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2020 DIGILAW 741 (GUJ)

State of Gujarat v. Patel Bhogilal Vithhalbhai

2020-09-04

J.B.PARDIWALA, VIKRAM NATH

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JUDGMENT : J.B. PARDIWALA, J. 1. This Appeal under clause 15 of the Letters Patent is at the instance of the State of Gujarat and others, being the unsuccessful respondents in a writ-application, and is directed against the judgment and order passed by a learned Single Judge of this Court dated 16th October 2019 in the Special Civil Application No. 7979 of 2013, by which the learned Single Judge partly allowed the writ-application filed by the respondent herein. 2. The facts giving rise to this Appeal may be summarised as under. 3. The respondent herein came to be appointed as a Field Assistant on 14th June 1969 in the Dabka PTC College. He ultimately retired as the Assistant Professor from the Government Ladies School upon attaining the age of superannuation, on 31st May 2006. 4. When the respondent herein was serving in the office of the District Education Officer, Vadodara, an FIR came to be lodged against him for the offences punishable under Section 161 of the IPC and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947. The respondent was put on trial in the court of the Special Judge, Vadodara, in the ACB Case No. 8 of 1992. The Special Court, vide its judgment and order dated 30th November 2009, acquitted the respondent. 5. The State, being dissatisfied with the judgment and order of acquittal passed by the Special Court, has filed the Criminal Appeal No. 390 of 2010 before this High Court and the same is pending for final hearing. 6. In view of the fact that the Government Appeal against acquittal filed by the State is pending before this Court, the respondent is being paid provisional pension as the suspension period between 31st May 1988 and 7th July 1995 was not regularized. 7. In the aforesaid factual background, the respondent (original writ-applicant) came before this Court by filing the Special Civil Application No. 7979 of 2013, praying for the following reliefs: “(A) Admit and allow this Special Civil Application. (B) Allow this Special Civil Application and be pleased to issue writ of mandamus or any order or direction in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent authority to pay immediately the benefit as order vide letter no. (B) Allow this Special Civil Application and be pleased to issue writ of mandamus or any order or direction in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent authority to pay immediately the benefit as order vide letter no. DPPF/PR-5/04/2006/212738 dated 12.04.2012 issued by the Office of the Director of Pension and Provident Fund, Gujarat State, and further be pleased to direct respondent authority to grant gratuity amount and final pension and to pay all retiral dues i.e. gratuity and leave encashment and to direct the respondent authority to regularize suspension period of petitioner from 31.05.1988 to 07.07.1995 and grant all benefits accrued during that period all other benefit of service of petitioner to pay arrears of the same immediately to petitioner in the interest of justice. (C) Pending admission, hearing and till final disposal of this petition, be pleased to direct respondent authority to pay benefit as order vide letter no. DPPF/PR-5/04/2006/212738 dated 12.04.2012 issued by the Office of the Director of Pension and Provident Fund, Gujarat State. (D) Pending admission, hearing and till final disposal of this petition, be pleased to direct respondent authority to pay other benefits of service of petitioner and further be pleased to direct respondent authority to grant regularization of suspension period from 31.05.1988 to 07.07.1995 and all benefits accrued during that period and to pay arrears of the same to petitioner. (E) Be pleased to award the cost of this petition. (F) Grant such other and further relief as deemed fit and just in the interest of justice.” 8. The respondent herein prayed for three things before the learned Single Judge: (1) That he is entitled to the final pension. (2) The suspension period between 31st May 1988 and 7th July 1995 be regularized. (3) He is entitled to the benefits of the higher pay-scale. 9. It was argued before the learned Single Judge that the writ-applicant became eligible for the grant of the first higher pay-scale as on 1st June 1987 in view of the Government Resolution dated 16th August 1994 upon completion of more than nine years of service in one cadre, i.e. from 13th October 1976 to 1st June 1987. 10. 9. It was argued before the learned Single Judge that the writ-applicant became eligible for the grant of the first higher pay-scale as on 1st June 1987 in view of the Government Resolution dated 16th August 1994 upon completion of more than nine years of service in one cadre, i.e. from 13th October 1976 to 1st June 1987. 10. It was argued that as no departmental examinations were conducted, he could not have been denied the benefits of the higher pay-scale on the ground that the writ-applicant has not passed the departmental examination. 11. It was also argued that the writ-applicant is eligible for the second higher pay-scale on completion of 18 years of service in the same cadre, i.e. from 1st June 1996, as per the Government Resolution dated 16th August 1994. 12. The writ-application was opposed by the appellants herein by submitting that the suspension period is not liable to be regularized as the criminal appeal against the judgment and order of acquittal passed by the trial court is pending before this High Court. 13. It was argued that the writ-applicant is not entitled to claim higher pay-scale as he failed to appear in the departmental examination. In this regard, reliance was placed on clause 3(9) of the Government Resolution dated 16th August 1994. 14. In the last, it was argued on behalf of the appellants herein that as the writ-applicant was suspended from service with effect from 31st May 1988 and he came to be reinstated on 7th July 1995, he would not be entitled for the second higher pay-scale. 15. The learned Single Judge, ultimately, partly allowed the writ-application filed by the respondent herein, holding as under: 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. 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. 10.1. 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. 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. 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.” 16. Thus, the learned Single Judge, by partly allowing the writ-application, granted the benefits of the first higher pay-scale with effect from 1st June 1987. At the same time, as regards the prayers seeking regularization of the suspension period as well as the second higher pay-scale, the learned Single Judge observed that the same may be considered by the authorities after the Criminal Appeal No. 390 of 2010 is disposed of by this Court. 17. Being dissatisfied with the order passed by the learned Single Judge granting the benefits of the first higher pay-scale, the appellants are here before this Court with the present Appeal. 18. Mr. Dharmesh Devnani, the learned AGP appearing for the State, would submit that the learned Single Judge committed a serious error in extending the benefits of the first higher pay-scale despite the fact that the original writ-applicant had not been able to clear the departmental examination. He would submit that the benefits of the higher pay-scale as per the Resolution of the State Government can be extended only after passing of the departmental examination. 19. He would argue that the benefits of the higher pay-scale granted in favour of the writ-applicant on the ground that the department had not conducted the departmental examination could be termed as erroneous as the original writ-applicant, even while he was eligible, thought fit not to appear in the said departmental examination. 20. Mr. Devnani would submit that the learned Single Judge committed a serious error in taking the view that the original writ-applicant ought to have been communicated as regards the conduct of the departmental examinations. In other words, according to Mr. 20. Mr. Devnani would submit that the learned Single Judge committed a serious error in taking the view that the original writ-applicant ought to have been communicated as regards the conduct of the departmental examinations. In other words, according to Mr. Devnani, the learned Single Judge is not correct in taking the view that each employee should be individually communicated as regards the departmental examination. According to Mr. Devnani, it is for each employee to appear in the said departmental examination. 21. Mr. Devnani further argued that it was mandatory for the writ-applicant to pass the departmental examination in view of the Resolution dated 5th July 1991. He pointed out that as on 5th July 1991, the writ-applicant had not completed 45 years of age. The Resolution dated 16th August 1994 exempted only those employees from appearing in the departmental examination who had completed 45 years of age as on 5th July 1991. On 5th July 1991, the writ-applicant was 43 years of age. 22. Mr. Devnani pointed out that the writ-applicant had not passed the departmental examination from 7th July 1995, i.e. the date on which he was reinstated in service, upto 31st May 2006, i.e. the date when the writ-applicant superannuated. 23. Mr. Devnani pointed out that the learned Single Judge failed to consider an important question of fact that the department had conducted departmental examinations on 25 occasions between 1986 and 2001. However, the writ-applicant failed to appear in the examination and on account of non-passing of the departmental examination, he was found not eligible for the higher pay-scale. 24. In the last, Mr. Devnani pointed out that the writ-application could be said to have been filed almost after a delay of 25 years. He would argue that the claim of the first higher pay-scale from the year 1988 was put forward in the year 2013. 25. In such circumstances referred to above, Mr. Devnani prays that there being merit in his Appeal, the same be allowed and the impugned judgment and order passed by the learned Single Judge be set-aside. He prays that the Special Civil Application No. 7979 of 2013 be rejected in toto. 26. On the other hand, this Appeal has been vehemently opposed by Mr. Vaibhav Vyas, the learned counsel appearing for the respondent herein (original writ-applicant). Mr. He prays that the Special Civil Application No. 7979 of 2013 be rejected in toto. 26. On the other hand, this Appeal has been vehemently opposed by Mr. Vaibhav Vyas, the learned counsel appearing for the respondent herein (original writ-applicant). Mr. Vyas would submit that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned judgment. According to Mr. Vyas, his client became eligible for the grant of the first higher pay-scale on 1st June 1987 in view of the Resolution of the State Government dated 16th August 1994 on completion of more than nine years of service in one cadre, i.e. from 13th October 1976 to 1st June 1987. 27. Mr. Vyas would submit that no departmental examination was conducted and, therefore, no fault could be found with his client. He pointed out that his client came to be suspended in the year 1988 and was reinstated only in the year 1995. Mr. Vyas would submit that his client was never informed about the date of the departmental examination between the year 1991 and 1994 and, therefore, he was not in a position to appear in the departmental examination. 28. In the last, Mr. Vyas submitted that as his client came to be acquitted from the ACB Case by the trial court, which had led to his suspension, his client is entitled to claim the first higher pay-scale. 29. In such circumstances referred to above, Mr. Vyas prays that there being no merit in this Appeal, the same be dismissed. 30. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the learned Single Judge committed any error in passing the impugned judgment and order. 31. The controversy in the present litigation is in a very narrow compass. The controversy is, whether the original writ-applicant is eligible for the first higher pay-scale, i.e. from 1st June 1987, despite the fact that at no point of time he appeared in the departmental examination. 32. 31. The controversy in the present litigation is in a very narrow compass. The controversy is, whether the original writ-applicant is eligible for the first higher pay-scale, i.e. from 1st June 1987, despite the fact that at no point of time he appeared in the departmental examination. 32. We take notice of the fact that the learned Single Judge has referred to and relied upon a decision of the Supreme Court in the case of K.K. Gohil vs. State of Gujarat, (2015) 9 SCC 652 , explaining the true purport of the Government Resolution dated 16th August 1994 as regards the scheme for the higher pay-scale. We would also like to refer to the observations made in paragraphs 12 and 13 thus: “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. 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.” 33. 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.” 33. Thus, the Supreme Court, in K.K. Gohil (supra) laid stress on the fact that the departmental examination should be organized in time. In the case on hand, we are at one with Mr. Devnani, the learned AGP, when he submits that the concerned department is not obliged to individually communicate to its employees about the conduct of the departmental examination. He his right in submitting that as and when the departmental examination is to be conducted, it is always declared in advance. It is for the individual employees to keep a track of such departmental examination and see to it that they appear if they want to claim the benefits of clearing such departmental examinations. It is one thing to say that for reasons beyond the control of the writ-applicant he could not appear in the departmental examination, and altogether another to say that he was not able to appear as the department failed to communicate him about the same. We are very clear in our mind that it is not obligatory for the department to individually inform the employees. The department’s obligation is to declare the departmental examination and inform about the date of the same. It is for the employees to keep a track of such departmental examination. 34. In the present case, the writ-applicant remained under suspension from 31st May 1988 to 7th July 1995. The learned Single Judge, in paragraph 10.1 of his judgment, has observed that the examination was held between 1990 and 1994, but the writ-applicant could not appear as he was not intimated about the examination. We have already made ourselves clear with regard to individual intimation. However, we would not like to disturb the order passed by the learned Single Judge as regards the grant of the first higher pay-scale in view of the fact that during the period between 1990 and 1994 when the departmental examinations were conducted, the writ-applicant was under suspension. 35. We have already made ourselves clear with regard to individual intimation. However, we would not like to disturb the order passed by the learned Single Judge as regards the grant of the first higher pay-scale in view of the fact that during the period between 1990 and 1994 when the departmental examinations were conducted, the writ-applicant was under suspension. 35. With regard to the regularization of the suspension period and also the second higher pay-scale, the learned Single Judge has rightly observed that the same may be considered by the respondents after the Criminal Acquittal Appeal No. 390 of 2010 is disposed of. 36. In such circumstances referred to above, we are not persuaded to interfere in this Appeal and disturb the judgment and order passed by the learned Single Judge. 37. In the result, this Appeal fails and is hereby dismissed. Civil Application, if any, stands disposed of.