 20/07/1990 and
second higher pay scale upon completion of
20 years i.e. 20/07/2001 and prayed to amend
the dates accordingly.
Findings: The fact that date of your joining the
department is 20/07/1981 and therefore, you were
granted First Higher Pay Scale on completion of 9 years
on 20/07/1990. As you requested for stepping up on the
ground that Mr. Mahavirprasad A. Rathore, a teacher
junior to you was getting higher pay than you, you were
granted benefit of stepping up by changing the date of
increment to 01/02/1986 instead of the date of
01/07/1986 with retrospective effect. As per your
demand of stepping up, you were entitled for the pay of
Rs.1350/- on 20/07/1990 in the pay bend of Rs.1200/- to
2040/- and the pay fixation in the first higher pay scale
was to be fixed at Rs.1400/- and the date of next
increment was to be fixed on 01/07/1991. However, the
date of increment was fixed to 01/02/1991 consequent to
the benefit of stepping-up. Therefore, as per the option
selected by you and in the interest of your benefit, the
fixation of pay of Rs.1440/- was granted on 01/02/1991.
Therefore, (on the basis of the said option), second
higher pay scale was granted after completion of 11
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years to 01/02/1991 i.e. on 01/02/2002, which has been
approved and sanctioned by the Local Fund Account
Office, Vadodara.
This is the final option given as per Annexure-
3 Undertaking of Government Resolution No. PGR-1194-
45-M dated 14/08/1994 of the Finance Department of
the Government of Gujarat and it shall never be changed
henceforth. Accordingly, the pay fixation fixed in the
second higher pay scale on 01/02/2002 was sanctioned
by the Local Fund Account Office Vadodara, which is
just. Therefore, the change in the dates of higher pay
scale as per your prayer are not liable to be made."
6.3 In view of the above, Mr. Haresh J. Trivedi, learned
Counsel for the respondent urges before the Court that
this Court may not interfere in the impugned order /
communication passed by the respondent authority and
present petition may be not entertained and the same
may be dismissed.
7. I have perused the relevant papers and material
available on record along with the impugned
communication / order passed by the respondent
authority.
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8. On perusal of the order dated 13.2.2012 passed by
the respondent No.3, it is established that the petitioner
was appointed on 20.7.1981. It is also established that on
the basis of that, the petitioner was availed First Higher
Pay Scale on completion of 9 years of service i.e. on
20.7.1990 but in 1986 the petitioner opted for stepping
up benefit and that benefit was granted with
retrospective effect i.e. from 1.2.1986 instead of 1.7.1986
and on the basis of that the pay fixation was done by the
respondent. Accordingly, on 20.7.1990, First Higher Pay
Scale was paid to the petitioner on the basis of stepping
up benefits and since the petitioner had availed the
stepping up benefits therefore, the date of First Higher
Pay Scale was fixed as 1.2.1991. Therefore, considering
the service of 11 years of First Higher Pay Scale benefit,
the Second Higher Pay Scale is due and payable on
1.2.2002.
9. Therefore, the respondent has rightly paid the Second
Higher Pay Scale from 1.2.2002 and there was no any
discrepancy to that effect, as the same was mentioned in
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the option form and on the basis of that the date was
fixed and on completion of 11 years, the petitioner was
granted benefit of Second Higher Pay Scale from
1.2.2002, which is in consonance with the resolution
dated 16.8.1994. Therefore, the petition is devoid of any
merits and the same deserves to be dismissed. The order/
communication of dated 13.2.2012 is just and proper, no
interference is required to be made in such
order/communication.
10. In view of the above, present petition is not required
to be entertained. Hence, present petition is hereby
dismissed. Rule is discharged. Interim relief, if any,
stands vacated forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
