Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 886 (GUJ)

Jerambhai Chhaganbhai v. State of Gujurat

2017-04-26

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The petitioner, by way of present petition under Article 226 of the Constitution of India, has prayed for issuance of appropriate writ/order for quashing and setting aside the order/letter dated 10.01.2007 (Annexure-C) and direct the respondents to fix and pay the pension to the petitioner on the basis of actual average pay earned by him during the last ten months' service and further to release the amount of Rs. 1,49,071/- with 10% interest. 2. Learned Assistant Government Pleader has placed on record the further affidavit-in-reply filed on behalf the respondent No. 2. The same is taken on record. 3. It is the case of the petitioner that he was serving as Armed Assistant Sub Inspector of Police in Surendranagar District and he retired on superannuation on 30.11.2005. The respondent No. 2 had passed orders dated 09.05.2006 and 09.06.2006 calling upon the petitioner to pay up an amount of Rs. 1,49,071/- being the alleged overpayment made to him on account of higher grade scale. Hence, the petitioner filed Special Civil Application No. 12461 of 2006. In the said petition by way of the interim order dated 11.08.2006, the respondents were directed to release other retiral benefits keeping aside the recovery of alleged overpayment. The said petition was finally disposed of by the judgment dated 22.11.2006 and the impugned orders dated 09.05.2006 and 09.06.2006 were ordered to be quashed and set aside and it was kept open to respondents to pass appropriate reasoned order after hearing the petitioner and keeping in mind the decision of the Supreme Court reported in 2006 (10) SCALE 89 . Thereafter the respondent No. 2, after hearing the petitioner, passed the order dated 10.01.2007 and maintained the earlier orders dated 09.05.2006 and 09.06.2006 mainly on the ground that since the petitioner had not passed the examination as per Rule 165(3) of the Gujarat Police Manual, Part-I, 1975, he is not entitled to the benefit of higher grade scale as envisaged in the Resolution dated 16.08.1994. Being aggrieved with the said decision the petitioner has filed the present petition on the various grounds as enumerated in the petition. 4. Learned advocate for the petitioner submits that the date of birth of the petitioner is 23.11.1947, and he completed 45 years of age on 23.11.1992. Being aggrieved with the said decision the petitioner has filed the present petition on the various grounds as enumerated in the petition. 4. Learned advocate for the petitioner submits that the date of birth of the petitioner is 23.11.1947, and he completed 45 years of age on 23.11.1992. He was promoted to the post of Assistant Sub Inspector of Police in August, 1986, and he had completed 9 years of service in that post on 06.08.1996, and accordingly, he was granted the higher pay scale. It is submitted that since the petitioner has completed 45 years of age on 23.11.1992 and prior to that no departmental examination was conducted by the respondents, in light of the judgment dated 13.12.2013 delivered by the Division Bench of this Court (Coram: Mr. Vijay Manohar Sahai and Mr. K.S. Jhaveri, JJ.) in Misc. Civil Application No. 3263 of 2012 and allied matters, the petitioner is entitled to get the benefit of higher grade pay scale. 5. Learned Assistant Government Pleader appearing for the respondent-State submits that the departmental examinations were conducted on 18.02.1996 for the post of RSI, and another examination was conducted from 15.04.1999 to 16.04.1999 for the post of RSI, and thereafter another examination was conducted on 06.04.2004 to 08.04.2004. It is further submitted that thereafter on 06.12.2005, another round of examination was conducted, but the petitioner had not appeared in the said examination and cleared the said examination. Therefore, in light of the Government Resolution dated 06.08.1994, the petitioner is not entitled to get the benefit of higher grade pay scale. The learned Assistant Government Pleader has also filed further affidavit-in-reply on behalf of the respondent No. 2 to this effect. 6. In response to the above submissions, learned advocate for the petitioner submits that the petitioner has completed 45 years of age on 23.11.1992, but prior to completion of 45 years of age, no such departmental examination was conducted. It is further submitted that from the further affidavit-in-reply filed on behalf of the respondent No. 2, it becomes clear that the departmental examination was conducted on 18.02.1996 i.e. subsequent to attaining the age of 45 years by the petitioner i.e. in November, 1992, and therefore, the petitioner's case deserves consideration in light of the judgment of the Division Bench referred to and relied upon by him. 7. 7. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioner has completed 45 years of age on 23.11.1992. From the further affidavit-in-reply filed by the respondent No. 2, it becomes clear that the departmental examination was conducted on 18.02.1996 for the post of RSI, and thereafter subsequent rounds of examinations were conducted in 1999, 2004 and 2005, respectively. Thus, it is an admitted fact that the departmental examination was not conducted prior to completion of 45 years of age by the petitioner on 23.11.1992. 8. In view of the aforesaid facts, the judgment dated 13.12.2013 delivered by the Division Bench of this Court in case of State of Gujarat and Others v. Ramkumar Kalluram Yadav in Misc. Civil Application No. 3263 of 2012 and allied matters is squarely applicable to the facts of the present case. The relevant abstract of the said judgment is reproduced here-in-below: "3. Mr. N.J. Shah, learned AGP appearing for the applicant State submitted that the respondents have been held to be eligible for HGS for PSI without passing the DPE for PSI on the basis of the provisions of Government Resolution dated 01.01.1999. He submitted that the said Government Resolution dated 01.01.1999 of the General Administration Department is to exempt those employees who have completed 45 years of age by the time the departmental examination was held or may be held for the first time after framing of the rules for DPE. He submitted that the resolution dated 01.01.1999 is applicable only to those employees in whose case the rules of departmental examination are not framed or delay in framing of rules of departmental examination has prevented the DPE to be conducted before the employee reaches 45 years of age. He submitted that however the said Government Resolution which is going to the root of the matter could not be placed before the learned Single Judge as well as before the Division Bench. 4. Mr. M.V. Dhotre, learned advocate appearing for the respondents- original petitioners submitted that no ground has been made out for exercising power of review. He submitted that this Court has construed two resolutions and appreciated the fact as were made available before the Court and therefore the applicant State cannot be permitted to challenged under the guise of review of merits of the order. He submitted that this Court has construed two resolutions and appreciated the fact as were made available before the Court and therefore the applicant State cannot be permitted to challenged under the guise of review of merits of the order. He submitted that the applicant State is now estopped from challenging the order dated 28.09.2011 by developing a completely new stand which fell for consideration before the learned Single Judge. 5. We have gone through the impugned order and the materials placed on record. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. It is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. 5.1 Now, it is an admitted fact that the Government Resolution dated 01.01.1999 so assiduously collected and placed before us by the learned Assistant Government Pleader was never brought to the attention of the learned Single Judge or the Division Bench of this court. We are of the opinion that the applicants cannot be permitted to rely on the same in the present review application. Therefore, considering the fact that the materials relied upon by learned AGP at this stage though were available at the relevant time but were not produced by the State, it shall not be appropriate to allow the applicant State to fill in the lacuna created by them and the same shall not be appropriate more particularly in review applications. 6. In the result, applications are rejected. Rule is discharged. No costs." 9. Another decision dated 29.07.2003 delivered by this Court (Coram: Mr. H.K. Rathod, J.) in Special Civil Application No. 10772 of 2003, is also applicable to the facts of the present case. 6. In the result, applications are rejected. Rule is discharged. No costs." 9. Another decision dated 29.07.2003 delivered by this Court (Coram: Mr. H.K. Rathod, J.) in Special Civil Application No. 10772 of 2003, is also applicable to the facts of the present case. The relevant abstract of the said judgment is reproduced here-in-below: "...As regards his submission that the respondent employee is not entitled for such benefit from the date on which he completed nine years service, as subsequently also, he has not passed the examination, it has to be kept in mind that whatever government resolutions issued by the State Government would equally apply to each and every employee of the State and the State authority normally would not adopt discriminatory treatment which is hit by Article 14 of the Constitution of India. Admittedly the departmental examination was held for the first time in the year 1994, on 17th September, 1994 whereas the respondent employee has completed 45 years of age prior to that examination and has also completed nine years service prior to that examination. There was lapse on the part of the State Government in not holding the departmental examination prior to 1994 and for such lapse on the part of the State Authority, the respondent cannot be asked to suffer. The GR/Notification dated 9th July, 1976 is giving right to such employees who have completed 45 years, they are exempted from passing of the departmental exhumation. This practice had continued since 1976 This is being changed by the GR dated 6.4.1998. Therefore, since the examination has been held on 17th September, 1994 and if any employee has completed the age of 45 years prior to the said examination, then, such employee is entitled for exemption from passing or clearing such examination, naturally, once the respondent employee is entitled for such benefit on the basis of some GR of the State Government, and also the benefit of nine years with effect from the date of his completion of nine years service 27th August, 1993, then, it is not necessary for such an employee, namely respondent herein to pass the departmental examination after completion of the age of 45 years in view of the benefit of GR dated 6.4.1998 available to him. In my opinion, this is nothing but a coincidence in service which is giving certain benefits to the respondent employee arising from the basic resolution of granting nine years benefit. In view of that, there is nothing wrong for the respondent employee to claim benefit with effect from 27.8.1993 though subsequently he has not cleared the departmental examination and there is also no need to pass the same because of the GR dated 6th April, 1998 as he completed the age of 45 years on 7th August, 1992 and the examination was held for the first time in the year 1994. Therefore, naturally, he is entitled for the benefit of the GR dated 6.4.1998. Therefore, there is nothing wrong to grant such benefit to the respondent employee with effect from the date on which he completed nine years of service and in granting such benefit to the respondent employee, tribunal has not violated any condition of the GR dated 6.4.1998. Even otherwise, no such submission were made by the petitioner before the tribunal. Even Mr. Desai has also not been able to point out that in the parawise remarks submitted before the tribunal, such remarks were made by the department concerned. Therefore, there is no substance in the additional submissions made by the learned AGP Mr. Desai for the petitioner State. Hence the above order shall stand." 10. In view of the aforesaid discussion, the present petition is allowed. The impugned order/letter dated 10.01.2007 is quashed and set aside. The respondents are directed to give the benefit of higher grade pay scale to the petitioner, and accordingly fix the pay and pension of the petitioner on the basis of actual average pay earned by him during the last ten months' service. The respondents are also directed to release the amount of Rs. 1,49,071/- with 6% interest per annum. The above exercise shall be completed within a period of two months from the date of receipt of this order. 11. Rule is made absolute accordingly. No order as to costs. Petition Allowed