Gujarat High Court
Bansari Bhavibhai Shah - Clerk vs State Of Gujarat on 15 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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C/SCA/11559/2015 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11559 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting No Yes
✔
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BANSARI BHAVIBHAI SHAH - CLERK
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1
MR. AAKASH GUPTA, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 15/04/2025
ORAL JUDGMENT
1. Heard Mrs. Krishna G. Rawal, learned advocate
appearing for the petitioner and Mr. Aakash Gupta, learned
Assistant Government Pleader appearing for the respondents-State.
2. By way of the present petition, the petitioner herein
has prayed for the following reliefs:
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"10. In view of above facts and submissions the petitioner humbly
prays this Hon'ble Court:
A. To issue the Writ of Mandamus or any other Writ, order
or Direction by quashing and setting aside the impugned
communication dated 4.2.2015 and further be pleased to direct the
respondent authorities to extend the benefit of first higher pay
scale of 9 years w.e.f. 6.8.2005 to the petitioner.
B. To pay the arrears of arrears of difference of wages with
suitable interest.
C. Cost of this petition may kindly be awarded.
D. Any other relief/s looking to the facts and circumstances
of the case may kindly be granted in the interest of justice."
3.1. Briefly stated, that the petitioner was initially
appointed as Junior Clerk with the office of the Director of
Municipality by respondent no.1, vide order dated 31.07.1996. It
was clarified in the said appointment order that the petitioner
will be on deputation with the respondent no.2, but as a parent
department, the lien will remain with the respondent no.3 office.
However, the petitioner was serving with the office of the
Nagarpalika. The appointment order of the petitioner is duly
produced at Annexure-A, Pg.9.
3.2. The petitioner requested the respondent no.1 to
absorb her in parent department, as soon as the post falls vacant.
The petitioner continued with the said department till 23.09.2008
and was transferred to the parent department - respondent no.3
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on 24.09.2008. The petitioner requested respondent no.3 to
release the benefits of higher pay scale which are available after
completion of 9 years service. The petitioner clarified that since
she was on deputation with other department, she could not
avail the opportunity of the departmental examination held in the
year 2002. The petitioner has cleared the pre-service training
examination in the year 2000. The departmental examination was
held in the year 2013 and the same has been cleared. The
petitioner has been considered for higher pay scale w.e.f.
13.05.2013, i.e. from the date of passing of examination, instead
of, 06.08.2005, actual due date of higher pay scale. The aforesaid
has given rise to the filing of the present petition.
4.1. Mrs. Krishna G. Rawal, learned advocate appearing
for the petitioner relied on the appointment order dated
31.07.1996 duly produced at Annexure-A, wherein, the petitioner
was appointed on compassionate ground on the post of Junior
Clerk, upon the death of the father of the petitioner, who was
serving with the respondent authority. It is submitted that,
though the petitioner was serving on deputation with the
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respondent no.2, but as a parent department, the lien will remain
with the respondent no.3 office.
4.2. It is submitted that, in absence of any departmental
examination having been held in the interregnum period,
petitioner was entitled to the 1st higher pay scale, w.e.f
06.08.2005. The respondent no.2 also recommended the case of
the respondent no.3 for grant of first higher pay scale.
4.3. It is submitted that, in light of the aforesaid facts and
submissions, the petitioner be accorded the 1 st higher pay scale,
w.e.f. 06.08.2005, on completion of 9 years of services.
5. Mr. Aakash Gupta, learned Assistant Government
Pleader appearing for the respondent - State, relied upon the
Affidavit-in-Reply filed by the respondent no.3 and submitted
that no interference is called for, in the impugned communication
dated 04.02.2015, wherein, the petitioner herein is granted 1st
higher pay scale, w.e.f. 13.05.2013. Placing reliance on the
documents which are placed on record, it is submitted that, the
case of the petitioner falls in Clause-3 of the government
resolution dated 16.08.1994. It is submitted that, the petitioner
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has never approached respondent authorities with respect to the
examinations, and in view thereof, the prayers in the present
petition, are such that the present petition may kindly be
dismissed.
6.1. Ms. Rawal, learned advocate appearing for the
petitioner, in rejoinder, reiterated the contentions raised earlier
and also relied on the documents produced by the respondent
no.3, wherein, Ms. Raval, learned advocate has taken the Court
to the order dated 06.03.2006, wherein, the petitioner is included
in the seniority list of the respondent no.3 at serial no. 154/A, at
page.39. Placing reliance on the same, it is submitted that, it is
self-explanatory that the petitioner is an employee of the
respondent no.3 and is rightly recommended by the respondent
no.2, for grant of higher pay scale, upon completion of 9 years
of service, considering the date of appointment of the petitioner
as 31.07.1996.
6.2. Ms. Rawal, learned advocate appearing for the
petitioner relied on the decision of this Court in the case of State
of Gujarat v/s. R.R. Sevak reported in 2020 JX (Guj) 544 (relied
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on paras-9 and 10).
7.1. Having heard the learned advocates appearing for the
respective parties, it emerges that the petitioner was appointed
on compassionate ground by the respondent no.3 vide order
dated 31.07.1996. It further emerges that by order dated
06.03.2006 duly produced at Annexure-R-I, pg.38, the name of
the petitioner has been included in the seniority list at serial
no.154/A, pg.39. It further emerges that the petitioner also
passed the departmental examination in the year 2013. The
petitioner also cleared the pre-service training examination in the
year 2000.
7.2. It emerges that in the interregnum period, no
departmental examination is held and as and when the
departmental examination is held in the year 2013, the petitioner
has also passed the same, which is not in dispute, however, the
petitioner has been granted the higher pay scale, w.e.f.
13.05.2013.
7.3. In the opinion of this Court, the petitioner herein is
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an employee of the respondent no.1 by order dated 31.07.1996
and is entitled to be considered for grant of higher pay scale,
upon completion of 9 years of service, having passed the pre-
service training examination in the year 2000. In the interregnum
period, in absence of any departmental examination held by the
competent authority, the petitioner cannot be denied the higher
pay scale, which otherwise petitioner is entitled to, and as and
when the examination is held, the same is cleared by the
petitioner herein.
8. In light of the aforesaid undisputed facts, this is a fit
case to exercise the extraordinary jurisdiction under Article-226
of the Constitution of India, the impugned communication / order
dated 04.02.2015 is duly produced at Annexure-I, Pg.29,
whereby, petitioner's representation for grant of higher pay scale
is denied, is hereby quashed and set aside. The respondent
authorities to consider the case of the petitioner for grant of 1 st
higher pay scale, on completion of 9 years of service, w.e.f.
06.08.2005, alongwith all consequential benefits, upon due
verification and in accordance with law, within a period of 8
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weeks from the receipt of copy of the order.
9. In view of above, the present Petition stands
ALLOWED accordingly.
Direct service is permitted. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
