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2023 DIGILAW 167 (GUJ)

ANIRUDHSINH TEMUBHAI ZALA v. STATE OF GUJARAT

2023-01-19

NIKHIL S.KARIEL

body2023
JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned Advocate Mr. Vyom Shah on behalf of the petitioner and learned Assistant Government Pleader Mr. Ashutosh Dave on behalf of the respondent-State. 2. By way of this petition, the petitioner calls into question an order dated 15.03.2012 and consequential order dated 01.06.2012 whereby the respondents have cancelled the orders of granting 1st and 2nd Higher Grade Pay Scale to the present petitioner and further the respondents have recovered the amount paid to the petitioner by way of grant of 1st and 2nd Higher Grade Pay Scale. 3. Brief facts leading to filing of this petition can be enumerated as herein-below: 3.1 The petitioner had been appointed in the State Reserve Police Force (for short ‘SRPF’) as a Constable on 11.02.1983 and whereas the petitioner after having passed the examination meant for being posted as a Driver Constable in the Motor Transport section of SRP Group No. 13 where he was working and after undergoing training as a driver, had been posed as a driver vide an order dated 22.11.1999. 3.2 It appears that the petitioner had passed the Departmental Promotion Examination on 23.12.1993 and thereupon he became eligible for grant of 1st Higher Grade Pay Scale in his tenure with the SRPF and whereas the petitioner was granted his 1st Higher Grade Pay Scale vide an order dated 15.07.1999. 3.3 It appears that the petitioner had been granted the 2nd Higher Grade Pay Scale on 02.07.2007 while he was working in the Motor Transport section. At this stage it would be relevant to mention that while the petitioner claims that he had been granted his 2nd Higher Grade Pay Scale, while he was working in the Motor Transport section as a driver, whereas it is the contention on part of the respondents that though the petitioner was working as a driver in the Motor Transport section, the 2nd Higher Grade Pay Scale, had been granted to the petitioner completing his date of entry in service in the SRPF and not counting his date of entry in the Motor Transport section. Be that as it may in the considered opinion of this Court, since the said fact may not be much relevant for deciding the issue on hand, this Court does not deem to enter upon and adjudicate upon the said controversy. Be that as it may in the considered opinion of this Court, since the said fact may not be much relevant for deciding the issue on hand, this Court does not deem to enter upon and adjudicate upon the said controversy. 3.4 It appears that the petitioner while he was working as a Driver Constable in the Motor Transport section, had been granted promotion as Armed Head Constable vide an order dated 25.02.2009 and whereas since the same had not been accepted by the present petitioner, vide an order dated 01.06.2009, the said order had been cancelled insofar as the present petitioner was concerned. It further appears that the petitioner had once again been promoted as Armed Head Constable vide an order dated 31.12.2011 and whereas upon the petitioner not accepting the same, the said order had been cancelled insofar as the present petitioner as well as certain other similarly situated persons. It is upon the petitioner not accepting the promotion for the second time that the department had decided to take action against the present petitioner. At this stage, it would be further relevant to mention that as such, the department could have taken appropriate action against the petitioner as they had done after the petitioner had refused promotion in the year 2011, when the petitioner had originally refused promotion in the year 2009 and whereas it appears that at the relevant point of time the petitioner had not been visited with any consequences. 4. At this stage it would be relevant to observe that the State Government had formulated a policy of grant of Higher Grade Pay Scale vide Government Resolution dated 16.08.1994 and whereas the said policy inter-alia envisages that upon a government employee completing 9 years/18 years/27 years on a particular post then subject to the requirements as mentioned in the said Government Resolution, the employee would be entitled to grant of Higher Grade Pay Scale, as may be available to the concerned employee. Government Resolution dated 16.08.1994 further envisages that in case the government employee upon being offered promotion subsequent to grant of the Higher Grade scale, if he refuses the same, then the benefit of Higher Grade Pay Scale granted to such employee should be revoked and whereas it is clarified that the amount paid to the concerned employee on account of grant of Higher Grade Pay Scale, would not be recovered from such employee. 5. It appears that upon the petitioner having refused to accept promotion a second time, by way of order dated 31.12.2011, that the respondents vide impugned order dated 15.03.2012, had proceeded to cancel the 1st and 2nd Higher Grade Pay Scale as available to the petitioner. It would also be relevant to mention that along with such cancellation, it was also decided to recover the amount paid to the petitioner, on account of grant of Higher Grade Pay Scale. It further appears that vide consequential order dated 01.06.2012, the respondents more particularly respondent no. 3, had ordered recovery from the salary of the present petitioner. It needs to be stated here that since the orders, more particularly the order of cancellation of Higher Grade Pay Scale and order of recovery having not been interfered with by this Court at interim stage, the entire amount paid to the petitioner by virtue grant of 1st and 2nd Higher Grade Scale, has been recovered. 6. Heard learned Advocate Mr. Shah on behalf of the petitioner and learned AGP Mr. Dave on behalf of the respondent-State. 7. At the outset learned Advocate Mr. Shah for the petitioner would draw the attention of this Court to an oral judgment dated 22.04.2022 passed by a learned Co-ordinate Bench of this Court in Special Civil Applications No. 2612 of 2019 and 2715 of 2019 whereby according to learned Advocate Mr. Shah in a similar situation, the learned Co-ordinate Bench, had inter-alia set aside the orders withdrawing Higher Grade Pay Scale granted to the petitioners therein more particularly upon the petitioners therein refusing to accept the promotion granted to the petitioners therein. 8. The fact of judgment dated 22.04.2022 passed in an identical matter could not be denied by learned AGP Mr. 8. The fact of judgment dated 22.04.2022 passed in an identical matter could not be denied by learned AGP Mr. Dave and whereas learned AGP would try to make submissions, on the aspect of the seniority list /gradation list of Constables maintained jointly in the S.R.P group and whereas learned AGP would also try and submit that since there are no separate seniority lists for Constable who are otherwise working in the Motor Transport section and other specialized sections, therefore according to learned AGP, no fault could have been found with the respondents, in offering promotion to the present petitioner and upon the present petitioner refusing the same, no fault could have been found in the respondents having cancelled the Higher Grade Pay Scale granted to the petitioner and having recovered the amount in question. 9. A perusal of decision of the learned Co-ordinate Bench dated 22.04.2022, clearly reveals that even the said aspect had been considered by the learned Co-ordinate Bench. 10. The learned Co-ordinate Bench, in a similar situation where the petitioners who were originally appointed as Constables in the State Reserve Police Force, and having joined the Motor Transport section as Driver Constables, later on, having refused promotion as Armed Head Constables in the State Reserve Police Force, having refused the same, the respondents had cancelled the Higher Grade Pay Scale granted to the said petitioners. Learned Co-ordinate Bench, had inter-alia came to a conclusion that the Motor Transport section and the State Reserve Police Force (SRPF), were two separate cadres in the constabulary and whereas in such regard learned Co-ordinate Bench had held that since the petitioners therein were not working in the cadre of State Reserve Police Force (SRPF) therefore benefit of grant of Higher Grade Pay Scale could not be withdrawn upon there refusing a promotion in that cadre. 11. While the decision of the learned Co-ordinate Bench is binding on this Court and while this Court, proposes to follow the same view, it additionally, more particularly since it appears that a detailed affidavit-in-reply had been filed by the respondent no. 3- Commandant, S.R.P Group 13, therefore, this Court deems it appropriate to add certain further reasons for holding the impugned order as being bad in law. 3- Commandant, S.R.P Group 13, therefore, this Court deems it appropriate to add certain further reasons for holding the impugned order as being bad in law. 11.1 From the affidavit-in-reply filed by respondent- Commandant, it would be discernible that while there are three different cadres of constabulary in the S.R.P.F Group, the persons working in the specialized sections of Motor Transport/Band/Armourer sections, are given promotions, in the same section, on the basis of the seniority, which the said person had acquired on the basis of entry in the said section as against the seniority of the said persons in the police force. It also needs to be mentioned here that the affidavit-in-reply has also emphasized on this contention by submitting that if a Constable who has been recruited in the year 1990, joins the Motor Transport section in the year 2007 and a Constable, who is recruited in the year 2000 joins the Motor Transport section in the year 2004 then the later mentioned Constable would be senior to the former Constable in the cadre of Motor Transport section even though the former Constable was senior to the later Constable in the State Reserve Police Force. Having stated as thus, it appears that the respondent no. 3 also further goes on to say that a single Roster Register is maintained for Constables in every State Reserve Police Group and whereas the Constables are assigned to Motor Transport Band/Armourer sections for administrative convenience and whereas the same does not amount to a fresh appointment. 11.2 In the considered opinion of this Court, both these contentions have to be read together and these contentions cannot be read separately as has been attempted by learned AGP. In the considered opinion of this Court, while a person who is appointed in the cadre of Constable in the State Reserve Police Force, retains his seniority, if he stays in the State Reserve Police Force, as against joining certain specialized sections of the State Reserve Police Force and whereas the seniority will continue to remain as such if the Constable does not or is not posted in the sections as mentioned herein-above. As against the same, if a Constable, is posted in the Motor Transport/Band/Armourer section as the case may be, after passing of any departmental examination and training if any as happened in this case, then the date of entry of the Constable in the said section would be the relevant date for determining his seniority in the said section and whereas promotion would be given to the Constables working in the said individual section, based upon seniority which is determined as per the date of the said entry in the said section as against their seniority in the State Reserve Police Force. This would mean that a person who is posted in the specialized sections, while he is entitled for promotion in the same section on the basis of his seniority which is counted from the date of his entry in the section, would also necessarily imply that the said person could not be promoted outside the said section except in case of any administrative exigency. It also needs to be mentioned here that neither the order dated 31.12.2011 or the affidavit-in-reply, make out a case for the petitioner who was working in the Motor Transport section to be posted outside the section in the cadre of State Reserve Police Force as Head Constable. No explanation forthcoming on the said aspect, relying on the affidavit-in-reply filed by the respondents themselves, in the considered opinion of this Court, the promotion granted to the petitioner outside the Motor Transport section in the core State Reserve Police Force was itself illegal and bad in law and whereas in the considered opinion of this Court, the petitioner having refused the same, could not be visited with any adverse consequences thereupon. 12. In this view of the matter, present petition, succeeds. The impugned orders dated 15.03.2012 and 01.06.2012 are quashed and set aside. 13. Having regard to the same, the following directions are passed: (1) The respondents are directed to forthwith refund the amount recovered from the present petitioner by virtue of order dated 15.03.2012 i.e. amount recovered as paid to the petitioner upon grant of 1st and 2nd Higher Grade Pay Scale. Such amount shall be refunded to the petitioner with 6% interest from the date of recovery till the date of actual refund. Such amount shall be refunded to the petitioner with 6% interest from the date of recovery till the date of actual refund. (2) The respondents are directed to calculate the arrears which would be available to the petitioner, as if the order dated15.03.2012 had not been passed at all and whereas the arrears of salary, shall be paid to the petitioner, from the date of actual coming into effect of cancellation of the 1st and 2nd Higher Grade Pay Scale till the date of retirement of the present petitioner. Such arrears shall be paid to the petitioner with interest at the rate of 6% from the date of entitlement to the date of payments. (3) The respondents shall also consequentially upon the 1st and 2nd Higher Grade Pay Scale salary being restored to the petitioner revise the pension as available to the petitioner on basis of the last pay drawn, which would also be revised upon restoration of the 1st Higher Grade Pay Scale. (4) Furthermore, the arrears of pension shall also be calculated and paid to the petitioner. Arrears of the pension shall be paid with 6% interest. (5) Appropriate payments as stated hereinabove in (1), (2) and (3) shall be calculated and paid to the petitioner within a period of ten weeks from the date of receipt of this order. 14. With these observations and directions, the present petition stands disposed of as allowed. Rule is made absolute to the aforesaid extent.