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2017 DIGILAW 108 (GUJ)

Vajaji Fulaji Thakor v. State of Gujarat

2017-01-17

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The present petitioner, by way of the present petition under Article 226 of the Constitution of India, has prayed for issuance of appropriate writ/order or direction to the respondents to grant higher pay scale to the petitioner and to grant pension to the petitioner accordingly and to pay difference of pension to the petitioner with all other consequential benefits and to pay arrears thereof. 2. The brief facts leading to the filing of the petition are as under: "2.1 The petitioner was working as Talati-cum-Mantri and he retired from the services with effect from 31.05.2001 upon attaining the age of superannuation. The petitioner was not extended the benefit of higher grade pay scale as per Government Resolution dated 16.08.1994. The said benefit was denied to the petitioner mainly on the ground that his confidential reports were not good for four years. According to the petitioner, he came to know about adverse confidential report only when the District Development Officer rejected the prayer for grant of higher grade pay scale. The petitioner was never informed about the adverse confidential report prior to his retirement. 2.2 The petitioner, being aggrieved by the decision of the Deputy District Development Officer, preferred departmental appeal, but the said appeal also came to be rejected and as to why he has preferred present petition for redressal of his grievances." 3. Ms. G.R. Vijayalakshmi learned advocate appearing for the petitioner submits that the petitioner has been denied benefit of higher grade pay scale on the ground of his adverse confidential report for about four years, but this fact was communicated for the first time when his representation was rejected by the Deputy District Development Officer, Ahmedabad District Panchayat. It is submitted that as per the Government Circular dated 01.05.2004, the adverse entries are required to be communicated within a period of six weeks from the date of entry to the concerned employee and thereafter, upon receipt of the adverse entry by the concerned employee, he can make a representation within a period of six weeks thereafter and upon receipt of the said representation, the concerned authority is required to take decision within a period of three months thereafter. The General Administrative Department of the State Government, time and again, informed all the departments to strictly follow the instructions given in the said circular. The General Administrative Department of the State Government, time and again, informed all the departments to strictly follow the instructions given in the said circular. Learned advocate further submits that though the adverse entries made in the years 1978-79, 1979-80, 1980-81 and 1986-87 were required to be communicated within a period of six months from the date of making such entry as per Government Circular dated 01.05.2004, but the said adverse entries were never communicated to the petitioner prior to his retirement. Learned advocate further submits that the petitioner had no occasion or chance to deal with the said adverse entries and without affording an opportunity of submit his explanation in pursuance to those adverse entries, the benefit of higher grade pay scale has been denied to the petitioner. It is further submitted that the petitioner preferred appeal against the decision of the Deputy District Development Officer, but the Appellate Authority also failed to consider and appreciate the very crucial and relevant aspect about non-communication of adverse entries while taking the decision in the appeal. Learned advocate in support of his submissions has referred to and relied upon the decision given by this Court in the case of Samantbhai Jivabhai Parghi v. State of Gujarat dated 10.01.2017 passed in Special Civil Application No. 24301/2007 and submits that looking to the facts of the present case, the said decision is directly applicable in the instant case. 4. Ms. R.V. Acharya, learned advocate appearing for the respondent-Panchayat tried to justify the stand taken by the District Panchayat and submits that the petitioner is not eligible and entitled to get higher grade pay scale as there were about four adverse entries in his service record during the period of nine years. It is also submitted that the adverse entry made in the year 1978-79 was communicated to the petitioner as reflected from communication dated 18.06.1980, but the petitioner did not make any representation against the said adverse entry, and therefore, the said entry was treated as final in the confidential report. It is further submitted that the benefit of higher grade pay sale can be extended to an employee, who is eligible as per the Government Resolution dated 16.08.1994. In the instant case, the petitioner is not satisfying the criteria/parameter in the aforesaid resolution and therefore, his case cannot be considered for grant of higher grade pay scale. 5. Mr. It is further submitted that the benefit of higher grade pay sale can be extended to an employee, who is eligible as per the Government Resolution dated 16.08.1994. In the instant case, the petitioner is not satisfying the criteria/parameter in the aforesaid resolution and therefore, his case cannot be considered for grant of higher grade pay scale. 5. Mr. Robin Moghera, learned Assistant Government Pleader appearing for the respondent-State, while opposing this petition, submits that the benefit of higher grade pay scale is governed under the Government Resolution dated 16.08.1994 and one of the conditions is that there should not be any adverse entries and adverse entries of the concerned employee. It is also submitted that in the instant case, as it reflects from the correspondence made between the Panchayat Authorities, the petitioner was having adverse entries in the confidential report in the years 1978-79, 1979-80, 1980-81 and 1986-87, and therefore, the petitioner is not entitled to get the benefit of higher grade pay scale and the decision taken by the respondents-authorities denying the benefit of higher grade pay scale is in accordance with law. 6. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioner has been denied benefit of higher grade pay scale mainly on the ground that there were adverse entries in his confidential report for the years 1978-79, 1979-80, 1980-81 and 1986-87. In this context, the Government Circular dated 01.05.2004 referred by learned advocate for the petitioner is required to be considered. As per the said Government Circular, adverse entries made in the confidential report are required to be communicated within a period of six weeks from the date of adverse entries made in the confidential report. Except first adverse entry which was made in the year 1978-79, none of the adverse entries which were made in the year 1979-80, 1980-81 and 1986-87 were communicated to the petitioner as per the Government Circular. It appears that the General Administrative Department of the State of Gujarat, while issuing the said circular dated 01.05.2004, has observed on the top of the circular that the instructions given in the circular be strictly followed by the concerned department. Thus, it was expected from the authorities concerned that adverse entries in the confidential report shall be intimated to the concerned employee within the stipulated time. Thus, it was expected from the authorities concerned that adverse entries in the confidential report shall be intimated to the concerned employee within the stipulated time. In the instant case, from the letter dated 01.10.2005 written by the District Development Officer, Ahmedabad addressed to the Development Commissioner, Gujarat State and more particularly on perusal of Paragraph-2, it becomes clear that the said adverse entries were not communicated to the petitioner. Thus, from the aforesaid communication made between the District Development Officer and Development Officer, it is an admitted position that the adverse entries made in the confidential report of the petitioner were not communicated. In view of the aforesaid facts, the benefit of higher grade pay scale cannot be denied to the petitioner because the petitioner had no opportunity at earlier point of time to make representation against the adverse entries made in his confidential report. The decision referred to and relied upon by the learned advocate for the petitioner given in the case of Samantbhai Jivabhai Parghi (supra) is applicable to the facts and circumstances of the present case. In the said decision, there is a reference about the decision given in State of Haryana v. P.C. Wadhwa, reported in AIR 1987 SC 1201 and by following the said decision, the decision was given in Special Civil Application No. 24301/2007. Thus, in light of the aforesaid factual background and the ratio laid down by the Hon'ble Supreme Court of India which has been followed by this Court, the present petition deserves to be allowed and therefore, the same is allowed and the impugned order of Deputy District Development Officer as well as District Development Officer denying the benefit of higher grade pay scale is ordered to be quashed and set aside. The petitioner be given benefit of higher grade pay scale within a period of three months from the date of receipt of this judgment and order. Since the petitioner has retired from the services in the year 2001, it is expected from the respondents-authorities that no further delay shall be caused in extending the benefit of higher grade pay scale to the petitioner and the necessary exercise for computation of arrears and pensionary benefit shall be undertaken forthwith. Rule is made absolute accordingly.