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2023 DIGILAW 324 (GUJ)

STATE OF GUJARAT v. PRADIP MAFATLAL SHAH

2023-02-16

N.V.ANJARIA, NIRAL R.MEHTA

body2023
JUDGMENT : N.V. ANJARIA, J. 1. Heard learned Assistant Government Pleader Mr.Manan Mehta for the appellant State, learned advocate Mr.V.K.Joshi for the private respondent Nos.1 to 8 and learned advocate Mr.Hemang Shah for respondent No. 9. 2. By filing this Letters Patent Appeal under Clause 15 of the Letters Patent, the appellant State has called in question judgment and order dated 15.5.2008 of learned single Judge, whereby the petition came to be allowed and the benefits of higher scale came to be granted to the private respondents-original petitioners. The respondent No. 3 was directed to implement the orders in that regard and pay the arrears arising thereby. 3. In the petition, the petitioners prayed to direct respondent No. 3 authority to grant the higher grade pay scale to them as per the fixation made by the Registry of the High Court and disburse the arrears arising out of the fixation. In other words, the petitioner had challenged the communication of the respondent No. 3 Assistant Examiner, Local Audit Fund Office, whereby the audit objection was raised to deny the benefits of higher grade pay scale. The higher grade pay scale was under the Resolution dated 16.8.1994. In cases where promotions may have stagnated, the benefits were to be granted in accordance with the conditions provided in the Resolution. 3.1 The petitioners-private respondents herein were originally appointed in the sub-ordinate courts in the State of Gujarat. Having applied pursuant to and in response to advertisement published, they were subsequently came to be appointed in establishment of High Court working. Therein was a fresh appointment in the High Court establishment. They had been working as High Court employees since last seven years. As per the aforesaid Resolution dated 16.8.1994, services rendered by government employee without any break till they join another establishment were required to be clubbed together to become eligible to the benefits under Resolution dated 16.8.1994. The petitioner claimed that they were entitled to the higher grade pay scale after completion of nine years of continuous service in cadre. 3.2 It was the grievance of the petitioners that despite representation made by them to respondent No. 1, the Registrar General, the benefits upon completion of nine years was not granted. The petitioner claimed that they were entitled to the higher grade pay scale after completion of nine years of continuous service in cadre. 3.2 It was the grievance of the petitioners that despite representation made by them to respondent No. 1, the Registrar General, the benefits upon completion of nine years was not granted. The petitioners relied on the case of one Mr.V.C. Darji who had approached this court by filing Special Civil Application No. 10019 of 1993 seeking to get counted their earlier services rendered in sub-ordinate courts. The said petition was allowed on 20.8.1999. It was stated that the petitioner had filed Special Civil Application No. 62 of 2007 to 70 of 2007 and other petitions where the Registrar General had issued necessary orders in light of the Resolution dated 16.8.1994 and other attendant Resolutions. It was contended that yet another order was passed in Departmental Appeal No. 6 of 2003 preferred by one Shri Y.N.Momin who was Section Officer. 3.3 The following averments were made in the petition representing such case: “The petitioners say and submit that, impugned objection memo issued by the Respondent No. 3 is also discrimination for the reasons that in the case of Shri. V.C. Darji who earlier preferred the writ petition being No. 10019 of 1993 and the order passed by the Hon’ble High Court, dated 20.8.1999 came to be complied by the respondent No. 3 and also made the payment to the petitioner Shri. V.C. Darji. In the case of Shri Y.N.Momin, Section Officer who also preferred the Departmental Appeal and came to be allowed by the Gujarat High Court, in that case also the respondent No. 3 not raised any objection as raised presently in the case of present petitioner and paid the difference of amount granting the benefit of First Higher Grade Scale of next promotional post. In view of this facts and circumstances as stated herein above the impugned order passed by the respondent No. 3 is arbitrary.” 3.4 Thus, the whole case of the petitioner was premised on the case of Shri V.C. Darji. 4. Learned Assistant Government Pleader submitted the decision in V.C. Darji’s case rendered in Special Civil Application No. 10019 of 1993 was taken in Letters Patent Appeal No. 123 of 2001 and the said Letters Patent Appeal was allowed by judgment and order dated 28.7.2014. 4. Learned Assistant Government Pleader submitted the decision in V.C. Darji’s case rendered in Special Civil Application No. 10019 of 1993 was taken in Letters Patent Appeal No. 123 of 2001 and the said Letters Patent Appeal was allowed by judgment and order dated 28.7.2014. It was therefore submitted that the impugned order of learned single Judge could not sustain. 4.1 Learned advocate for the respondent No. 9 also submitted that the issue is covered by decision of Division Bench of this court in the V.C. Darji (supra) in Letters Patent Appeal No. 123 of 2001. The decision in Special Civil Application No. 10019 of 1993 in V.C. Darji came to be challenged by the Registrar, High Court by preferring Letters Patent Appeal No. 123 of 2001. The Division Bench considered the controversy of the entitlement of the employees to get the higher grade pay scale, however, finally set aside the judgment and order dated 20.8.1999 passed by learned single Judge. 4.2 On the other hand, learned advocate for the original petitioners submitted that the impugned order of learned single Judge was based on the decision of the Division Bench of this court in State of Gujarat vs. Mulchandbhai L. Patel, (2004) 1 GLR 536 . It was also submitted that the High Court had carried out revision of first higher grade pay scale of all the petitioners and thus benefits was conferred. According to submission of learned advocate for the original petitioners, the decision in Letters Patent Appeal No. 123 of 2001 was not applicable. 4.2.1 Attempting to distinguish the case of Mr.V.C. Darji, it was submitted that he was earlier serving as Personal Assistant- Steno Grade-1, Class-II on the establishment of City Civil Court and came to be appointed to the post of Private Secretary, Steno Grade-1, Class-II and was placed in the seniority of Private Secretaries. In the present case, however, it was submitted that the petitioners were appointed in the sub-ordinate courts as well as in the court as Clerks on the same post and in the same cadre. 4.2.2 It was next submitted that under Clause 3(2) of the Resolution dated 16.8.1994, the petitioners were entitled to be granted the first higher grade scale upon completion of nine years of service on the post of Junior Clerk. 4.2.2 It was next submitted that under Clause 3(2) of the Resolution dated 16.8.1994, the petitioners were entitled to be granted the first higher grade scale upon completion of nine years of service on the post of Junior Clerk. It was submitted that in the present case, the respondents had not changed the post, scale and cadre of the petitioners while posting them on the establishment of the High Court. It was submitted that the decision in Mulchandbhai (supra) was squarely applied and was rightly relied on by learned single Judge. So pressed into service was decision of Supreme Court in State of Maharashtra vs. Uttam Vishnua Pawar, 2008 AIR SCW 937, wherein it was held that the experience of past services rendered will be counted for the purpose of other benefits like promotion, higher pay scale. 5. Proceeding to consider the facts of the case and the merits, the Division Bench in V.C. Darji (supra) para 5 observed: “It is borne out from the records that the respondents no. 1 & 2 pursuant to being appointed on the establishment of the High Court of Gujarat were on probation for a period of two years which means that they were appointed afresh and not in continuity of their previous service. Now so far as the issue of considering the previous service for counting nine years for the purpose of claiming benefit of higher grade pay scale is concerned, it is required to be noted that clause 2 (a) of the Government Resolution dated 24.02.1993 states that only for the purpose of pay protection which includes pay fixation, leave and pension, the services rendered in other government departments and cadres is to be considered and not for the purpose of seniority. The said resolution applies only for the purpose of pay protection and cannot be applied for extending the benefit of higher grade scale which has been formulated for an entirely different purpose and stipulates a different set of conditions to be fulfilled.” 5.1 The Division Bench also noticed that earlier Resolution dated 5.9.1991 and 11.10.1991 came to be superseded by Resolution dated 16.8.1994 and that the said Resolution provided that the services which cannot be taken into account for fixing seniority can also not be taken into account for granting higher pay scale: “5.2 Government Resolution dated 05.07.1991 was subsequently clarified vide Government Resolution dated 11.10.1991 which was superseded by Government Resolution dated 16.08.1994 which expressly provides that services which cannot be taken into account for fixing seniority cannot be taken into account for the purpose of granting higher grade scale. It goes without saying that the criteria for granting higher grade scale is the same as that applicable for promotion. The benefit of higher grade scale is granted in lieu of promotion to those employees who in spite of having completed the requisite period of service for promotion could not be promoted due to lack of vacancy or seniority issues. Thus, it can be said that an employee who is not eligible for being promoted on the ground of seniority or completion of requisite period of service for promotion or specific length of service in one and the same cadre cannot be granted the higher grade scale.” 5.2 It was observed that since all the petitioners rendered in the establishment of sub-ordinate courts were not liable to be counted for the purpose of fixing seniority, the same could also be not availed for the purpose of earning the benefit of higher pay scale. An employee who is not eligible to be promoted, it was held, on the ground of seniority or completion of period of service of specific length for promotion in one and the same cadre would not become eligible to be granted the higher grade scale. 5.3 The Division Bench in the V.C. Darji (supra) finally held, extracting paragraph No. 5.2 of the said judgment: “The respondents no. 5.3 The Division Bench in the V.C. Darji (supra) finally held, extracting paragraph No. 5.2 of the said judgment: “The respondents no. 1 & 2 were earlier serving as Personal Assistant (Steno Grade I) Class-II on the establishment of City Civil Court and on their fresh appointment as per the appointment order produced at Annexure ‘B’ to the writ petition to the post of Private Secretary (Steno Gr. I) Class II, they were placed in order of their merit at appropriate places in the seniority list of Private Secretaries. The service rendered by the respondents no. 1 & 2 in the City Civil Court is not considered for the purpose of assigning seniority in the cadre of Private Secretary (Steno Grade I) Class II. Therefore, the respondents no. 1 & 2 cannot be considered for being given the nine years benefit of higher grade scale. Therefore, the learned Single Judge has committed an error in construing the resolutions and accordingly erred in granting nine year higher grade pay benefit to the respondents no. 1 & 2.” 5.4 Against the Division Bench decision in V.C. Darji (supra), Special Leave to Appeal (C) No. 32576 of 2014 came to be dismissed on 5.11.2014. 6. Decision of this court in Mulchandbhai Patel (supra) which was relied on by learned single Judge to grant the prayers and allow the petition would not be applicable in the facts of the present case. As noted by the court itself, the sole question which had emerged for consideration was whether the requisite period of service in the same grade or scale for the purpose of earning benefit of higher grade scale could be considered in the same district or the period of service more than one district in the same cadre, scale is to be counted and clubbed in terms of provisions of para 3(2) of the Resolution dated 16.8.1994. The court held that such Resolution is held liable to be counted in the same cadre and scale, not only in particular district but also period spend upon transfer to a district and even upon request transfer. 6.1 The issue in the decision in Mulchandbhai Patel (supra) was thus with reference to the inter-district transfer within the same department. In that case the original petitioners were Police Constables who were transferred to one district to another but within the same police department under the home department. 6.1 The issue in the decision in Mulchandbhai Patel (supra) was thus with reference to the inter-district transfer within the same department. In that case the original petitioners were Police Constables who were transferred to one district to another but within the same police department under the home department. On the other hand, in the case on hand all the eight respondents- original petitioners were employed in the establishment of district judicial. Advertisement was issued for recruitment on the establishment of High Court. The petitioners applied upon the said advertisement and came to be appointed on the establishment of High Court. Thus, there was a change of establishment in case of the petitioners. Their appointment was undisputedly a fresh appointment. It was not a transfer from one establishment to another establishment at their behest. The orders were issued to the petitioners by the district establishment concerned which resulted into discontinuance of service. Their services started again in the establishment of High Court when appointed. There were no transfer orders. What was issued to them was the fresh appointment orders. 6.2 In view of all the above discussion and reasons, the judgment and order of learned Single Judge cannot sustain. The issue and the controversy stands covered and answered by the decision of the Division Bench of this Court in V.C. Darji (supra). The impugned judgment and order of learned Single Judge therefore becomes liable to be set aside. The same is hereby set aside. 7. The Letters Patent Appeal of the State is allowed.