Gujarat High Court
Saiyed Rafiqbhai Habibbhai vs State Of Gujarat on 3 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/12587/2021 JUDGMENT DATED: 03/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12587 of 2021
With
CIVIL APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER)
NO.1 of 2024
In
R/SPECIAL CIVIL APPLICATION NO.12587 of 2021
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=========================================
Approved for Reporting Yes No
YES
=========================================
SAIYED RAFIQBHAI HABIBBHAI
Versus
STATE OF GUJARAT & ORS.
=========================================
Appearance :
MRS NASRIN N SHAIKH for the Petitioner.
MR SANJAY UDHWANI, AGP for the Respondent Nos.1, 3 & 4.
MR MB PARIKH for the Respondent No.2.
=========================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/02/2025
ORAL JUDGMENT
1. With the consent of learned advocates appearing for
the respective parties, the matter is taken up for final disposal
today itself. Rule. Learned AGP Mr. Sanjay Udhwani waives
service of rule on behalf of respondent Nos.1,3 and 4 and learned
advocate Mr. M. B. Parikh waives service of rule on behalf of
respondent No.2.
NEUTRAL CITATION
C/SCA/12587/2021 JUDGMENT DATED: 03/02/2025
undefined
2. By way of this petition, the petitioner has prayed for the
following reliefs :-
"(A) Your Lordships may be pleased to admit and
allow the present petition.
(B) Your Lordships may be pleased to issue writ
of mandamus or writ in the nature of mandamus or
any other appropriate writ, order or direction
directing the respondent authorities to grant
benefits of higher pay scale from the date it was
made applicable to the respondent Nagarpalika as
well as promotion as per the seniority;
(C) Your Lordships may be pleased to issue writ
mandamus or writ in the nature of mandamus or any
other appropriate writ, order or direction directing
the respondent authorities to calculate and pay the
arrears of 6th pay commission as well as higher pay
scale as applicable in law and to pay the same with
10% interest.
(D) Pending admission, hearing and final hearing
of this petition, this Hon'ble Court may be pleased to
issue appropriate orders/directions directing the
respondent authorities to give the arrears of 6 th
Pay Commission as well as higher pay scale
forthwith in the interest of justice;"
3. At the outset, learned advocate Mr. M. B. Parikh
NEUTRAL CITATION
C/SCA/12587/2021 JUDGMENT DATED: 03/02/2025
undefined
appearing for respondent No.2 has placed on record two orders
dated 7.4.2022 and 16.5.2023 passed by the Chief Officer,
Bagasara Nagarpalika whereby the benefit of 6 th Pay Commission
as well as 7th Pay Commission was granted in favour of the
petitioner and actually the same has been paid as well. In view of
the above referred orders, learned advocate Ms. Shaikh does not
press the said relief in respect of grant of benefit of 6 th Pay
Commission and hence, now the petition would survive only in
respect of claim to the benefit of higher pay scale and promotion.
3. Mrs. Shaikh, learned advocate appearing for the
petitioner submitted that initially, the petitioner was appointed as
Peon on daily wage basis and thereafter, his services came to be
regularized vide order dated 31.12.1996 w.e.f. 1.1.1997. Though
Bagasara Nagarpalika has adopted Government Resolution dated
16.8.1994 providing first higher pay scale upon completion of
services of 9 - 18 - 27 years in lieu of promotion, and though the
petitioner has completed 9 years of service in the year 2006, he
was not granted benefit of first higher pay scale. Thereafter, as per
Government Resolution dated 2.7.2007, Government has changed
the policy of grant of higher pay scale in lieu of promotion
providing the same upon completion of 12 - 24 years of service.
The petitioner is now also entitled for second higher pay scale.
However, despite that the petitioner has neither been given benefit
of first higher pay scale nor promotion to the next higher post
considering his seniority. She, therefore, prayed to allow the
petition.
4. Learned advocate Mr. M. B. Parikh appearing for
respondent No.2, on the basis of the reply filed by respondent No.2,
NEUTRAL CITATION
C/SCA/12587/2021 JUDGMENT DATED: 03/02/2025
undefined
submitted that question of promotion of the petitioner would not
arise as the petitioner is holding the post of Peon and he does not
meet with the qualification for a promotional post of Clerk and,
therefore, the petitioner is not eligible for the promotion.
5. Learned advocate Mr. M. B. Parikh, however, could not
deny or dispute the fact that the petitioner is not entitled even for
first and second higher pay scale though the petitioner's services
are regularized w.e.f. 1.1.1997.
6. I have heard learned advocates appearing for the
respective parties and perused the documents on record.
Considering the fact that since 1.1.1997, the petitioner is serving
on the post of Peon only, for the last 27 years and, therefore,
considering the Government Resolutions dated 16.8.1994 and
2.7.2007, though the case of the petitioner for grant of first higher
pay scale was ripe upon completion of 9 years service from
1.1.1997, the same has not been granted to the petitioner.
7. Further, vide Government Resolution dated 2.7.2007,
the State Government has changed the policy of grant of higher
pay scale and instead of completion of 9 - 18 - 27 years of services,
the Government has introduced the policy of giving higher pay
scale upon completion of 12 - 24 years of service. The relevant
clause of the said G.R. provides that if a person is granted first
higher pay scale and is awaiting second higher pay scale upon
completion of 12 years service from the date of grant of first higher
pay scale, he is eligible to get the second higher pay scale as well.
8. Considering the fact that the petitioner is serving on
NEUTRAL CITATION
C/SCA/12587/2021 JUDGMENT DATED: 03/02/2025
undefined
the post of Peon since 1.1.1997 and he has rendered more than 27
years of service which could not be disputed by learned advocate
Mr. M. B. Parikh, in view of Government Resolutions dated
16.8.1994 and 2.7.2007, it is held that the petitioner is entitled to
the benefit of first and second higher pay scale upon completion of
respective years of service and hence, the respondents are directed
to pay the said benefits to the petitioner as early as possible, but in
any case not later than three months from the date of receipt of
copy of this order.
9. With the aforesaid observation and direction, the
present petition stands partly allowed. Rule is made absolute to
the above extent. There shall be no order as to costs.
Direct service is permitted.
ORDER IN CIVIL APPLICATION
Learned advocate Mrs. Shaikh does not press this
application with a view to file appropriate proceedings before the
appropriate forum. It is clarified that as far as the subject matter
of the civil application is concerned, this Court has not examined
the merits of the case. Accordingly the present application stands
disposed of as not pressed.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
