Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1114 (GUJ)

Suresh Alamchand Bhambhani v. State Of Gujarat

2024-05-03

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. In view of the fact that identical issue is involved in all the petitions, they are disposed of by this common judgment by treating Special Civil Application No.18621 of 2016 as lead matter. In the said lead matter being Special Civil Application No.18621 of 2016, the petitioner has prayed for below mentioned relief’s:- “(A) Your Lordships may be pleased to issue appropriate writ, order or direction thereby directing the respondents to pay the benefits of revised pay scale to the petitioner from 1.1.1986 as per order dated 31.03.2014 passed in L.P.A. No.834 of 2012 by this Honourable Court and order dated 30.7.2015 passed in M.C.A. No. (Contempt) No. 1868 of 2015 in the interest of justice. (B) Your Lordships may be pleased to direct the respondent to pay the benefits of revised pay scale to the petitioner from 1.1.1986 as per order dated 31.03.2014 passed in L.P.A. No.834 of 2012 by this Honourable Court and order dated 30.7.2015 passed in M.C.A. No. (Contempt) No. 1868 of 2015 in the interest of justice. (C) Your Lordships may be pleased to grant such other an further interim or other relief/s as may be deemed fit and proper in the interest of justice." 2. So far as the lead matter, i.e. Special Civil Application No.18621 of 2016 is concerned, same is arising from the following background of facts:- 2.1 The petitioner was working with public health department as Additional Assistant Engineer with respondent and vide Resolution dated 31.12.1980 the service of the petitioner was transferred to Board. As per the said resolutions the employees, who were transferred to the Board, will be entitled to all the benefits as given to the employees of Public Health Department. The petitioner was transferred in Narmada Water Resources, Water Supply and Kalpsar Department. In the month of March, 1991, the pay scale of Assistant Engineers was revised from Rs.1640-2400 to 2000-3200 w.e.f. 1.1.1986. The said benefit of revised pay scale was not given to Additional Assistant Engineers of the various Departments and therefore, Special Civil Application No.451 of 1991 came to be filed. In the month of March, 1991, the pay scale of Assistant Engineers was revised from Rs.1640-2400 to 2000-3200 w.e.f. 1.1.1986. The said benefit of revised pay scale was not given to Additional Assistant Engineers of the various Departments and therefore, Special Civil Application No.451 of 1991 came to be filed. The said petition came to be withdrawn on 24.9.2012 with an assurance given by the respondent that the pay scale of the Additional Assistant will be revised and thereafter, the said pay scale was revised from 1.4.1992 instead of 1.1.1986 and therefore, Additional Assistant Engineer Association again approached this Court by way of filing Special Civil Application No.5210 of 1995 which was dismissed by this Court. Against the said order, Letters Patent Appeal No.834 of 2012 came to be preferred by the Association and the said Appeal came to be allowed vide order dated 31.3.2014 with direction to the respondent authorities to pay the revised pay from 1.1.1986 instead of 1.4.1992. In view of noncompliance of the order by the respondent authorities, Misc. Civil Application (contempt) No.1868 of 2015 came to be preferred. Thereafter, on 28.7.2015 a resolution came to be passed by respondent giving pay scale from 1.1.1986, as per order dated 31.3.2014 which will be subject to SLP to be preferred by the respondent before the Hon’ble Apex Court. On 30.7.2015, this Court directed the respondent authorities to abide by the declaration and further directed the respondents to make the computation in pursuance to the resolution dated 28.7.2015 and actual payment was to be made on or before 13.8.2015. On 7.8.2015 a letter was issued to all the departments by respondent to give benefits of revised pay scale to all the Additional Assistant Engineers and also to take undertaking. Thereafter, on 22.8.2016 as the petitioner was not given benefits of revised pay scale, he has sent legal notice to the respondent through advocate which was replied by respondent on 2.9.2016. 3. In view of the above facts, since the respondent authorities has not given benefits of revised pay scale to the petitioners, the petitioners have preferred present petition before this court and prayed for benefits of revised pay scale from 1.1.1986. 4. Heard Ms.J.K. Hingorani, Mr. Gunvant R. Thakar and Ms. Ashlesha M. Patel, learned advocates appearing for the petitioners, Mr. Jay Trivedi, learned Assistant Government Pleader appearing for the respondent – State Authorities, Mr. 4. Heard Ms.J.K. Hingorani, Mr. Gunvant R. Thakar and Ms. Ashlesha M. Patel, learned advocates appearing for the petitioners, Mr. Jay Trivedi, learned Assistant Government Pleader appearing for the respondent – State Authorities, Mr. Hardeep L. Mahida, learned counsel for the respondent No.3 in Special Civil Application No.17517 of 2023 and Mr.Ruturaj Meena, learned counsel appearing for other respondents and perused the materials placed on record. 5. Learned advocates appearing for the petitioners have submitted that all the petitioners are similarly situated persons, their nature of work is same and therefore, they are entitled to get benefit of revised pay scale from 1.1.1986. They have submitted that the inaction on the part of the respondent – Authorities is illegal, arbitrary and discriminatory. They have submitted that the benefits of revised pay scale is required to be granted to the petitioners in view of the order passed by the Division Bench of this Court 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. 6. On the other hand, Mr. Jay Trivedi, learned Assistant Government Pleader appearing for the respondent – State Authorities has submitted that there is unexplained delay of around 24 years in approaching this Court. He has referred to and relied upon the decision of the Hon’ble Supreme Court in the case of Union of India Vs. M. Nagarajan reported in (2022) 2 SCC 25 wherein the Hon’ble Supreme Court has held and observed in para 20 to 25 as under:- “20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non- consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court. 21. The word laches is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy. 22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy. 23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence. 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence. 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. 25. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to- case basis.” 6.1 Mr. Jay Trivedi, learned Assistant Government Pleader has submitted that the petitioners are not entitled for equitable relief since they have not explained the delay in filing the petitions and they cannot claim parity with the employees of the State Government as the selection, mode of recruitment and the pay revision between the employees of the State Government and the employees of the Public Health Department are different. He has submitted that in view of the order passed by this Court in Special Civil Application No.804 of 2017 and Special Civil Application No.21076 of 2018, the petitioners are similarly situated to that of the petitioners of the said petitions and, therefore, the same order may be passed granting benefit of pay scale of Rs.1640 – 2900 to the petitioners w.e.f. 01.01.1986 on notional basis and on actual basis w.e.f. 01.04.1992. 7. I have perused the material available on record as well as the relevant papers. I have also gone through the order passed by the respondent authorities. 8. 7. I have perused the material available on record as well as the relevant papers. I have also gone through the order passed by the respondent authorities. 8. While admitting the lead petition i.e. Special Civil Application No.18621 of 2016 on 15.11.2016, the Court passed following order:- "1. Petitioner is aggrieved by the fact that the judgment of this Court in Special Civil Application No. 5210 of 1995 challenged in Letters Patent Appeal No.834 of 2012, came in his favour on 31.3.2014 and contempt application being Miscellaneous Civil Application No.1868 of 2015 in Letters Patent Appeal 834 of 2012 also though was held in favour of the present petitioner, no benefit so far had been made available. 2. It is pointed out that in the communication of the respondent there is a reference of SLP. However, so far no SLP is preferred before the Apex Court against these judgments. 3. Notice for final disposal returnable on 29.11.2016. Learned Assistant Government Pleader Ms.Asmita Patel waives service of notice for and on behalf of the Respondent No.1. Copy of the petition shall be served to the learned Assistant Government Pleader, who shall take instructions on or before the returnable date. 9. The issue involved in present petitions is whether the petitioners are entitled for the benefit of the revised pay scale, which has been extended in favour of the similarly situated persons in Letters Patel Appeal No.834 of 2012 or not. 10. Considering the facts and circumstances of the case, it appears that the petitioners who are Additional Assistant Engineers are similarly situated persons to that of the petitioners of the said petitions. Similarly situated the Additional Assistant Engineers' Association have preferred Special Civil Application No. 5210 of 1995 before this Court seeking revision of the pay scale with effect 01.01.1986, which came to be dismissed by the Coordinate Bench of this Court vide order dated 28.03.2012. Against the said order, the Additional Assistant Engineers' Association have preferred Letters Patent Appeal no. 834 of 2012 which came to be partly allowed by the Division Bench of this Court vide order dated 31.03.2014 with the direction to the respondents to give notional revised pay scale with effect from 01.01.1986 and actual payment of revised pay scale with effect from 01.04.1992 to the members of the appellate Association. 834 of 2012 which came to be partly allowed by the Division Bench of this Court vide order dated 31.03.2014 with the direction to the respondents to give notional revised pay scale with effect from 01.01.1986 and actual payment of revised pay scale with effect from 01.04.1992 to the members of the appellate Association. The Division Bench of this Court has held and observed in para – 11, 12 and 13 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 maek actual payment from 1/4/1992. 13. In the result, the appeal is allowed in part. The respondents are directed to in given 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.” 11. Having gone through the materials on record as well as the decision of the Division Bench of this Court in Letters Patent Appeal No.834 of 2012 in case of Additional Assistant Engineers Associations and aforesaid decisions of the Hon’ble Supreme Court as well as this Court, I am of the opinion that the petitioners are entitled to the benefits of revised pay scale as per the judgment of the Division Bench of this Court 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. It is also required to be noted herein that in Special Civil Application No.9478 of 2017 some of the petitioners were paid benefits however, subsequently the same were recovered from the said petitioners by respondent No.3 at the time of retirement, though stay was granted by this Court. 12. In view of the foregoing reasons, the impugned orders whereby the benefit of revised pay scale is denied to the petitioner, are 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 and the prayers made in the petitions are required to be granted. 13. In view of the above and in view of the fact that the issue involved in present petition is already decided by this Court vide order dated 16.4.2024 passed in Special Civil Application No.21100 of 2016 and allied matters, the petitions are allowed. The prayers made in the petitions are granted to the extent that as the order passed by the Division Bench in Letters Patent Appeal No.834 of 2012, the petitioners are entitled for the same benefit which is extended in favour of the appellants of Letters Patent Appeal No.834 of 2012 in Special Civil Application No.5210 of 1995, to the effect that the petitioners are entitled to get the benefit of revised pay scale. As per the observation made by the Division Bench in Letters Patent Appeal No.834 of 2012, the case of the petitioners to be considered by the State Authority in light of the settled legal position and pay all the consequential benefit to them. Thus, the respondents are directed to accordingly revise the pay scales of the petitioners and pay all such consequential benefit on or before 31.8.2024. Rule is made absolute to the aforesaid extent in each of the petition. There shall be no order as to costs. Office to place copy of the order in each of the petition. Direct service is permitted.