Gujarat High Court
Dineshkumar Ramjibhai Parmar vs State Of Gujarat on 28 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. 11120 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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DINESHKUMAR RAMJIBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1
MR AKASH GUPTA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/01/2025
ORAL JUDGMENT
1. By way of present petition, the petitioner herein has
prayed for the following reliefs:
"21. The petitioner, therefore, prays that this Hon'ble Court may be
pleased to issue a writ of mandamus or any other writ, direction or
order:
A) Directing the respondents to restore the order dt.23.07.1993
(Annexure 'F') granting the 1st higher grade scale to the petitioner
w.e.f 11.10.1988 and accordingly to modify and revise the order
dt.15.4.99 and grant the consequential benefits with 6% interest.
B) During the pendency and final disposal of this petition, the
Respondent No.2 may be directed to restore the order dt.23.07.1993.
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C) To grant such and further relief as may be deemed fit and
proper."
2. Heard Ms. Shivani Barot, learned advocate appearing for
Mr. P.A. Jadeja, learned advocate appearing for the petitioner,
Mr. Akash Gupta, learned AGP appearing for the respondent
No.1 - State and Mr. H.S. Munshaw, learned advocate
appearing for the respondent No.2.
3. Briefly stated that, the petitioner herein was appointed as
workcharge Clerk on 25.10.1979 in the pay scale of Rs.260-400
on ad-hoc and temporary basis and was placed at Punjpur,
Taluka : Danta. By Resolution dated 16.05.1983, the posts of
93 work-charge clerks were converted into temporary
establishment with effect from 01.04.1983. The name of the
petitioner was included at Sr.No.110 of the said order.
3.1 The petitioner was thereafter selected by the Gujarat
Panchayat Service Selection Committee as Junior Clerk by
order dated 25.07.1989. The petitioner requested the
respondent authority to join the earlier services rendered as
work-charge Clerk for the purpose of pay, pension and leave.
By order dated 16.09.1989, the respondent No.2 joined the
service of the petitioner from 12.10.1979 to 27.07.1989 for the
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purpose of leave, pension and pay duly produced at Annexure-
E to the petition.
3.2 Pursuant to the scheme of higher pay scale introduced
vide Resolution dated 05.07.1991, the petitioner was granted
1st higher grade scale of Rs.1200-2400 w.e.f. 11.10.1988
counting the services of the petitioner from 1979, by order
dated 23.07.1993. On 20.01.1995, the said order granting
higher pay scale was cancelled in view of the Resolution dated
16.08.1994. The services rendered on work-charge
establishment were ignored while counting the service for
grant of higher pay scale in view of the said Resolution dated
16.08.1994. The petitioner herein was granted 1st higher pay
scale of Rs.4000-6000 by order dated 15.04.1999 w.e.f.
28.07.1998. The said order dated 15.04.1999 is duly produced
at Annexure - I to the petition.
3.3 The petitioner challenged the aforesaid action of the
respondent before the Tribunal by filing an Appeal No.79 of
1999. The Tribunal dismissed the said appeal by order dated
26.09.2007 for want of jurisdiction duly produced at Annexure
- K to the petition. The petitioner herein filed Special Civil
Application No.2874 of 2008 praying for direction to the
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respondent authority to consider the case of the petitioner for
higher pay scale w.e.f. 01.04.1992 instead of 28.07.1998 and
grant arrears w.e.f. 01.04.1992. The said petition was
withdrawn on 01.08.2011 on the ground that appropriate facts
and submissions were not incorporated in the said petition.
Permission to withdraw as prayed for was granted by order
dated 01.08.2011. The aforesaid has given rise to the filing of
the present petition having prayed for the reliefs, as referred
above.
4. Ms. Shivani Barot, learned advocate appearing for the
petitioner submitted that the order dated 23.07.1993, which is
duly produced at Annexure - F, be restored and the petitioner
be granted the benefits of the higher pay scale in accordance
with the said order dated 23.07.1993 wherein, the 1 st higher
pay scale is granted to the petitioner considering the length of
services of the petitioner from the initial date of appointment
i.e. 25.10.1979. It is submitted that the benefit of 1 st higher
pay scale be considered accordingly w.e.f. 11.10.1988 and as
per the order dated 23.07.1993.
5. Mr. H.S. Munshaw, learned advocate appearing for the
respondent No.2 relied on the affidavit-in-reply, which is duly
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produced at page 77, and submitted that the petitioner herein
was born on 16.07.1957 and was offered work as work-charge
Clerk vide order dated 25.10.1979 purely on temporary and
ad-hoc basis and on certain terms and conditions. It is
submitted that thereafter, vide order dated 01.04.1983, the
petitioner was taken up on Hangami establishment w.e.f.
01.04.1983 as per the Government Resolution dated
16.05.1983. It is submitted that the petitioner was selected by
the District Panchayat Service Selection Committee,
Banaskantha District Panchayat as Junior Clerk upon following
due procedure on 28.07.1989 and the petitioner joined the
service as Junior Clerk on regular establishment.
5.1 Mr. Munshaw, learned advocate submitted that the
respondent - State through its Finance Department introduced
a scheme of higher pay scale through a Resolution dated
12.07.1991. It is submitted that ignoring the fact that the
petitioner herein was duly selected and appointed as Junior
Clerk on 28.07.1989, the then Executive Engineer, Roads and
Building Division, Banaskantha District Panchayat, put up a
proposal for release of 1 st higher pay scale in favour of the
petitioner on the basis of his joining service as Work-Charge
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Clerk on 25.10.1979. It is submitted that accordingly, the
petitioner was granted the benefit of 1 st higher pay scale w.e.f.
12.10.1988 vide order dated 13.07.1993 and placed in the pay
scale of Rs.1200-2400/- on the basis of single arithmetic
calculation considering the provisions of the Government
Resolution dated 05.07.1991. A copy of the order dated
13.07.1999 is duly annexed as Annexure - D to the reply. It is
submitted that upon verification by the Audit Department, the
error became to the light of the respondent - State and it was
thought it fit to withdraw the same by order dated 20.03.1995.
5.2 Reliance is placed on Clause - 3(2) of the Government
Resolution dated 16.08.1994 wherein, it is provided that
employee is entitled to first higher pay scale upon completion
of nine years provided that the employment is upon following
due procedure of recruitment. It is submitted that in light of
the aforesaid, the petitioner was granted the benefit of first
higher pay scale vide order dated 04.02.1999 w.e.f.
28.07.1998 on completion of 9 years in the cadre. It is
submitted that the petitioner was given the benefit of 2 nd
higher pay scale upon completion of 15 years of service w.e.f.
28.07.2013 vide order dated 15.09.2013 as per the
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Government Resolution dated 02.02.2007. It is submitted that
the petitioner upon superannuation on 31.07.2015 is released
all the retirement benefits available to the petitioner including
the pension, gratuity, leave encashment, commutation of
pension etc. and the same are accepted by the petitioner
without any protest. It is submitted that the present petition is
barred by delay of 16 years after the withdrawal of benefit of
1st higher pay scale vide order dated 20.03.1995. It is
submitted that the petitioner was serving as work-charge Clerk
between 25.10.1979 to 28.07.1989 i.e. the day on which the
petitioner was appointed on regular establishment of the cadre
of Junior Clerk on selection by the District Panchayat Service
Selection Committee. It is submitted that the petitioner served
between 25.10.1979 to 28.07.1989 as work-charge Clerk and
the nature of job was to attend the construction as well as
repairs and maintenance of Roads as per PWD Manual and
extract of para 88 & 89 of the Manual. It is submitted that the
said service rendered by the petitioner cannot be counted for
the release of higher pay scale. It is submitted that as work-
charge Clerk or Hangami Clerk, the petitioner was appointed
by the Executive Engineer without following due process of
recruitment on purely temporary and ad-hoc basis. It is
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submitted that the District Panchayat Service Selection
Committee as competent authority, selected the petitioner as
Junior Clerk after the petitioner successfully cleared the
recruitment procedure and thereafter, the Deputy
Development Officer appointed the petitioner as Junior Clerk in
the regular establishment as a competent authority as
provided under the Gujarat Panchayat Act, 1993 and the rules
framed thereunder.
Analysis:-
6. Having heard the learned advocates appearing for the
respective parties, it emerges that as per the service book of
the petitioner, the petitioner was born on 16.07.1957 and
superannuated on 31.07.2015. The petitioner was offered work
as work-charge Clerk purely on temporary and ad-hoc basis
vide order dated 25.10.1979. The petitioner vide order dated
01.04.1983 and was taken up on Hangami establishment w.e.f.
01.04.1983 as per the Government Resolution dated
16.05.1983. The GPF Account of the petitioner was opened on
28.05.1982. The petitioner herein thereafter, was appointed as
Junior Clerk on 28.07.1989 upon selection by the District
Panchayat Service Selection Committee, Banaskantha District
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Panchayat upon following due procedure on regular
establishment.
7. In light of the undisputed facts, as referred above, in the
opinion of this Court, the petitioner herein is entitled to be
considered for the benefit of the Government Resolution dated
16.08.1994 from the date on which, the GPF Account of the
petitioner was opened i.e. 28.05.1982. The case of the
petitioner be considered under Clause - 3(31) of the
Government Resolution dated 16.08.1994 duly produced at
page 120.
8. The respondent authority to consider the case of the
petitioner for grant of higher pay scale w.e.f. 28.05.1982 as
fairly submitted by Mr. Munshaw, learned advocate appearing
for the respondent No.2, upon completion of 9 years i.e. in the
year 1991, the petitioner would be entitled to the grant of first
higher pay scale and that, thereafter the 2nd higher pay scale
and all the other consequential benefits. The aforesaid
exercise be undertaken by the respondent authorities within a
period of eight weeks from the receipt of this order.
9. With the aforesaid directions, the present petition is
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allowed to the aforesaid extent. Rule is made absolute to the
aforesaid extent.
(VAIBHAVI D. NANAVATI,J)
NEHA
