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Gujarat High Court · body

2017 DIGILAW 184 (GUJ)

Samuel Gopalbhai Makwana v. State of Gujarat

2017-01-24

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. Prabhakar Upadhyaya for the petitioner and learned AGP Ms. Amita Shah for respondent. Perused the record. Petitioner has sought indulgence of this Court under Article 14, 16 and 226 of the Constitution on India and prayed for a direction to quash and set aside the impugned order dated 27.11.2008 whereby benefit of higher pay scale pursuant to government's policy and Government Resolution dated 31.03.1978 has been refused to the petitioner contending that petitioner has been granted three promotions during his service career and, therefore, now he is not entitled to such higher grade. Petitioner has also prayed for declaration that petitioner is legitimately entitled to the benefit of higher pay scale on completion of 9 years of services on 13.06.1993 i.e. by completing 9 years from the date after his second and last promotions on 13.06.1984 and thereby he is entitled to even second higher grade benefit with effect from 13.06.2002 counting a year from the 13.06.1993. Petitioner has also prayed for further directions to the respondent authority to fix the basic pay of the petitioner by releasing both the higher grade pay from 13.06.1993 and 13.06.2002 and to pay consequential benefits and allowances which otherwise petitioner is entitled to under the prevailing rules and regulations. Petitioner has also prayed for arrears with 18% interest on fixation of such higher pay grade. 2. It is undisputed fact that petitioner has joined his services with the respondent as Packer-cum-Shorter with effect from 25.11.1997. He was promoted to the post of Junior Technical Assistant (Leave Reserved) on 19.04.1973. Thereafter, as there was a post of Junior Technical Assistant, by letter dated 31.03.1978, petitioner was confirmed on the post of Junior Technical Assistant, copy of which is annexed at Annexure B. Perusal of such Office Order simply confirms that petitioner has been posted as Junior Technical Assistant from Junior Technical Assistant (Leave Reserved) on same salary and allowance and, therefore, such order cannot be taken as order of promotion. Because, petitioner was never granted a higher post and there was no financial benefits or change in pay scale or salary by such post. Because, petitioner was never granted a higher post and there was no financial benefits or change in pay scale or salary by such post. At such time of posting, respondents have there Recruitment Rules with effect from 20.03.1985 which were revised somewhere on 20.10.1986 but such rules also confirm that the post of Junior Technical Assistant and Junior Technical Assistant (Leave Reserved) are not different posts but they are equal in nature carrying same basic salary also with only one difference i.e. nomenclature of the post as Junior Technical Assistant and "Junior Technical Assistant (Leave Reserved)". If we peruse such Rules, which are annexed at RI at page 119 it becomes clear that it is Junior Technical Assistant/Junior Technical Assistant (Leave Reserved) Rules, 1985 wherein Sub-rule (2) specifically reads as under: "2. Appointment to the post of Junior Technical Assistant/Junior Technical Assistant (Leave Reserved) shall be made either - a. by promotion of a person of proved merit and efficiency from amongst the person working as packer -cum - sorter, Class-III in Government Photo Registry for a period of three years or b. by direct selection." 3. Bare reading of such rule, makes it clear that either Junior Technical Assistant or Junior Technical Assistant (Leave Reserved), person can be appointed by promotion from the post of Packer-cum-Shorter. Therefore, post of any person like present petitioner from the designation Junior Technical Assistant (Leave Reserved) to Junior Technical Assistant cannot be said to be a promotion as considered by the respondent, because Rule itself confirms that promotion can be granted from the post of Packer - cum - Shorter and such promotion was granted to the petitioner in the year 1983 and, therefore, it cannot be said that petitioner was again promoted from the post of Junior Technical Assistant (Leave Reserved) to the post of Junior Technical Assistant. 4. Unfortunately, though the facts are very much clear as discussed herein above, probably respondent are relying upon the words of the petitioner in his representation dated 13.03.1978 when one Packer - cum - Shorter namely Mr. K.V. Shukla was directly promoted as Junior Technical Assistant though petitioner was available as Junior Technical Assistant (Leave Reserved) to work and function as Junior Technical Assistant (Regular). K.V. Shukla was directly promoted as Junior Technical Assistant though petitioner was available as Junior Technical Assistant (Leave Reserved) to work and function as Junior Technical Assistant (Regular). However, it becomes clear that pursuant to the Rules which are referred herein above Packer cum Shorter can certainly be promoted as Junior Technical Assistant, it cannot be said by any stretch of imagination that, when Recruitment Rules and other documents confirmed that posts of Junior Technical Assistant and Junior Technical Assistant (Leave Reserved) are similar then post of petitioner with designation of Junior Technical Assistant (Leave Reserved) to the post of Junior Technical Assistant has to be treated as promotion, more particularly when there is no difference in pay scale in any manner whatsoever for both such designations. 5. In support of his claim, petitioner has also relied upon an office order dated 05.07.1994. Copy of which is produced at Annexure D, wherein in fact at the relevant time, respondents have considered that petitioner is entitled to first higher pay grade for not getting promotion for 9 years since his last promotion was on 1984. However, such benefit was kept reserved at the relevant time and, therefore, petitioner has to prefer one Special Civil Application No. 8128 of 2007. Pursuant to directions dated 26.03.2007 in such Special Civil Application, it seems that, respondents have now decided the issue of keeping the benefit reserved inspite of releasing it in favour of the petitioner and disclosed in such order dated 17.11.2007 that petitioner has been promoted on three occasions i.e. on 19.04.1973 as Junior Technical Assistant (Leave Reserved) from the post of Packer cum Shorter, then in 1978 from the post of Junior Technical Assistant (Leave Reserved) to the post of Junior Technical Assistant and then on 13.06.1984 to the post of Senior Technical Assistant from the post of Junior Technical Assistant. However, as discussed herein above order dated 31.03.1978 can never be considered as order of promotion since it was the posting in the same cadre with only difference of designation i.e. from the Junior Technical Assistant (Leave Reserved) to Junior Technical Assistant and more particularly on same salary. 6. However, as discussed herein above order dated 31.03.1978 can never be considered as order of promotion since it was the posting in the same cadre with only difference of designation i.e. from the Junior Technical Assistant (Leave Reserved) to Junior Technical Assistant and more particularly on same salary. 6. So far as Criminal Case is concerned, when petitioner has been acquitted from such criminal case pursuant to judgment and order dated 05.02.1999 in Criminal Case No. 3558 of 1992, though petitioner was acquitted from all the charges and, therefore, respondents are required to consider his case as if there is no negative endorsement in his service record except there is any other departmental inquiry or findings against the petitioner. However, when respondents have not considered judgment of criminal case in proper perspective, the petitioner has no option but to file Special Civil Application No. 3555 of 2008, wherein the co-ordinate bench of this Court has specifically made it clear that the order of not granting higher pay scale was based on the ground that there were some adverse entries in the year 2006-2007 regarding pendency of criminal case. These adverse entries could not have been considered, when such criminal case has resulted into acquittal and, therefore, the order was declared bad in the eye of law and same was set-aside. The State Government was directed to consider the case of the petitioner as if there is no adverse entries during relevant period. It seems that pursuant to such direction by the High Court when petitioner was entitled to the benefit of higher grade, unfortunately by impugned order dated 27.11.2008 respondents have reiterated the same story by disclosing that since petitioner has been promoted on three different occasions, now he is not entitled to the benefit of higher pay grade, which is to be granted only when any employee is not promoted more than twice and when he has completed 9 years in same cadre. 7. Though facts in present case are absolutely clear respondents have resisted the petition by filing reply dated 30.03.2009 simply reiterating the defence which is discussed herein above. Therefore, there is no substance in such affidavit in reply so as to deny the benefit to the petitioner as claimed for in this petition. 7. Though facts in present case are absolutely clear respondents have resisted the petition by filing reply dated 30.03.2009 simply reiterating the defence which is discussed herein above. Therefore, there is no substance in such affidavit in reply so as to deny the benefit to the petitioner as claimed for in this petition. One additional affidavit in reply is filed on 24.04.2009 while annexing the representations dated 13.03.1978 so also 15.03.1978 but as discussed herein above, few wordings in such representation would not change the factual scenario on service record of the petitioner, in as much as, only because petitioner has represented that when Junior Technical Assistant (Leave Reserved) was available, there is no need to promote Mr. K.V. Shukla as Junior Technical Assistant. Considering the grievance of the petitioner when respondent has no option but to promote and thereby to post the present petitioner from the Junior Technical Assistant (Leave Reserved) to Junior Technical Assistant, now respondent is like layman contending before the Court that when petitioner was replaced in place of Mr. K.V. Shukla, who was originally Packer cum Shorter, the petitioner is not entitled to the higher pay scale. A superior government officer is taking such plea both in office order and in pleadings before the Court that because of the representation of the petitioner, promotion of K.V. Shukla from the post of Junior Technical Assistant is reverted back to the post of Packer cum Shorter and, therefore, post of Junior Technical Assistant given to the petitioner is to be treated as a promotion. 8. Otherwise the other Annexure with this affidavit specifically confirms that salary of both the designations i.e. Junior Technical Assistant (Regular) and Junior Technical Assistant (Leave Reserve) are similar and as discussed hereinabove both the posts are similar. 9. Petitioner has filed affidavit in rejoinder on 8.4.2009 clarifying the position which is otherwise as discussed hereinabove and confirming that the case of the petitioner falls within the criteria of Clause 3 of the Government Resolution dated 16.8.1984 and that the averments in affidavit in reply by the respondents are contrary to the communication dated 28.6.1984. 9. Petitioner has filed affidavit in rejoinder on 8.4.2009 clarifying the position which is otherwise as discussed hereinabove and confirming that the case of the petitioner falls within the criteria of Clause 3 of the Government Resolution dated 16.8.1984 and that the averments in affidavit in reply by the respondents are contrary to the communication dated 28.6.1984. There is substance in such submission since the petitioner has not been promoted after 1984 and, therefore, when posting as Junior Technical Assistant on 31.3.1978 could not be considered as promotion, petitioner has not been promoted for more than twice during his service period and, therefore, he is entitled to get higher grade which is otherwise considered at the relevant time to get any pension without assigning any reasons and when reasons were called for, it was contended that because of criminal proceedings pending against the petitioner, his case was not considered at the relevant time. But when the petitioner has been acquitted from the criminal proceedings, now, the respondents have found out one another reason that he was promoted on three occasions and, therefore, he is not entitled for the benefits. In further affidavit dated 13.2.2016, petitioner has produced relevant recruitment rules which are discussed hereinabove and makes it clear that both the posts are similar and not promotional posts having same scale. 10. Learned advocate for the petitioner has pointed out that the petitioner has retired with effect from 30.9.2009 on attaining age of superannuation pending this petition and, therefore, now, respondents have to calculate the arrears in salary during his service period so also arrears in retirement benefits and pension. 11. In view of above facts and circumstances, when facts are very much clear on record, there is no reason but to allow this petition, as prayed for. Thereby, petition is allowed, as prayed for in terms of Paragraph 17(B) and (C). The respondent shall carry out and complete the requisite formalities within four months from the date of receipt of Writ of this order and shall pay all the arrears to the petitioner by extending benefit of both, first and second grade and that to fix Revised Retiral Benefits so also revised pension and to release all such arrears and benefits from due date with 6% interest thereon. If respondents fail to pay arrears within four months, then they have to pay interest @ 9% on entire amount, without fail. 12. Rule is made absolute to the aforesaid extent. Direct Service is permitted.