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2021 DIGILAW 450 (GUJ)

Harendrabhai Champaklal Barot v. State of Gujarat

2021-06-18

BHARGAV D.KARIA

body2021
JUDGMENT : 1. Heard learned advocate Mr. Shivang Shah for the petitioner, learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent-State and learned advocate Mr. Rituraj Meena for respondent No.2 through video conference. 2. RULE returnable forthwith. Learned AGP Mr. Parikh waives service of notice of rule on behalf of respondent Nos. 1 and 3 and learned advocate Mr. Meena waives service of notice of rule on behalf of respondent No.2. 3. By this petition under Article 226 of the Constitution of India, the petitioner has made the following prayers : “A. Your Lordships may be pleased to admit and allow this application; B. Your Lordships may be pleased to issue a writ of mandamus and in the nature of certiorari or any other appropriate writ to quash and set aside the impugned letter/communication dated 27.9.2016 passed by respondent No.2 and further be pleased to grant the benefit of revised pay scale of Rs. 1640-2900 w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/1992 as has been declared by Hon’ble Division Bench in LPA No. 834 of 2012 in judgement and order dated 31.3.2014 in case of similarly/identically situated other Additional Assistant Engineers; C. Pending admission, hearing and final disposal of the mai appeal your lordships may be pleased to grant the benefit of revised pay scale of Rs. 1640-2900 w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/1992 as has been declared by Hon’ble Division Bench in LPA No. 834 of 2012 in judgement and order dated 31.3.2014 in case of similarly/identically situated other Additional Assistant Engineers; D. Your Lordships may be pleased to stay such other and further order(s) that may be deemed fit and proper in the facts and circumstances of the case.” 4. Brief facts of the case are as under: 4.1 The petitioner was appointed as Additional Assistant Engineer on 10.10.1980 at Public Health Sukhakari Peta Vibhag Shihori, Shihori under the Public Health Department of State of Gujarat. The State Government bifurcated Public Health Department and created Gujarat Water Supply and Sewerage Board and all the offices under the Public Health Department were put under the control of Gujarat Water Supply and Sewerage Board vide notification dated 01.04.1981 in which the petitioner was also one of the employee. The petitioner retired on 31.07.2016 on attaining the age of superannuation. The petitioner retired on 31.07.2016 on attaining the age of superannuation. 4.2 For the cadre of Additional Assistant Engineer, the State Government through Finance Department granted pay scale of Rs.1640-2900 as against Rs.1400-2300 with effect from 1.4.1992 whereas the pay scale of Assistant Engineer was revised from 1.1.1986 in the very department. Being aggrieved by such action of the respondents, the Additional Assistant Engineers preferred Special Civil Application No.5210/1995 before this Court which was dismissed, against which Letters Patent Appeal was preferred which was allowed. Since such order of the Division Bench was not complied, with, a contempt application came to be filed which was also disposed of. 4.3 The State Government being aggrieved by the order passed by the Division Bench preferred Special Leave Petition before the Apex Court and in the meanwhile, it was resolved by the State Government to give notional benefit from 1.1.1986 and comply with the direction subject to the outcome of SLP. 4.4 It is the case of the petitioner that the petitioner is similarly and identically situated with that of petitioners referred above in the Division Bench judgment. The State Government through respondent no.1 issued letter/direction dated 7.8.2015 to all its Head Branches to take necessary undertaking from all Additional Assistant Engineers as the payment was required to be made before 13.8.2015. 4.5 Pursuant to aforesaid letter dated 7.8.2015, respondent no.2 issued letter dated 15.10.2015 directing the Superintendent Engineer to take necessary steps and comply with the directions issued in letter dated 7.8.2015. 4.6 It is the case of the petitioner that accordingly, the petitioner gave required undertaking which was also forwarded to the main office vide letter dated 9.2.2016. It is the case of the petitioner that pay fixation and calculation as per the direction of Division Bench was also done and the same was forwarded to the Pay Verification Officer vide letter dated 9.2.2016. 4.7 It is the case of the petitioner that order dated 31.3.2014 passed by the Division Bench in Letters Patent Appeal No. 834/2012 was to be made applicable to all the Additional Assistant Engineers in all circles of Public Health as well as Technical circle who were in service, retired, resigned as well as to those who have expired and therefore, all the offices were directed to sent the proposal as expeditiously as possible to the head office. A further reminder vide letter dated 3.3.2016 was also forwarded to see to it that no officer of cadre of Additional Assistant Engineer is left out. 4.8 Respondent no.3 issued letter dated 14.3.2016 to respondent no.1 wherein it was stated that the permission which is sought to be granted by respondent no.2 in its letter dated 15.10.2015 was never granted by respondent no.3 and therefore, all the proceedings thereto were required to be cancelled immediately. Thereafter, respondent no.1 directed the respondent no.2 to stop all the proceedings vide letter dated 5.4.2016 which was accordingly forwarded to all branches and circles vide communication dated 21.4.2016. 4.9 It is the case of the petitioner that as the petitioner was not getting the benefit out of Division Bench judgment as it was passed in Additional Assistant Engineer Association case and that such benefit was granted to Saurashtra as well as Kachchh zones under respondent no.1 whereas persons like petitioners serving under the North Gujarat and Baroda zone were left out, a representation was made to the MLA who had in turn requested respondent no.1 vide letter dated 24.4.2016 to look into the matter and see that the benefit of Division Bench judgment is given to the left out employees who are similarly and identically situated. 4.10 In pursuance to letter dated 21.4.2016, the respondent no.2 immediately cancelled the payment of revised pay scale with effect from 1.1.1986 that was to be granted pursuant to the directions given by the Division Bench. 4.11 The petitioner and other similarly situated persons therefore, made a representation to respondent no.2 and requested to take appropriate permission from respondent no.3 office so as to enable the petitioner to enjoy the benefits of Division Bench Judgment and that all the Additional Assistant Engineer working in different part of State can be equally treated and accordingly respondent no.2 requested by its proposal to respondent no.1 to reconsider its decision and take necessary decision vide letter dated 16.5.2016. 4.12 It is the case of the petitioner that the aforesaid proposal sent was returned back by respondent no.3 with the remarks/notings that the benefit of the Division Bench judgment is required to be only granted to those petitioners who were party to such proceedings. 4.12 It is the case of the petitioner that the aforesaid proposal sent was returned back by respondent no.3 with the remarks/notings that the benefit of the Division Bench judgment is required to be only granted to those petitioners who were party to such proceedings. Therefore, the Association had preferred representation dated 17.9.2016 to respondent no.3 wherein it was categorically pointed out that the petitioner and alike persons are similarly and identically situated and that as per Government Resolution dated 22.8.2014 the State Government is bound to give benefit arising out of the judgment to each and every person who is identically and similarly situated and such person is not required to go to the Court to get individual orders. 4.13 It is the case of the petitioner that by impugned communication dated 27.9.2016, without assigning any reason or explanation, the benefit is not given to the petitioner. The petitioner has therefore, preferred this petition with aforesaid prayers. 5. Learned advocate Mr. Shivang Shah appearing for the petitioner submitted that the petitioner is similarly situated person to whom benefit of revised pay scale is granted by this Court on notional basis from 01.01.1986 and from actual basis from 01.04.1992. 6. Learned advocate Mr. Shivang Shah referred to the judgement dated 01.03.2014 at Annexure C passed by the Division Bench of this Court in Letters Patent Appeal No. 834 of 2012 in Special Civil Application No. 5210 of 1995 in case of Additional Assistant Engineers Association and others vs. State of Gujarat and another and submitted that the petitioner, at the relevant time was working as Additional Assistant Engineer and he is also entitled to similar benefits as granted by this Court in the said judgement. 7. Learned advocate Mr. Shah further submitted that the Supreme Court, vide order dated 01.10.2015, was pleased to dismiss the Special Leave Petition No. 29901 of 2015 filed by the State of Gujarat on the ground of limitation on merits arising out of judgement and order dated 31.03.2014 in Letters Patent Appeal No. 834 of 2012 in Special Civil Application No. 5210 of 1995. It was therefore submitted that the petitioner is entitled to pay scale of Rs.1640-2900/- as held by the Division Bench. It was therefore submitted that the petitioner is entitled to pay scale of Rs.1640-2900/- as held by the Division Bench. It was submitted that the State Government has also by resolution dated 28.07.2015 implemented the judgement of the Division Bench and benefits were granted to the Additional Assistant Engineers w.e.f. 01.01.1986 as per the directions of the Division Bench. 8. Learned advocate Mr. Shah further submitted that respondent No.2 therefore could not have denied the benefit of the revised pay scale to the petitioner by passing the impugned order dated 27.09.2016 on the ground that the petitioner was not party in the aforesaid proceedings. It was therefore, submitted that the impugned order dated 27.09.2016 is liable to be quashed and set aside. 9. On the other hand, learned advocate Mr. Meena for the respondent No.2 submitted that the Finance Department, vide letter dated 14.03.2016, has cancelled the Government Resolution dated 28.07.2015 as the same was issued without sanction of the Finance Department and as such the respondent No.2-Gujarat Water Supply and Sewerage Board issued letter/ order dated 27.09.2016 denying the benefit of revised pay scale to the petitioner. 10. Learned advocate Mr. Meena referred to the affidavit-in-reply filed on behalf of the respondent No.2 and submitted that the petition is barred by principle of delay and laches as well as principle of estoppel as the petitioner is not vigilant to claim the benefit of revised pay scale along with similarly situated persons and the judgement passed by this Court is judgement in personam and therefore the benefit granted by the Division Bench is not available to the petitioner though he is similarly situated person. 11. Learned AGP Mr. Parikh submitted that the Division Bench granted the benefit to the members of the Association of the Additional Assistant Engineers only and as the petitioner has not stated that he is member of the association, therefore, no benefit as directed by the Division Bench can be granted to the petitioner. 12. 11. Learned AGP Mr. Parikh submitted that the Division Bench granted the benefit to the members of the Association of the Additional Assistant Engineers only and as the petitioner has not stated that he is member of the association, therefore, no benefit as directed by the Division Bench can be granted to the petitioner. 12. Having heard learned advocates for the respective parties and having gone through the materials on record as well as the decision of the Division Bench in Letters Patent Appeal No. 834 of 2012 in case of Additional Assistant Engineers Association and others (supra), I am of the opinion that the petitioner is entitled to the benefit of revised pay scale as per the judgement of the Division Bench which is already confirmed and approved by the Apex Court by dismissing the Special Leave Petition No. 29901 of 2015 vide order dated 01.10.2015. 13. The Division Bench has held after examining the issue of fixation of revised pay scale of the similarly situated persons who had already worked with the Narmarda Water Resources Water Supply and Kalpsar Department of the Government prior to the transfer with respondent No.2-Gujarat Water Supply and Sewerage Board as Additional Assistant Engineer are entitled to revised pay scale. The Division Bench while allowing the Letters Patent Appeal has held as under : “11. We have heard learned counsel for the respective parties at length and in great detail. We have also perused the documents on record as well as the order passed by the learned Single Judge. It reveals from the record that the petitioners members were always treated along with the category of Engineers of same department and for the first time they were not treated along with the Assistant Engineers. 12. In light of this back ground, we are of the opinion that the members of the Petitioner Association ought to have been treated equally w.e.f. 1.1.1986. In view of this fact, we are of the opinion that the end of justice would be served if the respondents are directed to give notional revised pay scale to the members of the association w.e.f. 1/1/1986 and make actual payment from 1/4/1992. 13. In the result, the appeal is allowed in part. The respondents are directed to in give notional revised pay scale w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/1992 to the members of the appellate Association. 13. In the result, the appeal is allowed in part. The respondents are directed to in give notional revised pay scale w.e.f. 1/1/1986 and actual payment of revised pay scale w.e.f. 1/4/1992 to the members of the appellate Association. Parties to bear their own costs.” 14. It is also not in dispute that by resolution dated 28.07.2015 passed by the Finance Department, the State Government accepted the decision of the Division Bench and accordingly, conferred the pay scale of Rs.1640-2900/- w.e.f. 01.01.1986 to all the Additional Assistant Engineers and thereafter Narmarda Water Resources, Water Supply and Kalpsar Department also by communication dated 07.08.2015 addressed to all heads of the department clarified that the decision of the Division Bench as well as the resolution dated 28.07.2015 would be applied to the Assistant Engineers subject to the result of Special Leave Petition filed before the Supreme Court. Thus, the decision of the Division Bench was made applicable to all the Assistant Engineers working under all the departments. The subsequent order passed by the Finance Department on 14.03.2016 is therefore, contrary to the Government resolution dated 28.07.2015 which was already implemented by all the departments and such resolution could not have been cancelled only on the ground that there was no sanction of the Finance Department. Finance Department could not have issued Government Resolution dated 28.07.2015 granting benefit to all Assistant Engineers as per the direction of the Division Bench without sanction. 15. The Coordinate Bench of this Court also in case of Vinodchandra Devprasad Shukla and Ors. vs. State of Gujarat and Ors. by order dated 09.10.2019 in Special Civil Application No. 2889 of 2016 has granted similar benefits relying upon the decision of the Division Bench. 16. In view of the above, the contentions raised by the learned advocate Mr. Meena as well as learned AGP Mr. Parikh with regard to the applicability of the decision of the Division Bench to the persons of the member of association only or with regard to the delay and laches or inasmuch do not merit acceptance as it cannot be said that the petitioner is not entitled to the benefit of the decision of the Division Bench in view of the principle of estoppel. 17. 17. In view of the foregoing reasons, the impugned order dated 27.09.2016, whereby the benefit of revised pay scale is denied to the petitioner, is held to be contrary to the order of the Division Bench which is confirmed by the Supreme Court and therefore, the same is liable to be quashed and set aside. 18. The petition therefore, succeeds and the respondents are directed to examine the case of the petitioner as per the order passed by the Division Bench in Letters Patent Appeal No. 834 of 2012 and to confer the benefit of the revised pay scale w.e.f. 01.01.1986 on notional basis and on actual basis w.e.f. 01.04.1992. Therefore, respondents are further directed to pass necessary orders within a period of eight weeks from the date of receipt of this order revising the pay scale of the petitioner if it is found that the petitioner is identically situated with such persons who have been granted such benefit. Rule is made absolute to the aforesaid extent. No order as to costs.