Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 930 (GUJ)

Patel Bhogilal Vithhalbhai v. State of Gujarat

2019-10-16

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed by the petitioner for seeking directions to the respondent authority to grant the gratuity and other retirement benefits to the petitioner and also seeking a prayer to regularize the suspension period from 31.05.1988 to 07.07.1995. The petitioner has also prayed for higher pay-scales w.e.f. 01.06.1987 and 01.06.1996, in view of the Government Resolution dated 16.08.1994. 2. The petitioner was initially appointed as a Field Assistant in the Dabka P.T.C. College on 14.06.1969 and he has retired as Assistant Professor from the Government Ladies School after attaining the age of superannuation on 31.05.2006. When the petitioner was serving at the office of District Education office, Vadodara at that time an FIR came to be registered against him for the offences punishable under Section 161 of the Indian Penal Code, 1860 and Sections 5(1)(c) and 5(2) of the Prevention of Corruption of Act 1947. For the said offence, the petitioner was tried before the Special Judge, Vadodara in ACB Case No. 8/1992 and by way of judgment and order dated 30.11.2009 passed below Exh. 59, the petitioner was acquitted. 3. Thereafter, the State has filed Criminal Appeal No. 390/2010 against the acquittal and the same was admitted vide order dated 09.07.2010 and the same is pending before this Court. Since, the criminal appeal is pending, the petitioner was paid provisional pension as suspension period of 31.05.1988 to 07.07.1995 is not regularized. The petitioner is also not granted any higher pay-scale. 4. Learned advocate Mr. Darji for the petitioner has submitted that the petitioner is entitled to the final pension as well as the suspension period from 31.05.1988 to 07.07.1995 is required to be regularized. He has further submitted that during the pendency of the criminal case, the petitioner was reinstated in the service. It is further submitted that no departmental proceedings were initiated by the respondent authorities and on his acquittal, he is entitled to the benefits of the higher pay-scale arising during the suspension period. It is also submitted that the petitioner became eligible for the grant of the first higher pay-scale as on 01.06.1987, in view of the Government Resolution dated 16.08.1994 after completion of more than 9 years in one cadre from 13.10.1976 to 01.06.1987. It is also submitted that the petitioner became eligible for the grant of the first higher pay-scale as on 01.06.1987, in view of the Government Resolution dated 16.08.1994 after completion of more than 9 years in one cadre from 13.10.1976 to 01.06.1987. He has further submitted that no departmental examinations was conducted and therefore, he cannot be denied the benefits of higher pay-scale on the ground that he has not passed the departmental examination. 5. Learned advocate Mr. Darji has further urged that the petitioner is eligible for the second higher pay-scale benefit on completion of 18 years of service in the same cadre i.e. from 01.06.1996, as per the Government Resolution dated 16.08.1994. He has further placed reliance on the judgment and order dated 09.12.2016 passed in LPA No. 1354/2016 in support of his submissions. No further submission is made as regards grant of the retirement benefits. 6. Per contra, learned Assistant Government Pleader Mr. Swapneshwar Goutam has submitted that as regards the prayer for granting regularization of the suspension period is concerned, the same cannot be granted since, the criminal appeal is pending. In support of his submission he has placed reliance on the judgment and order of the Division Bench of this Court in the case of D.M. Gohil Vs. State of Gujarat reported in 2000 (2) GLR 1574 . As regards the claim of the higher pay-scale is concerned, it is submitted by the learned AGP that since the petitioner has not passed the departmental examination, he would not be entitled to the higher pay-scale under Clause 3(9) of Government Resolution dated 16.08.1994. 6.1. As regards the claim of the second higher pay scale is concerned, the learned AGP has submitted that the petitioner was suspended from 31.05.1988 and he was reinstated on 07.07.1995, hence, the petitioner is not entitled for the second higher pay-scale. 7. Heard the learned advocate for the respective parties. 8. The present petition is confirmed for claiming regularization of the suspension period as well as the grant for the higher pay-scales. The petitioner was suspended on 31.05.1988, in view of the criminal case lodged against him and subsequently he has been acquitted by the judgment and order dated 30.11.2009 passed by the trial Court in ACB No. 8 of 1992, against which the State has preferred Criminal Appeal No. 390/2010, before this Court and the same is pending. 9. The petitioner was suspended on 31.05.1988, in view of the criminal case lodged against him and subsequently he has been acquitted by the judgment and order dated 30.11.2009 passed by the trial Court in ACB No. 8 of 1992, against which the State has preferred Criminal Appeal No. 390/2010, before this Court and the same is pending. 9. At this stage it would be apposite to refer to the observations made by the Division Bench of this Court in the case of D.M. Gohil (Supra), while examining the provisions of Rule 152 of the Bombay Civil Service Rules, 1959 under which the petitioner was suspended: "10. In our opinion, none of the contentions can be upheld. So far as the first prayer is concerned, the relevant provision is Rule 152 of the Rules. The said Rule is material in deciding the controversy raised in this appeal and requires to be quoted in extenso. "152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to or the reinstatement shall consider an make a specific order- (a) regarding the pay and allowances to be paid to the Government servant for a period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of the opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. (3) In other case, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; Provided that the payment of allowances under Clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose." In our opinion, the only interpretation which can be given to the above rule is that the proceedings must have been finalized and the authority must have formed an opinion that the suspension of the government servant was "wholly unjustified". It is true that in the case on hand, the appellant was acquitted by the Special Judge, Bhavnagar. But it is equally true that an appeal against order of acquittal is filed by the State of Gujarat which is already admitted and awaits final hearing. The question whether or not the appellant was properly acquitted by the Special Judge, Bhavnagar, is at large before this Court. In our considered opinion, therefore, the acquittal recorded against the appellant cannot be said to be final and Rule 152 of the Rules cannot be pressed in service at his stage. 11. The alternative argument of the learned counsel also cannot be accepted. Since the proceedings are not over and the appeal is still pending, no direction can be issued to the authorities to decide the case of the appellant in accordance with Rule 152 of the Rules. This is a premature stage, such question can be decided only after the proceedings are over inasmuch as on the basis of the final order passed by the competent Court in criminal proceedings and/or departmental proceedings, the authorities will have to exercise jurisdiction under Rule 152 in accordance with statutory provisions. Hence, even that direction cannot be issued." 9.1. Thus, the Division Bench has enunciated that the suspension period cannot be regularized in the wake of the fact that the Criminal Appeal is pending against the acquittal. It is held that the acquittal recorded by the trial Court cannot be said to be final since the Criminal Appeal is pending. 9.2. Thus, as regards the prayer for regularization of the suspension period is concerned, the same does not merit acceptance in view of the judgment rendered by the Division Bench in the case of D.M. Gohil (Supra). It is held that the acquittal recorded by the trial Court cannot be said to be final since the Criminal Appeal is pending. 9.2. Thus, as regards the prayer for regularization of the suspension period is concerned, the same does not merit acceptance in view of the judgment rendered by the Division Bench in the case of D.M. Gohil (Supra). So far as the grant of the higher pay-scale is concerned, the petitioner became eligible for the first higher pay-scale in view of the Government Resolution dated 16.08.1994. The case of the respondent authority is that the petitioner is not entitled for the first higher pay-scale as he has not passed the departmental examination. 9.3. It is also not in dispute that when the petitioner became eligible for the first higher pay scale i.e. from 01.06.1987, no departmental examination was held. At this stage, it would be pertinent to note that the Scheme of Higher pay-scale was introduced vide Government Resolution dated 05.07.1991, which was made effective from 01.06.1987 and thereafter the same was modified by the Finance Department vide Government Resolution dated 16.08.1994. 9.4. The respondent authorities are unable to point out that the petitioner was ever informed about the dates of the departmental examinations between the years 1991 to 1994. It is not in dispute that the petitioner was never informed about holding of such examinations. During the pendency of the present writ petition necessary information was called upon by this Court from the respondent authorities about conducting the examinations prior to this year 1987 i.e. when the petitioner became eligible. The details provided by the respondent authorities reveal that the examination was held for the first time in the year 1988. The affidavit filed by respondent is blissfully silent about the petitioner being informed about the dates of conducting such examinations. 10. The Supreme Court in the case of K.K. Gohil Vs. State of Gujarat, (2015) 9 SCC 652 after examining the Government Resolution dated 16.08.1994 i.e. scheme for the higher pay scale has observed as under: "As per the Government Resolution dated 16.08.1994, upon completion of 9 years of service the government servant concerned is entitled for the benefit of higher grade scale if he has not been promoted or that the requisite departmental examination for the entitlement of higher post or for maintenance of the very post, are not cleared. The purpose of the policy was to see that no stagnancy as created in service on account of the fact that no higher posts are available But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental examination. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. It was not by way of compromising the merit that the benefit was to be given, just because the requisite length of service was completed but also dependent upon the merit and acceptance of the promotion. 12. From a perusal of the Government Resolution dated 16.08.1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination, otherwise the grant of higher grade scale is to be withdrawn. 13. However, by the Circular dated 24.11.2004, the Government of Gujarat modified the earlier resolution taking note of the High Court's order and directed that in cases where for getting higher pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organized in time. Further, by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organized during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier Circular of 1994. In the instant case, admittedly the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier Circular of 1994. The High Court has not considered the subsequent Circular of 2004 and based on the Circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law." 10.1. The Supreme Court has held that in case for getting the higher pay-scale, departmental examination is necessary, but it is equally necessary that the examination should be organized in time. In the present case when the petitioner became eligible in the year 1987, no examination was held. From the affidavit, it appears that the examination was held from the year 1990 to 1994, however, the respondent authorities has not produced anything on record to show that the petitioner has been intimated about the examination. 11. Thus, the respondent authorities are directed to grant the first higher pay scale to the petitioner from 01.06.1987. As regards the second higher pay-scale is concerned, the petitioner is claiming from 01.06.1996 after completion of 18 years of service. During the said period from 1988 to 1995 the petitioner has remained suspended and the aforesaid suspension period is not yet regularized since, the Criminal Appeal No. 390/2010 is pending before this Court. Thus, in view of his suspension the petitioner could not have been permitted for taking the departmental examination. Hence, the second higher pay scale cannot be granted at this stage, since the period in which the petitioner became eligible i.e. from 31.05.1988 to 07.07.1995 he was under suspension and hence, the same can only be granted after the decision of the criminal appeal pending before this Court. 11.1. In case the petitioner succeeds in the criminal appeal, he can approach the respondent authorities for grant of the second higher pay-scale with effect from 01.06.1996. 12. Thus, the prayers regarding regularization of the suspension period as well as confronting the benefits of the second higher pay-scale is concerned, the respondent authorities are hereby directed to examine the case of the petitioner after the disposal of the Criminal Appeal No. 390/2010 pending before this Court. 13. 12. Thus, the prayers regarding regularization of the suspension period as well as confronting the benefits of the second higher pay-scale is concerned, the respondent authorities are hereby directed to examine the case of the petitioner after the disposal of the Criminal Appeal No. 390/2010 pending before this Court. 13. Appropriate order granting the benefits of the first higher pay scale with effect from 01.06.1987 shall be passed within a period of two months from the date of receipt of writ of this order. The pension of the petitioner shall accordingly be revised. 14. The writ petition is partly allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.