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2019 DIGILAW 1000 (GUJ)

Kantibhai Rajabhai Manpara v. Executive Engineer

2019-10-21

A.S.SUPEHIA

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JUDGMENT : A.S. Supehia, J. 1. At the outset, learned advocate Ms. Anuradha Rathod for Mr. G.K. Rathod for the petitioner has submitted that the issue raised in the present writ petition is squarely covered by the various decisions of this Court. One of such decision is dated 20th September, 2019 passed in Special Civil Application No. 15699 of 2019. 1.1. She has submitted that the benefits of 6th Pay Commission is denied to the petitioner only on the ground that he was appointed after 17th October, 1988 in view of the cut off date, provided in the Resolution dated 17th October, 1988. 1.2. She has submitted that the issue was considered by this Court in another petition, wherein this Court has held that the benefits of 6th Pay Commission cannot be denied to the employees on the basis of cutoff date and hence the respondents were directed to take decision and to pay such benefits within 10 weeks. 2. Learned Assistant Government Pleader Mr. Ishan Joshi appearing for respondent-State has submitted that the impugned communication dated 4th July, 2011 cannot be set aside since the petitioners are appointed after the cut off date i.e. 1st October, 1988 and hence he is not entitled for 6th Pay Commission since no G.P.F. account was open in his name. 3. In the present case, the petitioner was appointed with the respondent department on 21st August, 1989 and after completion of 10 years of continuous services, the petitioner was put in the pay-scale of Rs. 750-12-870-14940 with effect from 1st January, 2001 and the entry was made to that effect in his Service Book. The petitioner has made various representations to the respondent authorities to confer the benefits of 6th Pay Commission. However, vide impugned communications dated 4th July, 2011, 22nd July, 2011 and 10th October, 2011, such benefit is denied to the petitioner in view of the cut off date, provided in the resolution dated 17th October, 1988 4. The Coordinate Bench in Judgment dated 20th September, 2019 passed in Special Civil Application No. 15699 of 2019 after considering the analogous issue referred to herein above, has directed the respondent authorities to grant the benefits of 6th Pay Commission by holding that the decision of the respondent authorities to deny such benefits on the ground of cut off date is in valid in eye the of law. 5. 5. The Coordinate Bench has observed thus;- "5. The identical issue arose in case of Kalubhai Nathubhai Sonegara (supra). What is discussed, observed and held in paragraphs 5.1 to paragraph 6 in decision in Kalubhai Nathubhai Sonegara (supra) directly applies to the present case. They are as under. "5.1 In Patel Tarunkumar Shankarlal v. State of Gujarat being Special Civil Application No. 12527 of 2013 with cognate petition, the petitioners were the employees of Gujarat Maritime Board who were workcharge employees appointed after 31st March, 1989. Their grievance was similar to one involved in the present petition and that they were not given benefits of 6th Pay Commission, although all the workcharge employees appointed prior to 31st March, 1989 were granted the benefits. While contesting the said petition, respondents relied on Circular dated 31st March, 1989 of the Road & Building Department adopted by it, which was in connection with the State Government Resolution dated 17th October, 1988 and according to the said Circular, conversion from daily wagers to workcharge was restricted after 31st March, 1989 and appointment of daily wagers was prohibited. Raising the said cutoff date, those petitioners were denied the benefits of 6th Pay Commission that they were appointed after the said date. The direction was prayed before the Court for grant of 6th Pay Commission benefits. The said petition came to be allowed by judgment dated 06th August, 2015. Learned Single Judge observed that it was incomprehensible that after having extending the benefits of 5th Pay Commission recommendations with effect from 1998 for the petitioners, 6th Pay Commission benefits were denied and it was further observed that there was no rationale or basis for placing reliance on Circular dated 31st March, 1989. the decision in Patel Tarunkumar Shankarlal (supra) came to be confirmed in Letters Patent Appeal No. 1230 of 2015, decided on 23rd September, 2015 wherein the Court emphasise the equal treatment to be accorded to the homogeneous class of persons and disapproved the prescription of cutoff date. Special Leave Petition Nos. 34352-34353 of 2015 came to be dismissed by the Apex Court on 04th January, 2016. The principle in the aforesaid decision directly applies to the case of the present petitioner." 5.2. Exactly similar was the case of Mansukh Arjanbhai Bhakhotara v. State of Gujarat being Special Civil Application No. 2723 of 2016 decided on 23rd March, 2016. 34352-34353 of 2015 came to be dismissed by the Apex Court on 04th January, 2016. The principle in the aforesaid decision directly applies to the case of the present petitioner." 5.2. Exactly similar was the case of Mansukh Arjanbhai Bhakhotara v. State of Gujarat being Special Civil Application No. 2723 of 2016 decided on 23rd March, 2016. Those petitioners were identically placed with the present petitioners, who were dailywagers of the Irrigation Department as the present petitioner is, and claimed benefit of 6th Pay Commission as per the State Government Resolutions dated 27th February, 2009 and 15th March, 2010. The said petition was allowed by negativing same defence raised and the respondents were directed to calculate and pay the necessary benefits as per the 6th Pay Commission recommendations. 5.3. Decision in Mansukh Arjanbhai Bhakhotara (supra) was carried in Letters Patent Appeal No. 768 of 2016 which was decided and dismissed as per order dated 07th July, 2017. While dismissing the Letters Patent Appeal, the Court relied on Patel Tarunkumar Shankarlal (supra). 6. In view of the above settled legal position, there is no gainsaying that the petitioner herein belongs to the similar class of person to be treated equally with Patel Tarunkumar Shankarlal (supra) and Mansukh Arjanbhai Bhakhotara (supra), to be extended the benefits of 6th Pay Commission recommendations. Denial of benefits to the petitioner is violation of fundamental rights of the petitioner under Articles 14 and 16 of the Constitution." 6. In view of above, the petition deserves to be allowed. Denial to the petitioner the benefits of 6th Pay Commission on the ground of cutoff date cannot stand valid in eye of law. Such decision of the respondents is illegal and arbitrary. The State Government is directed to consider for grant of 6th Pay Commission benefit to the petitioner as well as consequential benefits arising therefrom. The respondent-State and its authorities are directed to take such decision and pay to the petitioner within 10 weeks from the date of receipt of this order the amount payable under the 6th Pay Commission payscale. It is further provided that if the benefits are not paid to the petitioner as above within the period stipulated above, it shall carry interest at the rate of 6% from the date of filing of the present petition, that is 17.09.2019. 6. It is further provided that if the benefits are not paid to the petitioner as above within the period stipulated above, it shall carry interest at the rate of 6% from the date of filing of the present petition, that is 17.09.2019. 6. Thus, in light of the aforesaid observations, the present writ petition is allowed in terms of the judgment and order dated 20th September, 2019 passed in Special Civil Application No. 15699 of 2019 and the respondents are hereby directed to consider the case of the petitioner to grant 6th Pay Commission as well as the consequential benefits arising therefrom within a period of 10 weeks from the date of receipt of writ of this order. 7. It is further directed that if such benefits are not paid to the petitioner within the period specified by this Court, it shall carry 6% interest per annum from the date of filing of this writ petition. 8. In view of the above directions, the writ petition is allowed in the aforesaid terms. Rule is made absolute accordingly.