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2022 DIGILAW 840 (GUJ)

Ravjibhai Khimjibhai Ninama v. State of Gujarat

2022-07-05

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE returnable forthwith. Mr. Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondents. 2. With the consent of learned advocates for the respective parties, the petitions are taken up for final hearing. 3. The prayer in the petition being Special Civil Application No.560 of 2019 is that the respondent authorities be directed to finalize the pension case of the petitioner and made payment of arrears of the retirement benefits including the remaining amount of gratuity, pension etc. along with interest at the rate which this Court deems just and proper. 4. Further, a direction is prayed to make payment of arrears of pay and allowance as per the revision of pay upon implementation of recommendations of the 6th Pay Commission. 5. Facts in brief would indicate that the petitioner had joined service as an unarmed police constable in the year 1974 and was promoted to the post of Head Constable and thereafter Assistant Sub Inspector in the year 1986. 6. By an order dated 06.05.2003, the petitioner was appointed as a Police Sub Inspector like some other similarly situated persons. 7. By an order dated 27.01.2011, the petitioner and such persons were ordered to be reverted to the post of ASI and subsequently again promoted to the post of PSI by an order dated 28.02.2011. A fresh order of reversion was passed on 29.06.2011. However, the petitioner was not reverted to the post of ASI. The petitioner retired on superannuation on 30.06.2011. Despite no inquiry pending against the petitioner, a provisional pension of Rs.9970/- was sanctioned on 08.05.2013 with effect from 01.07.2011 and a provisional gratuity of Rs.4,95,799/- was paid to the petitioner. Arrears of pension amounting to Rs.3,68,308/- were paid on 22.05.2013. The present petition with the prayers as aforesaid was therefore filed with the case of the petitioner for final pension be considered in light of no disqualification in as far as pendency of inquiry against him. This Court on 21.01.2019, issued notice in the aforesaid petition. 8. Subsequently, it appears that the respondents by an order dated 19.03.2019 ordered the cancellation of the first higher pay scale granted to the petitioner in the year 1997. This was done eight years after the petitioner retired and 23 years after the date on which the higher pay scale was granted. 8. Subsequently, it appears that the respondents by an order dated 19.03.2019 ordered the cancellation of the first higher pay scale granted to the petitioner in the year 1997. This was done eight years after the petitioner retired and 23 years after the date on which the higher pay scale was granted. The order of 19.03.2019 has given rise to Special Civil Application No.9186 of 2019. 9. Mr. Vaibhav Vyas learned counsel for the petitioner would submit that the order of withdrawal of higher pay scale with effect from 19.03.2019 is bad as the same has resulted in reduction which was otherwise granted before 23 years and is passed eight years after retirement. 10. Mr. Vyas would rely on the decision of this Court in Special Civil Application No.11243 of 2015 dated 01.02.2022. 11. Mr. Utkarsh Sharma learned AGP for the State would rely on an affidavit in reply filed in Special Civil Application No.560 of 2019 and submit that the petitioner was appointed as a Police Constable (unarmed) in the year 1974 and in due course was promoted to the post of Head Constable. He was thereafter promoted as Assistant Sub Inspector in the year 1993 and in the year 2003, by an order dated 06.05.2003, the petitioner came to be appointed as Police Sub Inspector. Since the petitioner was promoted to the post of Head Constable in the year 1982 and was promoted to the post of Assistant Sub Inspector in the year 1986 i.e. within the period of four years, the petitioner has been granted two promotions within the nine years and therefore would not be eligible for higher pay scale. It was on this count that the benefit of higher pay scale was withdrawn. Moreover, the petitioner had not cleared the examinations in accordance with the mandate of Rule 165 of the Bombay Police Manual. 12. The issue whether the benefits given can be withdrawn after a delay of eight years after retirement and 23 years after they were granted was considered by this Court in case of Nathubhai Salubhai Katara Versus State of Gujarat rendered in Special Civil Application No.11243 of 2015. The relevant paragraphs of the order read as under : "7. I have heard the learned advocates appearing for the respective parties. 8. The relevant paragraphs of the order read as under : "7. I have heard the learned advocates appearing for the respective parties. 8. It is not in dispute that the petitioner was granted first higher pay-scale by the order dated 15.07.1995 with effect from 21.08.1987. By the impugned order dated 18.05.2015, the higher pay-scale, which was granted of Rs.1640-2900 with effect from 21.08.1987 is ordered to be cancelled and subsequently, recovery has been ordered. 9. The petitioner, on attaining the age of superannuation, has retired from service on 30.06.2007. Thus, the impugned order has been passed after 8 years of his retirement and after a period of 20 years from the issuance of the order dated 15.07.1995 granting the first higher pay-scale with effect from 21.08.1987. The reason stated in the impugned order dated 18.05.2015 cancelling the higher pay-scale is of not clearing the departmental examination by the petitioner. 10. For all these years, the higher pay-scale, which was granted to the petitioner by the order dated 15.07.1995 and the fixation of pay-scale was scrutinized by the audit. When the petitioner was also conferred the pay-scale, no objection was taken by any of the authorities; neither the authorities, under whom the petitioner was serving, nor the authority, who sanctioned the pay-scale or any authority from the audit has objected to the fixation of the higher pay-scale of the petitioner. The petitioner accordingly had retired in the year 2007. Such objection is taken after a period of 8 years from his retirement and after 20 years from granting the higher pay-scale and hence, the respondents are estopped by their own conduct from taking such objection that too after the retirement of the petitioner from service in the year 2007. The respondents did not do anything during his entire service tenure from 1995 to 2007 and all of a sudden, they woke up in slumber in the year 2015 and passed the impugned order cancelling his higher pay-scale granted with effect from 1987. Such action of the respondents is required to be highly condemned. It is not open for them to pass order cancelling the higher pay-scale and to order subsequent recovery for the period from 1987 to 2003 after considerable delay. The impugned order deserves to be set aside on the ground of delay alone. 11. Hence, the writ petition succeeds. Such action of the respondents is required to be highly condemned. It is not open for them to pass order cancelling the higher pay-scale and to order subsequent recovery for the period from 1987 to 2003 after considerable delay. The impugned order deserves to be set aside on the ground of delay alone. 11. Hence, the writ petition succeeds. The impugned order dated 18.05.2015 is hereby quashed and set aside. It is clarified that, if the amount is already recovered or withheld from the petitioner, the same shall be refunded to him. It is also directed that the respondent authorities shall re-fix the pay and pension and retirement benefits on the basis of last pay drawn which he was getting on his retirement. Necessary orders shall be passed within a period of 2 months from the date of receipt of the writ of this judgment. Rule is made absolute." 13. It is settled that a mistake cannot be corrected after a period of three years as held by the decision of the Supreme Court in case of Bharat Sanchar Nigam Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors reported in (2008) 13 SCC 597 . 14. For the aforesaid reasons, Special Civil Application No.9186 of 2019 where the order of cancellation of the first higher pay scale dated 19.03.2019 is under challenge, the order is quashed and set aside. The petition is allowed. The petitioner shall be held entitled to the benefits of higher pay scale which was initially granted to the petitioner by an order dated 23.05.1996. 15. Since the order dated 19.03.2019 is quashed and set aside, the prayers made in the petition viz. Special Civil Application No.560 of 2019 deserves to be granted. 16. Thus, Special Civil Application No.560 of 2019 too is allowed. The respondents are directed to finalize the pension case of the petitioner and pay arrears of the retirement dues including the remaining amount of gratuity and communication of pension on the basis of the revision of pay as per the 6th pay commission. Arrears of pay and allowances and pension based on such re-fixation shall be granted to the petitioner within a period of 10 weeks from the date of 10 weeks from the date of receipt of copy of this order. Arrears of pay and allowances and pension based on such re-fixation shall be granted to the petitioner within a period of 10 weeks from the date of 10 weeks from the date of receipt of copy of this order. The same shall be granted with the interest at the rate of 6% per annum from the date he is entitled for. 17. Both the petitions accordingly are allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.