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2021 DIGILAW 1185 (GUJ)

STATE OF GUJARAT v. DINESHBHAI KANJIBHAI PARMAR

2021-12-13

A.S.SUPEHIA

body2021
ORDER : 1. Rule. Learned advocate Mr.Dipak Patel waives service of notice of rule on behalf of the respondent. 2. The petitioner State being aggrieved by the order dated 19.11.2018 passed by the Gujarat Civil Services Tribunal, Gandhinagar, in Appeal No.147 of 2016 has filed the present petition. 3. The brief facts giving rise to filing of the present petition are that the respondent was initially appointed in the Revenue Department on 29.09.1984 on compassionate ground and he was regularised vide order dated 17.10.1989 passed by the District Collector, Mehsana in accordance with the Central Recruitment Rules. 3.1 It is stated that vide order dated 01.04.1990, he was allotted to the office of the District Education Officer at Patan on being declared as “surplus” due to closure of Election Branch. The said order was challenged by the respondent by filing Special Civil Application No.5892 of 1993 and by the judgment dated 16.05.2008, the petition was allowed by quashing and setting aside the order dated 01.04.1990 and it was held that the respondent is entitled for seniority from the date of joining i.e. 20.09.1984. It was also directed to confer seniority to the respondent in the cadre of clerk with all other consequential benefits subject to the respondent fulfilling the criteria for such benefits. 3.2 The said order was challenged by the State by filing Letters Patent Appeal No.404 of 2009, which was dismissed vide order dated 05.11.2009. Thereafter, the respondent was taken back in the Revenue Department and vide letters dated 07.07.2012 and 01.06.2013, he requested the department to grant him exemption from appearing in the departmental examination since he had completed 9 years on 08.10.1993 and he should be granted the first Higher Pay Scale as he has passed the CCC examination and also LRQ examination in 2016. Thereafter, vide order dated 22.08.2016, the respondent authority granted him the Higher Pay Scale from the date of passing the LRQ examination i.e. 15.02.2016. 3.3 Being aggrieved by the aforesaid order, the respondent herein filed Appeal No.147 of 2016 before the Gujarat Civil Services Tribunal, Gandhinagar. By the judgment and order dated 19.11.2018, the Tribunal allowed the appeal and quashed and set aside the order dated 22.08.2016 passed by the Collector, Mehsana, and further held that the respondent is entitled to the benefits of the Higher Pay Scale after completion of 9 years of service on the post of Deputy Mamlatdar. By the judgment and order dated 19.11.2018, the Tribunal allowed the appeal and quashed and set aside the order dated 22.08.2016 passed by the Collector, Mehsana, and further held that the respondent is entitled to the benefits of the Higher Pay Scale after completion of 9 years of service on the post of Deputy Mamlatdar. 4. Learned AGP Mr.Jadeja has submitted that the respondent could have approached by filing an appeal before the Appellate Authority with regard to any of the matter mentioned in the schedule of the Gujarat Civil Services Tribunal Act, 1972. He has submitted that there are 13 items provided under Schedule C and hence, he could have filed an appeal and the Tribunal ought not to have decided the appeal filed by the respondent. It is submitted that the respondent has cleared the LRQ examination on 15.02.2016, hence, the authority has precisely granted the higher Pay Scale from 15.02.2016 and the Tribunal ought not to have interfered with the order dated 22.08.2016 fixing his higher Pay Scale. No further submissions advanced by the learned AGP. 5. Per contra, learned advocate Mr.Dipak Patel has submitted that the order passed by the Tribunal does not require any interference as it is premised on the correct appreciation of facts. It is submitted that in fact the respondent, who was appointed in the Revenue Department in the year 1984, was illegally transferred to the Education Department, which constrained him to file Special Civil Application No. 5892 of 1993. The petitioner challenged such transfer and vide judgment and order dated 16.05.2008, the writ petition was allowed and the Letters Patent Appeal No.404 of 2009, was also dismissed vide order dated 05.11.2009. It is submitted that pursuant to the aforesaid order, the respondent was repatriated in the Revenue Department on 24.11.2010 and he cleared the CCC examination on 15.02.2016. Thus, it is submitted that in fact the respondent is entitled to the Higher Pay Scale after completion of 9 years of service in the Revenue Department but the same was not granted as he was illegally transferred to the Education Department. It is submitted that there was no contentions raised either before the Tribunal or before this Court that despite the respondent having being informed with regard to holding of examination and he did not appear. It is submitted that there was no contentions raised either before the Tribunal or before this Court that despite the respondent having being informed with regard to holding of examination and he did not appear. It is submitted that he appeared in the examination and cleared the same within prescribed chances and hence, on clearing the same, he should have been granted the first Higher Pay Scale w.e.f. 08.10.199, which is precisely held by the Tribunal and hence, the impugned order may not be disturbed. 6. Heard the learned advocates for the respective parties to the lis. 7. The facts are not in dispute that the respondent was appointed in the Revenue Department in the year 1984 on 29.09.1984 and his service was regularised by the order dated 17.10.1989 by the District Collector, Mehsana. The respondent has passed the examination, which was held as per the Government Non-Secretariat Clerks, Clerk- Typists and Typists Recruitment Examination Rules, 1970, and accordingly, his seniority was confirmed from the date of joining i.e. 29.09.1984. Thereafter, the respondent was transferred to the Department of Education, which was subject matter of challenge in the writ petition being Special Civil Application No.5892 of 1993. By the judgement and order dated 16.05.2008, the aforesaid action of transferring the respondent in the Education Department was set aside and it was observed that the respondent is entitled to seniority from the date of joining as 20.09.1984. 8. The Coordinate Bench, while passing order dated 16.05.2008 in Special Civil Application No. 5892 of 1993 has observed thus:- “14. In view of the above discussion, order dated 01.04.1999 passed by the respondent no.2 (Annexure C) is hereby quashed and set aside. The petitioners is entitled fro seniority from the date of joining the service i.e. 20.09.1984. The respondents herein are directed to confer seniority to the petitioner in the cadre of Clerk in teh parent Revenue Department with all other consequential benefits subject to the petitioner fulfilling the relevant criteria fro such benefit. The above exercise of repatriating and placing the petitioner in original and parent Revenue Department be completed within a period of four weeks from the date of receipt of this order.” 9. Being aggrieved by the said decision, the State preferred Letters Patent Appeal No.404 of 2009, which was also dismissed by the order dated 05.11.2009. The above exercise of repatriating and placing the petitioner in original and parent Revenue Department be completed within a period of four weeks from the date of receipt of this order.” 9. Being aggrieved by the said decision, the State preferred Letters Patent Appeal No.404 of 2009, which was also dismissed by the order dated 05.11.2009. Pursuant to the aforesaid order, the respondent was repatriated in the Revenue Department by the order dated 30.12.2010. It is also not in dispute that after the respondent was offered to take the departmental examination in the Revenue Department, he cleared the same on 15.02.2016 and accordingly, by the order dated 22.08.2016, the respondent was conferred the first Higher Pay Scale on 25.02.2016 i.e. from the date of passing examination, which led him to file an appeal before the Tribunal being Appeal No. 147 of 2016. By the order dated 19.11.2018, the appeal of the respondent was allowed and the petitioner State was directed to grant the first Higher Pay Scale to the respondent from 08.10.1993 i.e. after completion of nine years on the post of Deputy Mamlatdar. 10. The Court has perused the order passed by the Tribunal and on a bare perusal of the same it would reveal that the petitioner State has not contended that the departmental examination of the petitioner was held prior to 2016 or he was informed to take examination before 2016. It is not in dispute as noted hereinabove that the respondent was illegally transferred in the year 2008 and he remained in the Education Department till the year 2010 and such action was set aside by this court. Thus, when the respondent was offered to take examination in the year 2016 in Revenue Department, he has cleared the same in prescribed clauses hence, he will be entitled to the Higher Pay Scale after completion of 9 years of service from 1993, since by the order dated 16.05.2008 passed in Special Civil Application No. 5892 of 1993, this court has directed the petitioner State to maintain seniority of the respondent from 20.09.1984. Thus, after completion of 9 years of service, the respondent is entitled to the Higher Pay Scale from 28.09.1993. The petitioner State has considered the appointment date of the respondent as 08.10.1984 and hence, the respondent is entitled for the Higher Pay Scale from 08.10.1993 after completion of 9 years of service. Thus, after completion of 9 years of service, the respondent is entitled to the Higher Pay Scale from 28.09.1993. The petitioner State has considered the appointment date of the respondent as 08.10.1984 and hence, the respondent is entitled for the Higher Pay Scale from 08.10.1993 after completion of 9 years of service. Because of illegality committed by the petitioner State, the respondent was constrained to work in another department and when he was repatriated to his original department i.e. Revenue Department and in wake of fact that he has cleared the departmental examination in the year 2016, the respondent is entitled to the Higher Pay Scale as ordered by the Tribunal. The contention raised by the petitioner State in the memo of petition with regard to lack of jurisdiction does not merit acceptance since the issues with regard to the seniority and grant of consequential benefits were already decided by this Court. The only issue was with regard to the effective date of grant of Higher Pay Scale, whether from passing of CCC examination or after completion of 9 years. It cannot be said that the Tribunal has exceeded its jurisdiction. Hence, the writ petition fails. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated. Since the interim relief is vacated and the order of Tribunal is upheld, the State is directed to pass appropriate order altering the date of grant of Higher Pay Scale as per the order passed by the Tribunal within a period of two months from the date of receipt of this order.