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Gujarat High Court · body

2017 DIGILAW 15 (GUJ)

R. N. Prajapati v. State of Gujarat

2017-01-10

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The petitioner, by way of the present petition under Article 226 of the Constitution of India, has prayed for quashing and setting aside the impugned orders dated 20.07.2004, 12.04.2005 and 10.02.2006 at Annexures-T, W and Y respectively and directing the respondent Nos. 1 and 2 to grant higher pay scale of Rs. 8000-13500 to the petitioner in the cadre of Registrar Class-II with effect from 03.09.1996 and to grant all other consequential benefits with 12% interest per annum. 2. The brief facts giving rise to the present petition are as under: 2.1 The petitioner was initially appointed as Section Writer in District Court, Ahmedabad on 02.03.1965 in the pay scale of Rs. 100-175 and thereafter, on 14.06.1965, he was promoted as Junior Clerk in the same pay scale, but he was granted two increments while fixing his pay as Junior Clerk. Thereafter, the Gujarat Secondary Education Tribunal constituted under the Gujarat Secondary Education Act, 1972 and the Hon'ble Mr. Justice A.A. Dave came to be appointed as the First Tribunal. By Government Resolution dated 21.05.1974, the State Government sanctioned 8 posts which are as under: Sr. No. Name of Post Number of Posts Pay scale Gazetted 1. Registrar One 350-850 Non-Gazetted 2. Stenographer Grade II One 250-550 3. Bench Clerk One 200-340 4. Senior Clerk One 200-340 5. Junior Clerk One 130-240 6. Typist One 130-240 7. Naik One 90-110 8. Peon One 90-110 2.2 Thereafter, the Tribunal made recruitment of the staff members and by Office Order dated 30.08.1974, the present petitioner and one Mr.B.C. Joshi, Junior Clerk working on the establishment of the District Court, Ahmedabad (Rural) at Narol came to be appointed as Senior Clerk and Bench Clerk respectively on the establishment of the Tribunal in the pay scale of Rs. 200-340. On 14.11.1978, Mr.B.C. Joshi came to be appointed as Registrar in the Tribunal and the petitioner was made Bench Clerk in the same pay scale as that of the Senior Clerk by order dated 14.11.1978. Though the said order was worded as an order of promotion, in fact, this was not a promotion and no additional increments were granted to the petitioner. The petitioner served as Bench Clerk from 14.11.1978 to 02.09.1987. With effect from 02.09.1987, Mr.B.C. Joshi was transferred as Registrar of the another Tribunal viz. Though the said order was worded as an order of promotion, in fact, this was not a promotion and no additional increments were granted to the petitioner. The petitioner served as Bench Clerk from 14.11.1978 to 02.09.1987. With effect from 02.09.1987, Mr.B.C. Joshi was transferred as Registrar of the another Tribunal viz. Gujarat Primary Education Tribunal, and the petitioner was promoted as Registrar of the Gujarat Secondary Education Tribunal on 03.09.1987 by order dated 02.09.1987. It is the case of the petitioner that on completion of nine years service in the cadre of Registrar, the petitioner became entitled to the first higher grade pay scale, and therefore, the Tribunal vide its communication dated 01.02.2000 sanctioned first higher grade pay scale to the petitioner. The petitioner, who was serving as Registrar in the pay scale of Rs. 6500-200-10500, was placed in the first higher pay scale of Rs. 8000-275-13500 at the basic pay of Rs. 8275/- with effect from 03.09.1996. Thereafter, the aforesaid office order granting first higher pay scale was forwarded to the respondent No. 2 for verification by letter dated 03.02.2000. The respondent No. 2 raised queries by letter dated 01.03.2000 and it was replied by the Tribunal on 29.03.2001. Thereafter, again queries were raised from time to time and the Tribunal has replied to all the queries raised by the State Government. Ultimately, the State Government, vide its communication dated 20.07.2004, passed an order that the petitioner is not entitled to get the benefit of first higher grade pay scale since during his service tenure, he has given three promotions. The Tribunal, once again, tried to justify the stand taken by it that the benefit of higher grade pay scale given to the petitioner was in accordance with law, but still however, the respondent-State Government has reiterated its decision vide its communication dated 12.04.2005. In the meantime, the petitioner reached to the age of superannuation and retired from the services on 31.10.2004. However, the correspondence between the Tribunal and the State Government continued and ultimately, the State Government, vide its communication dated 10.02.2006, intimated the Registrar of the Tribunal that there is no scope for reconsideration or review the decision which was taken earlier. 2.3 Being aggrieved and dissatisfied with the said decision, the petitioner approached this Court by way of the present writ petition. 2.3 Being aggrieved and dissatisfied with the said decision, the petitioner approached this Court by way of the present writ petition. The Coordinate Bench of this Court, vide its detailed interim order dated 29.06.2007, passed an interim order and directed the respondents to continue the higher grade pay scale which was sanctioned in favour of the petitioner. Since the petitioner has retired by that time, the direction was given to the effect that even retiral benefits should be continued on the basis of last drawn salary which was the higher grade which was sanctioned in favour of the petitioner. The said order passed in SCA No. 20850/2006 was challenged by way of filing Letters Patent Appeal No. 772/2008 and the Division Bench of this Court vide its order dated 30.07.2010 passed the following order: "Present Letters Patent Appeal is filed against the interim order dated 29.06.2007 passed by learned Single Judge of this Court in Special Civil Application No. 20850 of 2007. Heard the learned counsel for the parties. Present appeal is filed against the interlocutory order. Both the parties are agreed that instead adjudicating the interlocutory order, the parties may be permitted to make mention before the learned Single Judge for final hearing of Special Civil Application No. 20850 of 2007. In view of the above, we are not entering into the merits of the case. Office is directed to post Special Civil Application No. 20850 of 2007 for hearing before the concerned Bench where the parties may make mention for hearing. In view of the aforesaid order, no consequences will be ensued pursuant to the order of the learned Single Judge. The Letters Patent Appeal is disposed of accordingly." 3. Mr. K.B. Pujara, learned advocate appearing for the petitioner submits that the petitioner was eligible and entitled to get the benefit of first higher grade pay scale on completion of nine years in the cadre of Registrar. It is submitted that the policy of the State Government for extending the benefit of higher grade is prescribed in the Government Resolution dated 16.08.1994, wherein Clause-3 of the said policy provides that the employee, who has completed nine years of service in the concerned cadre, is eligible and entitled to get the benefit of higher grade pay scale. The only rider, which was put in the said policy, is with regard to the grant of number of promotions. The only rider, which was put in the said policy, is with regard to the grant of number of promotions. As per the said policy, the employee should not have been granted more than two promotions. Learned advocate further submits that during the entire service career of the petitioner, he was granted only one promotion which was granted after his appointment in the Tribunal as Registrar from the post of Bench Clerk. Learned advocate further submits that the State Government is treating first promotion of the petitioner from Section Writer to the post of Junior Clerk on 14.06.1965 by releasing two increments and the second promotion, which was treated by the State Government, is after his appointment from the Tribunal from the post of Senior Clerk to Bench Clerk. In this context, learned advocate further submits that though in the office order, the word "promotion" was used, but it was in the same cadre and in the same pay scale. Therefore, in reality, it was not a promotion, but inadvertently, the word "promotion" was used and subsequently, at the time of justifying the queries raised by the State Government, the explanation was given by the Tribunal that it was a fresh appointment in the Tribunal and it was merely a transfer of the petitioner from the post of Senior Clerk to the post of Bench Clerk and no fixation of pay scale was done nor any increment was released upon the said fixation as required under the Rules for grant of promotion. Therefore, the transfer from the post of Senior Clerk to Bench Clerk cannot be treated as promotion. It is submitted that this aspect was elaborately explained by the Tribunal from time to time to the respondent-State Government, but unfortunately, the State Government has not considered in its true perspective. It is further submitted that the petitioner was given promotion from the post of Bench Clerk in the year 1987 as Registrar. According to learned advocate for the petitioner, this was the first promotion in the entire service career of the petitioner. It is further submitted that the petitioner was given promotion from the post of Bench Clerk in the year 1987 as Registrar. According to learned advocate for the petitioner, this was the first promotion in the entire service career of the petitioner. However, assuming that from the post of Section Writer to the post of Junior Clerk on 14.06.1965 is treated as first promotion than in that case the promotion from the post of Bench Clerk to the post of Registrar, after his appointment in the Tribunal in the year 1987, was the second promotion and on completion of nine years, on the post of Registrar Class-II in the same cadre and in the same pay sale, the petitioner became eligible and entitled to get first higher grade pay scale in the year 1996 even as per the Government Resolution. However, the State Government has denied the benefit for which the petitioner is legally entitled to get the benefit. Learned counsel further submits that the petitioner is constrained to approach this Court on account of final decision conveyed by the State Government on 10.02.2006 and at that time, while passing an interim order, the Coordinate Bench of this Court permitted the petitioner to draw the salary of Registrar in the higher grade scale Rs. 8000-13500 and since the petitioner retired, in the meantime, the direction was given to the effect that even retiral benefit should also be given on the basis of higher grade, but the said order could not be executed as the State Government has preferred Letter Patent Appeal against the said order. In the said L.P.A., the Hon'ble Division Bench of this Court has asked both the parties to pray for early hearing of the writ petition before the learned Single Judge and it is also clarified while passing the said order that the petitioner will not claim any benefit under the said order. In the said L.P.A., the Hon'ble Division Bench of this Court has asked both the parties to pray for early hearing of the writ petition before the learned Single Judge and it is also clarified while passing the said order that the petitioner will not claim any benefit under the said order. Learned counsel further submits that the petitioner has served for more than about 39 years and during his lifetime, he has enjoyed only two promotions and as per the Government Policy, the petitioner is eligible and entitled to get the first higher grade on completion of nine years on the post of Registrar in the same cadre and in the same pay scale in the year 1996, but unfortunately, the State Government has not considered the case of the petitioner in accordance with law. Though, time and again, it has been explained by the Tribunal to the State Government, learned advocate further submits that the Tribunal being the head of the department under the financial Rules is empowered to take decision with regard to grant of higher grade scale and at the time of passing of the order for extending the benefit of higher grade, the entire service record of the petitioner was examined, but unfortunately, thereafter, the State Government has taken negative view in the matter and thereby, the petitioner is deprived from getting the benefit of first higher pay sale with effect from 03.09.1996. 4. Learned AGP appearing for the respondent-State has tried to justify the action of the respondent-State Government by submitting that as per the Government Policy, the employee/officer is not eligible and entitled to get benefit of first higher grade pay scale if he has enjoyed three promotions during his service tenure. 4. Learned AGP appearing for the respondent-State has tried to justify the action of the respondent-State Government by submitting that as per the Government Policy, the employee/officer is not eligible and entitled to get benefit of first higher grade pay scale if he has enjoyed three promotions during his service tenure. In the instant case, according to learned AGP, the petitioner has enjoyed following three promotions during his service tenure:- "(i) After his initial appointment on 14.06.1965 from the post of Section Writer to Junior Clerk; (ii) After his appointment in the Tribunal from the post of Senior Clerk to the Bench Clerk; (iii) After his appointment in the Tribunal from the Bench Clerk to Registrar;" Thus in all three times, the petitioner was promoted during his service tenure, and therefore, the benefit available under the Government Resolution for grant of higher pay scale may not be available to the petitioner, and therefore, the decision taken by the State Government is correct and in accordance with the policy and the Rules. 5. Regard being had to the above submissions, looking to the facts and circumstances of the present case, it appears that the petitioner was appointed on the establishment of the District Court, Ahmedabad (Rural), Narol on 02.03.1965, and thereafter, on 14.06.1965, he was granted promotion to the post of Junior Clerk from the post of Section Writer. Though the pay scale was same, two increments were released in favour of the petitioner. Thereafter, on creation of the Gujarat Secondary Education Tribunal, the establishment was sanctioned by the State Government and the Tribunal has undertaken the task of recruitment on the various posts sanctioned for the Tribunal. The petitioner was appointed as Senior Clerk on the establishment of the Tribunal. Thereafter, he was promoted to the post of Bench Clerk vide order dated 14.11.1978. Although the said order provides that it was a promotion from the post of Senior Clerk to the Bench Clerk, but the pay scale was same and it was inter transferable post. For the sake of administrative convenience, the petitioner was asked to work as Bench Clerk in the same pay scale. Therefore, in reality, it was not a promotion, but it appears that inadvertently, the word "promotion" was used in the said order and the said word has created difficulty in availing the benefit of first higher grade pay scale to the petitioner. Therefore, in reality, it was not a promotion, but it appears that inadvertently, the word "promotion" was used in the said order and the said word has created difficulty in availing the benefit of first higher grade pay scale to the petitioner. The petitioner was promoted to the post of Registrar on 02.09.1987 effective from 03.09.1987 from the post of Bench Clerk and thereafter, he has completed nine years on the said post continuously. In the resolution passed by the State Government for providing benefit of higher grade pay scale dated 16.08.1994, Clause 3 provides that for the purpose of getting benefit of higher grade scale, the employee/officer shall have completed nine years services on the concerned cadre and the pay scale. In the instant case, the petitioner has completed nine years in the same cadre and in the same pay scale and he became eligible to get the first higher grade pay scale in the year 1996. Accordingly, the Tribunal passed an office order after examining the service record of the petitioner and extended the benefit of higher grade pay scale vide its order dated 01.02.2000. The Tribunal under the financial Rules being head of the department is empowered to pass the said order and the said order is required to be treated as final, but for the purpose of verification and confirmation, the said order was forwarded to the State Government and the State Government has started raising various queries and all the quarries raised by the State Government have been answered by the Tribunal and the Tribunal has tried to justify its stand for extending the benefit of higher grade pay scale to the petitioner. The position with regard to the grant of promotion from the post of Senior Clerk to Bench Clerk is also explained by the Tribunal. In reality, it was not a promotion, but inadvertently, the word "promotion" was used in the office order. In fact, the pay scale of the post of Senior Clerk and the post of Bench Clerk is also same. As per the recruitment Rules for grant of promotion to the post of Registrar, these are two feeder cadres viz. person working as Bench Clerk or Senior Clerk is eligible for appointment for the post of Registrar Class-II in the Tribunal. As per the recruitment Rules for grant of promotion to the post of Registrar, these are two feeder cadres viz. person working as Bench Clerk or Senior Clerk is eligible for appointment for the post of Registrar Class-II in the Tribunal. Likewise, for the appointment to the post of Bench Clerk, the promotion shall be made of a person to be proved merit and efficiency from amongst the persons working as Junior Clerk, Typist or Clerk-Typist on the establishment of the Tribunal. The notification issued by the State Government dated 17.01.1978, which is placed on record (at Page-72 of the petition), is also very clear in this regard. Likewise, the notification dated 29.01.1981 issued by the State Gujarat with regard to the appointment to the post of Registrar Class-II is also very clear (at Page-212 of the petition). Therefore, at no stretch of imagination, the promotion from the post of Senior Clerk to the Bench Clerk as treated by the State Government can be treated as promotion and on this count, the petitioner cannot be denied the benefit of higher grade pay scale which was available to him in the year 1996 on completion of nine years on the post of Registrar. 6. From the material on record, it becomes clear that the petitioner is legally entitled to get the benefit of first higher grade scale, and therefore, all the three above orders dated 20.07.2004, 12.04.2005 and 10.02.2006 passed by the State Government are ordered to be quashed and set aside. 7. The respondent Nos. 1 and 2 are directed to grant higher grade pay scale of Rs. 8000-13500 to the petitioner in the cadre of Registrar, Class-II with effect from 03.09.1996 with all consequential benefits with interest 6% per annum, within a period of three months from the date of receipt of this judgment. 8. It also appears that the petitioner has died during the pendency of this petition without enjoying benefit of higher grade pay scale. However, the legal heirs of the petitioner are brought on record and the respondent-State Government shall extend the benefit of the higher grade pay scale and consequential pensionary benefits to the legal heirs of the petitioner without any further delay. 9. In view of the above observations and directions, the petition is disposed of. Rule is made absolute accordingly. Direct Service is permitted.