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Gujarat High Court · body

2016 DIGILAW 301 (GUJ)

Narottamdas Vithaldas Suthar v. State of Gujarat

2016-02-08

SONIA GOKANI

body2016
JUDGMENT : Sonia Gokani, J. 1. Rule. Learned Assistant Government Pleader Mr. Rashesh Rindani waives service of rule on behalf of respondent No. 1-State and learned advocate Mr. H.S. Munshaw waives service of rule on behalf of respondent No. 2. 2. By way of this petition, the petitioner has prayed that the Government Resolution dated 21.06.2012 of the Government of Gujarat, Secretary, Panchayat Rural Housing and Rural Development Department, Gandhinagar, be quashed and set aside, being unreasonable and illegal, and also prayed for a writ of mandamus to the respondents to grant him the first and second higher pay scales with effect from 1.9.1990 and 01.09.2005 respectively. 3. The brief facts of the case are that the petitioner was appointed with effect from 1.4.1980 as Gram Udhyog Karyakar at Zilla Sarvodaya Yojana Kasturbandham (Rajkot) in the pay scale of Rs. 170-250, which was thereafter revised to Rs. 300-560. Thereafter, the said scheme was closed down by Resolution dated 31.8.1981, which was challenged before this Court, and thereafter the Government has absorbed him in Government Panchayat Service with the existing pay scales and allowances without any future benefits. The employees being aggrieved over such conditions approached this Court, and the Government was pleased to treat them as fresh recruits in the post of Junior Clerks in the Panchayat service. The effect was that the petitioner was treated as a fresh recruit from 1.4.1987 though he joined on 1.4.1980 in Sarvodaya Yojana scheme. The petitioner was constrained to approach this Court by filing Special Civil Application No. 4317 of 2007, and by order dated 15.2.2007, the petitioner's service was regularised with effect from 1st September 1980 and when the petitioner was superannuated he was given the pensionary benefits by counting his service from 1st September 1980. 3.1 The petitioner has made representations to the respondent authority for granting him 1st higher pay scale of Rs. 1400-2600 from the year 1.9.1990 and 2nd higher pay scale of Rs. 5500-9000 from 1.9.2005. However, the petitioner was not granted neither the 1st higher grade nor the 2nd higher pay scale which are due with effect from 1.9.1990 and 1.9.2005 respectively. 1400-2600 from the year 1.9.1990 and 2nd higher pay scale of Rs. 5500-9000 from 1.9.2005. However, the petitioner was not granted neither the 1st higher grade nor the 2nd higher pay scale which are due with effect from 1.9.1990 and 1.9.2005 respectively. By Government Resolution dated 21.06.2012, the respondent authorities have since decided to count the service of the petitioner with effect from 1.4.1987 instead of 1.9.1981, the petitioner aggrieved with such decision has filed this petition praying to quash and set aside the same and prayed for issuance of a writ of mandamus for grant of 1st and 2nd higher pay scales and accordingly revise his pensionary benefits. 4. Learned advocate for the petitioner Ms. Tejal K. Shah submitted that the issue has already been decided by this Court (Coram: Akil Kureshi, J) in Special Civil Applications No. 6992/2002, 6996 of 2002, 8680 of 2002, 8972 of 2002, and 8974 of 2002 by an order dated 9/3/2006. She has also pointed out that in another group of petitions, being Special Civil Application No. 1270 of 2013 and allied matters, this Court (Coram: J.B. Pardiwala, J.) has decided similar matters raising similar issue by judgment and order dated 14th December 2015, therefore, this matter may also be decided accordingly. Learned advocate Ms. Shah further submitted that some suitable directions may be issued to the respondent to decide their claim or grievance on the basis of aforesaid two decisions within some reasonable time. 5. Learned Assistant Government Pleader, Mr. Rashesh Rindhani as also learned advocate Mr. H.S. Munshaw appearing for respondent No. 2 - District Development Officer do not dispute these aspects of the matter, and has urged that this matter may also be decided on the same lines as has been done in the aforesaid group of petitions. 6. Since the issues involved in this petition are more or less similar to the above two groups of petitions decided by this Court, this petition is also disposed of accordingly. At this stage, it would be profitable to refer to the relevant paragraphs of the judgment and order dated 14th December 2015 passed by this Court in Special Civil Application No. 1270 of 2013 and allied matters:- "5. Mr. D.P. Vora, the learned counsel appearing with Ms. At this stage, it would be profitable to refer to the relevant paragraphs of the judgment and order dated 14th December 2015 passed by this Court in Special Civil Application No. 1270 of 2013 and allied matters:- "5. Mr. D.P. Vora, the learned counsel appearing with Ms. Tejal Shah the learned advocate for the petitioners vehemently submitted that the State Government should have considered the past service of the petitioners in the "Sarvodaya Yojna." 6. On the other hand, these writ applications have been vehemently opposed by Mr. Swapneshwar Gautam, the learned Assistant Government Pleader appearing for the respondent State of Gujarat. He has relied upon the following averments made in the affidavit-in-reply filed on behalf of the respondent No. 2: "6. I say and submit that petitioner seek order to quash and set aside the government resolution dated 21.06.2012 which was passed by the respondent No. 1 and further petitioner seeks direction to the respondents not to recover any amount from the said petitioner about the first higher pay scale and second higher pay scale be granted from 01.09.2005 as well as arrears which was given to the petitioner earlier. "7. I say and submit that petitioner has made an application to consider his service continuous and to give allowances. Letter of Panchayat and Rural Housing and Development Department, Sachivayala, Gandhinagar dated 09.02.2009 to give pay allowances to the petitioner the department has counted from 01.09.1981 and all the other benefits. "8. I say and submit that Panchayat Department by letter dated 01.04.1987 benefit for nine years is given. But petitioner has asked for 18 years for which petitioner is not entitled as per circular dated 21.06.2012. As per government resolution dated 16.08.1994, 02.07.2007 as the post had been cancelled due to which the employees has become surplus. As petitioner had become surplus employee, he cannot claim for higher pay scale for 18 years. Petitioner was already given benefit of nine years. As petitioner is not entitled for 18 years as per the government resolution of Panchayat Rural Housing and Development Department, petitioner was given 1st Higher grade from, 01.04.1987 after completion of nine years which was given as per the guidelines of the Finance Department." 7. According to Mr. Gautam, no case is made out for grant of any relief and all the writ applications deserve to be rejected. 8. According to Mr. Gautam, no case is made out for grant of any relief and all the writ applications deserve to be rejected. 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to any of the reliefs prayed for in these writ applications. 9. The Government Resolution dated 21.06.2012, the free English translation of the same reads as under: "Circular: "The guidelines with regard to the higher pay scale of the employees of the various district panchayats has been sought by the various district panchayats as the same employees absorbed due to closure of the Sarvodaya Scheme in the State. "2. In one case the department has sought for the guidance of the Finance Department in the State in which the Finance Department has as per the provision of the Notification No. 3(15) dated 16.08.1994 and the provision of Notification No. 2(11) dated 01.07.2007 stated that due to non-availability of the posts in the department/offices the previous accounts/service of the officers are not to be taken into account for determining the higher pay scale and the services performed as ex-cadre in the district panchayat are also not to take into account for determining the higher pay scale and the Finance Department has advised to approve the first higher pay scale of the employees of the Sarvodaya Scheme from the date they were absorbed. The Finance Department has advised to get approval for the higher pay grade for these employees after nine years from 01.04.1987 therefore, this fact is to be brought to the notice of all the District Panchayats and to proceed on the issue of the higher pay grade of the ex-employees of the Sarvodaya Scheme in accordance with the above mentioned." 10. The State Government seems to have taken a policy decision as regards the employees of the "Sarvodaya Yojna", who were absorbed in the panchayat service. It was resolved that the first higher grade scale be given on completion of nine years of service from 01.04.1987. 11. There is a reference of the Clause 3(15) of the Government Resolution dated 16.08.1994. The free English translation of the same reads as under: "The service of surplus employee due to discontinuance of posts in the department/office in the former department/office shall not be taken into account." 11.1. 11. There is a reference of the Clause 3(15) of the Government Resolution dated 16.08.1994. The free English translation of the same reads as under: "The service of surplus employee due to discontinuance of posts in the department/office in the former department/office shall not be taken into account." 11.1. There is also a reference of the Clause 2(11) of the Government Resolution dated 02.07.2007. The free English translation of the same reads as under: "The service of surplus employee due to discontinuance of posts in the department/office in the former department/office shall not be taken into account." 12. The learned counsel appearing for the petitioners placed reliance on a decision of this Court in the case of Prabhudas K. Nimava v. State of Gujarat dated 16.10.2001 rendered in the Special Civil Application No. 1696 of 1996 and allied matters. Almost identical issues fell for the consideration before a learned Single Judge of this Court regarding the employees who were serving with the 'Sarvodaya Yojna'. A learned Single Judge allowed the writ applications observing as under: "2. Heard Ms. D.T. Shah and Mr. N.R. Tandel, learned counsel appearing for the petitioners. The petitioners of each the petition have invoked jurisdiction under Article 226 of Constitution of India and have prayed that appropriate order be issued directing the respondents State to grant retirement benefits available to the Panchayat employees under the Government Resolution along with other benefits. They have prayed for appropriate writ, direction or order for setting aside the order rejecting the claim of the petitioners for pensionary benefits and also declare the Resolution dated 15.12.1987 as illegal and arbitrary. 3. The contention of the petitioner is that initially there was a scheme originally called as "Sarvodaya Yojna" and each of them were employed for the activities of scheme. Undisputedly Sarvodya Yojna had Government sponsorship. It is inter-alia contended that their services in the Sarvodaya Yojna should be taken into account and will be considered as continuous service under the respondent District Panchayat. 4. Affidavit-in-reply, by the State Government has not been filed. Affidavit-in-reply filed by the respondent Panchayat is at page 68 in Special Civil Application 1696 of 1996. 5. The contention raised by the respondent-Panchayat is that the affidavit-in-reply and is that originally there were two cadres in the Sarvodaya Yojna; one was ex-cadre and another was education cadre. 4. Affidavit-in-reply, by the State Government has not been filed. Affidavit-in-reply filed by the respondent Panchayat is at page 68 in Special Civil Application 1696 of 1996. 5. The contention raised by the respondent-Panchayat is that the affidavit-in-reply and is that originally there were two cadres in the Sarvodaya Yojna; one was ex-cadre and another was education cadre. The petitioners are the ex-cadre employees of Sarvodaya Yojna, and therefore, not entitled to any benefit as per the Resolution, annexure-I (page 30) of 1981, read with Government Resolution of 1990, passed by the Government. The other contention is that whether the petitioner should be made entitled to pensionary benefit or not is a question of policy and the said policy has been decided by the State Government. The Resolution issued by the Finance Department of the State of Gujarat dated 29.10.90 would not apply to an employee like present petitioners. It is contended by the Panchayat that the petitioners services are allocated by Resolution dated 15.12.87 and at that point of time the each petitioner has given an undertaking and has accepted the Resolution dated 15.12.87 issued by the Government and therefore the say of the petitioner is not acceptable. For short the respondent Panchayat says inter-alia, that claim of the petitioner cannot be accepted on the principle of estoppel, in view of the written undertaking given by him. 6. The averments made in the petition and the facts reflected in the rejoinder-affidavit if considered closely, the reasoning adopted by this Court while dealing with Spl. C.A. No. 13589/94 (Coram : M.S. Parikh, J.) would positively help the present petitioner. The Court at the relevant point of time had mostly on the same set of facts has expressed clearly that services rendered with Sarvoday Yojna should be taken in to account for the purpose. I would like to reproduce the relevant part of the order, because the same would help this Court in concluding the dispute raised by the present petitioners: "On a reference to the impugned order dated 12.10.94 Annexure-E it can be seen that the petitioner's request for grant of pension has been turned down on the ground that the resolution dated 15.12.1987 provides for the date of absorption in Panchayat service from 1.4.1987 and that the prior service in Sarvodaya Scheme would not be counted for the purpose of terminal benefit. It is in this connection that a reference has been made to the representation of ex-employees dated 1.10.1993. Reference has further been made to certain resolutions and circulars in the said representation. They have also been placed on record at Annexure-I, J, & K. While taking the decision impugned in this petition the case of the petitioner has not been taken into consideration in the light of the aforesaid resolutions/circulars and the joint representation made by the ex-employees of Sarvodaya Yojna. "In so far as the case of the petitioner is concerned he has put up service of around 8 years and 2 months with effect from 1.4.1987 and that is how if the period is counted from 1.4.1987 the service cannot be said to be pensionable. However, the stand of the petitioner is based upon the aforesaid circulars/resolutions with the result that if the service rendered in the Sarvodaya Yojna, is added, the petitioner would be covered under the pensionable period." 7. Ms. Shah has rightly pointed out that there is Government Resolution dated 16.4.98 granting pensionary benefits to the teachers allocated to the panchayat service who were initially serving under the Sarvodaya Yojna, this add strength to the case for the petitioners. This policy decision has created discrimination. Undisputedly the present petitioners were with Sarvodaya Yojna and under the policy of the Government, services covered under the Sarvodaya Yojna were to be terminated. Because of the intervention of this Court the petitioner could save their termination and were continued in service, in return. They were allocated to the panchayat service in 1981. Thereafter after a lapse of time i.e. approximately 6 years, the Government Resolution dated 15.12.87 was issued by the Government and a written undertaking was obtained from the employees who on threat of termination might have agreed to any proposition by the Government. The stand of the State should be of model humble employer and in consonance with the policy of a welfare state. When the respondent-State has granted benefit to the teachers, when a person serving in the education cadre of Sarvodaya Yojna is granted pensionary benefit, then the ex-cadre employee could not have been ignored by the State. The stand of the State should be of model humble employer and in consonance with the policy of a welfare state. When the respondent-State has granted benefit to the teachers, when a person serving in the education cadre of Sarvodaya Yojna is granted pensionary benefit, then the ex-cadre employee could not have been ignored by the State. I agree that while carving out one policy the Government is mainly considering the financial aspect and the burden which may have to be carried by the State for long years to come but I am afraid that the number of ex-cadre servants of old Sarvodaya Yojna would be in large number. On one hand the State has introduced many welfare scheme including pension schemes for various class and categories of persons and on the other surprising discrimination has been carried out. The policy decision normally could not have been interfered by this Court by exercising jurisdiction under Article226. But when the policy qua to different cadres serving with original Sarvodaya scheme is found to be discriminating or unhealthy this Court shall have put the things in order. While dealing with the above referred Spl. C.A. this Court had directed at the relevant point of time the respondents to reconsider the case of the petitioner, in light of the Government Resolutions and other circulars. The apprehension expressed by the learned counsel for the petitioner is that if the present petitioner are directed to approach to the State again for making representation then this senior citizens aged about more than 65 years would not get advantage of the policy of the State reflected in the various resolutions issued granting pensionary and other benefits to such employee. Undisputedly the present petitioners have served for several years in the panchayat service, the State should not have hesitation in considering their earlier service rendered to the state during 1981 to 1987 or even prior to that day i.e. the day on which they were recruited by the Sarvodaya Yojna. As per the prevailing policy of earlier years it is rightly submitted that when Sarvodaya Scheme was envisaged the state policy was in conformity at that relevant point of time and therefore this petition should be allowed. As per the prevailing policy of earlier years it is rightly submitted that when Sarvodaya Scheme was envisaged the state policy was in conformity at that relevant point of time and therefore this petition should be allowed. The Government Resolution dated 15.12.87 annexure-J and other orders rejecting the request to grant pensionary benefit are hereby quashed and set aside qua all the three present petitioners and shall not have binding effect on the present petitioner. The state is directed to consider the services rendered by present petitioners from their initial date of appointment when they were absorbed in the Panchayat cadre i.e. from the year 1980-81 till the date of retirement or otherwise for pensionary benefits as continuous service. Further it is observed that this period should be treated to grant pensionary benefit only and they will not be entitled to claim any cash or other financial benefit. I am told that the present petitioner were given other benefits like leave etc., for their earlier services with Sarvodaya scheme. "8. Rule is made absolute to above extent. Respondent-State is directed to calculate the pensionary benefit of the present petitioner within four months and should see that the arrears are cleared within six months from the date of the receipt of writ. The state is further directed that they get the pensionary benefits regularly immediately after the payment of arrears. The request to award interest by the learned counsel for the petitioners is not accepted in view of the fact that this Court has allowed the petition, exercising discretion in favour of the old employee, in light of the Government Resolution issued in the year 1998 in favour of the employees serving in the education cadre of Sarvodaya scheme vis-à-vis other policy Resolutions passed in recent years. Direct Service is permitted." 13. I am in complete agreement with the view taken by the learned Single Judge referred to above and propose to follow the same in the case in hand. I am inclined to take the view drawing analogy from the above noted judgment that for the purpose of Higher Pay Scale, the period of service in the Sarvodaya Scheme should be taken into consideration. I am inclined to take the view drawing analogy from the above noted judgment that for the purpose of Higher Pay Scale, the period of service in the Sarvodaya Scheme should be taken into consideration. I may only give a fair idea about the details as regards the effect of the first higher pay scale and the second higher pay scale as under:- S. No. Petition No. Name of the petitioners Benefits 1st higher pay scale 2nd higher pay scale Dated 1. S.C.A. No. 1270 of 2013 Balvantbhai M. Trivedi 1st higher pay scale is given 2nd higher pay scale is given 21-04-2010 2. S.C.A. No. 1271 of 2013 Dhayabhai Kalabhai Vala 1st higher pay scale is given 2nd higher pay scale is given 15-05-2005 3. S.C.A. No. 1272 of 2013 Bhavanbhai B. Khatana 1st higher pay scale is given 2nd higher pay scale is given 04-1-2009 4. S.C.A. No. 19967 of 2013 Jiveraj Valji 1st higher pay scale is given 2nd higher pay scale is given 27-09-2012 5. S.C.A. No 19968 of 2013 Deveshi Hamir Velari 1st higher pay scale is given 2nd higher pay scale is given 05-03-2010 6. S.C.A. No. 19969 of 2013 Bansidas P. Caondaliya 1st higher pay scale is given 2nd higher pay scale is given 7. S.C.A. No. 19970 of 2013 Pravin K. Cosaliya 1st higher pay scale is given 2nd higher pay scale is given 8. S.C.A. No. 19971 of 2013 Jitendra L. Sarkhedi 1st higher pay scale is given 2nd higher pay scale is given 9. S.C.A. No. 19972 of 2013 Mahipal C. Bhau 1st higher pay scale is given 2nd higher pay scale is given 11-11-2011 10. S.C.A. No. 19973 of 2013 Dhirubhai Singara 1st higher pay scale is given 2nd higher pay scale is given 11. S.C.A. No. 16014 of 2013 Hardas Kalabhai Zalavadiya 1st higher pay scale is given 2nd higher pay scale is given 22-03-2010 12. S.C.A. No. 16154 of 2013 Rameh C. Trivedi 1st higher pay scale is given 2nd higher pay scale is given 03-02-2012 13. S.C.A. No. 3312 of 2014 Hasmukh Coda 1st higher pay scale is given 2nd higher pay scale is given 15-05-2012 14. S.C.A. No. 5143 of 2014 Sankerbhai Namlabhai Patel 1st higher pay scale is given 2nd higher pay scale is given 15. S.C.A. No. 3312 of 2014 Hasmukh Coda 1st higher pay scale is given 2nd higher pay scale is given 15-05-2012 14. S.C.A. No. 5143 of 2014 Sankerbhai Namlabhai Patel 1st higher pay scale is given 2nd higher pay scale is given 15. S.C.A. No. 4268 of 2015 Harshedbhai S. Trivedi 1st higher pay scale is not given till date 2nd higher pay scale is not given till date 16. S.C.A. No. 4274 of 2015 Jayantilal J. Jani 1st higher pay scale is not given till date 2nd higher pay scale is not given till date 14. In the result, all these writ applications are allowed. The Government Resolution dated 21.06.2012 is hereby ordered to be quashed. The respondents shall treat the petitioners to be in service from 1979 and calculate the effect of the same for the purpose of the first and second higher pay scales accordingly. This exercise shall be undertaken within a period of two months from the date of the receipt of the writ of this order. 15. The respondents are directed not to effect any recovery of any amount paid towards the first higher pay scale from a particular date on the pretext that the petitioners are to be treated in service from 1987." 7. Consequently, this petition is allowed. The Government Resolution dated 21.06.2012 is hereby quashed and set aside. The respondents shall treat the petitioner to be in service from 1.4.1980 and calculate the effect of the same for the purpose of grant of the first and second higher pay scales accordingly. This exercise shall be undertaken within a period of two months from the date of the receipt of the writ of this order. Rule is made absolute. There shall be no order as to costs.