Gujarat High Court
G.M.Parmar vs State Of Gujarat on 7 January, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17936 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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G.M.PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. SHRIJIT G PILLAI(7937) for the Petitioner(s) No. 1
MS. POOJA ASHAR, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/01/2025
ORAL JUDGMENT
1. Heard Mr. Shrijit G. Pillai, learned advocate with Ms.
Shruti Umesh, learned advocate, appearing for the petitioner and
Ms. Pooja Ashar, learned Assistant Government Pleader appearing
for the respondent - State.
2. By way of the present petition, petitioner herein has
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prayed for quashing and setting aside the order dated
20/21.06.2007 (Annexure-D) and also prayed to direct the
respondents to grant the higher grade scales to the petitioner in
accordance with the government resolution dated 16.08.1994, as
if the services of the petitioner were regularized and has also
prayed to revise his retirement benefits and to pay the arrears
with 10% interest, with exemplary costs. It is also prayed that
the petitioner be granted the higher grade scale, in line with the
letter dated 11.04.2005.
3.1. Briefly stated that, petitioner was appointed on
07.12.1965 as a Procurement Supervisor in a fixed pay of
Rs.100/- per month and retired on 31.05.2001 as Junior Clerk.
The said order dated 15.05.2001, permitting the petitioner to
retire from service from 31.05.2001 is produced at Annexure-A.
The petitioner herein was serving as a Junior Clerk and retired
from service on superannuation, on 31.05.2001. Throughout the
services of the petitioner, he remained in the same pay scale,
with different designations, though revised from time to time,
and was not given the benefit of either promotion or higher
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grade scale at any point of time.
3.2. The petitioner herein preferred Special Civil
Application No. 17972 of 2005 before this Court, whereby, it was
directed to the respondent authorities to take a final decision, in
the matter of grant of higher pay scale of the petitioner, in light
of the representation made by the petitioner on 27.12.2003. The
petitioner was issued notice, however, despite several
adjournments, the respondents did not take any decision. The
petition was disposed of by an order dated 01.09.2006 to file a
substantive petition. The petitioner made representation on
11.09.2006, reiterating the request, however, no reply was
received by the petitioner, and the petitioner was constrained to
prefer a petition being Special Civil Application No. 24509 of
2006, which was also disposed of, by directing the respondent
no.1- State of Gujarat, to take a decision on the
recommendations made by the respondent no.2 by letter dated
11.04.2005 within stipulated time, copy of the order dated
28.11.2006 is duly produced at Annexure-C. The said claim of
the petitioner was rejected, by order dated 21.06.2007, on the
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ground that the petitioner failed to satisfy the conditions as laid
down in the government resolution dated 16.08.1994.
3.3. The services of the petitioner came to be terminated
by order dated 08.11.1982, and the petitioner came to be
relieved on 13.12.1982, the said communication dated 13.12.1982
is duly produced at Annexure-H. The petitioner herein thereafter,
approached the learned Labour Court, wherein, the said order of
termination dated 08.11.1982 was quashed and set aside and the
petitioner was ordered to be reinstated. The respondents herein
challenged the said award passed by the learned Labour Court,
by preferring writ petition, which also came to be rejected by
order dated 01.09.1993.
3.4. The petitioner was thereafter reinstated in the service
in pay scale of Rs.950-1500 on the post of Junior Clerk, by order
dated 12.10.1993. Thus, the petitioner was reinstated on the post
of Junior Clerk instead of Procurement Supervisor on the same
pay scale of Rs.950-1500, though the designation was changed,
the pay scale remained the same.
3.5. By way of the present petition, petitioner challenges
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the aforesaid impugned order dated 20/21.06.2007, duly produced
at Annexure-D and has prayed for the following reliefs:
"(A) Quashing and setting aside the order dated 20.06.2007
(Annexure-D) and directing the respondents to grant the Higher
grade scales to the petitioner in accordance with the Resolution
dated 16.08.1994 as if his services were regular and to revise
his retirement benefits and to pay the arrears with 10% interest
as also exemplary costs.
(B) During the pendency and final disposal of this petition,
the respondent no.2 may be directed to grant the higher grade
scale to the petitioner as stated in his letter dt. 11.04.2005.
(C) To grant such other and further relief as may be
deemed fit."
4.1. Mr. Shrijit G. Pillai, learned advocate appearing for
the petitioner submits that the petitioner herein is governed by
the award passed by the learned Labour Court, Jamnagar dated
20.02.1993 in Reference (LCJ) No. 53 of 1991 (Old Reference LCJ
No. 813 of 1983), wherein, the retrenchment of the petitioner
was held to be illegal and it was held that the petitioner is
entitled for the reinstatement with continuity of service. Further
that as there was no post of Procurement Supervisor in the
employer's department, petitioner was directed to be reinstated
to any other post, such as Computer Clerk or any suitable post
carrying the pay scale of Rs.950-1500/- in Class-III. It was also
directed that the petitioner be reinstated with full back wages in
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one month from the date of the publication of the award, failing
which the workman would be entitled to his normal wages from
the date of default. The respondent no.2 was also directed to pay
Rs.300/- by way of cost by the said award dated 20.02.1993. The
said award is duly produced at page-90.
4.2. It is submitted that the respondent in compliance of
the award, reinstated the petitioner by order dated 12.10.1993,
the said order is duly produced at page-148. Placing reliance on
the said order, it is submitted that, the order of termination
dated 26.11.1982 is cancelled and consequently the petitioner
herein is reinstated in the pay scale of Rs.950-1500/-, as Class-III
employee.
4.3. Placing reliance on the aforesaid, it is submitted that
the respondent authority having accepted the said award passed
by the Labour Court, on 20.02.1993 and having cancelled the
order of termination dated 26.11.1982, the petitioner herein is
entitled to be considered for the benefits of the government
resolution dated 16.08.1994, which provides for grant of higher
pay scales, upon completion of 9, 18 and 27 years of services, in
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light of the fact that though the petitioner herein was directed to
be reinstated as Class-III employee, in the pay scale of Rs.950-
1500/-, which was that of the post of Procurement Supervisor,
from the date of appointment, i.e. from 07.12.1965, till the date
of retirement, the petitioner was stagnated and is not granted
any higher pay scales nor petitioner has been promoted and in
view thereof, the petitioner herein is constrained to approach this
Court for the reliefs as prayed for herein-above.
4.4. It is submitted that, the respondent authorities have
erred in not considering the petitioner's representation for grant
of higher pay scale, in accordance with the government
resolution dated 16.08.1994, having accepted the award passed
by the learned Labour Court dated 20.02.1993 and having on
their own, while reinstating the petitioner by order dated
12.10.1993, cancelled the order of termination dated 26.11.1982.
4.5. Placing reliance on the aforesaid submissions, it is
submitted that, in absence of the order dated 26.11.1982
terminating the services of the petitioner and the petitioner
herein having been reinstated in service by order dated
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12.10.1993, the services rendered by the petitioner herein from
the initial date of appointment, i.e. 07.12.1965 till the date of
retirement, is required to be considered, as continuous service
and the benefits that are accrued, out of the services rendered
for the aforesaid period, be granted to the petitioner.
4.6. It is submitted that the pay scale of the petitioner of
Rs.260-400/- was revised to Rs.950-1500/- from 01.01.1986 and
was further revised to Rs.3050-4590, from 01.01.1996. The
petitioner remained in the same pay scale from 01.06.1967. The
petitioner herein is therefore entitled to the benefits of the higher
pay scales, as per the government resolution dated 16.08.1994. It
is submitted that, while passing the impugned order, the
respondent authority has erred in declining the petitioner's
representation, wherein, respondent authority has considered the
case of the petitioner from 12.10.1993, wherein, petitioner herein
was appointed as Junior Clerk on the pay scale of Rs.950-1500/-.
It is submitted that the petitioner's service is required to be
considered as continuous service, in light of the award passed by
the Labour Court dated 20.02.1993, However, it is erroneously
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considered from 12.10.1993 and the petitioner is declined the
benefits of the government resolution dated 16.08.1994 on the
ground that petitioner is superannuated on 31.05.2001 and in
view thereof, in absence of completion of 9 years, the petitioner
could not be granted the said benefits.
5.1. Ms. Pooja Ashar, learned Assistant Government
Pleader appearing for the respondent-State submitted that, no
error could be said to have been committed by the respondent
authority, on the ground that the respondent authority has duly
complied with the award passed by the Labour Court, Jamnagar,
whereby, the petitioner was absorbed on Class-III post in the pay
scale of Rs.950-1500/- from 12.10.1993. The petitioner was not
on a continuous service on the particular post, and therefore,
would not be entitled to the benefits of the government
resolution dated 16.08.1994.
5.2. It is also submitted that, the petitioner was originally
employed in a cadre and was later transferred / absorbed in
another cadre, although, with identical pay scale, his prior
services, before such transfer of cadre, are such that they shall
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not be considered for the purpose of grant of benefits of the
higher pay scale. It is submitted that, the petitioner was
appointed as Procurement Supervisor in 1965, later on, pursuant
to the orders passed by the Court from time to time, was
reinstated in the cadre of Junior Clerk in 1993. Thus, at the time
of assessing his eligibility for the purpose of conferment of
benefits of higher pay scales, his earlier services in the cadre of
Procurement Supervisor could not be considered. Reliance is
placed on Clause-3(11) of the government resolution dated
16.08.1994 and is submitted that the petitioner was not entitled
for the higher pay scale, as per the aforesaid clause of the said
government resolution.
5.3. It is submitted that, in light of the aforesaid, prayers
in the present petition are such that, the same does not require
any interference.
6. Mr. Pillai, learned advocate appearing for the
petitioner, reiterated the contentions raised earlier and submitted
that the respondent authority has committed an error in rejecting
the claim of the petitioner for grant of the higher pay scale as
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per the government resolution dated 16.08.1994, in light of the
fact that the petitioner's service is required to be considered as
continuous, in light of the fact that the order of termination
dated 26.11.1982 is cancelled by the respondent authority, on
their own, while reinstating the petitioner herein.
ANALYSIS:
7.1. Having heard the learned advocates appearing for the
respective parties, it emerges that the petitioner herein came to
be appointed as Procurement Supervisor in fixed and consolidated
salary of Rs.100/- p.m. in Milk Conservation Project, Rajkot from
07.12.1965. The petitioner herein alongwith other employees of
Milk Conservation Project, Rajkot were deputed to work under
Rajkot District Cooperative Milk Producers Union Limited, on
deputation, from 21.02.1970. The petitioner was transferred from
Rajkot District Cooperative Milk Producers Union Limited to
Gujarat Dairy Development Corporation (T.C.M. Rural Creamery),
Junagadh, on deputation, on 25.07.1972. On 19.09.1973, the
petitioner's pay fixation of Rs.130-240 was made by office order
dated 19.09.1973. The services of the petitioner came to be
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terminated on 08.11.1982 and was relieved from his duties,
w.e.f. 13.11.1982. The petitioner approached the Labour Court,
whereby, by order dated 18.08.1986, the said order of
termination was quashed and set aside in LCR No. 813 of 1983
and the petitioner was directed to be reinstated with continuity
of services and full back-wages alongwith costs. Thereafter,
Gujarat Dairy Development Corporation (GDDC), filed Misc.
Application No. 67 of 1987 before the Labour Court, Rajkot,
praying to set aside the ex-parte award dated 18.08.1986. By
order dated 29.02.1988, the Labour Court, Rajkot in Misc.
Application No. 67 of 1987, set aside the order against GDDC,
whereas, award remained operative against the respondent no.2.
The respondent no.2 vide letter dated 22.07.1988 directed the
petitioner to report for duty on the post of Peon at Bhuj, which
was not accepted by the petitioner and the petitioner denied the
offer of Class-Iv post of Peon. The respondent no.2 preferred
Special Civil Application No. 3276 of 1988 challenging the award
dated 18.08.1986 passed in LCR No. 813 of 1983, by Labour
Court, Rajkot, wherein, by order dated 15.02.1990, it was
ordered that the limitation to file restoration application is
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exhausted and it was kept open for the respondent no.2 to file
restoration application from the said order. However, restoration
application being Misc. Application No. 2 of 1990 was not filed
within the scheduled time by the respondent no.2 but was filed
on 08.03.1990. The petitioner herein consented to quash and set
aside the ex-parte award passed in LCR No. 813 of 1983 by
Labour Court, Rajkot and was elected to get the award on merits
of the case to avoid multiplicity of litigation. Therefore, fresh
Reference LCJ No. 537 of 1991 (Old Reference LCJ No. 813 of
1983) came to be filed. On 20.02.1993, the Labour Court,
Jamnagar directed the respondent no.2 to reinstate the petitioner
on the post of Computer or Clerk or to some other posts in
Class-III, carrying the pay scale of Rs.950-1500 with continuity of
service and with full back wages alongwith costs.
7.2. It is apposite to refer to Para-10 and 11 of the award
dated 20.02.1993, which reads thus:
"10. The defence as raised in the deposition of the employer's
side does not sustain. The employer has admittedly not paid
retrenchment compensation to the workman. The discharge of the
workman therefore amounted to retrenchment, which was
effected without following the procedure prescribed by Sec.
illegible The workman is, therefore, held to be in continuous
service of the employer. The employer has not raised the point
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that it is not an industry. By the name itself, it squarely falls
within the definition of industry.
11. The retrenchment of the workman has been found to be
illegal, he is entitled to the relief of reinstatement with
continuity of service. If there is no past of Procurement
Supervisor in the employer's department, the workman shall be
reinstated to any other post such as Computer clerks or any
suitable post carrying the pay scale of Rs. 950-1500 in class III.
Generally, when the retrenchment is found to be illegal, the
workman is to be reinstated in the service with all the
consequential benefits and full back wages. Usually, I do not
award full back wages, but here is a case in which a workman is
kept out of employment by the employer for no reason and for
no fault on the part of the workman. There is no evidence that
the workman was gainfully employed during the period of
enforced idleness. I, therefore, award full back wages for the
entire intervening period and pass the following final order:
ORDER
The Director of Animal Husbandry, Ahmedabad is directed to
reinstate his workman Shri G.M. Parmar to the post of Computer,
or a Clerk or to some other posts in class III, carrying the pay
scale of Rs. 950-1500, with continuity of service and with full
back wages within one month from the date of publication of
this award. Failing which the workman will be entitled to his
normal wage from the date of default.
The Director, Animal Husbandry, Ahmedabad shall also pay
Rs.300/- to the workman by way of costs."
7.3. The respondent authority accepted the award passed
by the Labour Court dated 20.02.1993 and passed the order
dated 12.10.1993 reinstating the petitioner, cancelling the order
of termination dated 26.11.1982 on their own. At this stage, it is
apposite to refer to clause-1 of the order dated 12.10.1993 (Page-
149) which reads thus:
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"(1) The order of this office dated 26/11/82 mentioned under
Read Sr. No. 1, is hereby cancelled and this Mr. Govubha
Madhavsinh Parmar is reinstated in service. Moreover, from
the date he reports on duty, he is appointed in the office of
Assistant Director of Animal Husbandry, Disease Research
(Animal) Junagadh as a Junior Clerk in the pay scale of Rs.
950 - 1500/- in public interest. As he is reinstated in service,
pay and allowances admissible as per rules shall be paid to
him.
The order be implemented with immediate effect."
7.4. The respondent authority passed an order dated
20/21.06.2007, duly produced at Anenxure-C, operative part of
the said order reads thus:
"Mr. Govubha M. Parmar was performing duty as Junior Clerk
in Class-3 cadre post having pay scale of Rs. 950-1500 from
14/10/93 and he retired on attaining superannuation on
31/5/2001. As Mr. Parmar sought relief from the Hon'ble High
Court of Gujarat to get benefit of First Higher Grade Pay Scale
for Procurement Supervisor service, the Government was
directed to take decision as per letter dated 11/4/2005 of the
Department vide oral order mentioned under read reference -1.
On taking into consideration the letter of the Government
mentioned under read reference-2, as the service of Mr.
Govubha was irregular and as the provisions of the resolution
dated 16/08/04 of the Finance Department as amended from
time to time, were not satisfied, benefit of First Higher Grade
Pay Scale shall not be given to Mr. Govubha M. Parmar."
7.5. In the course of hearing, this Court is informed that
the said award passed by the Labour Court has attained finality
and in view thereof, the parties are governed by the award
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passed by the Labour Court dated 20.02.1993.
7.6. Upon harmonious reading of the award dated
20.02.1993 and the order of reinstatement dated 12.10.1993 as
referred-above, admittedly, the order of termination dated
26.11.1982 is cancelled and the petitioner herein is reinstated in
service.
7.7. In light of the aforesaid, in absence of the order of
termination, the continuous service of the petitioner is to be
considered, in accordance with the award passed by the Labour
Court dated 20.02.1993. This Court has perused the impugned
order dated 20/21.06.2007, which is duly produced at Annexure-
D, wherein, petitioner's representation seeking the benefits of the
government resolution dated 16.08.1994 came to be declined on
the ground that the petitioner herein was reinstated in service as
Junior Clerk in the pay scale of Rs.950-1500/- from
12/14.10.1993 and having superannuated on 31.05.2001, the
petitioner herein is not entitled to the benefits of the government
resolution dated 16.08.1994.
7.8. Considering the impugned order, it emerges that the
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services of the petitioner is required to be considered, as
continuous service, from the date of initial appointment, till the
date of superannuation, in light of the award passed by the
Labour Court dated 20.02.1993 and the order of reinstatement
dated 12.10.1993, wherein, the order of termination dated
26.11.1982 is cancelled, as referred-above. It is now not open for
the respondent authority to take a stance that the petitioner's
services are required to be considered from 12/14.10.1993, for
the reasons, as stated above.
8.1. On the aforesaid ground alone, the impugned order
declining the benefits of the government resolution dated
16.08.1994 in view of the fact that the petitioner was reinstated
in service, w.e.f. 12/14.10.1993 in Class-III, is required to be
interfered with.
8.2. It is also not in dispute that the petitioner was
regularly appointed employee and in view thereof, the case of
the petitioner herein is required to be considered, as that of the
regular employee and is governed by the government resolution
dated 16.08.1994.
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8.3. The stance taken by the respondent authority that the
petitioner has not passed the departmental examination, in the
opinion of this Court, the aforesaid contention raised by the
respondent authority does not weigh with the Court, in view of
the fact that the order of reinstatement with continuity of
services alongwith full back-wages, is duly accepted by the
respondent authority and the benefits that accrue, out of the
service rendered by the petitioner for the aforesaid period, is
required to be considered accordingly.
8.4. In light of the submission made by Mr. Pillai, learned
advocate appearing for the petitioner, while considering the case
of the petitioner, the respondent- State is directed to take into
consideration the undisputed fact that the petitioner herein has
crossed the age limit of 45 years as on date of 05.07.1991, as
per the government resolution dated 16.08.1994, is not required
to pass the departmental examination.
POSITION OF LAW:
9. At this stage, it is apposite to refer to the ratio laid down
by the Hon'ble Apex Court in case of M/s. Radha Krishan Industries
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vs. The State of Himachal Pradesh, reported in AIR 2021 SC 2114.
Paragraph 27 of the said decision reads thus:
"27. The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue
writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the
High Court is where an effective alternate remedy is available
to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a)
the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without jurisdiction; or
(d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is provided by
law;
(v) When a right is created by a statute, which itself prescribes
the remedy or procedure for enforcing the right or liability,
resort must be had to that particular statutory remedy before
invoking the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory remedies is a
rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition.
However, if the High Court is objectively of the view that the
nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with.
10. For the foregoing reasons, the impugned order dated
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20/21.06.2007 (Annexure-D) is quashed and set aside. The
respondent authority is directed to consider the case of the
petitioner, within a period of four weeks from the receipt of the
order. All the consequential benefits that accrued in favour of the
petitioner be granted @ 6% interest, in light of the directions
issued by this Court, from the date of entitlement till the actual
date of release in favour of the petitioner.
The present petition stands allowed, accordingly. Direct
service is permitted. Rule made absolute.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
