[Cites 4, Cited by 0]

Gujarat High Court

Rajendra Ramnikbhai Pandya vs Bhavnagar Municipal Corporation on 8 December, 2025

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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                             C/LPA/1272/2025                                      ORDER DATED: 08/12/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/LETTERS PATENT APPEAL NO. 1272 of 2025

                                   In R/SPECIAL CIVIL APPLICATION NO. 11765 of 2017

                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                      In R/LETTERS PATENT APPEAL NO. 1272 of 2025
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                                              RAJENDRA RAMNIKBHAI PANDYA
                                                         Versus
                                           BHAVNAGAR MUNICIPAL CORPORATION
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                      Appearance:
                      ADITI S RAOL(8128) for the Appellant(s) No. 1
                      MR HS MUNSHAW(495) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                               and
                               HONOURABLE MR.JUSTICE L. S. PIRZADA

                                                           Date : 08/12/2025

                                                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned Senior Advocate Mr.

Shalin Mehta for the appellant and learned

advocate Mr. H.S. Munshaw for the

respondent.

2. By this appeal under clause 15 of the

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Letters Patent Act, the appellant-original

petitioner has challenged the judgment and

order dated 26.09.2015 passed by the

learned Single Judge in Special Civil

Application No.11765 of 2017.

3. Brief facts of the case are that the

appellant was appointed as Sub-Auditor on

ad-hoc basis in the Audit department of

the respondent Bhavnagar Municipal

Corporation and was made permanent with

effect from 01.04.1996.

4. The appellant became Senior Auditor by

promotion on 01.08.1996 and by order dated

18.01.1997, the appellant was promoted to

the next higher post of Senior Auditor in

the pay scale of 5500-9000 with

retrospective effect from 01.08.1996.

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5. In terms of office order dated

19.02.2007, the respondent Corporation

considered the case of the appellant for

grant of pay scale of the next promotional

post and accordingly, the appellant was

granted pay scale of the post of Deputy

Chief Auditor of Rs.8000-13500 with effect

from 01.08.2005 on his completing 9 years

of service on the post of Senior Auditor.

6. It is the case of the appellant that

after more than three years after the

appellant was given the benefit of the

higher pay scale of the next promotional

post in lieu of promotion and after

fixation of pay under the 6th Pay Central

Pay Commission, the respondent Corporation

passed an order dated 28.10.2010 directing

the employees whose pay scale was upgraded

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to Rs.8000-13500 was required to be

corrected and that these employees would

be entitled to higher pay scale of

Rs.6500-10500 and also directed recovery

of excess payment made from the date of

fixation of pay.

7. It is the case of the appellant that

the respondent Corporation without issuing

notice or affording opportunity of hearing

to the appellant, recovered the alleged

excess amount of Rs.1,39,000/- in terms of

office order dated 28.10.2010.

8. Special Civil Application No.14370 of

2011 came to be filed by similarly

situated employees wherein this Court vide

judgment dated 16.08.2016 held that

Government Resolution dated 16.08.1994

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envisages grant of pay scale of next

promotional post of Deputy Chief Auditor

of Rs.8000-13500 to a person stagnating on

the post of Senior Auditor for a specific

period.

9. The case of the appellant therefore,

being identical, preferred Special Civil

Application No.11765 of 2017 which came to

be dismissed by impugned judgment by the

learned Single Judge on the ground of

delay and laches and also on merits

holding that the interpretation of the

respondent Corporation of the Government

Resolution was justified.

10. The issue involved in this matter is

no more res integra in view of judgment of

the Hon'ble Apex Court in the case of

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Rushibhai Jagdishchandra Pathak versus

Bhavnagar Municipal Corporation reported

in (2022) 18 SCC 144, wherein in identical

situation, the Hon'ble Apex Court held as

under:

"15. We are also inclined to grant interest to the appellants on the arrears at the rate of 7% per annum, which would be payable with effect from 1st September 2017. We have fixed the said date for grant of interest as the respondent- Corporation has accepted the interpretation of the Scheme rendered on 16th August 2016 in the Writ Petition preferred by Mukeshbhai Jaswantrai Joshi. Normally, and as a model employer, on accepting the said decision, the respondent-Corporation should have uniformly applied and granted the benefit to all its similarly situated employees affected by the order dated 28th October 2010. This would have avoided unnecessary litigation before the courts, as was held in State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347:

"22.1. The normal rule is that

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when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that

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the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get

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the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

16. In view of the aforesaid discussion, the prayer of the appellants that they should be given arrears right from 2010 has to be rejected. We also reject the prayer of the appellants that they should be refunded the entire amount which had been collected by the respondent-Corporation in terms of the order dated 28th October 2010.

17. Recording the aforesaid, we partly allow the present appeals with a direction that the appellants would be entitled to arrears in the pre-revised pay-scale of Rs.5,000- 8,000/- for three years prior to the date of filing of the Writ Petitions along with interest at the rate of 7% per annum with effect from 1st September 2017. The arrears, with interest, would be paid within a period of four months from the date of pronouncement of this judgment. A computation sheet/statement of accounts on the basis of which payment is made by the respondent- Corporation shall be furnished to the appellants. The impugned judgment is, accordingly, partly set aside and the Writ Petitions filed by the appellants would be treated

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as allowed in the aforesaid terms. There would be no order as to costs."

11. In view of above dictum of law, the

appeal is required to be allowed partly.

Insofar as the prayer of the appellant

that he should be given arrears, the same

cannot be granted beyond three years from

filing of the petition. In view of

decision of Hon'ble Apex Court in case of

Rushibhai Jagdishchandra Pathak(supra),