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2022 DIGILAW 407 (GUJ)

Kamlesh Girdharlal Hotwani v. State of Gujarat

2022-03-24

A.S.SUPEHIA

body2022
JUDGMENT : 1. RULE. Learned advocates appearing for the respective respondents waive service of notice of Rule. FACTS : 2. The present writ petition has been filed seeking directions for quashing and setting aside the Office Order No. A(V)274 of 2017 dated 06.07.2017 as well as communication dated 21.11.2007 issued by the respondents. Petitioner also seeks a direction to hold and declare that he is entitled for the Special Pay for the additional charge of the post of Personal Assistant of Court No.24 of Additional Chief Metropolitan Magistrate Court, Ahmedabad, from May 2010 till date and also to pay him the Special Pay for the period from May 2010 till date along with interest @ 12%. 3. The brief facts of the case are that the petitioner was appointed on the post of Assistant w.e.f. 04.10.2001 with the District and Sessions Court, Kheda at Nadiad. The petitioner was transferred from the District and Sessions Court, Kheda at Nadiad to the Metropolitan Magistrate Court, Ahmedabad w.e.f. 07.07.2005 on the post of Assistant. 3.1) Thereafter, the petitioner was promoted on the post of Personal Assistant (Gujarati Stenographer Grade-II) w.e.f. 16.03.2009 in the Metropolitan Magistrate Court, Ahmedabad. Respondent No.2 issued an Office Order in April, 2010, whereby the petitioner was instructed to work in Court No.23 of the Metropolitan Magistrate Court, Ahmedabad and respondent No.2 was given the additional charge of Court No.24, Metropolitan Magistrate Court, Ahmedabad. The Office Order of April 2010 was made effective from 01.05.2010. 3.2) The petitioner continuously worked as a Personal Assistant in the Additional Chief Metropolitan Magistrate, Court No.23, Ahmedabad. Since the petitioner was holding an additional charge, the respondent No.2 issued an Office Order No.A(V) 147 of 2017 dated 24.04.2017, extending the additional benefit under Rule 49(3) of the Gujarat Civil Services (Pay) Rules, 2002. 3.3) The respondent No.2 issued Office Order No.A(V) 274 of 2017 dated 06.07.2017, whereby the Office Order dated 24.04.2017 granting the Special Pay to the petitioner for performing the additional duty of Personal Assistant, Additional Chief Metropolitan Magistrate Court, Ahmedabad came to be cancelled. 3.4) Accordingly, the Registrar of Metropolitan Magistrate Court, Ahmedabad issued a communication dated 07.07.2017, whereby the petitioner was informed that the Office Order dated 24.04.2017 stands cancelled as the post of Personal Assistant of Additional Chief Metropolitan Magistrate, Court No.24, Ahmedabad is vacant. 3.4) Accordingly, the Registrar of Metropolitan Magistrate Court, Ahmedabad issued a communication dated 07.07.2017, whereby the petitioner was informed that the Office Order dated 24.04.2017 stands cancelled as the post of Personal Assistant of Additional Chief Metropolitan Magistrate, Court No.24, Ahmedabad is vacant. 3.5) The petitioner made a representation dated 14.08.2017 to respondent No.2 claiming the Charge Allowance for a period from 01.02.2017 to 31.07.2017. The respondent No.2 passed an order dated 16.11.2017, whereby the request of the petitioner to review the decision in respect of the Charge Allowance has been rejected. In turn, the petitioner has received a communication from the office of respondent No.2 dated 21.11.2017 vide Outward No.2678 of 2017, whereby the office of respondent No.2 has communicated to the petitioner regarding the decision of respondent No.2 dated 16.11.2017. SUBMISSIONS: 4. Learned advocate Mr.Prabhaker Upadhyay appearing for the petitioner has submitted that before issuing the Office Order dated 06.07.2017 the respondent No.2 ought to have taken into consideration the provisions of the Gujarat Civil Services (Pay) Rules, 2002 (the Rules). It is submitted that the petitioner is entitled to "Special Pay" as defined under Section 2(74) of the Rules. 4.1) Learned advocate for the petitioner has submitted that on a bare perusal of Rule 49 of the Rules, it is crystal clear that the petitioner is entitled for the Special Pay for the additional charge from Court No.24, Metropolitan Magistrate, Ahmedabad. It is submitted that it is undisputed fact that since April, 2010 the petitioner is performing the duty as a Personal Assistant of Court No.23, Additional Metropolitan Magistrate Court, Ahmedabad and the petitioner is also holding the additional charge of Personal Assistant of Court No.24, Additional Chief Metropolitan Magistrate Court, Ahmedabad and, therefore, for the additional charge of Court No.24, Metropolitan Magistrate Court, Ahmedabad, which the petitioner is holding since May 2010, he is entitled for the Special Pay. 4.2) Learned advocate for the petitioner has submitted that respondent No.2 has relied upon Circular dated 26.12.2012, while passing the order dated 16.11.2017. It is submitted that the said circular dated 26.12.2012 does not prevail over Rule 49 of the Rules, hence he cannot be denied the Special Pay as per the provisions of the Rules. 4.2) Learned advocate for the petitioner has submitted that respondent No.2 has relied upon Circular dated 26.12.2012, while passing the order dated 16.11.2017. It is submitted that the said circular dated 26.12.2012 does not prevail over Rule 49 of the Rules, hence he cannot be denied the Special Pay as per the provisions of the Rules. It is submitted that the action on the part of the respondent No.2 of denying the benefit of Special Pay to the petitioner is arbitrary, discriminatory and contrary to the Rules and Regulations. 5. Per contra, learned advocate Mr.Hemang Shah appearing on behalf of respondent No.2, while placing reliance upon the affidavit-in-reply filed on behalf of respondent No.2, has submitted that respondent No.2 has issued an Office order No.A(V) 147 of 2017 dated 24.04.2017, whereby the benefit of Special Pay has been extended to the petitioner for additional duty in Court No.24, Metropolitan Magistrate Court, Ahmedabad for the period of 175 days (i.e. from 01.08.2016 to 31.01.2017), excluding the period of leave availed by the petitioner and his absence @ 5%, as per the definition of "Special Pay" provided under Rule 2(74) and Rules 46 and 49(3) of the Rules and the provisions of Government Resolution No.PGR/ 102009/76/Paycell dated 03.10.2012 and No.SSP/1094/647CH dated 23.12.1994. 5.1) Learned advocate Mr.Hemang Shah has further submitted that sub-rules (1) and (3) of Rule 49 of the Rules, stipulate certain conditions for grant of additional pay or special pay (charge allowance) to Government employee holding additional charge of post fallen vacant due to the reasons mentioned therein. Sub-rule (3)(i) provides that arrangement of giving additional charge of the post shall not be for a period exceeding 12 months and such 12 months means the period of vacancy of the post. Sub-rule (3)(iii) provides that Special Pay shall not be granted beyond the period of 12 months, however, the Secretary of the Administrative Department can sanction the Special Pay for a post vacant for more than 12 months. Moreover, it is submitted that Proviso to the above rule, clearly stipulates that charge allowance shall not be sanctioned in respect of post lying vacant for more than 3 years. 5.2) Learned advocate Mr. Hemang Shah has further submitted that the petitioner is not entitled to the Special Pay (Charge Allowance). Moreover, it is submitted that Proviso to the above rule, clearly stipulates that charge allowance shall not be sanctioned in respect of post lying vacant for more than 3 years. 5.2) Learned advocate Mr. Hemang Shah has further submitted that the petitioner is not entitled to the Special Pay (Charge Allowance). It was submitted that earlier Office Order dated 24.04.2017 was cancelled since the post has remained vacant for three years and such post gets automatically abolished as per the provisions of Government Resolution dated 26.12.2012. CONCLUSION: 6. This Court has given its thoughtful consideration to the entire issue. 7. The petitioner who was serving as a Personal Assistant (Gujarati Stenographer Grade-II) w.e.f. 16.03.2009 in the Metropolitan Magistrate Court, Ahmedabad was given the additional charge of Court No.24, Metropolitan Magistrate Court, Ahmedabad w.e.f 01.05.2010. 8. It appears that vide Office order No.A(V)147 of 2017 dated 24.04.2017, issued by the respondent no.2, the benefit of Special Pay was extended to the petitioner for additional duty in Court No.24, Metropolitan Magistrate Court, Ahmedabad, however, the same is cancelled by the impugned order dated 06.07.2017 pursuant to the objection raised by the Treasury Officer, Ahmedabad. From the affidavit filed by the respondent it appears that Special Pay / Charge Allowance was given to the petitioner for the period of 175 days (i.e. from 01.08.2016 to 31.01.2017) excluding the period of leave and his absence. The respondent no.2 has placed reliance on the Resolution dated 03.10.2012, which refers to the fixation of rate of special pay at 5% of the basic pay of the additional charge. After the cancellation of the aforesaid order, the petitioner again requested to review such decision. 9. By the representations dated 14.08.2017 (Annexures “E" & "F"), the petitioner requested to reconsider the decision of cancelling the order granting charge allowance and also requested to grant the same for the period from 01.02.2017 till 31.07.2017. However, the same has been rejected vide communication dated 21.11.2017. 10. The issue raised in the instant writ petition with regard to the fixation and payment of special pay/additional pay/charge allowance is governed under Rules 46 and 49 of the Gujarat Civil Services (Pay) Rules, 2002. "Special Pay" is defined under Rule 9(74) of the Rules. The petitioner and the respondents have incorrectly stated as “Rule 2(74)”. 10. The issue raised in the instant writ petition with regard to the fixation and payment of special pay/additional pay/charge allowance is governed under Rules 46 and 49 of the Gujarat Civil Services (Pay) Rules, 2002. "Special Pay" is defined under Rule 9(74) of the Rules. The petitioner and the respondents have incorrectly stated as “Rule 2(74)”. Rule 9(74) reads as under: "Special Pay" means an addition, of the nature of pay, to the emoluments of a post or of a Government employee granted in consideration of : (a) the specially arduous nature of duties, (b) a specific addition to the work or responsibility." 11. The Government employee, who is given the additional charge is paid the additional pay or special pay under Rule 46 of the Rules. The relevant extract is as under : "RULE 46 : Holding of additional charge in addition to his own post: (1) Where the Government employee is given additional charge of another post, he shall be entitled to additional pay or special pay, as the case may be, for each other post as under: (i) xxxxxxx (ii) xxxxxxx (2) xxxxxxxx 12. Rule 49 of the Rules prescribe for conditions governing special pay or additional pay. The relevant rule governing the issue in the present case will be Rule 49 (3). The same are as follows: "RULE 49 : Conditions governing the grant of special pay or additional pay (1) xxxxxxxx (2) xxxxxxxxx (3) The grant of additional pay or as the case may be, special pay in cases where a Government employee is asked to hold additional charge of a post fallen vacant due to reasons other than those referred to in sub-rule (2), shall be subject to following further conditions: (i) The arrangement is restricted to the period not exceeding twelve months in any case. Note. The limit of twelve months referred to above refers to the period of vacancy of the post and not to the period during which special pay is received by an individual Government employee. (ii) Sanctioning authorities should ensure that the orders for holding additional charge are issued as soon as the vacancy occurs and such arrangement should not be sanctioned retrospectively. (iii) No special pay shall be sanctioned beyond a period of twelve months and the post shall be treated to have been held in abeyance. (ii) Sanctioning authorities should ensure that the orders for holding additional charge are issued as soon as the vacancy occurs and such arrangement should not be sanctioned retrospectively. (iii) No special pay shall be sanctioned beyond a period of twelve months and the post shall be treated to have been held in abeyance. However the Secretary of the Administrative Department may sanction the special pay in respect of a post lying vacant for a period of more than twelve months provided the reasons therefor are recorded in the order sanctioning such special pay and the copy of the same shall be endorsed to the Finance Department. Provided that no such charge allowance shall be sanctioned in respect of a post which is lying vacant for a period of more than three years and the creation of such post shall stand abolished." 13. The petitioner was given the additional charge of the post of Personal Assistant in the Metropolitan Magistrate Court no.24. It is not disputed that the said post has remained vacant for more than three years. It is manifest from a bare and simple reading of clauses (i), (ii) and (iii) of the sub-rule (3) to Rule 49 of the Rules that the maximum period, for which the arrangement of holding an additional charge is 12 months. Clause-(iii) directs that “no special pay shall be sanctioned beyond a period of twelve months and the post shall be treated to have been held in abeyance”. The Proviso to Clause-(iii) mandates of abolition of post if the such post has remained vacant for three years. The provisions of Clause-(iii) and the Proviso attached to the said clause do not reconcile with each other. However, Clause-(iii) gives discretion to the competent authority to sanction charge allowance for the post which is lying vacant for more than 12 months, whereas the Proviso stipulates that no charge allowance shall be sanctioned in respect of a post which is lying vacant for more than three years and such post shall stand abolished. The initial linguistic string of Clause-(iii) stipulates that no Special Pay shall be sanctioned beyond a period of 12 months and the post shall be treated in abeyance. The initial linguistic string of Clause-(iii) stipulates that no Special Pay shall be sanctioned beyond a period of 12 months and the post shall be treated in abeyance. Thus, after a period of 12 months the post on which the charge is given shall be kept in abeyance and if the same remains vacant for three years the creation of such posts shall stand abolished. The entire Rule 49 with sub-rules and the Proviso attached, if are closely read the same reveals that the intention behind the Rules is was to restrict the payment of special allowance to 12 months in any circumstances since after 12 months the post is treated to be in abeyance and after three years the same gets abolished. Thus, the petitioner is entitled to charge allowance for 12 months only. The calculation of such amount is required to be done as per the rates prescribed under Rule 47 of the Rules or on the basis of subsequent administrative instructions revising such rates. 14. The petitioner in his representations has requested to pay the charge allowance for 01.02.2017 to 31.07.2017 only. However, he will not be entitled to the same for the such period since as per Rule 49(3)(iii) of the Rules, the post of which he was given the additional charge i.e. Personal Assistant is deemed to have gone in abeyance after a period of 12 months and the creation of such post stood abolished after a period of three years. The order dated 24.04.2017 passed by the respondent no.2 granting the Special Pay for the period from 01.08.2016 to 31.01.2017 is also erroneous. The petitioner was given the additional charge of Court no.24 w.e.f. 01.05.2010 and if the said post has remained vacant for three years, the same stood abolished. Thus, the respondent no.2 is directed to pass an order sanctioning the charge allowance of the petitioner afresh after considering the provisions of Rule 49 of the Rules read with the Resolution dated 03.10.2012. Such order shall be passed keeping in mind the observations made by this Court. 15. Appropriate order granting the special pay/charge allowance shall be issued by respondent no.2 within a period of three weeks after the receipt of the writ. After issuance of such order, the consequential amount shall be paid to the petitioner within a period of two weeks by the authority working under the respondent no.1-Finance department. 15. Appropriate order granting the special pay/charge allowance shall be issued by respondent no.2 within a period of three weeks after the receipt of the writ. After issuance of such order, the consequential amount shall be paid to the petitioner within a period of two weeks by the authority working under the respondent no.1-Finance department. The impugned communications are quashed and set aside. 16. The writ petition is allowed in part. Rule made absolute to the aforesaid extent.