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2017 DIGILAW 1090 (GUJ)

Avani B. Shah v. State of Gujarat

2017-06-16

ABDULLAH GULAMAHMED URAIZEE, S.R.BRAHMBHATT

body2017
JUDGMENT : S.R. Brahmbhatt, J. 1. Heard learned advocates for the parties. 2. Rule. Mr. Hardik Soni, learned AGP waives service of notice of rule on behalf of respondent-State. By consent, rule is fixed forthwith. 3. The applicant, who happened to be the original respondent in L.P.A. No. 544 of 2007 has taken-out this application seeking following reliefs. "A. The Hon'ble court be pleased to allow the present MCA for clarification and further be please to hold, declare and clarify that in view of the direction in oral judgment dated 28-7-2014 in LPA 544 of 2007 at annexure-A, applicant is entitled to get amount of difference of Pay on account of VIth pay revision for the period 1.1.2007 to 30.1.2008 amounting to Rs. 99,000/- and also entitled to avail LTC benefit for which amount approximately works out to Rs. 15,000/- and therefore, Hon'ble Court be pleased to direct the respondents to make payment of Rs. 99,000/- being difference of salary on account of VIth Pay Revision for the period 1.1.2007 to 30.1.2008 and for LTC Rs. 15,000/- to applicant with interest at the rate this Hon'ble Court may decide and place the compliance report on record of the present case. B. Any other and further orders which this Hon'ble Court deems fit just and proper to meet the ends of justice may kindly be passed." Thus, essentially by way of these prayers a clarification is sought so that the relief as prayed for be resulted into assuaging the grievance in the proceedings. 4. Learned advocate for the applicant during the course of submission under the instructions submitted that the claim of the petition qua LTC is not pressed and it is to be confined to the difference of pay on account of 6th Pay Revision for the period from 1st January 2007 to 30th January 2008 only. 5. The facts in brief required for appreciating the controversy deserve to be set-out as under :- 5.1 The applicant was working as Librarian with B.J. Medical College, Ahmedabad. The applicant had filed petition being S.C.A. No. 686 of 2005 seeking direction against respondents to correct the date of birth in the service record and to take all consequential action as per correct date of birth. The applicant had filed petition being S.C.A. No. 686 of 2005 seeking direction against respondents to correct the date of birth in the service record and to take all consequential action as per correct date of birth. The said matter was allowed by Hon'ble Court vide order dated 25th July 2006 and the order of the respondent dated 8th December 2004 denying to correct the date of birth in the service record of the applicant was quashed. 5.2 Pursuant to the said judgment, applicant herein was continued in employment beyond the date of superannuation as per service record i.e. 31st December 2006. As against the said judgment, the respondent had filed L.P.A. No. 544 of 2007 with delay condonation application as well as stay application. The delay condonation application was allowed. The appeal was admitted and the stay application was also allowed vide order dated 24th January 2008 with clarification that in the event the State Government loses the appeal, the applicant herein will be entitled to claim salary till she would have retired from service in accordance with the directions issued by the Learned Single Judge, i.e. 31st December 2008. After the said order passed, the applicant herein was continued in employment for about 13 months beyond the date of superannuation as per service record of the application i.e. 31st December 2006. However, pursuant to the or dated 24th January 2008 in Civil Application No. 5472 of 2007 respondents herein passed order dated 30th January 2008 relieving the applicant from service subject to final outcome of the appeal and directions in the interim order. The terminal dues as per the calculation of the respondent and date of superannuation i.e. 31st December 2006 was also paid by the respondents, subject to final result of the appeal. Since the petition filed by the applicant was decided in favour of the applicant and she was continued in employment, she requested the respondents by letter dated 21st February 2008 to grant LTC as per rules to which the respondents by communication dated 5th April 2008 refused to accept the demand indicating that the applicant was superannuated with retrospective effect of 31st December 2006. 5.3 That as per Gujarat Civil Services (Revision of Pay) Rules, 2009, the respondents did fix the revised pay of the applicant as on 1st January 2006, but paid the arrears only for the period from 1st January 2006 till 31st December 2006 despite the fact that applicant had rendered actual service as per oral judgment in SCA No. 686 of 2005 till 30th January 2008. The applicant immediately requested the respondents to release difference till 30th January 2008, but the respondent did not release the same. Though the interim order in LPA No. 544 of 2007 passed in favour of the applicant, the respondents had not paid any amount to the applicant. The Division Bench of this Court in LPA No. 544 of 2007, confirmed the oral judgment of learned Single Judge directing the respondents herein to correct the date of birth as 30th December 1950 and to accept it as correct date of birth for all purposes. As per interim order, the applicant herein is entitled to her due and payable salaries till she was relieved pursuant to the interim order dated 24th January 2008 w.e.f. 30th January 2008 and respondents were ordered to pay all terminal dues by adding two increments treating the date of superannuation of applicant as 31st December 2008. 5.4 Despite requests by the applicant, the respondent had not paid to the applicant the difference of terminal dues such as leave encashment, gratuity, pension and LTC etc. However, the respondents without responding to such requests of the applicant, in fact passed orders for releasing all above benefits vide order dated 7th October 2014, 16th October 2014, 17th January 2015 and 30th January 2015, but have paid the applicant leave salary treating applicant's date of superannuation and last pay drawn as on 31st December 2008, but had not paid the difference of salary on account of Pay Revision w.e.f. 1st January 2006 for the period 1st January 2007 till 30th January 2008 for which even Hon'ble Division Bench has clarified that the applicant is entitled to the salary and the said salary is not to be recovered and the applicant had agreed to forgone was the salary for the period 1st February 2008 till 31st December 2008, period for which applicant could not render her actual service because her actual services because of interim order of this Hon'ble Court. 5.5 The applicant vide communication dated 28th February 2016 requested to the respondents and demanded difference in pay for the period 1st January 2007 till 31st December 2008 and permission and release of LTC benefit. However, finally the respondents have given vague reply stating that whatever was payable has been paid and nothing remains to be paid now to the applicant. The applicant therefore, issued notice for contempt of partial non compliance through advocate on 17th March 2016. Despite the receipt of the notice, the respondents did not respond at all in any manner. Therefore, the applicant initiated proceedings under contempt of Court against the respondents being Misc. Civil Application (For Contempt) No. 1393 of 2016. On hearing he said matter on 3rd May 2016 the Hon'ble Bench was of the opinion that in absence of any specific direction for payment of amount of difference of revision of wages and LTC for pre-retirement, the contempt may not lie and therefore, applicant had withdrawn the said contempt application with a liberty to take-out appropriate proceedings. Thereafter, the applicant immediately approached this Hon'ble Court by way of application seeking clarification and appropriate orders. Thus, the applicant did not receive the actual difference of salary admissible to her on account of pay revision w.e.f. 1st January 2006 for the period from 1st January 2007 to 30th January 2008, which resulted into applicant approaching this Court by way of contempt petition, which came to be disposed of by this Court giving liberty to the petitioner to take-out appropriate remedy as could be seen from the order dated 3rd May 2016 passed in Misc. Civil Application (For Contempt) No. 1393 of 2016, which reads as under :- "Shri R.P. Mankad, learned advocate for the applicant, seeks permission to withdraw this petition, with a view to take-out appropriate proceedings available under the law. Permission as sought for is granted. Matter is disposed of as withdrawn with aforesaid liberty. The withdrawal of this matter shall not be treated as an impediment in the remedy, that may be availed by the petitioner." 6. Hence, the present application. 7. The civil application is resisted by filing reply inter alia contending that the Court did not grant any positive direction. The applicant cannot claim actual difference in salary for the period in question. Hence, the present application. 7. The civil application is resisted by filing reply inter alia contending that the Court did not grant any positive direction. The applicant cannot claim actual difference in salary for the period in question. The counsel for the respondent placed heavy reliance upon the averments made in the affidavit-in-reply and surrejoinder to support the contention. 8. Learned advocate for the applicant invited Court's attention to the fact that the findings of the learned Single Judge and its confirmation by the Division Bench would leave no manner of doubt qua the fact that the applicant's date of birth, for reckoning her service and superannuation is 30th December 1950 instead of 30th December 1948 and the applicant's superannuation date if reckoned from the correct date of birth, then it would fall on 31st December 2008. Instead thereof reckoning the service from the incorrect date of birth, she was superannuated on 31st December 2006. She was to superannuated in the year 2006, however on account of learned Single Judge's order, she continued and during the pendency of appeal, the said order came to be passed on 24th January 2008, which resulted into her forced retirement on 30th January 2008. 9. Against this backdrop, the final direction needs to be read, which would unequivocally clear that the Court granted all the benefits when she actually worked and did not permit the actual salary for the remaining part of the service, for which she could not work on account of interim order. 10. Learned advocate for the applicant submitted that, it was the order which ought to have accepted in its true letter and spirit by all the concerned including respondent. As a result thereof, the difference in salary on account of 6th pay revision should have been admissible to the applicant atleast till the date when she actually worked, denial thereof is therefore, unfortunate, contrary to provision of law and observation of this Court. He further submitted that all the more, applicant is entitled to receive all other benefits also, but now it is not open to go into this aspect. The clarification application is therefore, required to be allowed. 11. Learned AGP for the respondent Nos. He further submitted that all the more, applicant is entitled to receive all other benefits also, but now it is not open to go into this aspect. The clarification application is therefore, required to be allowed. 11. Learned AGP for the respondent Nos. 1 and 2 submitted that in the operative part also, the Court has said that "no recovery" and the fore, in absence of any positive direction qua the payment of difference of salary on account of 6th pay revision, there cannot be any claim admissible on the part of the applicant to seek difference in salary for the period in question and this application is required to be dismissed. 12. The Court is of the opinion that the operative part of the order of the Bench, clarification whereof is sought in L.P.A. No. 544 of 2007 deserve to be set-out in order to appreciate the real direction in its true letter and spirit. Hence, the same is reproduced hereinbelow. "..... 6.1 Going by the records of the Case it is apparent that the present respondent worked for around 9 months pursuant to the impugned order passed by the learned Single Judge as the respondent was continued in service after she superannuated as per the retirement date in her service records. It is borne out that the respondent who entered into service on 03.11.1970 made a representation on 03.05.1974 for correction of date of birth. Thereafter, the seniority list which was published by the appellants right from 1980 to 1998 correctly stated her date of birth as 30.12.1950 and therefore, the respondent was under a bona fide impression that her date of birth was corrected in her service book. It was only in August 2000, when the seniority list was again published and it was reflected therein that the birth date was 30/12/1948, the respondent made a representation dated 15.07.2002 requesting correction of her birth date. Even after a number of representations and legal orders, the appellants finally rejected the representation of the respondent on 08.12.2014. It was only in August 2000, when the seniority list was again published and it was reflected therein that the birth date was 30/12/1948, the respondent made a representation dated 15.07.2002 requesting correction of her birth date. Even after a number of representations and legal orders, the appellants finally rejected the representation of the respondent on 08.12.2014. 6.2 In the peculiar facts and circumstances of the present case, we are of the opinion that the impugned order passed by the learned Single Judge is required to be confirmed and the birth date of the respondent is required to be considered as 30.12.1950 instead of 30.12.1948 but with a rider that the respondent shall not be entitled to the salary for the remaining period of service considering the fact that she did not work for around 11 years after the stay order passed by this Court. Accordingly, the following order is passed. 7. The date of birth of the respondent shall be taken as 30.12.1950 and accordingly her pension and retirement dues shall be calculated. However, she shall not claim salary for the remaining period of service but shall be given two increments as if she was in service and accordingly her pension shall be fixed. It is also made clear that the salary for the period she worked after superannuation as per the service records shall not be recovered. The entire exercise shall be undertaken within a period of six months from today. Appeal is allowed to the aforesaid extent." 13. A plain and simple reading of aforesaid direction would lead to the following conclusion. "(i) The Court has confirmed the findings recorded by the learned Single Judge to the birth date of the applicant is treated to be 30th December 1950 instead of 30th December 1948. (ii) As there was an interim order by the LPA Bench during the pendency of appeal dated 24th January 2008, the applicant had to retire and she was not permitted to complete the entire tenure of service, which would have ended on 30th December 2008 on the basis of her date of birth i.e. 30th December 1950. (ii) As there was an interim order by the LPA Bench during the pendency of appeal dated 24th January 2008, the applicant had to retire and she was not permitted to complete the entire tenure of service, which would have ended on 30th December 2008 on the basis of her date of birth i.e. 30th December 1950. The Court did not permit the applicant to receive actual salary for the remaining period of service, though Court did accept that the date of birth of the applicant is 30th December 1950 only on the ground that rightly, wrongly or otherwise when the applicant had not actually worked after 30th January 2008, till the order was passed or she attained the regular age of superannuation, she is not said to have been entitled to receive the actual salary. (iii) As against the aforesaid, the direction is unequivocally clear qua the applicant's date of birth is to be taken as 30th December 1950 and accordingly, her pension and retirement dues were directed to be calculated. But, she shall not claim salary for remaining period of service as two increments be given and pension be fixed accordingly. The Court has emphatically directed as under, which needs to be reiterated time and again. "It is also made clear that the salary for the period she worked after superannuation as per service record shall not be recovered." This direction of course though not cast as positive direction for making any other change, but it does restrain the State from recovering the same, which otherwise also could not have been permissible looking to the fact that the actual date of birth would have permitted petitioner to serve till 2008. (iv) The respondent in this civil application cannot be permitted to take advantage of this situation in denying what is legally admissible to the applicant as she has worked and performing her duties till 30th January 2008 and received salary. Now, the 6th Pay Commission revision has been effected on 1st January 2006 and therefore, whatever revision is effected is naturally passed on to all the employees and the applicant cannot be denied the same benefit on account of the direction, which has clearly been misinterpreted by the authorities in denying the same as it is evident from the reply and tenor of the reply." 14. In view of this, we are of the considered view that this application is required to be allowed in terms of prayer and it is directed that the applicant is entitled to receive the difference in salary on account of 6th Pay Revision from the period from 1st January 2007 to 30th January 2008 and as her counsel has submitted that she is giving-up her claim of LTC, the same is not treated to be as admissible Orders accordingly. Rule made absolute to the aforesaid extent. 15. It is hoped that this clarification will help the State in working-out the dues payable to the applicant and the same be paid within the period of four weeks from the date of receipt of this order.