Vankar Khemabhai Lembabhai vs State Of Gujarat
2025 Latest Caselaw 828 Guj

Gujarat High Court

Vankar Khemabhai Lembabhai vs State Of Gujarat on 11 July, 2025

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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                              C/SCA/2394/2025                                  ORDER DATED: 11/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/SPECIAL CIVIL APPLICATION NO. 2394 of 2025
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                                             VANKAR KHEMABHAI LEMBABHAI & ORS.
                                                           Versus
                                                  STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2,3,4,5
                       MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER for the
                       Respondent(s) No. 1,2
                       KAASH K THAKKAR(7332) for the Respondent(s) No. 3
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                            CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                                         Date : 11/07/2025

                                                          ORAL ORDER

1. Heard learned Advocate Mr. Shivam Majmudar for learned Advocate Mr. N.K. Majmudar on behalf of the petitioner, learned Assistant Government Pleader Ms. Nirali Sarda on behalf of respondent- State and learned Advocate Mr. Kaash Thakkar on behalf of respondent- State.

2. By way of this petition the petitioners seeks for the following relief/s:

"7A. This Hon'ble Court be pleased to grant this petition. B. Be pleased to issue appropriate writ order and/or direction and be pleased to quash and set aside the action of the respondent authorities of not considering the representation dated 10.09.2021 in the interest of justice.

C. Be pleased to issue appropriate writ or order and/or direction and be pleased to quash and set aside the communications dated 29.05.2023 ( Annexure M) passed by the concerned respondent authorities.

                                D.       Be pleased to issue appropriate writ or order and/or direction




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                              C/SCA/2394/2025                                  ORDER DATED: 11/07/2025

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and be pleased to direct the respondent authorities to apply the scale of 1640-2900 to the petitioners from the respective dates of entitlement.

E. Be pleased to issue appropriate writ or order and/or direction and be pleased to direct the respondent authorities to revise and recalculate the last pay drawn by the petitioners and be pleased to direct the respondent authorities to grant/pay/disburse the pensionary benefits and consequential benefits after applying the pay scale of 1640-2900 with 12% interest in the interest of justice;

F. Be pleased to passe such orders as thought fit in the interest of justice."

3. It is the case of the petitioners that the petitioners had been appointed as Block Extension Educators ("BEE" in short) in District Panchayat, Rajkot between the period 1988 to 1989. The pay scale attached to the post of BEE for those candidates who possess Post Graduate Degree at that relevant point of time was Rs. 1640-2900 and for others it was Rs. 1400-2300. The petitioners having the qualification of post graduation in the subject of Masters of Arts, yet, it is the case of the petitioners that they were provided the salary in the pay scale of Rs. 1400-2300. It also appears that the State Government had published a resolution dated 24.10.1989 whereby the pay scale of Rs. 1640-2900 was made available to only those incumbents in the post of BEE, having post graduation in the subject of Master of Social Work. The said resolution further envisages that for others post graduate degree or bachelor degree holders, the pay scale that would be applicable would be Rs. 1400-2300. It also appears that the Panchayat Department had published the Resolution dated 13.09.2004, inter alia adopting the Resolution of the State Government, dated 24.10.1989. It is

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C/SCA/2394/2025 ORDER DATED: 11/07/2025

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the case of the petitioners that since the requirement for post graduate degree in the subject of Master of Social Work(MSW), came to be introduced insofar as the Panchayat Department was concerned in the year 2004 and hence the petitioners who were appointed prior to the year 2004, could not be given a lesser pay scale. It appears that the petitioners had herein before preferred Writ petition being Special Civil Application No. 8584 of 2005 and allied matters for the very selfsame benefit and whereas a learned Co-ordinate Bench ( Coram: Mr. Justice R.P. Dholaria, J.) vide judgement dated 11.10.2013 had interfered to a limited extent. It appears in this regard that the petitioners had relied upon observations of a learned Co- ordinate Bench in a group of petitions where similar reliefs were claimed namely Special Civil Application No. 7171 of 2005 and allied matters which had been decided vide order dated 26.04.2005. It also appears that since the petitioners therein, were protected to a limited extent i.e only as regards extent of interference as regards recovery of any amount overpaid to the petitioners, the petitioners did not press the prayer with regard to their entitlement and whereas the petition was requested to be considered as regards recovery of amount overpaid. Learned Co-ordinate Bench in case of petitioners vide judgment dated 11.10.2013 had interfered to the extent of prohibiting recovery of any amount that had been paid in excess to the petitioners and whereas the petition had been allowed to the said extent.

4. It is the case of the petitioners that while the things stood as such, the petitioners of the petition which the petitioners were relying upon i.e. Special Civil Application No. 7171 of 2005 and allied matters had preferred Letters Patent Appeal No. 1129 of 2005, before the Division Bench of this Court and Hon'ble Division Bench ( Coram: S.R.Brahknhatt and A.P. Thaker, JJ.) vide judgement dated 21.01.2020 had interfered in the decision

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of the learned Co-ordinate Bench dated 26.04.2005. It is the case of the petitioners that the Division Bench had inter alia interfered and had held that persons holding Masters Degree prior to amendment in revised pay scale, whereby the requirement of post graduation in Master of Social Work for higher pay scale was added, would not disentitle the petitioners from getting benefit of pay scale of Rs. 1640-2900 for the post of BEE/Social Worker.

4.1 It is the case of the petitioners that judgement dated 21.01.2020 had come to their knowledge late in the day and therefore, as soon as they become aware about it, they had preferred a representation to the respondent authorities and since the respondent authorities did not take any reasonable steps, the petitioners had approached this Court by preferring writ petition being Special Civil Application No. 13673 of 2022 and whereas a learned Co-ordinate Bench of this Court vide judgement dated 21.07.2022, had directed the respondents authorities to consider and decide representation of the petitioners dated 10.09.2021 within a period of 10 weeks. Based upon such a direction, the respondents having passed impugned order dated 29.05.2023 the petitioners have approached this Court.

5. While the learned Advocate for the petitioners has made various submissions, inter alia opposing the decision of the respondents based upon the fact that similarly situated persons were entitled to the benefits which the petitioners were seeking for, more particularly based upon decision of the Division Bench of this Court, yet, to this Court, it would appear that the submissions made by the petitioners cannot be countenanced

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5.1 It would appear to this Court that petitioners had approached this Court hereinbefore for the very selfsame prayers i.e their entitlement for salary in the scale of Rs. 1640-2900 on the strength of the petitioners having Masters Degree, and whereas the said writ petition had been decided and the petitioner had infact withdrawn their petitions qua the entitlement restricting the same to challenge against the recovery. Having done so, to this Court it would appear that for the very selfsame cause it would not be open for the petitioners to file a writ petition afresh more particularly there not being any change in the applicable law therefore, the earlier decision would act as res judicata.

6. Be that as it may, the interference of this Court is requested on the ground that Division Bench had interfered with regard to order dated 26.04.2005 in Special Civil Application No. 7171 of 2005, whereas based upon decision of the learned Co-ordinate Bench in Special Civil Application No. 7171 of 2005 dated 26.04.2005, the learned Co-ordinate Bench in case of the first round of litigation by the petitioners, had interfered only with regard to the issue of recovery and not with regard to their substantive entitlement. As such, to this Court even such argument would also not be tenable since the learned Co-ordinate Bench in the first round of writ petition preferred by the present petitioners had not merely relied upon an earlier decision of this Court and had held against the petitioners rather the petitioners had voluntarily given up their claim insofar as their entitlement is concerned. Having given up their fight qua entitlement, it is now no more open for the petitioners to turn around and question the decision of learned Co-ordinate Bench, on the ground that the decision on which learned Co- ordinate Bench had relied upon, was itself interfered.

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                              C/SCA/2394/2025                                  ORDER DATED: 11/07/2025

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7. To this Court it would appear that while it is true that the petitioners did rely upon decision of learned Co-ordinate Bench in Special Civil Application No. 7171 of 2005 dated 26.04.2005 in support of their submission before learned Co-ordinate Bench in Special Civil Application No. 8584 of 2005 and allied matters i.e the first round of petitions preferred by the petitioners yet, as noted hereinabove, the petitioners did not press the first part of their prayer i.e as regards their entitlement to salary in the scale of Rs. 1640-2900. The petitioners having given up their claim, even if the decision upon which they were relying upon, had been interfered with by a Division Bench, it would not be open for this Court in a fresh writ petition to come to a conclusion that the petitioners, have a reasonable case and hence a writ should be issued in favour of them. As observed by this Court, the principle of res judicata prohibits this Court from passing any orders and furthermore, it is the petitioners who had withdrawn their petitions in part and thereafter, to this Court it would be no more open for the petitioners to now agitate as regards their entitlement for a pay scale. To this Court it would appear that while the petitioners, after the decision of Hon'ble Division Bench in Letters Patent Appeal No. 1129 of 2005 dated 21.01.2020, may or may not have a case for entitlement to pay scale of Rs. 1640-2900, yet, this Court, would not be empowered and would not have the jurisdiction to entertain such a request and hence to this Court it would appear that no interference is called for in the present writ petition hence the same is disposed of as rejected in limine.

(NIKHIL S. KARIEL,J) NIRU