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2002 DIGILAW 891 (GUJ)

PARAGBHAI BHAGWANDAS PATEL v. STATE

2002-12-17

R.M.DOSHIT

body2002
R. M. DOSHIT, J. ( 1 ) HEARD the learned advocates. These three petitions involve identical question of law in similar set of facts. Hence, with the consent of the learned advocates, these petitions are finally disposed of by this common judgment. ( 2 ) THE petitioner in Special Civil Application No. 1179 of 2002 is a Gram Sevak serving in the District Panchayat, Patan. The said petitioner was appointed as a Gram Sevak by the District Panchayat, Kachchh on 12th June, 1981. Pursuant to the request made by the petitioner, on 23/02/1988, the said petitioners service was transferred to District Panchayat, Mehsana on condition, inter alia, that he should lose his seniority under the District Panchayat, Kachchh. Since then, on bifurcation of District Panchayat, Mehsana, the petitioner has been allotted to the District Panchayat, Patan. Under Order dated 5/11/1992 made by the Deputy Director of Agriculture [extension], District Panchayat, Mehsana [annexure-C to the petition], the petitioner was given benefit of higher pay-scale under the Government Resolution dated 5/07/1991 as modified from time to time. The petitioners pay was revised with effect from 12/06/1990 i. e. from the date the petitioner completed nine years service as Gram Sevak. The said date of grant of Higher Grade Scale has been revised under Order dated 1 9/02/1999 [annexure-A to the petition]. The said petitioner is held to be eligible to Higher Grade Scale from 23rd February, 1997 i. e. , on completion of 9 years service as Gram Sevak in Mehsana District Panchayat. ( 3 ) THE petitioner in the above Special Civil Application No. 1180 of 2002 is an Extension Officer [agriculture]. The said petitioner was initially appointed as Extension Officer [agriculture] on 17th April,1982 in the District Panchayat, Baroda. Since then, at the request made by the petitioner, the petitioner was on 3 1/12/1984 transferred to District Panchayat, Banaskantha. On a further request made by the petitioner, under Order dated 2nd January, 1989 made by the Development Commissioner, the petitioner was transferred to District Panchayat, Mehsana on condition, inter alia, that the petitioner shall not claim seniority over the person serving in the Mehsana District Panchayat on the date of his transfer. Under order dated 23/01/1993 made by the Dy. Under order dated 23/01/1993 made by the Dy. Director of Agriculture [extension], District Panchayat, Mehsana [annexure-C to the petition], the petitioner was given the benefit of Higher Grade Scale under the Government Resolution dated 5/07/1991 as modified from time to time. The petitioners pay was revised w. e. f 17th April, 1991 i. e. , on completion of 9 years service as Extension Officer from the date of his initial appointment i. e. 17/04/1982. Under Order dated 1 6/06/1994 [annexure-A to the petition], the date of grant of Higher Grade Scale to the petitioner has been revised to 1st May, 1988 i. e. from the date of petitioner completed 9 years service as Extension Officer in Mehsana District Panchayat. ( 4 ) THE petitioner in Special Civil Application No. 1183 of 2002 is an Extension Officer {agriculture}. The said petitioner was appointed as Extension Officer [agriculture] on 1/05/1973 by the District Panchayat, Surat. At the request made by the petitioner, under order dated 14/02/1979 made by the Development Commissioner, the petitioner was transferred to District Panchayat, Mehsana on condition, inter alia, that he shall not claim seniority over the Extension Officers serving in Mehsana District Panchayat on the date of the transfer. Under Order dated 13/11/1992 made by the Dy. Director of Agriculture [extension], District Panchayat, Mehsana (Annexure-c to the petition), the petitioner was given benefit of the Higher Grade Scale under Government Resolution dated 5/07/1991 as modified from time to time. His pay was revised from 1st June, 1987 on the basis that the petitioner had completed 9 years service as Extension Officer on 1/05/1982. However, under order dated 16/06/1994 [annexure-A to the petition], the said date of grant of Higher Grade Scale has been revised to that of 1/05/1988 i. e. , the date the petitioner completed 9 years service as Extension Officer in District Panchayat, Mehsana. ( 5 ) FEELING aggrieved by the Orders Annexure-A to the respective petition, the petitioners have preferred above Special Civil Applications under Article 226 of the Constitution. Mr. Mishra has taken me through the scheme of the Higher Grade Scale framed under Government Resolution dated 5/07/1991. He has submitted that the Higher Grade Scale is being granted to the Government servants to mitigate stagnation suffered by them on account of lack of promotional avenue. Mr. Mishra has taken me through the scheme of the Higher Grade Scale framed under Government Resolution dated 5/07/1991. He has submitted that the Higher Grade Scale is being granted to the Government servants to mitigate stagnation suffered by them on account of lack of promotional avenue. The scheme envisages grant of Higher Grade Scale on completion of 9 years service in the same cadre i. e. , on the same post. He has, therefore, submitted that while calculating 9 years service, the total service rendered by the concerned petitioner should be taken into account. The inter-district transfer is a mere fortuitous circumstance. It should not deprive the petitioners of the benefit of Higher Grade Scale on completion of 9 years service in the same cadre. ( 6 ) IN support of his contentions, Mr. Mishra has relied upon the judgement of this Court in the matter of Vishnuprasad C. Darji and Anr. v. Registrar, High Court of Gujarat and Ors. [2000 (2) G. L. R. 1138] and in the matter of Ajitsinh Chaturji Rathod v. State of Gujarat and Ors. [2000 (4) G. L. R. 3181]. Mr. Mishra has also relied upon the judgment of the Honble Supreme Court in the matter of Union of India and ANr. v. K. T Shastri [ air 1990 SC 598 ]. ( 7 ) I need not dwelve upon the matter at issue and consider the same in details. The issue has been considered and answered by this Court in the matter of Ajitsinh Chaturji Rathod [supra] and squarely covers the matter at issue. The said judgment of the learned Single Judge has been confirmed in Letters Patent Appeal No. 779 of 2000 and has been followed by this Court [coram : K. H Mehta, J. ] in the matter of Babuji Amtaji Chavda v. State of Gujarat and Ors. [special Civil Application No. 928 of 2000 :: decided on 24. 7. 2001]. The effect of the abvoe Resolutions with respect to the District Cadre and inter-district transfer at the request of the concerned servant of the Panchayat has been considered and dealt with in paragraph 5 of the judgment. [special Civil Application No. 928 of 2000 :: decided on 24. 7. 2001]. The effect of the abvoe Resolutions with respect to the District Cadre and inter-district transfer at the request of the concerned servant of the Panchayat has been considered and dealt with in paragraph 5 of the judgment. It has been held that, "therefore, the petitioner who was a member of panchayat services of Surat District Panchayat was member of District Cadre Surat till he served within Surat district and when he was transferred to the panchayat services of Mehsana district, he became member of Mehsana District Cadre. Therefore, it cannot be said that he rendered service in same cadre throughout. . . . In those circumstances, a question of clubbing of period must depend upon the provision governing such situation. Therefore, the two periods cannot be clubbed together for the purpose of claiming benefits under the Scheme. " ( 8 ) THUS, the service rendered under two different District Panchayats have been held to be service in a distinct cadre and such services cannot be clubbed together for the purposes of grant of benefit under the Scheme. Indisputably, neither of the petitioners had completed 9 years service under the District Panchayat in which they were first appointed. They came to be transferred to the District Panchayat, Mehsana at their own request. The service rendered under the former District Panchayat cannot be clubbed with that of the services rendered in the Mehsana District Panchayat for the purpose of grant of Higher Grade Scale on completion of 9 years service. Hence for the conferment of the benefit of Higher Grade Scale on completion of 9 years service, the service rendered in Mehsana District Panchayat alone can be considered. However, initially under orders Annexure-C to the respective petition, the petitioners were conferred the benefit of Higher Grade Scale, considering their total service rendered in the former District Panchayat and in the District Panchayat, Mehsana. The same was ex facie erroneous and contrary to the Scheme under which the benefit was conferred. The said mistake has been corrected under the impugned Orders [annexure-A to the respective petition]. Only those of the service rendered in Mehsana District Panchayat has been considered for the purpose of grant of Higher Grade Scale. The same was ex facie erroneous and contrary to the Scheme under which the benefit was conferred. The said mistake has been corrected under the impugned Orders [annexure-A to the respective petition]. Only those of the service rendered in Mehsana District Panchayat has been considered for the purpose of grant of Higher Grade Scale. The impugned orders have thus been made in consonance with the Scheme of grant of Higher Grade Scale as interpreted by this Court in the matter of Ajitsinh Chaturji Rathod [supra]. The judgment of the Honble Supreme Court in the matter of Union of India and Anr. [supra] deals with the question of grant of benefit of enhanced age of superannuation to one of the units amongst three units which initially belonged to one common service has been held to be arbitrary and discriminatory. The said judgment shall lend no support to the present petitions. ( 9 ) IN the result, all these three petitions are dismissed. Rule nisi issued in each of the petitions is discharged. The Registry shall maintain copy of this judgment in each of these three petitions. There shall be no order as to costs. .