[Cites 6, Cited by 0]
Gujarat High Court
Baldevbhai Atmaram Prajapati vs State Of Gujarat on 15 January, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17993 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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BALDEVBHAI ATMARAM PRAJAPATI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1
MS BHARGAVI G THAKAR(5015) for the Petitioner(s) No. 1
MS. FORUM SUKHADWALA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/01/2026
ORAL JUDGMENT
[1] Heard Mr. Gunvant R. Thakar, learned advocate for the
petitioner and Ms. Forum Sukhadwala, learned Asst. Government
Pleader for the respondents, at length.
[2] The present Writ Petition is filed under Articles 14, 16 and 226
of the Constitution of India, seeking the following reliefs:
(a) allow this petition with cost; and / or
(b) quash and set aside the communication dated 09/05/2011,
11/12/2013 and 15/12/2011, 10/11/2016 (Annexure-A Colly. to this
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petition) issued by the respondent no.1; and / or
(c) hold and declare that petitioner is entitled for the grant of first
higher pay scale from 05/06/2010 i.e. last date of departmental
examination considering the judgment delivered in SCA No.2442 of
1978 by the Hon'ble High Court; and / or
(d) hold and declare that petitioner is not required to pass CCC
examination considering the provisions of G.R. dated: 31/01/2013
(Annexure-F to this petition); and / or
(e) pending admission and final hearing of this petition, direct the
respondent no.1 to start the procedure for grant of first higher pay
scale to the petitioner considering the total length of the services of
the petitioner as a Gujarati Typist from 23/12/1986 to 30/06/2010;
and/or
(f) grant any other relief in the nature of interim relief or pas any
other order in the nature of interim order which the Hon'ble Court
may consider as just and proper in the facts and circumstances of
the case."
SUBMISSIONS ON BEHALF OF THE PETITIONER.
[3] Mr. Thakar, learned advocate for the petitioner has submitted
as follows:
[3.1] The petitioner had cleared the departmental examination prior
to his retirement, thereby entitled to receive the benefits of the 1st
higher grade pay-scale. This benefit was arbitrarily denied by
respondents on erroneous premise that result of the said examination
came later in point of time after retirement of the petitioner.
[3.2] It is submitted that the departmental examination was
conducted by the respondent between 03.06.2010 and 05.06.2010,
whereas the result was published on 11.08.2010, but prior thereto,
petitioner attained the age of superannuation on 30.06.2010, and due
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to this reason, the petitioner was denied the benefits of the 1 st higher
grade pay-scale.
[3.3] As per the Manual of the Departmental and Language
Examination Rules (for short 'the said Rules'), more particularly
Rule 3 in Chapter I, published by the erstwhile State of Bombay,
which is adopted by the State of Gujarat on its bifurcation, would
clearly indicate that date of passing of the examination shall mean
the date following the date on which the examination ends.
[3.4] It is further submitted that, as per the aforesaid provisions of
the said Rules, which are binding upon the respondents, the
petitioner ought to be deemed to have cleared the examination on
06.06.2010, rather than on 11.08.2010 as presumed by the
respondents.
[3.5] It is further submitted that, considering the aforesaid date of
passing of the examination, i.e., 06.06.2010, which is undoubtedly
prior to the retirement of the petitioner, the petitioner is entitled to
receive the 1st higher grade pay-scale w.e.f. 06.06.2010.
[3.6] To buttress his arguments, he would rely upon the decision of
the Coordinate Bench of this Court in the case of Pravinchandra
Someshvar Mehta & Ors. Vs. State of Gujarat & Anr. rendered
in Special Civil Application No.2442 of 1978.
[3.7] Making the above submissions, Mr. Thakar, learned advocate
for the petitioner requests this Court to allow the present Writ
Petition.
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SUBMISSIONS ON BEHALF OF THE RESPONDENTS.
[4] Per contra, Ms. Forum Sukhadwala, learned Asst. Government
Pleader for the respondents would submit that there is no error
committed by the respondents while rejecting the claim of the
petitioner to receive the 1 st higher grade pay-scale, inasmuch as,
petitioner had not cleared the departmental examination prior to his
retirement.
[4.1] Ms. Sukhadwala, learned AGP has placed reliance upon the
Affidavit-In-Reply filed by the respondents and submitted that,
although petitioner appeared in the departmental examination
conducted between 03.06.2010 and 05.06.2010, the result came to
be published only on 11.08.2010. Consequently, the petitioner could
not be considered to have cleared the examination on the date of his
retirement, i.e. 30.06.2010.
[4.2] Ms. Sukhadwala, learned AGP would further submit that the
judgment which is relied upon by the learned advocate for the
petitioner, is not applicable to the facts of the present case and this
Court may not entertain this petition, having filed after about 6 years
from the date of denial of the claim of the petitioner.
[4.3] Ms. Sukhadwala, learned AGP has submitted that even if the
petitioner is found eligible by this Court to receive the 1 st higher
grade pay-scale, nonetheless, having approached after more than 6
years from the date of his retirement, as per law laid down by the
Honourable Apex Court in the case of Union of India & Ors. vs.
Tarsem Singh reported in 2008 (8) SCC 648 and also, in the case
of Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal
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Corporation, reported in (2022) 18 SCC 144, the entitlement to
the differential amount can be restricted up to three years prior to
filing of the present petition.
[4.4] Making the above submissions, the learned AGP would request
this Court to dismiss the present Writ Petition.
[5] No other and further submissions are being made by the
learned advocates for the respective parties.
ANALYSIS.
[6] Having heard the learned advocates for the respective parties
and after going through their respective pleadings and documents
made available on record, it is very much clear and remains
undisputed between the parties that the examination was conducted
between 03.06.2010 and 05.06.2010, and the result of the
departmental examination was published on 11.08.2010, i.e., after
retirement of the petitioner on 30.06.2010. The petitioner
undisputedly had cleared the examination.
[6.1] The Rule 3 of Chapter I of the said Rules issued by the
erstwhile Bombay State by its Notification dated 09.02.1952 in the
Political and Services Departments, reads as under:
"unless otherwise specifically provided, the date of
passing the examination shall mean the date following
the date on which the examination ends."
[6.2] Considering the said Rules, it is as clear as day that the date
of passing of the examination is the date immediately succeeding
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date on which examination ends. In the present case, as referred
hereinabove, the petitioner had cleared the examination conducted
between 03.06.2010 and 05.06.2010. Thus, in view of the aforesaid,
the date of passing the examination would be 06.06.2010 and not
11.08.2010, as erroneously taken into account by the respondents.
[6.3] Further, the issue germane in the matter is squarely covered
by the decision of the coordinate Bench of this Court in the case of
Pravinchandra Someshvar Mehta & Ors. (supra), wherein
interpreting the aforesaid rule, this Court held thus:
"In other words, what is the date of their passing that examination?
The resolution in question does not clarify the position. We have
therefore to look to the Manual of the Departmental and Language
Examination Rules. This manual has been published by the
Government of the erstwhile State of Bombay and these Rules are
at present in force and applicable in the State of Gujarat. The
learned Assistant Government Pleader is not in a position to point
out that the Manual of the Departmental and Language
Examination Rules has been modified or varied so far as this
question of the date of the passing of the examination is
concerned. An extract from the said manual incorporating Rule 3 in
Chapter I as inserted by the Government of Bombay by its
notification of February 9, 1953 issued in the Political and Services
Department provides as under:
"unless otherwise specifically provided, the date of passing the
examination shall mean the date following the date on which the
examination ends."
In other words, the date of passing examination is the day
immediately succeeding the date on which the examination is over.
In the present case before us, it is an admitted position that the
examination commenced on May 1967 and ended on May 25,
1967. The date of passing the examination. according to Rule 3,
quoted above should be May 26, 1967. The Government
of Gujarat has by its circular issued in General Administration
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Department on October 10. 1969 prescribed the same date for
purpose of determining the confirmation depending upon passing
of the departmental examination. The same criteria has been
adopted by the Government of Gujarat that the date of passing the
examination should be the date following the date the examination
ends. The learned Assistant Government Pleader has invited my
attention to the note made at the foot of the circular issued by the
earstwhile State of Bombay in the Political and Services
Department, dated February 9, 1953incorporating Rule 3 in
Chapter I of the Manual of Departmental and Language
Examination Rules. The said note says that these rules are also
operative in Gujarat since no modification has been made by the
Government of Gujarat. In that state of the rules and the definition
as to what is the date of passing the examination, the conclusion is
inescapable that on the date on which the resolution of the
Government of Gujarat of September 14, 1967 came into force
which adversely affected the seniority of the unsuccessful
candidates of the departmental examination, the petitioners had
already cleared the examination and therefore they would not be
within the purview of the said resolution."
(emphasis supplied)
[7] Having cleared the examination prior to his retirement, the
petitioner is entitled to receive the benefit of the 1 st higher grade
pay-scale. The failure of the respondents to pay this benefit violates
the fundamental right of the petitioner to receive the requisite pay
scale, which was otherwise available.
[8] It is trite law that when the impugned action of the respondent -
State is found to be violative of the fundamental right of the
petitioner, the doctrine of estoppel-waiver would not come to the
rescue of the State. {See - Basheshwar Nath v. Commr. of
Income-tax, Delhi, (1959) Supp (1) SCR 528 : AIR 1959 SC
149}.
[9] At any rate, there is no reason to dismiss this petition only on
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the ground of delay / latches on the part of the petitioner who
approached this Court after his retirement. Having so stated herein
hereinabove and it can be considered as "continuous wrong", and in
that view of the matter, as per law laid down by the Honourable Apex
Court in the case of Union of India & Ors. vs. Tarsem Singh
reported in 2008 (8) SCC 648 and also, in the case of Rushibhai
Jagdishbhai Pathak v. Bhavnagar Municipal Corporation,
reported in (2022) 18 SCC 144, the entitlement to the differential
amount can be restricted up to three years prior to filing of the
present petition.
CONCLUSION.
[10] In light of the aforesaid observations, discussion, and foregoing
reasons, the impugned communications dated 09.05.2011,
11.12.2013, 15.12.2011 and 10.11.2016 (Annexure-A Colly), are
hereby quashed and set aside. Accordingly, it is held that the
petitioner cleared the examination on 06.06.2010, which was prior to
the date of his retirement, i.e. 30.06.2010. Consequently, the
petitioner is entitled to receive the benefits of the 1 st higher grade
pay-scale from the date of passing of the examination, i.e.
06.06.2010.
[10.1] Nonetheless, the petitioner has approached this Court by way
of this petition filed on 28.09.2017; as aforesaid, the respondents
concerned shall, on revision of the pay-scale of the petitioner w.e.f.
06.06.2010, notionally grant the 1 st higher pay-scale until petitioner's
retirement on 30.06.2010 and also notionally calculate the difference
in the revised pension from 01.07.2010 to 30.09.2014. However, the
respondents concerned shall have to pay to the petitioner the arrears
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amount (difference in the revised pension) from 01.10.2014 until its
payment.
[10.2] The aforesaid amount shall be paid to the petitioner on or
before 30th April 2026 by the respondents, failing which, the
petitioner is entitled to receive the aforesaid amount with 6%
interest from 1st May 2026 till its actual realization from the
respondents.
[10.3] It goes without saying that once the aforesaid differential
amount is paid, the revised pension shall be paid regularly to the
petitioner.
[11] In view the forgoing conclusion, the present writ petition is
partly allowed. Rule is made absolute to the aforesaid extent. There
shall be no order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
Lalji Desai
