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2021 DIGILAW 1176 (GUJ)

KAMLESH GIRDHARILAL HOTWANI v. STATE OF GUJARAT

2021-12-10

NIKHIL S.KARIEL

body2021
JUDGMENT : 1. Heard learned Advocate Shri Prabhakar Upadhyaya on behalf of the petitioner and learned Assistant Government Pleader Shri Uttkarsh Sharma on behalf of respondent no.1- State and learned Advocate Ms. Trusha Patel behalf of respondent no.2 2. Issue Rule returnable forthwith. Learned Advocates waive service of rule on behalf of their respective respondents. 3. With consent of parties, the petition is taken up for final disposal. 4. By way of this petition, the petitioner has sought for following relief/s: “24, The petitioner, therefore, humbly prays to this Hon’ble Court that: A. Your Lordships may kindly be pleased to issue a writ of Mandamus and/or Writ of any other appropriate Writ, direction and order to quash and set aside the letter/communication dated 04.12.2019 issued by the present respondent No. 2 which is at Annexure-J to this petition. B. Your Lordships may kindly be pleased to direct the respondents to step up the Entry Level Pay of the present petitioner to Rs. 12,540/- in pay band of Rs. 9300-34,800/- with the Grade Pay of Rs. 4600/ w.e.f. 16.03.2009 ( from the date of the promotion to the post of Gujarati Stenographer Grade- II) at par with the junior direct recruits working in the same cadre in the Metropolitan Magistrate Courts, Ahmedabad and further be pleased to direct the present respondents to pay the difference of salary along with the arrears to the present petitioner alongwith 12% interest, after revising the pay scale by extending the benefit of Entry Level Pay Scale to Rs. 12540/- with Grade pay of Rs. 4600/- to the present petitioner. C. Your Lordships may kindly be pleased to issue a Writ of mandamus and/or writ of any other appropriate writ, direction and order to quash and set aside the Government Resolution dated 14.09.2011 issued by the Finance Department, Govt. of Gujarat to the extent that it is applicable only to the direct recruits, not to the employees those who have been promoted on the post of Stenographer Grade-II, by holding and declaring that the same is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India.” 5. of Gujarat to the extent that it is applicable only to the direct recruits, not to the employees those who have been promoted on the post of Stenographer Grade-II, by holding and declaring that the same is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India.” 5. It appears that before filing of the present petition, the petitioner along with another employee had preferred Special Civil Application No. 20749 of 2016 seeking the following prayers: “[A] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to step up the entry level pay of the petitioners to Rs. 10810/- in the pay band of Rs. 9300- 34800/- along with grad pay of Rs. 4400/- with effect from the date of promotion of the petitioners to the post of Gujarati Stenographer Grade-II, in parity with the pay of the direct recruits in light of the Government Resolution dated 14.09.2011. [B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the Government Resolution No. PGR/102010/64 Pay Cell (M) dated 14.09.2011 issued by the Finance Department Government of Gujarat to the extent that it is applicable only to the direct recruits only and not to the employees who have been appointed by way of promotion ( at Annexure A); [BB] The Hon’ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the resolution dated 27.02.2017 passed by the Advisory Committee of the Metropolitan Magistrate Court, Ahmedabad. [C] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to grant arrears to the petitioners in view of the Government Resolution dated 14.09.2011.” 6. It appears that learned Co-ordinate Bench of this Court (Coram: A.S. Supehia, J.) vide order dated 29.04.2019 had been pleased to allow the said petition. It appears that learned Co-ordinate Bench of this Court (Coram: A.S. Supehia, J.) vide order dated 29.04.2019 had been pleased to allow the said petition. 6.1 At this stage it needs to be mentioned that the petitioner was working as Assistant ( Junior Clerk) in the Account Branch with the establishment of Metropolitan Magistrate Court, Ahmedabad and subsequently the petitioner was promoted to the post of Gujarati Stenographer Grade II in the prerevised pay scale of Rs. 5500-175-9000/-. The said pre- revised pay scales were revised vide the Gujarat Civil Services ( Revision of Pay) Rules, 2009 ( GCSR) by Notification dated 27.02.2009 with effect from 01.01.2006. Subsequently vide Government Resolution dated 14.10.2010, grade pay for pre-revised scales of (i) Rs. 5500-9000 and (ii) 6500-10500/- was fixed at the rate of Rs. 4400/- and Rs. 4600/- respectively. Consequent thereto grade pay of the petitioner was revised to Rs. 4400/- with pay band of Rs. 9300- 34800/-. 6.2 The present petitioner and his co-petitioner had preferred Special Civil Application No. 20749 of 2016 inter alia claiming to be entitled to entry level pay scale of Rs. 10810/- in pay band of Rs. 9300-34000 (PB-2) instead of entry level pay scale of Rs. 9300. This grievance was raised in context of Government Resolution dated 14.09.2011 by the Government of Gujarat whereby the entry level pay scale payable under Rule 8 of the Gujarat Civil Services ( Revision of pay) Rules, 2009 had been revised for direct recruitees. As per the Government Resolution entry level pay for direct recruitees appointed on or after 01.01.2006 in the grade of Rs. 4400/- was revised of Rs. 10810/- and for direct recruitees appointed in the grade pay of Rs. 4600/-, the entry level pay was revised to Rs. 12540/-. The petitioner by way of Special Civil Application No. 20749 of 2016 had claimed that instead of entry level pay of Rs. 9300/- he would be entitled to entry level pay scale of Rs. 10810/- as entitled to by direct recruitees who are appointed in the grade pay of Rs. 4400/- which was the grade pay made available to the petitioner at the relevant point of time. 9300/- he would be entitled to entry level pay scale of Rs. 10810/- as entitled to by direct recruitees who are appointed in the grade pay of Rs. 4400/- which was the grade pay made available to the petitioner at the relevant point of time. The petitioner had made the said prayers in context of and relying upon the decision of learned Co-ordinate Bench of this Court in Special Civil Application No. 12207 of 2014 where learned Co-ordinate Bench was examining the identical issue in case of English Stenographer Grade II. Vide decision dated 19.10.2015 learned Co-ordinate Bench in Special Civil Application No. 12207 of 2014 had inter alia held that the action of granting direct recruitees after 01.01.2006 an entry level pay of Rs. 10810/- and Rs. 12540/- respectively for grade pay of Rs. 4400/- and Rs. 4600/- and placing seniors appointed prior to 01.01.2006 in pay band of Rs. 9300/- and Rs. 12090/- as against Rs. 10810/- and Rs. 12540/- was anomalous and discrimination. The said decision had been challenged before Hon’ble Division Bench and whereas vide judgement dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016 and allied matters the Hon’ble Division Bench had partly allowed the decision of learned Co-ordinate Bench dated 19.10.21015 to the extent that instead of arrears to be paid from 01.01.2006 and whereas arrears were payable since 01.04.2010. 7. Co-ordinate Bench of this Court considering Special Civil Application No. 20749 of 2016 preferred by the petitioner and another employee had been pleased to allow the said petition vide order dated 24.09.2019 and whereas the following directions were issued: “10. In the considered opinion of this Court, the petitioners would be entitled to actual rise with effect from 01.01.2010 as per the Government Resolution dated 14.09.2011, in light of the observations made by the Division Bench of this Court vide judgement dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016 with aligned matters. The period from 03.10.2008 (i.e. the date of promotion of petitioner No.1) and 16.03.2009 ( i.e date of promotion of petitioner No.2) till 31.03.2010 shall be treated as notional. Appropriate order for re-fixing the pay of Rs. 10810/- in the pay band of Rs. 9300- 34800/- along with grade pay of Rs. The period from 03.10.2008 (i.e. the date of promotion of petitioner No.1) and 16.03.2009 ( i.e date of promotion of petitioner No.2) till 31.03.2010 shall be treated as notional. Appropriate order for re-fixing the pay of Rs. 10810/- in the pay band of Rs. 9300- 34800/- along with grade pay of Rs. 4400/- and grant of actual rise from 01.04.2010 shall be passed by the respondent authorities within a period of two (2) months from the date of receipt of this writ of this order. The petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 8. It appears that the petitioners had not informed learned Co-ordinate Bench about an important development which had taken place in the interregnum inasmuch vide an order no. 195/ 2016 dated 30.04.2016, the Chief Metropolitan Magistrate, Ahmedabad had revised the pay scale inter alia of Gujarati Stenographer Grade II and whereas the petitioner was entitled to pay scale of Rs. 9300-34800 with grade pay of Rs. 4600/- ( PB - II) with effect from the date of his actual promotion which was as mentioned in Annexure E of the said order. Thus the petitioner was entitled to pay scale of Rs. 9300-34800 with grade pay of Rs. 4600/- with effect from 16.03.2009. It appears that after order dated 29.04.2019 in Special Civil Application No. 20749 of 2016 the petitioner had preferred Misc. Civil Application No. 1 of 2019 for modification inter alia requesting learned Coordinate Bench to modify the said order in terms of directing the respondents to re-fix entry level pay of the petitioner at Rs. 12540/- in the pay scale of Rs. 9300-34800 along with grade pay of Rs. 4600/- and whereas actual arrears were requested to be paid from 01.04.2010. It appears that vide an order dated 18.07.2019 learned Co-ordinate Bench had rejected such a request since according to learned Co-ordinate Bench a new prayer had been sought for by the petitioner. The petitioner had therefore preferred Letters Patent Appeal No. 1588 of 2019 challenging the refusal of the learned Co-ordinate Bench for modification in the order dated 29.04.2019 and whereas Hon’ble Division Bench vide an order dated 18.09.2019 had inter alia recorded that entire pleadings contained in the petition was with regard to grade pay of Rs. 4400/- and consequent entry level pay of Rs. 10810/- and appropriate modification in the salary of the petitioner. 4400/- and consequent entry level pay of Rs. 10810/- and appropriate modification in the salary of the petitioner. It further appears that the Hon’ble Division Bench had also noted that the modification by the petitioner was with regard to grade pay of Rs. 4600/- and corresponding pay band. Having noted the same Hon’ble Division Bench had rejected the appeal with a liberty that the petitioner could raise a fresh claim before this Court or before any other appropriate authority, for his claim with regard to corresponding pay band in grade pay of Rs. 4600/- and whereas the observations made by the Hon’ble Single Judge while rejecting the modification application would not come in the way of the petitioner. 8.1 It is consequent to the observations of the Hon’ble Division Bench vide order dated 18.09.2019 that the present petitioner preferred the present petition. 9. It would be pertinent to mention here that Special Civil Application No. 20749 of 2016 had been decided vide order dated 24.09.2019 upholding the claim of the petitioner for being placed in entry level pay of Rs. 10810/- as grated to direct recruitees vide Government Resolution dated 14.09.2011. The claim of the petitioner in the present petition being that since the grade pay of Rs. 4400/- had been revised to Rs. 4600/- vide order dated 30.04.2016 consequent to recommendation of the First National Judicial Pay Commission ( Shetty Pay Commission) and since the Government Resolution dated 14.09.2011 grants entry level pay of Rs. 12540/- for direct recruitees after 01.01.2006 in the grade pay of Rs. 4600/- and since consequent to the revision in case of the petitioner he was placed in the pay band of Rs. 12090/-, therefore a discrimination has taken place and the petitioner would be entitled to be placed in the pay band of Rs. 9300- 34800/- with grade pay of Rs. 4600/- with the entry level pay of Rs. 12540/. 10. This Court finds that learned Co-ordinate Bench in Special Civil Application No. 20749 of 2016 in decision dated 24.09.2019 relying upon earlier decision of this Court in Special Civil Application No. 12207 of 2014 dated 19.10.2015 modified partly by the Hon’ble Division Bench vide judgment dated 15.09.2016 in Letters Patent Appeal No. 652 of 2016. In the said judgment, the Court was concerned with two separate sets of petitions where employees in pay band of Rs. 9300-34800 in grade pay of Rs. In the said judgment, the Court was concerned with two separate sets of petitions where employees in pay band of Rs. 9300-34800 in grade pay of Rs. 4600/- had requested to be placed at entry level pay of Rs. 12540/- from 01.04.2010 and employees in pay band of Rs. 9300-34800 in the grade pay of Rs. 4400/- had requested for placing them at entry level pay of Rs. 10810/- with effect from 01.04.2010. Since benefits corresponding to grade pay of Rs. 4400/- had been sought for in Special Civil Application No. 20749 of 2016 and learned Co-ordinate Bench had relying upon the decision referred to hereinabove granted such a prayer. Now the petitioner is seeking for benefits corresponding to grade pay of Rs. 4600/-. It clearly appears that reasoning for grant of benefits of being given entry level pay as direct recruitees after 01.01.2006 corresponding to grade pay of Rs. 4400/- or grade pay of Rs. 4600/- by the Co-ordinate Bench and the Hon’ble Division Bench in the decision relied upon order dated 24.09.2019 in Special Civil Application No. 20749 of 2016 are common. The grievance was also raised in context of Government Resolution dated 14.09.2011 by which direct/fresh recruitees after 01.01.2006 in grade pay of Rs. 4400/- or Rs. 4600/- would be paid entry level pay of Rs. 10810/- or Rs. 12540/- respectively. The learned Single Judge and Hon’ble Division Bench in decision referred to in order 24.09.2019 directed inter alia that petitioners who were promotees appointed prior to 01.01.2006 would be discriminated by placing them in the pay band of Rs 9300/- or Rs. 12090/- corresponding to grade pay of Rs. 4400/- and Rs. 4600/- respectively. 11. Learned Co-ordinate Bench in Special Civil Application No. 20749 of 2016 vide decision dated 24.09.2019 had accepted the claim of the petitioner for re-fixation of entry level pay of Rs. 10810/- in pay band of Rs. 9300/- with grade pay of Rs. 4400/-. The fixation of entry level pay of Rs.10810/- was in context of grade pay drawn by the petitioner at the rate of Rs. 4400/- at that relevant point of time. Subsequently as noted hereinabove grade pay of petitioner had been revised to Rs. 4600/- with effect from 16.03.2009 i.e. the date of promotion of the petitioner as Stenographer Grade II. The fixation of entry level pay of Rs.10810/- was in context of grade pay drawn by the petitioner at the rate of Rs. 4400/- at that relevant point of time. Subsequently as noted hereinabove grade pay of petitioner had been revised to Rs. 4600/- with effect from 16.03.2009 i.e. the date of promotion of the petitioner as Stenographer Grade II. Thus since decision of the learned Co-ordinate Bench of this Court in Special Civil Application No. 12207 of 2014 vide order dated 19.10.2015 partly modified by the Hon’ble Division Bench in Letters Patent Appeal No. 652 of 2016 and allied matters had upheld the claim of employees who had been appointed before 01.01.2006 for being granted the entry level pay at the rate of Rs. 12540/- corresponding to grade pay of Rs. 4600/- and Rs. 10810/- corresponding to grade pay of Rs. 4400/- as made available to the direct recruitees after 01.01.2006 as entry level pay vide Government Resolution dated 14.09.2011 and since learned Co-ordinate Bench of this Court had upheld the claim of the petitioner for grant of entry level pay of Rs. 10810/- corresponding to grade pay Rs. 4400/- relying upon earlier decision referred to hereinabove. Furthermore the reasons with regard to entry level pay at the rate of Rs. 10810/- corresponding to grade pay of Rs. 4400/- and Rs. 12540/- corresponding to grade pay of Rs.4600/-to be granted in favour of pre 01.01.2006 employees being similar, and since the decision of learned Co-ordinate Bench not having been challenged by the respondents and thus having become final between the parties more particularly since benefits as available vide order dated 29.04.2019 appears to have been paid to the petitioner, therefore in the considered opinion of this Court the petitioner would be consequently entitled to benefit of entry level pay of Rs. 12540/- in pay scale of Rs 9300-34800 with the grade pay of Rs. 4600/-. 12. It requires to be mentioned herein that though learned Advocate Ms. Trusha Patel on behalf of respondent no.2 had attempted to contend that petitioner would not be entitled to entry level pay of Rs. 12540/- corresponding to entry level pay granted to direct rectuitees after 01.01.2006 appointed in grade pay of Rs. 4600/-. 12. It requires to be mentioned herein that though learned Advocate Ms. Trusha Patel on behalf of respondent no.2 had attempted to contend that petitioner would not be entitled to entry level pay of Rs. 12540/- corresponding to entry level pay granted to direct rectuitees after 01.01.2006 appointed in grade pay of Rs. 4600/- in the considered opinion of this Court, since order dated 29.04.2019 having not been challenged by respondent no.2 and rather the said order having been implemented, and as noted hereinabove the reasoning for grant of entry level pay of Rs. 10810/- in pay band/scale of Rs. 9300-34800/- in grade pay of Rs. 4400/- as directed by the learned Co-ordinate Bench being the same reasoning as mentioned by the learned Single Judge as well as Hon’ble Division Bench in the earlier petitions, such submission of learned Advocate Shri Patel cannot be countenanced. 13. In the result petition is allowed. The petitioner would be entitled to refixation of entry level pay of Rs. 12540/- in the pay band/scale of Rs. 9300-34800 along with grade pay of Rs. 4600/- and that arrears and its periodical rise with effect from 01.04.2010, such arrears shall be paid by the respondent authorities within a period of two months from the date of receipt of this order. It is clarified that the petitioner having been paid the benefits as available vide order dated 29.04.2019, the petitioner would be entitled to the difference. Rule is made absolute in above terms. No order as to costs.