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2019 DIGILAW 862 (GUJ)

M. C. Patel v. State of Gujarat

2019-10-07

A.S.SUPEHIA

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JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking a direction for quashing and setting aside orders dated 10.01.1995 and 19.07.2006 passed by the then Area Development Commissioner (at present respondent No. 3). 2. It is further prayed that the orders dated Nil-11-1993, 23.10.1992 and 30.10.1992 may be restored, by which the petitioners were granted the higher pay scale. 3. The short facts of the case are as under: The petitioners were recruited through the Centralized Recruitment Scheme by the Collector, Ahmedabad, in the years 1974, 1978 and 1976 as Typist and Junior Clerk respectively and they had continued to serve as such. Subsequently, they were promoted to the post of Senior Clerk and, on completion of period of nine years, the petitioner Nos. 1, 2 and 4 were given the higher pay-scale with effect from 1st July, 1987 and petitioner No. 3 with effect from 1st October 1987 by an order dated 23rd October 1992. By the aforesaid order, the petitioners were placed in the higher pay-scale of Rs. 1200-2040 in the cadre of Senior Clerk from the pay-scale of Rs. 950-20-1150. The aforesaid order was passed in view of Government Resolutions dated 5th July 1991 and 11th October 1991 respectively. As revealed in the Government Resolution dated 16th August 1994, the policy of grant of higher pay-scale came to be revised and grant of such pay-scale was subject to various conditions, as enumerated in the said Government Resolution more particularly clause 3, sub-clauses 5 and 9 of the said resolution, which required that, if an employee passes out departmental examination for the purpose of promotion after completion of nine years of service in the same cadre, higher pay scale is to be given from the date of passing of such examination. In view of the aforesaid Government Resolution, the impugned order dated 10th January 1995 came to be passed, by which, the petitioners have been placed in the lower pay-scale of Rs. 950-1150 from the higher pay-scale of Rs. 1200-1560-2040, without giving any opportunity of hearing to the petitioners, on the premise that the department examination was passed by the petitioners in the year 1992 only and, accordingly, their pay-scale was fixed. 4. 950-1150 from the higher pay-scale of Rs. 1200-1560-2040, without giving any opportunity of hearing to the petitioners, on the premise that the department examination was passed by the petitioners in the year 1992 only and, accordingly, their pay-scale was fixed. 4. Thereafter, by the order dated 10.01.1995, the higher pay scale granted to the petitioners were cancelled on the reasons that the higher pay scale has to be granted from the date of passing the departmental examination and not from the date of eligibility. 5. Being aggrieved and dissatisfied with the order dated 10.01.1995, the petitioners have filed the writ petition being Special Civil Application No. 607 of 1995, challenging the order dated 10.01.1995 passed by the respondent No. 3. By the order dated 30.11.2005, this Court has quashed and set aside the order dated 10.01.1995 on the ground of violation of principles of natural justice as the same was passed without affording any opportunity of hearing. This Court had directed the respondent authority to pass an appropriate order after giving an opportunity of hearing to them. 6. Pursuant to the order dated 30.11.2005, the petitioners have filed representation before the respondent authority in January 2006. By the order dated 19.07.2006, the State has rejected the case of the petitioners and maintained the earlier stand that the petitioners are entitled to the higher pay-scale from the date of passing the departmental examination. 7. Learned advocate Mr. M.R. Bukhari for Mr. S.K. Bukhari learned advocate for the petitioners has submitted that the petitioners could not passed the departmental examination prior to 1992 since their lien was not decided by the State Authority. He has submitted that the petitioners had requested the respondent authority way back in the year 1974 to decide their lien however, no such decision was taken till 1991. He has submitted that in the year 1991, the respondent authority has passed the order that the lien of the petitioners shall be considered in Narmada Water Resources Department. Mr. Bukhari, learned advocate for the petitioners has submitted that after the lien was determined by the respondent department, they were allowed to undertake the departmental examination meant for promotion to the post of junior clerk cum typist and accordingly they passed the same in first attempt in July 1992. 8. Mr. Mr. Bukhari, learned advocate for the petitioners has submitted that after the lien was determined by the respondent department, they were allowed to undertake the departmental examination meant for promotion to the post of junior clerk cum typist and accordingly they passed the same in first attempt in July 1992. 8. Mr. Bukhari, learned advocate for the petitioner has invited the attention of this Court to the communication dated 14.05.1993 written by the Area Development Commissioner, Katana Project, Ahmedabad recommending the higher pay-scale of the petitioners, which were granted earlier after completion of 9,18 and 27 years of services. He has submitted that the Commissioner has specifically observed that the petitioners could not have taken the departmental examination prior to 1992 since their lien were not decided by the State Authority and they were allowed to undertake the departmental examination. Thus, he has submitted that the impugned orders are required to be quashed and set aside. 9. Per contra, learned Assistant Government Pleader Mr. Ishan Joshi appearing for the respondent-State has submitted that the impugned orders do not require any interference. He has submitted that the petitioners have belatedly passed the departmental examination and in fact the action of the cancelling of higher pay-scale and refixation was done in the year 1994 and therefore the petitioner may not be entertained on the ground of delay and latches. 10. Learned Assistant Government Pleader Mr. Joshi has submitted that the higher pay-scale of the petitioners have rightly fixed by the order dated 23.10.1992 since they had belatedly passed the departmental examination. 11. I have heard the learned advocates for the respective parties. The petitioners were granted the higher pay scale with effect from 1st July, 1987 after completion of 9 years of service in view of the government policy. 12. Subsequently, the aforesaid higher pay-scale, which was granted earlier, was cancelled by the State Authority by the order dated 10.01.1995 on the premise that the petitioners are entitled for the higher pay-scale from the date of passing of departmental examination i.e. w.e.f. 1992 instead of 1987. The aforesaid order dated 10.01.1995 was quashed and set aside vide order dated 30.11.2005 in the writ petition being Special Civil Application No. 607 of 1995 filed by the petitioners. 13. The aforesaid order dated 10.01.1995 was quashed and set aside vide order dated 30.11.2005 in the writ petition being Special Civil Application No. 607 of 1995 filed by the petitioners. 13. This Court had directed the respondent authority to pass an appropriate order after giving an opportunity of hearing to the petitioners since the impugned order dated 10.01.1995 was passed on the ground of violation of principles of natural justice. 14. Pursuant to the aforesaid order, the petitioners approached the respondent authority by filing the representation in January, 2006 and by the order dated 19.07.2006, the respondent authority has maintained his earlier stand and rejected the request of the petitioners for higher pay scale as granted by the earlier order. 15. Being aggrieved of the aforesaid order, the petitioners have filed the captioned writ petition and hence the contention raised by the learned Assistant Government Pleader that the petition is required to be rejected on the ground of delay does not merit acceptance since after quashing and setting aside the earlier order, the respondent -State passed a afresh order dated 19.07.2006 rejecting the request of the petitioners and hence it cannot be said that petition may not be entertained on the ground of delay. 16. The fact which is not in dispute that the lien of the petitioners was decided in the year 1991. The petitioners had requested the respondents to decide their lien of from the year 1974 to 1976. Thus, the respondents remained dormant for so many years on the issue of lien, but only decided the same in 1991. 17. This fact emerges from the proposal sent by the Commissioner vide communication dated 14.05.1993 to the Deputy Secretary. The Commissioner, Katana Project has specifically stated that the petitioners were not eligible in the departmental examination since their lien was not decided and after the lien was decided they cleared the departmental examination in July 1992. 18. Thus, the petitioners cannot be made suffer for callous attitude exhibited by the authority in not deciding their lien for all these years. The respondent-State should have decided the aspects of lien when the petitioners approached them in the year 1974 to 1976 or thereafter. 19. 18. Thus, the petitioners cannot be made suffer for callous attitude exhibited by the authority in not deciding their lien for all these years. The respondent-State should have decided the aspects of lien when the petitioners approached them in the year 1974 to 1976 or thereafter. 19. At this stage, the Learned Assistant Government Pleader has raised a very strange and unique contention that the petitioners did not challenged the inaction of the State of granting the lien, the petitioners cannot claim the higher pay-scale. It is very strange to notice that such contention is raised by the learned Assistant Government Pleader on behalf of the respondents-State that since petitioners did not approach this Court for not determining their lien though they had made a representation in deciding the same in the year 1974 to 1976; they cannot claim the higher pay-scale from their actual date. 20. This court fails to understand such contention raised by the learned Assistant Government Pleader since it is the duty of the respondent State to solve the grievance raised by the employees as and when the employees approach the State Authority. The employees are not expected to challenge each and every inaction before this Court. This Court is flooded with such litigation because of such in difference of the State Government in not deciding the grievance raised by such employees expeditiously. The petitioners never expected that because of such in action on the part of the respondent-State, their pay-scale will get jeopardize. Prior to 1991 there was no scheme of higher pay-scale in existence and the petitioners were granted the higher pay-scale w.e.f. 1987 when the scheme was introduced vide resolution dated 05.07.1991. Thus, the aforesaid contention, raised by the learned Assistant Government Pleader is strongly deprecated. 21. The Division Bench in the case of State of Gujarat & Ors. Versus K.K. Zala, in Letters Patent Appeal No. 1354 of 2016 in Special Civil Application No. 2899 of 2008 vide judgment and order dated 09.12.2006 has observed thus; 5.0 Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that on completion of nine years of service as Deputy Mamlatdar first higher pay scale was required to be granted. At the outset, it is required to be noted and it is not in dispute that on completion of nine years of service as Deputy Mamlatdar first higher pay scale was required to be granted. It is not in dispute that by the subsequent order of 2004 passed by the competent authority original petitioner was granted the deemed date of promotion on the post of Deputy Mamlatdar with effect from 24/03/1988, and therefore, nine years are deemed to have been completed in the year 1997. It is the case on behalf of the State that as by order dated 09/12/2004 of the Additional Collector, Ahmedabad original petitioner was granted notional promotion from 24/03/1998, and therefore, from 24/03/1998 till the actual date of promotion the said period is not required to be counted at all. The aforesaid has no substance and cannot be accepted. The moment the original petitioner was granted notional promotion with effect from 24/03/1998, except for the actual benefits on the post of the Deputy Mamlatdar, the said period is required to be counted for all purpose. Under the circumstances and considering the fact that for the period between 11/03/1993 to 06/08/1996 the original petitioner was on leave without pay and thereafter when the learned Single Judge has already directed that the original petitioner shall be entitled to the benefit of higher pay scale from 11/11/1999, it cannot be said that the learned Single Judge has committed any error. [5.1] Now so far as the findings recorded by the learned Single Judge that the original petitioner cleared the Gujarat Higher Revenue Qualifying Examination in the third trial is concerned, it is required to be noted that while holding so the learned Single Judge considered that when in the years 1997 and 1999 the Gujarat Higher Revenue Qualifying Examination was conducted there was no intimation to the original petitioner. The learned Single Judge also considered that when in the year 2001 the list of eligible candidates were sent by the office of the Collector, Ahmedabad, which included the name of the original petitioner at Serial No. 37 in Column No. 5, it was stated third trial, and therefore, in the year 2001 when the office of the Collector sent the list of eligible candidates for the purpose of appearing in the Gujarat Higher Revenue Qualifying Examination the office of the Collector treated and considered as third trial. Under the circumstances, no error has been committed by the learned Single Judge. [5.2] Now so far as the case on behalf of the State to grant the benefit of higher pay scale on and from 20/12/2003 is concerned, it is required to be considered from another angle also. It is required to be noted that the Gujarat Higher Revenue Qualifying Examination was conducted and held on February, 2002. However, the result came to be declared after a period of 22 months i.e. on 20/12/2003. Such a delay is not and cannot be attributable to the original petitioner. If, for whatever reason, the result was delayed by 22 months, the original petitioner cannot be made to suffer because of such a delay of which the original petitioner cannot be held responsible. Under the circumstances also, the action of the appellant - original respondent to grant the benefit of higher pay scale from 20/12/2003 cannot be sustained. [5.3] It is also required to be noted that in the petition it was the specific case on behalf of the original petitioner that similarly situated persons, namely, Shri S.G. Nayee, Shri H.K. Sanghvi and Shri B.F. Malek, were granted the benefit of higher pay scale on their completing nine years as Deputy Mamlatdar and not from the date of passing examination. The same has not been disputed and/or denied by filing an affidavit-in-reply and/or otherwise, and therefore, clear case of discrimination is made out. 22. In the present case, though there was a delay in holding the departmental examination however, the petitioners have cleared the same on the very first chance. It is not the case of the respondent-State that they have cleared the departmental examination after the prescribed chances were exhausted by the petitioners, the respondent state did not determine the lien of the petitioners for all these years and meanwhile the respondent-State framed the policy for higher pay-scale vide government resolution granted the higher pay-scale to the employees. 23. Thus, the petitioners cannot be made suffer for the inaction of the respondent-State in not determining the lien for all these years hence the impugned orders, as prayed in present writ petition, are hereby quashed and set aside. The respondents are hereby directed to restore the original orders of granting higher pay-scale. (Annexure E Collectively). 23. Thus, the petitioners cannot be made suffer for the inaction of the respondent-State in not determining the lien for all these years hence the impugned orders, as prayed in present writ petition, are hereby quashed and set aside. The respondents are hereby directed to restore the original orders of granting higher pay-scale. (Annexure E Collectively). Necessary order in terms of direction of this Court shall be passed within the period of eight weeks from the date of receipt of this order. Rule made absolute.