Gujarat High Court
State Of Gujarat vs Lilly Chacko on 24 September, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1283/2023 JUDGMENT DATED: 24/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1283 of 2023
In R/SPECIAL CIVIL APPLICATION/15900/2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1283 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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STATE OF GUJARAT & ORS.
Versus
LILLY CHACKO & ANR.
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Appearance:
MS SHRUTI DHRUVE AGP for the Appellant(s) No. 1,2,3,4
MR. D. P. KINARIWALA(410) for the Respondent(s) No. 1
MS DISHA N NANAVATY(2957) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 24/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appe al emanates from the order dated
22.09.2022 passed by the learned Single Judge in Special Civil
Application No.15900 of 2019, whereby the writ petition filed by
the respondent - teacher - (original petitioner), was allowed by
setting aside the orders dated 22.01.2020 and 31.03.2021.
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2. At the outset, learned AGP Ms. Shurti Dhruve has submitted
that reliance placed by the learned Single Judge on the judgment
dated 22.01.2016 passed in Special Civil Application No. 12894 of
2004 in the case of G.K. Prajapati vs. State of Gujarat & Ors. is
misconceived, as the facts of the case and the issues therein do not
apply in the present case. Learned AGP has pointed out that the
respondent was initially appointed in Mahatma Gandhi Charitable
Trust, Rajkot, on the pay scale of Rs.1640-2900/- and thereafter she
resigned on 20.06.1992. Accordingly, after resignation, she was
appointed at Asia English Medium School in 1992, and hence the
provisions of Rule 23 of the Gujarat Civil Services (Pay) Rules, 2002
(for short 'the Pay Rules, 2002') are not applicable and hence, the
order dated 28.06.1999 passed by the District Education Officer at
the relevant point of time, granting pay protection to the
respondent - teacher, is erroneous and in violation of the
provisions of Rule 23. It is submitted that thereafter, when the
mistake was realised by the District Education Officer in the year
2010, the pay protection granted to the respondent - teacher was
withdrawn by invoking the provisions of Rule 23 of the Pay Rules
2002. She has submitted that after the aforesaid order was set
aside by this Court, and the matter was remanded to the
authorities, the District Education Officer confirmed the earlier
order by placing reliance on the provisions of Rule 23 of the Pay
Rules, 2002. It is thus, submitted that looking to the facts of the
present case and in light of the provisions of Rule 23 of the Pay
Rules, the order dated 28.06.1999 passed in favour of the
respondent - teacher by the then District Education Officer
granting pay protection is also illegal.
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C/LPA/1283/2023 JUDGMENT DATED: 24/09/2025
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2.1 Learned AGP has also referred to the provisions of Rule 15(1)
(b) of the Gujarat Civil Services (Conduct) Rules, 1971, and has
submitted that a Government servant cannot negotiate for, or
undertake, any other employment without the previous sanction of
the Government. In the present case, since the respondent -
teacher sought appointment in the subsequent Asia English School
without previous sanction, she would not be entitled to pay
protection. Thus, it is urged that the impugned judgment and order
passed by the learned Single Judge is required to be quashed and
set aside.
3. Opposing the aforesaid submissions, learned advocate
Mr.D.P.Kinariwala has urged that the impugned judgment and
order passed by the learned Single Judge may not be interfered
with, as the same has been precisely passed. It is submitted that
the provisions of Rule 23 of the Pay Rules, 2002, which the
appellant has invoked, will not apply to the case of the respondent -
teacher, and the appropriate provision would be Rule 13 of the Pay
Rules, 2002, hence, the then District Education Officer has rightly
passed the order dated 28.06.1999, granting pay protection to the
respondent - teacher, which has been upheld by the learned Single
Judge.
4. We have heard the learned advocates appearing for the
respective parties at length.
5. The entire case of the appellant - State hinges on the
provisions of Rule 23 of the Pay Rules, 2002. The Rule is
incorporated as under:
"23. Pay on new appointment: (1) Where the Government employee is selected for
appointment to a service padre or post under the Government through the Gujarat
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Public Service Commission, Centralised Recruitment Scheme or any other method
approved by the Government and if the service rendered prior to and after such
selection is continuous and the appointment is on a higher post as compared to the
pay scale of the post on which the employee was working prior to his appointment
before selection; his pay shall be fixed as per rule-13.
Explanation For this purpose the service shall be treated as continuous one even if
there is a physical break not exceeding twenty four hours.
Note 1: If the new appointment is in the same station, for the purpose of computing
"physical break" (of more than twenty four hours), Sunday and/or a Public Holiday
declared by the State Government shall be excluded
Note 2: If the new appointment involves movement from one station to another, for
the purpose of computing "physical break" (of more than twenty four hours) the
maximum period to cover actual journey inclusive of Sunday and/or a Public Holiday
declared by the State Government shall be excluded.
(2) The provisions of sub-rule (1) shall not apply in the case of a Government
employee who is so appointed after a physical break exceeding twenty four hours
following resignation, removal. dismissal or discharge on reduction of establishment
or after invalidation out of service, such an appointment amounts to a fresh
appointment."
6. Keeping in mind the aforesaid provisions, we may refer to the
established facts on record. The respondent - teacher - (original
petitioner) was appointed as a Higher Secondary Teacher at Shri
Mahatma Gandhi Charitable Trust, Rajkot on 29.08.1988 having
the Pay-Scale of Rs.1640-2900/-. Subsequently, she applied for a
lower post of Secondary Teacher and was selected as a Secondary
Teacher in Asia English School and was issued the appointment
order on 18.06.1992. Accordingly, she resigned from service on
20.06.1992, which was endorsed by the District Education Officer,
Rajkot, and she was relieved by the order dated 29.06.1992 by the
District Education Officer, Rajkot, by accepting her resignation.
6.1 It is pertinent to note that on the resignation letter dated
20.06.1992, the respondent - teacher had categorically stated that
she was appointed at Asia Secondary School in the Secondary
Section as a Secondary Teacher. Thus, while relieving and
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accepting her resignation, the District Education Officer, Rajkot,
was well aware that she had been appointed at Asia English High
School in the Secondary Section, which is a lower post. No
objection was raised by the District Education Officer, while
accepting her resignation and relieving her, to the extent
canvassed before us by the learned AGP, that it was done without
obtaining prior sanction or approval by the State Government, as
required under the Gujarat Civil Services (Conduct) Rules, 1971.
We do not accept the submissions advanced by the learned AGP, as
the Gujarat Civil Services (Conduct) Rules, 1971, operate in a
different realm, regulating the conduct of the government
employees. In the present case, the District Education Officer had
categorically accepted the resignation and also relieved the
respondent - teacher from the service by the order dated
30.06.1992, and immediately on the next day, she resumed her
duties at Asia English School. At this stage, it is relevant to note
that the pay of the respondent - teacher at Asia English School was
in the Pay Scale of Rs.1400-2600/- and she was appointed to a
lower cadre of Secondary School.
6.2 In light of the established facts, we may refer to Rule 23 of
the Pay Rules,2002, more particularly sub-Rule (2) of the Pay
Rules. A bare perusal of the aforesaid Rule 23(1) would show that it
refers to the regulation of the pay of a Government employee on a
'higher post' and not on a 'lower post', which is the present case.
Sub-rule (2) to Rule 23 of the Pay Rules, 2002, categorically
mandates that the provisions of Sub-Rule (1) shall not apply in the
case of a Government employee who is appointed after a break
exceeding twenty-four hours following resignation, removal,
dismissal, or discharge on reduction of establishment or after
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invalidation out of service. Such an appointment amounts to a fresh
appointment.
7. In the present case, the provisions of Rule 23(1) of the Pay
Rules will not apply, as the respondent - teacher had been
appointed to a lower grade in the Secondary Section from the
higher grade of the Higher Secondary Section in the earlier school
at Mahatma Gandhi Charitable Trust, Rajkot, but the provisions of
Rule 13 will apply. We may refer to Rule 13 of the Gujarat Pay
Rules, 2002, as under:
"13. Fixation of pay on appointment to another post not involving assumption of
duties or responsibilities of greater importance: Where a Government employee
holding a post in a substantive, temporary or officiating capacity. is appointed in a
substantive, temporary or officiating capacity to another post including an ex-cadre
post and the appointment to the new post does not involve assumption of duties or
responsibilities of greater importance than those attached to the old post, his initial
pay shall be fixed as under :-
(a) if there is a stage in the time-scale of the new post which is equal to his pay in the
pay scale of the old post, he shall draw pay at that stage:
(b) if there is no such stage, he shall draw pay at the stage next below his pay in the
pay scale of the old post plus personal pay equal to the amount of difference;
(c) in either of these two cases, he shall continue to draw that pay until such time as
he would have received an increment in the time-scale of the old post or till he would
earn an increment in the time scale of the new post, whichever is earlier,
(d) if the minimum of the time-scale of the new post is higher than his pay in the old
post, he shall draw that minimum as initial Pay."
8. The case of the respondent - teacher would fall under Rule 13
and not under Rule 23 of the Pay Rules, as the same refers to an
appointment to a post which does not involve the assumption of
duties or responsibilities of greater importance than those attached
to the old post. Thus, the respondent - teacher was entitled to pay
protection as per the provisions of Rule 13 of the Pay Rules, which
was correctly done by the then District Education Officer,
Ahmedabad, vide order dated 28.06.1999. The District Education
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C/LPA/1283/2023 JUDGMENT DATED: 24/09/2025
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Officer was aware of the reporting of the respondent - teacher on
01.07.1992 and also the relevant pay scales, both when she was a
Higher Secondary Teacher in the earlier school and Pay-Scale of
Rs.1400-2600/- in Asia English School. Accordingly, the District
Education Officer correctly and precisely fixed her pay by granting
pay protection. Curiously, after a period of 10 years, another
District Education Officer, by order dated 03.09.2010, took a volte -
face and sought to recall the pay protection granted to the
respondent - teacher by invoking Rule 23 of the Pay Rules, 2002.
The same was set aside by this Court in the writ petition filed by
the present respondent - teacher, and the matter was remanded.
However, subsequently, in the impugned order dated 22.01.2020,
passed by the District Education Officer, Ahmedabad, the pay
protection of the respondent - Teacher was again sought to be
withdrawn by invoking the provisions of Rule 23 of the Pay Rules,
2002.
9. Thus, the District Education Officer, after a period of 10
years from the order passed by the then District Education Officer,
Ahmedabad (Rural), not only sought to reduce the pay - scale and
remove the pay protection but also ordered recovery. The learned
Single Judge quashed and set aside the same. However, upon
examination, we find that though the learned Single Judge relied
upon the ratio of the decision in G.K. Prajapati (supra), the same
would not strictly apply in the present case. Nevertheless, we
confirm the directions issued by the learned Single Judge for
quashing and setting aside the impugned communication of
removal of pay protection and recovery from the respondent -
teacher.
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10. The present Letters Patent Appeal thus fails and stands
dismissed. In case any benefits remain to be paid to the respondent
- teacher, she may make an application before the appellate
authorities. The same shall be considered in accordance with law.
(A. S. SUPEHIA, J)
(L. S. PIRZADA, J)
Radhika/14
