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2017 DIGILAW 107 (GUJ)

State of Gujarat v. Rameshbhai Bhanubhai Vyas

2017-01-17

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The petitioner State Government through the Commissioner of Education, Education Department, by way of present petition filed under Articles 226 and 227 of the Constitution of India, has prayed for quashing and setting aside the impugned judgment and order dated 10.05.2001, passed by the Gujarat Civil Services Tribunal, Gandhinagar, in Appeal No. 414 of 1998. 2. Brief facts giving rise to the present petition are as under: "2.1 The respondent was working with the petitioner-Department in one cadre with the same pay scale since last 38 years. The respondent had retired from services on 31.05.1991 at the age of superannuation. 2.2 The Government of Gujarat vide its Resolution being No. PGR/1194-45-M, dated 16.08.1994 decided to extend the benefit of Higher Grade Pay Scale to the Government employees working in different cadres, wherein, the cut-off date prescribed for getting benefit of Higher Grade Pay Scale is 01.06.1987. 2.3 The respondent, after his retirement, made a representation before the petitioner No. 2-District Education Officer to get the benefit of Higher Grade Pay Scale in pursuant to the Government Resolution dated 16.08.1994. However, the benefit of Higher Grade Pay Scale was not extended to the respondent, mainly for the reasons that during his service tenure, the benefit of selection grade was availed by him, and secondly, he did not exercise the option within stipulated time, prescribed in the Government Resolution dated 16.08.1994. Being aggrieved by the said action of the petitioner-Department, the respondent (original petitioner before the Tribunal) preferred an appeal being Appeal No. 414 of 1998 before the Gujarat Civil Services Tribunal, Gandhinagar, under the Disciplinary and Appeal Rules, 1971, as provided under Section 18(3) of the said Rules. The learned Tribunal by its judgment and order dated 10.05.2001 allowed the appeal, and thereby ordered the petitioners (original respondents before the Tribunal) to give the benefit of Higher Grade Pay Scale to the respondent herein. Being aggrieved and dissatisfied with the said judgment and order, the present petition is preferred by the State Government through the Commissioner of Education Department under Articles 226 and 227 of the Constitution of India." 3. Learned Assistant Government Pleader Mr. Amit Barot appearing for the petitioners submits that the judgment and order passed by the learned Tribunal is ex-facie illegal and bad in law. Learned Assistant Government Pleader Mr. Amit Barot appearing for the petitioners submits that the judgment and order passed by the learned Tribunal is ex-facie illegal and bad in law. It is submitted that the view taken by the learned Tribunal is contrary to the provision made in the Government Resolution dated 16.08.1994. 4. Learned Assistant Government Pleader submits that the respondent had retired from the services prior to the Resolution dated 16.08.1994 passed by the petitioner-State Government. Though the cut-off date prescribed for getting benefit of Higher Grade Pay Scale is 01.06.1987 in the said Resolution, the respondent was required to exercise the option in pursuant to Condition No. 3.29 of the Resolution, but the respondent had never exercised such option, and therefore, the case of the respondent cannot be considered for extending the benefit of Higher Grade Pay Scale in light of the Government Resolution dated 16.08.1994. It is also submitted that the respondent had also availed the benefit of selection grade during his service tenure, and therefore, after issuance of the Government Resolution dated 16.08.1994, he was required to exercise the option in writing before the authority concerned. Since the respondent has not exercised the option, he cannot be given the benefit of Higher Grade Pay Scale under the said Government Resolution. 5. Learned Assistant Government Pleader further submits that while admitting the petition, the Coordinate Bench of this Court vide its order dated 09.07.2004, passed an interim order directing the petitioners to reconsider the case of the respondent for grant of Higher Grade Pay Scale under the Government Resolution dated 16.08.1994, considering the application made by the respondent on 23.01.1991, and shall place such decision on the record of this petition on or before 31.08.2004. It is also observed in the said order that if desired by the respondent, he be given opportunity of personal hearing. It is submitted that pursuant to the aforesaid direction, the petitioners have reconsidered the case of the respondent and passed an order dated 22.12.2016 and the said decision is placed on recorded by way of affidavit before this Court. It is submitted that while reconsidering the case of the respondent, the petitioner-Department has taken into account the provisions of the Government Resolution dated 16.08.1994 and more particularly the Condition No. 3.29, whereby the option was required to be exercised by the respondent within stipulated time limit. It is submitted that while reconsidering the case of the respondent, the petitioner-Department has taken into account the provisions of the Government Resolution dated 16.08.1994 and more particularly the Condition No. 3.29, whereby the option was required to be exercised by the respondent within stipulated time limit. Since the respondent did not exercise the option within prescribed time limit, given in the Government Resolution dated 16.08.1994, the case of the respondent was not accepted by the petitioners. 6. While concluding his submissions, learned Assistant Government Pleader submits that the judgment and order passed by the learned Tribunal is beyond the scope of the Government Resolution dated 16.08.1994, and therefore, the said judgment and order being illegal and contrary to the Government policy may be quashed and set aside. 7. Learned advocate for the respondent (original petitioner before the tribunal) submits that the respondent had served under the petitioner-Department since last 38 years and he had retired from the services at the age of superannuation on 31.05.1991. It is submitted that when the petitioner came to know about the Resolution dated 16.08.1994 passed by the State Government giving the benefit of Higher Grade Pay Scale, he made a representation on 23.01.1991 before the petitioner No. 2 District Education Officer. 8. Learned advocate for the respondent while referring to the application made filed before the learned Tribunal has also pointed out from Para 9 that the respondent has made several efforts to pursue the petitioner-Department for extending the benefit available under Government Resolution dated 16.08.1994, but since the said benefit was not extended, he had approached the Gujarat Civil Services Tribunal by filing the Appeal No. 414 of 1998 under the Disciplinary and Appeal Rules, 1971 as provided under Section 18(3) of the said Rules. 9. Learned advocate for the respondent while supporting the judgment and order passed by the learned Tribunal submits that the decision given by the learned Tribunal is in accordance with law and there is no infirmity in the said order and judgment. 9. Learned advocate for the respondent while supporting the judgment and order passed by the learned Tribunal submits that the decision given by the learned Tribunal is in accordance with law and there is no infirmity in the said order and judgment. It is further submitted that the learned Tribunal has also observed in its order that the respondent is retired employee, and therefore, it was the duty of the concerned department to intimate him in writing regarding the Resolution dated 16.08.1994 and intimation is also required to be given to the respondent as to whether he is willing to exercise the option as provided under the said Resolution. It is further submitted that in the instant case, no such intimation was ever given to the respondent, but when he came to know about such Resolution, made a representation for getting the benefit vide his representation dated 23.01.1991. However, the said benefit was not extended to the respondent. 10. Learned advocate for the respondent further submits that while admitting the present petition, the Co-ordinate of this Court vide its order dated 09.07.2004, passed an interim order directing the petitioners to reconsider the case of the respondent for grant of Higher Grade Pay Scale in light of the Government Resolution dated 16.08.1994 and the representation made by the respondent dated 23.01.1991, but unfortunately the petitioners have filed to reconsider the case of the respondent in its proper perspective, keeping in mind the observation made by this Court while issuance of such direction. 11. Learned advocate for the respondent while concluding his submissions, submits that the learned Tribunal after careful consideration of the facts and circumstances involved in the matter, passed detailed judgment and assigning reasons thereof is in consonance with spirit and object of the Government Resolution dated 16.08.1994. The said order is in accordance with law, and therefore, intervention of this Court may not be required and the present petition may be dismissed, confirming the judgment and order passed by the learned Tribunal. 12. Regard being had to the above submissions and looking the facts and circumstances of the present case, it appears that the respondent had served under the petitioner Department for a period of about 38 years and he retired from the services on 31.05.1991 at the age of superannuation. 12. Regard being had to the above submissions and looking the facts and circumstances of the present case, it appears that the respondent had served under the petitioner Department for a period of about 38 years and he retired from the services on 31.05.1991 at the age of superannuation. The Government vide its Resolution dated 16.08.1994 decided to extend the benefit of Higher Grade Pay Scale to its employees. Since the respondent retired from the services prior to the date of the said Government Resolution, when he came to know about the said Resolution, made a representation on 23.01.1991. The respondent has also mentioned the said fact when he made application before the learned Tribunal. It appears that despite the representation made by the respondent on 23.01.1991, but the petitioners did not consider the case of the respondent for granting the benefit available under the Government Resolution dated 16.08.1994. It appears that the respondent was eligible and entitled to get benefit under the Government Resolution dated 16.08.1994, but the said request was rejected by the petitioners, as the respondent has filed to submit the option form within stipulated period, prescribed in the said Government Resolution. 13. On perusal of the judgment and order passed by the learned Tribunal, it appears that the learned Tribunal after careful consideration of the facts and circumstances involved in the case, has reached to the conclusion that the petitioner before the Tribunal-respondent herein is eligible and entitled to get the benefit available under the said Government Resolution. The Tribunal has rightly observed in its order that it was the duty of the original respondents-petitioners herein to intimate the original petitioner-respondent herein in writing as to whether he is willing to exercise the option in pursuant to the Resolution issued by the State Government dated 16.08.1994 or not? But as reveals from the material on record, no such intimation was ever given to the original petitioner-respondent herein. Moreover, the learned Tribunal has also considered the object behind issuance of the said Resolution. In Para 5 of the judgment, the learned Tribunal has discussed about the object for issuance of the said Resolution. But as reveals from the material on record, no such intimation was ever given to the original petitioner-respondent herein. Moreover, the learned Tribunal has also considered the object behind issuance of the said Resolution. In Para 5 of the judgment, the learned Tribunal has discussed about the object for issuance of the said Resolution. Thus, it appears that the judgment and order passed by the learned Tribunal is in consonance with the spirit and object of the Government Resolution dated 16.08.1994, and therefore, the said order is required to be affirmed, as there in no infirmity in the said decision. It further appears that the petitioners were directed to reconsider the case of the respondent while passing the interim order at the time of admission of the present petition, but on perusal of the order passed by the petitioner No. 1, it appears that the petitioner did not reconsider the case of the respondent, mainly for the reason that the respondent did not exercise the option in view of the Condition No. 3.29 prescribed in the Government Resolution dated 16.08.1994. The petitioners were also directed to take into account the representation made by the respondent on 23.01.1991, but on perusal of the order passed by the petitioner No. 1, it appears that the said fact is not properly considered by the petitioner No. 1. Thus, from the material on record, it appears that after announcement of the Policy of extending benefit of Higher Grade Pay Scale vide Government Resolution dated 16.08.1994, the respondent submitted representation and expressed his willingness to exercise the option of Higher Grade Pay Scale in view of selection grade which was granted earlier to him, and therefore, the question of giving differential amount was required to be considered by the petitioner, but unfortunately the petitioners did not consider the case of the respondent in its proper perspective. 14. As discussed hereinabove, the view taken by the learned Tribunal in its judgment and order is in consonance with the spirit and object of the Government Resolution dated 16.08.1994, and therefore, the said decision is not required to be distrusted in any manner. Hence, the present petition stands dismissed. Rule is discharged. 15. The petitioners are directed to release the benefit available under Government Resolution dated 16.08.1994 within a period of three months from the date of receipt of this judgment. Hence, the present petition stands dismissed. Rule is discharged. 15. The petitioners are directed to release the benefit available under Government Resolution dated 16.08.1994 within a period of three months from the date of receipt of this judgment. The differential amount shall be paid to the respondent with all consequential benefits including pensionary benefits within the said stipulated period.