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Gujarat High Court · body

2019 DIGILAW 847 (GUJ)

State of Gujarat v. Rajeshkumar D. Patel

2019-10-03

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : VIKRAM NATH, J. 1. The present appeal under Clause 15 of the Letters Patent is filed against the judgment and order passed by the learned Single Judge dated 09.10.2018 in Special Civil Application No. 13034 of 2009. 2. The background of facts, which generated from the present Letters Patent Appeal, are that the respondent-original petitioner was appointed as a Lecturer as well as Head of the Department of Organ on of Medicine in Anand Homeopathic College and Research Institute on 01.12.1981. The said institute is funded by the State Government and receiving 100% grant-in-aid from the State of Gujarat. Till 10.10.1998, he was working as a Lecturer, and thereafter, was promoted to the post of the Vice Principal in the said college then was promoted to the post of Principal and later on Superintendent in the said institute on 19.07.2001. The respondent -original petitioner worked on the said post till 11.06.2003, drawing monthly salary of Rs. 10,700/- in the pay scale of Rs. 6,500-200-10,500/-. In the process of direct recruitment carried out by the Gujarat Public Service Commission in the year 2000, the respondent -original petitioner applied to the post of the Assistant Director (Homeopathy) and in the application form, respondent -original petitioner was required to fill certain particulars, in which, clause No. 16 relates to an option as to whether he was ready to accept minimum basic pay in the pay scale of said post or not. The respondent - original petitioner has refused to accept the minimum basic pay and demanded protection of basic pay for his last service i.e. basic pay-Rs. 10,700/-. The authority called upon the respondent-original petitioner for interview and it is the case of the respondent-original petitioner that during interview also, he has specifically pointed out that he is inclined about his pay protection and despite that has been selected for the post of the Assistant Director (Homeopathy) on 29.05.2003. He thus believed that his earlier pay would stand protected. The respondent-original petitioner also completed his two years' probation period and vide letter dated 16.06.2006, addressed a letter to appellant No. 2, requesting to grant of pay protection in respect of his last drawn salary in the college named above. He thus believed that his earlier pay would stand protected. The respondent-original petitioner also completed his two years' probation period and vide letter dated 16.06.2006, addressed a letter to appellant No. 2, requesting to grant of pay protection in respect of his last drawn salary in the college named above. Pursuant to the above request of the respondent-original petitioner, appellant No. 2 - authority has recommended the case of respondent-original petitioner for pay protection vide communication dated 20.06.2003, and it was also later on, conveyed on 20.10.2003 that proposal of pay protection will be submitted after satisfactory completion of probation period. The probation period by virtue of Government Resolution dated 04.10.2005 came to be confirmed and after confirmation of the said period of probation by circular dated 17.06.1994 a relief of pay protection was extended and on the basis of that even appellant No. 2 - Authority vide communication dated 10.10.2005, recommended the case of the respondent-original petitioner for pay protection to the department of the Health and Family Welfare, even department of Health and Family Welfare was also pleased to grant pay protection to the respondent-original petitioner vide order dated 11.10.2007 and fixation order also came to be passed on 04.01.2008. According to the respondent-original petitioner that he was served with a show-cause notice on 17.09.2009 replied by the opponent and by way of an order dated 21.11.2009 with immediate effect appellant No. 1 cancelled the pay protection and respondent-original petitioner pay was reduced from Rs. 10,700/- to Rs. 8,000/- with a consequential direction to issue a recovery with retrospective effect. This has led the respondent-original petitioner to approach the High Court by way of petition i.e. Special Civil Application No. 13034 of 2009 which after hearing both the parties came to be allowed and the impugned orders passed by the authorities on 21.11.2009 and on 26.11.2009 were set aside. It is this order, passed by the learned Single Judge, is made the subject matter of present Letters Patent Appeal. 3. We have heard learned Assistant Government Pleader Mr. Chintan Dave appearing on behalf of State Authorities. Learned Assistant Government Pleader Mr. It is this order, passed by the learned Single Judge, is made the subject matter of present Letters Patent Appeal. 3. We have heard learned Assistant Government Pleader Mr. Chintan Dave appearing on behalf of State Authorities. Learned Assistant Government Pleader Mr. Dave has contended that the order passed by the learned Single Judge is erroneous, in view of the fact that the Government Resolution which is tried to be relied upon by the respondent -original petitioner is related to Government employees and not for other employees and such pay protection is not available to the employees who were serving in aided institute, and therefore apparently, a mistake is committed by the learned Single Judge in extending the benefits of pay protection in the absence of any such policy. Mr. Dave, learned Assistant Government Pleader has further contended that it is settled position of law that mistake if occurred can be corrected at any stage and here apparently when authorities found that the resolution upon which the respondent - original petitioner is relying is ex facie not attracted, the order of recovery can be passed. However, learned Assistant Government Pleader Mr. Dave has candidly submitted that it is not the case of misrepresentation while securing the benefits by the respondent -original petitioner. 4. In the light of aforesaid situation we have noticed that the learned Single Judge has considered practically every issue raised by the learned Assistant Government Pleader and then found that the respondent -original petitioner was serving in an institution which is 100% grant-in-aid institute, and therefore, even considering the resolution of the Finance Department dated 09.09.1998, the Government aided Homeopathy College, officers and employees are covered under the Gujarat Disciplinary and Conduct Appeals Rules, 1971. The employees were also covered under the Pay Revision Rules, 1987. The learned Single Judge has also taken note of a situation that benefit which has already been extended to the respondent -original petitioner is sought to be withdrawn after almost a period of 7 to 8 years and it is not the case of the authorities that no misrepresentation is made by the respondent -original petitioner while getting pay protection. Learned Single Judge has also taken note of a further fact that at the time when the respondent -original petitioner has applied for a job in column No. 16 which is filled-in, in which, the pay of Rs. Learned Single Judge has also taken note of a further fact that at the time when the respondent -original petitioner has applied for a job in column No. 16 which is filled-in, in which, the pay of Rs. 10,700/- shall be acceptable to him is clearly mentioned and having examined such form, the process of recruitment has taken place of the respondent -original petitioner and he came to be appointed. When that be so, the action was not found to be just and proper. It has also been noticed by the learned Single Judge that one Mr. V.B. Bhensdadia who was working as a Principal in the Private Government Aided institution has joined the District Education Office in the Government set up, and his earlier pay of Principal has been protected and the said stand has not been able to be disputed by the authorities while opposing the petition. Resultantly, when these material aspects have been considered by the learned Single Judge, we see no merit in the submissions made by the learned Assistant Government Pleader. Accordingly, present Letters Patent Appeal being devoid of merit, stands dismissed hereby. 5. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.