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2019 DIGILAW 872 (GUJ)

Vinodchandra Devprasad Shukla v. State of Gujarat

2019-10-09

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. In the present writ petition, the petitioners have prayed for the following reliefs: "[A] This Hon'ble Court may be pleased to issue appropriate writ, order or direction directing the respondent authorities to revise the pay scale to Rs. 1640-2900 with effect from 01.01.1986 and to re-fix and pay pension and other consequential benefits to the petitioners accordingly immediately [B] Pending the hearing and final disposal of the petition, be pleased to direct the respondents to initiate proceedings for revising the pay scale to Rs. 1640-2900 w.e.f 01.01.1986 and re-fixing and paying pension accordingly with other consequential benefits with immediate effect" 2. At the outset, learned advocate Mr. Atit Thakore appearing for the petitioners has invited the attention of this Court to the judgment dated 31.03.2014 passed in the case of Additional Assistant Engineers Association & Ors. vs. State of Gujarat and Anr., (Letters Patent Appeal No. 834 of 2012) and submitted that the petitioners at the relevant time were working as Additional Assistant Engineers and hence they are also entitled to similar benefits as granted by this Court in the said judgment. He has submitted that the petitioners are also identically situated Additional Engineers and hence, they are entitled to the pay-scale of Rs. 1640-2900 as held by the Division Bench. He has submitted that the aforesaid judgment was accepted by the State Government and the Finance Department vide resolution dated 28.07.2015 implemented the said judgment and granted the benefits to the Additional Assistant Engineers with effect from 01.01.1986. 2.1. Learned advocate Mr. Thakore for the petitioners has further invited attention that a person junior to them, Mr. Rameshchandra Mohanlal Chauhan, who retired on 31.10.2000, has been extended the benefit of the order of the Division Bench and accordingly, his pension was revised and fixed with effect from 01.01.1986 vide order dated 10.03.2016. It is contended that the sole reason, for which the aforesaid benefits as directed by the Division Bench are not extended is the non-availability of the service books of the petitioners. He has submitted that the petitioners have retired long back and their benefits of the service can be ascertained in view of the other orders also. It is contended that the sole reason, for which the aforesaid benefits as directed by the Division Bench are not extended is the non-availability of the service books of the petitioners. He has submitted that the petitioners have retired long back and their benefits of the service can be ascertained in view of the other orders also. He has submitted that the respondents may be accordingly directed to take appropriate decision in light of the judgment and order passed by the Division Bench as well as the resolution dated 28.07.2015 passed by the Finance Department. 3. Learned advocate Mr. Bachani appearing for the respondent no. 4, while placing reliance on the affidavit-in-reply has submitted that since the petitioners have retired long back, their service books have not been found despite carrying out necessary exercise in this regard, hence their pay fixation is not done. 3.1. Learned advocate Mr. Bachani for the respondent no. 4 has further submitted that since the petitioners were not the employees of the Narmada Water Resources Water Supply & Kalpsar Department, they cannot be extended the benefit of the judgment of this Court and the resolution dated 28.07.2015. 4. In response to the aforesaid submissions, learned advocate Mr. Atit Thakore for the petitioners has submitted that by the communication dated 07.08.2015 passed by the Narmada Water Resources Water Supply & Kalpsar Department addressed to the various heads of the department, has clarified that the aforesaid decision of the Division Bench as well as the resolution dated 28.07.2015 shall be made applicable to all the departments. He has submitted that the persons, who were identically situated to the petitioners, and working in the same department are already conferred the benefits. He has referred to the names of the colleagues of the petitioners namely (1) Mr. Rameshchandra M. Chauhan, (2) Mr. K.T. Patel and (3) Mr. K.J. Joshi, who were juniors to the petitioners, and have been conferred the benefit. 5. Learned AGP Mr. Ishan Joshi appearing for the respondent no. 1-State has adopted the arguments advanced by the learned advocate Mr. Ankit Bachani. He has further submitted that the petitioners have belatedly approached this Court and they were watching the litigation by sitting on the fence and hence, the present writ petition may not be entertained. 6. I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties. 7. Ankit Bachani. He has further submitted that the petitioners have belatedly approached this Court and they were watching the litigation by sitting on the fence and hence, the present writ petition may not be entertained. 6. I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties. 7. The petitioners are seeking the benefits of the judgment of the Division Bench dated 31.03.2014 passed in Letters Patent Appeal No. 834 of 2012 in Special Civil Application No. 5210 of 1995. 8. The Division Bench, while examining the issue regarding the fixation of pay-scale of the Additional Assistant Engineers, who are working under the Narmada Water Resources Water Supply & Kalpsar Department, has held thus: "11. We have heard learned counsel for the respective parties at length and in great detail. We have also perused the documents on record as well as the order passed by the learned Single Judge. It reveals from the record that the petitioners members were always treated along with the category of Engineers of same department and for the first time they were not treated along with the Assistant Engineers. 12. In light of this back ground, we are of the opinion that the members of the Petitioner Association ought to have been treated equally w.e.f. 1.1.1986. In view of this fact, we are of the opinion that the end of justice would be served if the respondents are directed to give notional revised pay scale to the members of the association w.e.f. 1/1/1986 and make actual payment from 1/4/1992. 13. In the result, the appeal is allowed in part. The respondents are directed to give notional revised pay scale w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/192 to the members of the appellate Association. Parties to bear their own costs." 9. Thus, the Division Bench had directed the respondents to grant the pay-scale with effect from 01.01.1986 instead of 01.04.1992. By the resolution dated 28.07.2015 passed by the Finance Department, the State Government accepted the decision of the Division Bench and accordingly, conferred the pay-scale of Rs. 1640-2900 with effect from 01.01.1986. 10. Thereafter, the respondent no. Thus, the Division Bench had directed the respondents to grant the pay-scale with effect from 01.01.1986 instead of 01.04.1992. By the resolution dated 28.07.2015 passed by the Finance Department, the State Government accepted the decision of the Division Bench and accordingly, conferred the pay-scale of Rs. 1640-2900 with effect from 01.01.1986. 10. Thereafter, the respondent no. 1-Narmada Water Resources Water Supply & Kalpsar Department vide communication dated 07.08.2015, which is addressed to all the heads of the department, clarified that the aforesaid decision of the Division Bench as well as the resolution dated 28.07.2015 shall be applied to all the Assistant Engineers subject to result of the SLP filed before the Supreme Court. Thus, the decision of the Division bench was made applicable to all the Assistant Engineers working under all the departments. The retirement order of the petitioners reveal that same is passed by Narmada Water Resources and Irrigation Department. 11. It appears that nothing is produced before this Court regarding the pendency of the SLP filed before the Supreme Court and it appears that in fact the decision has been implemented qua the colleagues of the present petitioners. 12. The respondents have not disputed that the juniors to the petitioners being (1) Mr. Rameshchandra M. Chauhan, (2) Mr. K.T. Patel and (3) Mr. K.J. Joshi, who were working along with the petitioners and have retired between 2000 to 2008, have been conferred the benefits of the fixation of pay-scale as observed by the Division Bench. 13. Thus, the contention raised by the learned AGP with regard to belatedly approaching this Court does not merit any acceptance since the Narmada Water Resources Water Supply & Kalpsar Department vide communication dated 07.08.2015 decided to implement the Division Bench judgment and the benefit arising from the same was conferred to all the Additional Assistant Engineers, however, the petitioners have been left out. 14. It appears that the petitioners have been denied the aforesaid benefit solely on the ground that their service books are not traceable. In the considered opinion of this Court, the petitioners cannot be singled out and discriminated only because the respondent authorities do not have their service books. The service tenure of the petitioners can be verified by various other documents, such as appointment orders, pay fixation, promotional orders as well as seniority list prepared by them. The respondent department can also prepare their duplicate service books. The service tenure of the petitioners can be verified by various other documents, such as appointment orders, pay fixation, promotional orders as well as seniority list prepared by them. The respondent department can also prepare their duplicate service books. If it is found that similarly situated other employees to the petitioners are granted the benefits, such benefits can be conferred to the petitioners on the basis of the aforesaid documents. Only because the service books are not traceable, they cannot be denied the benefits of the aforesaid judgment. 15. In this view of the matter, the present writ petition succeeds in part. The respondents are hereby directed to examine the case of the petitioners in light of the orders passed in favour of their colleagues being (1) Mr. Rameshchandra M. Chauhan, (2) Mr. K.T. Patel and (3) Mr. K.J. Joshi, who have already been conferred the benefits of the aforesaid pay-scale, as produced by the petitioners in the further affidavit dated 18.01.2019. 16. Necessary orders in terms of the direction of this Court shall be passed within a period of eight weeks from the date of receipt of the copy of the present order. In case, it is found that the petitioners are identically situated to such persons, similar benefits shall be conferred to them and their retirement benefits shall accordingly be revised. It is clarified that such benefits shall not be denied to the petitioners exclusively for non-availability of the their service books. Rule is made absolute to the aforesaid extent. Direct service is permitted.