Gujarat High Court

Kantibhai Maganbhai Patel vs State Of Gujarat on 6 February, 2024

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     C/SCA/8440/2012                             JUDGMENT DATED: 06/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8440 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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                       KANTIBHAI MAGANBHAI PATEL
                                 Versus
                       STATE OF GUJARAT & 5 other(s)
================================================================
Appearance:
MR RUTVIJ M BHATT(2697) for the Petitioner(s) No. 1
MS NIRALI SHARDA AGP for the Respondent(s) No. 1,2,3,4,5,6
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 06/02/2024

                             ORAL JUDGMENT

1. The petitioner by way of this petition filed under Article

226 of the Constitution of India has approached this

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Court with following prayers:

(A) That this Hon'ble Court may be pleased to issue a writ of mandamus, or a writ in nature of mandamus, or any other appropriate writ, direction, or order under the Article 226 under the Constitution of India be pleased to quash and set aside the impugned decision dated 04/12/2009 and 17/12/2009 of respondent of reducing the pay of the petitioner, viz. revising the pay as per 2007 and not as per 19/05/1999;

(B) That this Hon'ble Court may be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, direction or order under article 226 of the Constitution of India, declaring the action of the respondents as illegal without affording opportunity to the petitioner and be pleased to declare that the petitioner is entitled to revision of his pay and all allied benefits as per 19/05/1999 and not as per 2007;

(C) That this Hon'ble Court be pleased to direct the respondents to release the amount Rs.2,40,129/- being deducted from gratuity forthwith;

(D) That pending the hearing and final disposal of this petition, the respondent authorities may be directed to refund the amount so deducted from the gratuity and revise the pay fixation of the petitioner as per the earlier fixation;

(E) That this Hon'ble Court be pleased to direct the

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respondents to pay 18% interest on delay payments in releasing pension which has been withheld for 24 months;

(F) Ad-interim ex-parte relief's in terms of prayer clause C and D be granted to the petitioner.

(G) The respondent be issued a mandatory order, commanding and compelling the respondents to pay to the petitioner, the costs of this petition and incidentals to the petition.

(H) That petitioner may be granted such further and other relief or relief's, as the nature and circumstances of the case may require."

2. Facts in brief, as could be culled out from the memo of

petition, deserve to be set out as under;

2.1 The petitioner had joined the services as 'Unarmed

Police Constable' under Valsad District Police. On

01.08.1978 the petitioner was given inter-transferred to

City Police Station, Valsad and remained in Valsad till

31.08.1980. Thereafter, petitioner transferred to Atul

outpost and there he served till 31.8.1993 and he was

promoted as Head Constable. On 1.9.1983 the petitioner

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was further transferred to Saputara Wireless Station, as

Head Police Constable till 1.9.1986. Thereafter, he

transferred at and served at Waghai Police Station till

31.12.1987.

2.2 The petitioner was promoted to the post of Assistant

Sub Inspector and was deputed at Valsad Police Station

till 31.12.1990 and thereafter, he was transferred to Atul

Police Station as A.S.I. and served till 31.3.2003. As per

the Government Resolution dated 16.08.1994, petitioner

was entitled to 1st higher pay scale on completion of 9

years in the said grade and the same was granted and the

pay of the petitioner was revised from 4000-100-6000 to

5500-175-9000 and accordingly the same was fixed as

Rs.5,675/-. The Home department on coming to the fact

that the departmental exams are necessary, issued a

letter addressing to the Director General of Police to fix

pay in accordance with rules. The respondent no:1 was

well aware to the fact that petitioner has been accorded

revision.

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2.3 Accordingly, the respondent no.3 conducted the

departmental exams and the petitioner was declared

passed in the said exams on 27/6/2007. Hence, the

petitioner attained all necessary qualification, which may

be necessary for the purpose of availing the higher pay on

completion of 9 years. Thereafter, the petitioner was

further transferred to Ummargaon Sarigam outpost and

Bhilad police station upto 31/4/2007. The petitioner was

further promoted as PSI and was transferred finally to

Valsad. As per the last pay certificate of the petitioner, on

the date of his retirement he was receiving Rs.6,725/- as

basic salary and accordingly requested to process the

pension papers as per said salary.

2.4 The petitioner has finally retired on 31/5/2010. On the

basis of the said query the respondent no:3 clarified the

fact of the case of the petitioner and further requested to

consider the case of petitioner, since the departmental

exams were taken first time in 2006 moreover, the

petitioner qualified the said exams in first attempt. On the

basis of the wrong interpretation, the pension papers

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were not processed by the respondents and petitioner

was intimated to deposit the amount of difference of

amount, what he received on the basis of 2000 to 2007

from the actual date of passing of exams.

2.5 Moreover, the petitioner was served with impugned

order passed by respondent no.3 cancelling his earlier

pay fixation and confirming his first higher pay from

27/6/2007 that is his date of passing the departmental

exams. The pension papers of the petitioner were not

processed on account of the above referred facts and

finally petitioner in order to receive pension, since the

petitioner was hand to mouth was compelled to give

consent to deduct the said amount from gratuity and

accordingly, the papers of the petitioner was processed.

The respondent department deducted Rs..2,40,129/ - from

Gratuity and further the remaining amount over gratuity

was paid vide challan dated: 04/09/2010. The petitioner

was again placed to the pay of Rs.5,675/- on the basis that

petitioner has cleared exams on 27/6/2007. Accordingly,

the pay is revised and has received all his pensionary

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benefit as per the pay of Rs.5,675/- and not Rs.6,725/-

(being last pay of the petitioner) on the basis of

misinterpretation of the government resolution and not

only that the petitioner was paid gratuity at only 6%

interest on remaining sum.

2.6 The petitioner being aggrieved by the conduct of the

respondents in reducing the pay of the petitioner without

affording any reasonable opportunity to the petitioner,

has therefore by way of this petition challenged the action

of the respondents.

3. Learned advocate appearing for the petitioner

submitted that there is gross violation of Article 14 of the

Constitution of India, as no opportunity was given to the

petitioner while issuing the impugned order of cancelling

the earlier higher pay fixation and reduction thereafter.

4. Learned advocate for the petitioner further submitted

that the same office issued a letter of consideration for

higher pay fixation for the petitioner with regard to the

fact that the petitioner was not at fault, since for the first

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time the said exam was held in June 2007 and he was

declared passed, however, simply relying on the version

without entering into the merits of the case of the

petitioner, the respondent no.3 passed an order of

reduction of higher pay. The said fact itself demonstrates

that the case of the petitioner is not properly appreciated.

5. Learned advocate for the petitioner further submitted

that the petitioner was given 1st higher pay on

completion of 9 years of service. Thereafter, after almost

6 years the respondent no.1 clarified to the concerned

respondents regarding the fact that departmental exam is

necessary, over and above also admitted the fact that

such revision has been granted. Under that

circumstances the respondents were stopped from raising

the plea that after the date of passing the departmental

exam the petitioner was entitled to higher pay and that

too without hearing the petitioner on the said aspect.

6. Learned advocate for the petitioner further submitted

that till 2007 the respondents also did not realize that

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departmental exams were inevitable. It was only after the

communication of the Home Department that too after

granting the first higher grade pay scale, the concerned

respondent organized the departmental exam and

petitioner cleared the same in first attempt. Hence, under

that circumstances, the penal action of reducing the pay

is nothing but total non application of mind on the part of

the respondents.

7. Learned advocate appearing for the petitioner further

submitted that considering the letter of the DGP, the pay

was revised and approved by local fund and entry into the

same was made in the service book of the petitioner.

8. Learned advocate for the petitioner further submitted

that it was incumbent on the part of the respondents to

consider the case of the petitioner and further not to

demand for the amount already paid.

9. Learned advocate appearing for the petitioner relying

upon the judgment in case of State of Punjab And

Others Vs. Rafiq Masih (White Washer) And Others,

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reported in (2015) 4 SCC 334, submitted that the

petitioner falls in third criteria since the benefit of

revision was extended for more than five years.

10. Learned advocate appearing for the petitioner further

relied upon the judgment in case of Maheshkumar

L.Thaker Vs. State of Gujarat and Ors., reported in

2016 (1) G.L.H. 246, and special emphasis was laid in

paragraph nos.15, 17, 18, 20 and 21.

11. Learned AGP appearing for the respondents

submitted that decisions dated 4.12.2009 and 17.12.2009

are just and proper. The petitioner is not entitled to the

pay scale as per condition no.3(5) of the Government

Resolution dated 16.08.1994 wherein it is specifically

mentioned that for appropriate pay scale, the delinquent

will have to pass the departmental examination and as for

higher pay scale of PSI, the ASI is required to pass

examination as per Gujarat Police Manual Part-I, Rule

165 for promotion as Unarmed ASI.

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12. The petitioner has filed this petition essentially for

seeking restoration of the higher pay scale granted to

him, which came to be later on withdrawn on account of

his not passing the departmental examination, as

required under the Rules and Government Resolution

dated 16.8.1994, which has resulted into reduction of his

retiral benefits and the deduction from the gratuity

amount to the tune of Rs.2,40,129/-.

13. It cannot be disputed that the Government Resolution

dated 16.8.1994 replaced the Government Resolution of

the year 1991, which was for stagnation removal

measures and the scheme provided that the eligible

officer who could not have been promoted on account of

their being lack of vacancy despite their being eligible to

be promoted, may not stagnate on the scale and

demoralized, the higher pay scale of the next promotional

post was made available to them and they were to be

regularized as and when the actual promotion is effected.

The fact also cannot be disputed that as per condition

no.3(5), the eligibility included passing of departmental

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examination, if any for the promotion to the higher post.

The pay of the petitioner was revised from Rs.4000-100-

6000 to Rs.5500-175-9000 and accordingly was fixed at

the basic of Rs.5,675/- as he had completed 9 years of

service in that scale. The said effect was given in the

service book of the petitioner after the same being duly

approved by the local funds. The fact remains to be noted

that in the unarmed constable, the departmental

examination appears to have been ignored by all the

concerned as the same had never been conducted till the

concerned in the department realized the same and letter

came to be issued for conducting the examination. As a

result thereof the departmental examination was

conducted and petitioner cleared the same on the first

instance on 27.6.2007. The petitioner thus attained the

eligibility for being promoted or for getting the higher

pay scale subsequently but at the first instance when

departmental examination came to be conduced for the

first time after gap of years and hence the petitioner

ought to have continued with revision of pay scale which

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was granted to him on account of completion of 9 years of

service. The petitioner when retired on voluntary

retirement basis was receiving basic salary of Rs.6,725/-.

This salary was also reflected in the last drawn salary

certificate also. As per prevailing service rules and

pension rules, the said basic ought to have been taken

into consideration, however, it was realised that the

requirement of passing the departmental examination for

receiving higher pay scale had not been fulfilled by the

petitioner when higher pay scale was granted, the same

was refused without hearing the petitioner, resulting into

reducing the petitioner from Rs.6,725 to Rs.5,675/- and

on that basis the deduction in the gratuity amount was

effected and recovered. This entire exercise was without

affording an opportunity to the petitioner of being heard

and was in violation of principles of natural justice. It was

also not in consonance with the principles enunciated by

the Supreme Court in case of State of Punjab And

Others Vs. Rafiq Masih (White Washer) And Others,

reported in (2015) 4 SCC 334.

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14. The fine question that cropt up for consideration is

whether the respondents were justified in effecting

revision without hearing the petitioner and on that basis

effecting reduction in his retiral dues, the answer is in

emphatically 'NO' for the following reasons namely-

(a) The entire exercise smacked on following the principle

of natural justice as the respondents could not establish

any opportunity of being heard to the petitioner while

effecting the revision and reducing the pay scale.

(b) The fact remains to be noted that even as per the

Government Resolution dated 16.8.1994, the condition

provided for fulfillment of eligibility criteria for the

promotional post included passing of departmental

examination also, but the peculiar facts as have come on

record and as respondents could not dispute or refute

would indicate that all alone for the years, no

departmental examination was conducted and promotion

were effected without insistence of passing of the

departmental examination, in that situation, the allowing

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of higher pay scale to the petitioner on he being

otherwise eligible and on account of the fact that when

for the first time departmental examination was

conducted, the petitioner passed in the first instance,

would justify his claim for relating it back to the date

when the petitioner was granted the pay scale on the

strength of Government Resolution. The requirement of

principles of natural justice and fair play also would

weigh in favour of the petitioner. The petitioner cannot be

held to be at in any fault for receiving the higher pay

scale as no departmental examination was conducted and

promotion were effected without insistence of passing of

the departmental examination, in that situation, the

allowing of higher pay scale to the petitioner on he being

otherwise eligible and on account of the fact that when

for the first time departmental examination was

conducted, the petitioner passed in the first instance,

would justify his claim for relating it back to the date

when the petitioner was granted the pay scale on the

strength of Government Resolution.