Gujarat High Court
Yashwant K Tadvi vs State Of Gujarat on 27 November, 2025
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C/SCA/6046/2011 JUDGMENT DATED: 27/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6046 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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YASHWANT K TADVI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. SHIVANI J. BAROT, ADVOCATE FOR
MR PA JADEJA(3726) for the Petitioner(s) No. 1
MS. FORUM SUKHADWALA, ASST. GOVERNMENT
PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/11/2025
ORAL JUDGMENT
[1] With the consent of the learned advocates for the
appearing parties, the present writ petition is taken up for
hearing.
[2] Heard Ms. Shivani J. Barot, learned advocate for
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Mr. P.A.Jadeja, learned advocate for the petitioner as also Ms.
Forum Sukhadwala, learned Asst. Government Pleader for the
respondents - State and its authorities.
[3] The present Writ Petition is filed under Articles 14,
16, and 226 of the Constitution of India, seeking following
reliefs:
"A) Quashing and setting aside the letters dt.27.1.2011 and order
dt.21.12.1998 and directing the Respondents to grant the second higher
grade scale in accordance with the Resolution dt.2.7.2007.
B) Declaring that the refusal of "transfer" from the post of senior clerk to
the post of senior clerks (Accounts) vide order dt.16.11.98 by the petitioner is
not refusal of "promotion" within the scheme of the higher grade scale, and
directing the Respondents to grant the benefits of the higher grade scale to
the petitioner on the basis that it was not refusal of promotion and to pay the
consequential amounts with 12% interest, including pensionary benefits.
C) During the pendency and final disposal of this petition, the Respondent
No.2 may be directed to consider the case of the petitioner for the grant of
higher grade scale as if the petitioner had not refused promotion at any
time.
D) To grant such and further relief as may be deemed fit and proper."
[4] Ms. Shivani J. Barot, learned advocate for the
petitioner would submit that the impugned order dated
21.12.1998 passed by the respondent-authority is dehors the
Rules framed by the respondent - State, inasmuch as, it is
contrary to the Government Resolution dated 16.08.1994,
whereby, employee/s entitle/s to receive a higher pay scale
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irrespective not report to duty at transfer place.
[4.1] It is submitted that the petitioner was working as a
Senior Clerk with the respondent and was served with an
order of transfer to Ahmedabad from Baroda for the purpose
of carrying out the duty of Senior Clerk (Accounts), but due to
his personal reasons and on his request, the respondents -
authorities have cancelled the order of transfer but vide its
order dated 21.12.1998 held that petitioner is not entitled to
get any promotion in future and his name not be added in the
seniority list for transfer to post of Senior Clerk (Account).
Further, it has been observed that any higher pay-scale
already awarded to the petitioner, requires to be taken
back/withdraw from him.
[4.2] It is respectfully submitted that nowhere in G.R.
dated 16.08.1994, any reference is made by the State that in a
case where employee refused to join the duty at transfer place
and in a case where such transfer stands cancelled by the
competent Authority, in that eventuality, employee concerned
will not entitle to either claim higher pay scale or such
benefits will be withdrawn from employee concerned.
[4.3] Ms. Barot, learned advocate would respectfully
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submit that in the aforesaid facts, when there is no statutory
rules entitled the respondents to withdraw the benefits of
higher pay scale, thereby, impugned order suffers from
without authority, without jurisdiction, and arbitrary, requires
to be quashed and set aside. It is further submitted that
despite there is repeated representations submitted to
respondent authority, it was not taken note by the competent
authority, which resulted into miscarriage of justice.
[4.4] Ms. Barot, learned advocate would further submit
that on getting appropriate information from the respondent
authority which confirmed that transfer post where petitioner
did not join the duty, was not a promotional post, inasmuch
as, Senior Clerk and Senior Clerk (Accounts) considered to be
a same post, thus, provisions of denial of higher pay scale
attached in a case where employee refused to take promotion,
would not apply in the case on hand.
[4.5] Lastly, Ms. Barot, learned advocate would
respectfully submitted that considering length of service of
petitioner till his retirement in year 2009, petitioner would
also entitled to receive benefit of 2 nd higher pay scale. It is
submitted that denial of such higher pay scale by respondent
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authority under wrong premise, requires to be set at naught
by this Court.
[4.6] Ms. Barot, learned advocate for the petitioner would
request this Court to allow the present Writ Petition as
prayed.
[5] Per contra, Ms. Forum Sukhadwala, learned AGP
would request this Court not to entertain the present Writ
Petition only on the ground that the order impugned is not
passed without jurisdiction, inasmuch as, when petitioner
himself refused to join at the transfer post, in that event,
competent Authority entitled to pass impugned order
whereby, his future promotion or the benefits flowing there
from stood withdrawn.
[5.1] Learned AGP would further submit that when
petitioner did not join the post of Senior Clerk (Accounts),
thereafter, he would not be considered for any future
promotion on the post of Asst. Superintendent (Division). It is
submitted that when any person working as a Senior Clerk
does not accept the post of Senior Clerk (Accounts), he cannot
be considered for the next promotional post.
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[5.2] It is submitted that as per the provisions of G.R.
dated 16.08.1994 and so also, G.R. dated 02.07.2007, which
relied upon by the petitioner himself, would disentitle him to
claim any higher pay-scale, rather, he is required to return
back such benefits which accordingly did so by passing
impugned order by the respondent authority.
[5.3] Making the above submissions, Ms. Forum
Sukhadwala, learned AGP would request this Court to reject
the present Writ Petition.
[6] Having heard the learned advocates for the
respective parties and after considering their respective
pleadings and documents placed on record, the following
emerges:-
[6.1] The petitioner was serving as a Senior Clerk with
respondent at Vadodara, who transferred from Vadodara to
Ahmedabad vide order dated 16.11.1998 but on his request,
such transfer was recalled by the respondent and passed the
impugned order dated 22.12.1998 whereby, it was observed
that the petitioner will not entitle to claim any future
promotion and he will not be even included in the seniority list
for transfer to post of Senior Clerk (Account).
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[6.2] Apart from the aforesaid, by impugned order,
respondent authority withdrawn the benefits of higher pay-
scale already enjoyed by the petitioner from 11.12.1990 till
passing of impugned order and ultimately, recovery sought
from the petitioner and in fact, effected by respondents.
[6.3] The basic premise, under which impugned order
came to be passed, was that when petitioner refused to join at
transfer post as a Senior Clerk (Accounts), he would not be
entitled to claim future promotion and having denied such
benefits of promotion, as per the provisions of the G.R.s dated
16.08.1994 and/or 02.07.2007 as the case may be, petitioner
would not be entitled to receive any higher pay scale. As the
petitioner granted higher pay-scale prior to passing of
impugned order as aforesaid, the same was withdrawn and
such benefits were also recovered from him.
[7] When this Court has analyzed the aforesaid
Government Resolutions, nowhere it has been found that in a
case where employee did not join at transfer post or in a case
where on request of employee, such order of transfer recalled
by the respondent - authority, in that eventuality, such
employee would not entitle to receive any higher pay-scale.
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The respondents- authorities have completely misconstrued
themselves by wrongly interpreting provisions of the aforesaid
Government Resolutions. As per said Government Resolutions,
it only suggests that in a case where, when promotion given to
employee and he denied to receive such promotion, in that
eventuality, the benefits of higher pay-scale given to him shall
be withdrawn, but not otherwise.
[8] The facts which are observed hereinabove and
discernible from the record, indicate that post where
petitioner was serving as Senior Clerk and post where he was
transferred i.e. Senior Clerk (Accounts) was the same - equal
and in any case not promotional post. Ms. Shivani Barot,
learned advocate for the petitioner has drawn the attention of
this Court to the reply received by the petitioner in RTI from
respondent - authority and as such, said fact is not disputed
by the learned AGP, rather unable to counter such submission
of learned advocate of petitioner.
[9] Undoubtedly, when above is the factual aspect and
the scenario, the respondents - authorities have completely
misdirected themselves by considering that when transfer
order was recalled, thereby, petitioner refused to avail
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promotion, which entitled the respondent - authority to
withdraw the benefits of higher pay-scale availed by the
petitioner.
[10] According to my view, order impugned is passed
dehors the aforesaid resolutions and not backed by any
statutory Rules framed by the respondent - State to take away
the benefits of higher pay-scale already availed by the
petitioner. The impugned order having found without any
jurisdiction, arbitrary and contrary to law, thus, not
sustainable in law.
[11] When this Court has come to this definite
conclusion that petitioner could not have been deprived to
receive higher pay-scale and in fact, in the present case,
petitioner had receive 1st higher pay-scale w.e.f. 11.12.1990,
such benefit requires to be repaid to petitioner, and
accordingly requires its resumption, which I do so. On
restoration of such benefits of 1 st higher pay scale, as a matter
of course, considering the G.R. dated 16.08.1994 and / or G.R.
dated 02.07.2007 as the case may be, petitioner is also
entitled to receive 2nd higher pay-scale as he retired from
service w.e.f. 30.04.2009, thereby, he completed more than 15
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years of service from the date of receipt of 1 st higher pay-scale
i.e. 11.12.1990.
[12] It is true that such impugned order came to be
passed in the year 1998, whereas, the present petition is filed
in the year 2011, but at the same time, when any benefits
which were wrongly withdrawn and not granted from/to the
petitioner - employee concerned i.e. pay scale, he at the given
point of time, might have engaged with the respondent -
authority, by making various representations and before filing
writ petition, approached this Court in the year 2009, in none
of these circumstances, can be denied to secure relief i.e. pay
scale. According to my view, the legitimate right of the
petitioner employee to receive higher pay-scale which has
direct bearing on entitlement of his pension, such right of the
petitioner cannot be jeopardized, merely approaching this
Court belatedly as per settled law, right to receive higher pay
scale and or pension is fundamental right and it would be
treated as continuous cause of action for petitioner to get
such relief.
[13] At the same time, when petitioner having not
approached this Court at given point of time in year 1998
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when impugned order passed, rather made various
representations with the authorities whereby came late before
this Court, according to my view, considering aforesaid
peculiar facts and circumstances of the present case,
petitioner is not entitled to receive interest on the amount
which this Court is going to direct the respondent to pay to
the petitioner otherwise entitled to receive by petitioner as
and when it accrued as per aforesaid Government
Resolutions. Thus, the claim of interest on such amount
(arrears amount) is hereby rejected / denied. Nonetheless,
such amount requires to be paid by respondent authority
without any delay, failing which entail with payment of
interest thereon from date of default.
[14] Having found petitioner entitle to receive benefits of
1st and 2nd higher pay scale and consequently its pension
requires to be recalculated then, all such benefits require to
be paid to petitioner by respondents.
[14.1] The calculation of 1 st and 2nd higher pay-scale be
carried out by the respondent - authority including amount so
far recovered from petitioner pursuant to impugned order
dated 21.12.1998 as early as possible and released all
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consequential benefits flowing thereof including arrears on or
before 28th February, 2026, failing which, petitioner is entitled
to receive interest @ 6% from 01.03.2026, on aforesaid
benefits.
[14.2] The respondents - authorities are also required to
re-calculate the amount of pension available to the petitioner
after giving effect of 1st and 2nd higher pay-scale in the
pensionable pay of the petitioner and accordingly, arrears of
pension amount also be calculated and released in favour of
the petitioner on or before 28 th February, 2026, failing which,
petitioner is also entitled to receive interest @ 6% from
01.03.2026, on aforesaid pensionary benefits.
[15] Thus, upshot of the aforesaid observations, reasons
and conclusion, the impugned order dated 21.12.1998 and
communication dated 27.01.2011 are hereby quashed and set
aside and thereby, it is held that the respondent - authority
has wrongly withdrawn the higher pay-scale which was
already availed by the petitioner and so, wrongly denied
benefit of 1st and 2nd higher pay scale, which ultimately affect
his entitlement to receive pension as aforesaid.
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[16] Resultantly, the present Writ Petition is partly
allowed. Rule is made absolute to the aforesaid extent. No
order as to costs.
(MAULIK J.SHELAT,J)
Lalji Desai
