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2019 DIGILAW 901 (GUJ)

Samabhai Bediyabhai Vasava v. State of Gujarat

2019-10-14

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. Rule. Learned AGP waives service of rule for the respondent-State. 2. During the pendency of the present writ petition, the original petitioner has passed away and the petition is being pursued by his legal heirs. 3. The present writ petition is filed seeking for the following prayers: "A. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the impugned order no. 63 of 2016 dated 23.05.2016 as illegal, being contrary to the provisions of Government Resolution dated 17.10.1988, arbitrary, unreasonable and violative of Articles 14, 16 and 21 of the Constitution of India and quashing and setting aside the same; B. Your Lordships may be pleased to declare the Office Order dated 09.02.1994, by which petitioner's pay was fixed in the pay scale of Rs. 950-1400 and consequent subsequent revision in the corresponding revised pay scales, are legal and lawful, as being in consonance with the provisions of Government Resolution dated 17.10.1988, which govern the service conditions of the petitioner; C. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to restore office order dated 09.02.1994 by which the pay of the petitioner was fixed in the pay scale of Rs. 950-1400 with effect from 01.10.1988 with all the consequential benefits that flow from such a fixation;" 4. At the outset, learned advocate Ms. Vidhi Bhatt appearing for the petitioner has submitted that the issue involved in the present writ petition is squarely covered by the judgment and order dated 05.07.2019 passed by the Division Bench in Letters Patent Appeal No. 1291 of 2018 and allied matters. She has submitted that the Division Bench has directed the respondent authorities to implement the order of the learned Single Judge whereby the similarly situated employees have been paid the pay-scale of Rs. 5200-20200 with effect from 01.01.2006. 5. Per contra, learned AGP Mr. Swapneshwar Goutam, while placing reliance on the affidavit filed by the respondent no. 1 has submitted that the petitioner is not entitled to the benefits as directed by the Division Bench since the petitioner does not qualify to the post of work charge helper. 6. I have heard the learned advocates appearing for the respective parties. 7. Swapneshwar Goutam, while placing reliance on the affidavit filed by the respondent no. 1 has submitted that the petitioner is not entitled to the benefits as directed by the Division Bench since the petitioner does not qualify to the post of work charge helper. 6. I have heard the learned advocates appearing for the respective parties. 7. A perusal of the controversy involved in the present writ petition reveals that the petitioner is claiming the fixation of pay-scale of Rs. 950-1400, which is subsequently revised in the corresponding revision of pay-scale of Rs. 5200-20200. The petitioner has challenged the order dated 23.05.2016, which has been passed subsequently pursuant to the order dated 05.04.2016 passed in Special Civil Application No. 3377 of 2011 wherein the earlier order dated 06.10.2007 has been set aside by this Court on the ground of violation of principle of natural justice. After giving an opportunity of hearing to the petitioner, the impugned order has been passed. 8. The Division Bench of this Court was seized with the similar issue in the case of work charge helpers, who were not possessing the second class wireman certificate. Such Helpers had approached this Court by filing Special Civil Application No. 6060 of 2011 and after examining the controversy threadbare, the Coordinate Bench allowed the petition vide judgment and order dated 24.01.2018 has allowed the same and directed the respondents to confer the salary of Rs. 5200-20200/- with effect from 01.01.2006, which is the corresponding pay-scale of Rs. 950-1400/-. The said judgment was challenged before the Division Bench in Letters Patent Appeal No. 1291 of 2018. The Division Bench dismissed the Letters Patent Appeal vide judgment and order dated 05.07.2019 by observing thus: "5 Considering the above, the chronology of their service details would suggest that. (I) The petitioners were with the department initially as daily wagers since 1972/74. They became work charge helpers in the year 1989. (II) Though initially they were granted the pay scale of Rs. 750-940/-, in the year 2001 it was revised to Rs. 950-1500/- w.e.f. 07.04.1988. The order of revision of the year 2001 categorically states of such revision. (III) Corresponding revision was granted in the scale of Rs. 3050-4590/- w.e.f. 01.01.1998. They became work charge helpers in the year 1989. (II) Though initially they were granted the pay scale of Rs. 750-940/-, in the year 2001 it was revised to Rs. 950-1500/- w.e.f. 07.04.1988. The order of revision of the year 2001 categorically states of such revision. (III) Corresponding revision was granted in the scale of Rs. 3050-4590/- w.e.f. 01.01.1998. (IV) Communication dated 20.09.2010 unequivocally indicates that having rendered several years of service and gained experience and since they had undergone training in the mechanical section and they were operating canal gates, they were entitled to the pay scale of Rs. 3050-4590/-. The submission therefore of Ms. Nisha Thakore, that once the Resolution of 17.05.1989 specifically indicated that the pre revised scale of Rs. 950-1500/- corresponding to the scale of Rs. 3050-4590/- could not be granted to the petitioners as admittedly they were not possessing the requisite certificate does not appear to be in sync with the communications of the department itself though the Resolution of 17.05.1989 when read with the resolution dated 15.03.2010 would suggest that a pay scale of Rs. 5200-20200/- was only available to a worker possessing second class wireman certificate. The petitioners having rendered more than 28 years of service since 1975 had gained sufficient experience to be entitled to the pay scale of Rs. 5200-20200/- as rightly opined by the departmental communication dated 20.09.2010. (V) In addition to the fact that the respondent-original petitioners had gained experience over a period of two and a half decades in the department, the interpretation of the government should fall flat when it is seen in the context of the Resolution dated 17.10.1988. The Resolution dated 17.10.1988 particularly Clause 3 thereof clearly stipulates that on completion of more than ten years but less than fifteen years of service, semi skilled daily wagers are entitled to the pay scale which skilled daily wagers are getting. In spirit of this resolution therefore, the petitioners having completed more than ten years of service, in fact having rendered approximately 25 years of service in the year 2001 rightly became entitled to the pay scale of Rs. In spirit of this resolution therefore, the petitioners having completed more than ten years of service, in fact having rendered approximately 25 years of service in the year 2001 rightly became entitled to the pay scale of Rs. 950-1500/- and therefore even on this count the impugned communication dated 03.03.2011 withdrawing such a pay scale and denying them the benefit of pay scale 5200-20200/- would run counter to the spirit of the resolution of 17.10.1988." It has been further observed that: "6.1 Therefore, once it is undisputed that the respondents original petitioners had gained about 31 years of experience when the 6th pay commission recommendations came into force and had also completed the minimum stipulated tenure of service in accordance with clause 3 of the GR dated 17.10.1988, on both twin consideration, they were entitled to pay scale of Rs. 5200-20200/- so directed by the learned Single Judge. The appeals are, therefore, required to be dismissed. 7. We have while admitting these appeals on 04.02.2019, confirmed the order of the learned Single Judge in so far as the order of recovery was concerned. However, the direction to grant the pay scale of Rs. 5200-20200/- was stayed. 8. In view of the fact that we are dismissing the Letters Patent Appeals, we hold that the respondents-original petitioners shall be entitled to the pay scale of Rs. 5200-20,200/- w.e.f. 01.01.2006 and the directions issued by the learned Single Judge in para 17 of the judgment which read as under shall be implemented forthwith. "17 In view of above facts and circumstances that the petition is allowed as prayed for, whereby now it is made clear that the petitioners are entitled to salary in the pay scale of Rs. 5200-20200 with effect from 01.01.2006 and thereby, the respondents are hereby directed to fix pay of petitioners in such scale within six weeks from the date receipt of Writ of this Order and shall calculate the arrears and shall pay same within eight (8) weeks and thereafter without fail, if the respondents failed to pay arrears in 14 weeks from the date of receipt in Writ of this Order. The petitioners shall be entitled to interest at the rate of 6% per annum from due date till its actual realization. The petitioners shall be entitled to interest at the rate of 6% per annum from due date till its actual realization. Thereby, order dated 03.03.2011 by the respondent is hereby quashed and set aside and confirming the revision of pay scale of the petitioners in Office Order No. 25 of 2002 dated 12.06.2002 and Office Order No. 33 of 2002 dated 13.06.2002." 9. The Division Bench has directed the respondents to implement the judgment and order of the learned Single Judge as ordered in para-17 of the judgment. 10. In this view of the matter, since the controversy raised in the present writ petition is laid quietus by the judgment and order of the Division Bench dated 05.07.2019 passed in Letters Patent Appeal No. 1291 of 2018 and allied matters, the impugned order dated 23.05.2016 is hereby quashed and set aside. 11. The present writ petition succeeds. The respondents are hereby directed to confer the pay-scale of Rs. 950-1400/- to the petitioner, which is subsequently revised to Rs. 5200-20200/- with effect from 01.01.2006 within a period of six weeks from the date of receipt of the writ of this order. The respondents shall calculate the arrears and pay the same to the petitioner within a period of eight weeks from the date of receipt of the writ of the order of this Court. If the respondents fail to pay the arrears within aforesaid period, the petitioner shall be entitled to interest at the rate of 6% per annum from the due date till its actual realization. Rule is made absolute. Direct service is permitted.