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2024 DIGILAW 1570 (GUJ)

State Of Gujarat v. Parbatbhai Mulubhai Vadhiya

2024-07-18

A.S.SUPEHIA, MAUNA M.BHATT

body2024
ORDER : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. The present Letters Patent Appeals filed under Clause 15 of the Letters Patent, 1865 are directed against the judgment and order dated 08.12.2022 passed by the learned Single Judge in the captioned writ petitions, whereby the learned Single Judge has allowed the captioned writ petitions and it was held that all three petitioners (present respondents) are entitled for first higher pay scale from the year 1987 or 1988 from the date on which they have completed 9 years of service. Further, the appellant authorities are directed to re-fix the salary of the present respondents notionally till today (i.e. from the date of judgment) and to revise their pension based on the aforesaid calculation and to start paying them within a period of 12 weeks from the date of receipt of the writ of the impugned judgment. 2. The learned Assistant Government Pleader has submitted that in fact, all the writ petitioners have belatedly approached this Court by filing the writ petitions in the year 2018, that too after their retirement, challenging the alleged cancellation of higher pay-scale by the appellant – State authorities in the year 1994. He has submitted that only on this ground, the writ petitions were required to be rejected by the learned Single Judge however, the learned Single Judge fell in error in allowing the same. He has submitted that on the principle of acquiescence, no relief could have been granted to the respondents, who did not challenge the recovery of pay-scale, which was given effect in the year 1994. Thus, it is urged that the present Letters Patent Appeals may be allowed by setting aside the judgment and order passed by the learned Single Judge. 3. Learned Senior Advocate Mr.G.M.Joshi, appearing with the learned advocate Mr.Vyom H. Shah, for the respondents, while placing reliance on the judgment of the Supreme Court in the case of Union of India Vs. Tarsem Singh, 2008 (8) S.C. C. 648 as well as the recent judgment delivered by the Supreme Court in the case of Rushibhai Jagdishchandra Pathak Vs. 3. Learned Senior Advocate Mr.G.M.Joshi, appearing with the learned advocate Mr.Vyom H. Shah, for the respondents, while placing reliance on the judgment of the Supreme Court in the case of Union of India Vs. Tarsem Singh, 2008 (8) S.C. C. 648 as well as the recent judgment delivered by the Supreme Court in the case of Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation, JT 2022 (5) S.C. 470, has submitted that in fact, the denial of the actual pay-scale and conferring the less pay-scale to the respondents for all these years would be recurring cause of action and hence, as per the law enunciated by the Supreme Court in the said judgment, at the most, the benefits could have been conferred for a period of three years from the date of filing the writ petition however, he has submitted that in the present case, the entire benefits for such period of three years also foregone by the respondents. Thus, it is submitted that the learned Single Judge has directed the respondents to re-fix the salary on the basis of notional pay, which is appropriately done and hence, it is urged that the present Letters Patent Appeal may not be entertained. 4. We have heard the learned advocates appearing for the respective parties. We have also perused the judgment and order passed by the learned Single Judge. 5. The facts, as recorded by the learned Single Judge in the impugned judgment and order, are not in dispute. The respondents were appointed in the year 1978 / 1979 and they became entitled for first higher pay-scale in the year 1987 or 1988 in view of the Government Resolution dated 05.07.1991. It appears that in the year 1994, vide order dated 04.10.1994 the Commandant (Battalion Quarter Master), Dy. Superintendent of Police, S.R.P.F. Group No.2, Ahmedabad passed an order withdrawing the higher pay-scale by recording that since the respondents (original petitioners) did not pass any department promotional examination till 1991 and they did not reach the age of 45 years, as per the provisions of the Resolution dated 05.07.1991, the higher pay-scales, which are granted to them, are required to be cancelled and hence, the recovery was ordered. 6. It is also not in dispute that after their retirement, they have assailed such action of the appellant - authorities withdrawing / cancelling their high pay-scales and ordering recovery. 6. It is also not in dispute that after their retirement, they have assailed such action of the appellant - authorities withdrawing / cancelling their high pay-scales and ordering recovery. The learned Single Judge, after considering the rival submissions as well the provisions of the Resolutions dated 05.07.1991 and 16.08.1994, has held thus : - “28. The respondents have also not disputed the fact that the petitioners could not clear the department examination in the year 1998. If Government Resolution dated 05.07.1991 was considered and the petitioners were entitled the benefit of first higher pay scale with effect from 1987, the petitioners’ entitlement for second higher pay scale would start from the year 1987 or any date subsequent to the year 1987 but prior to 16.08.1994, the date on which the earlier government resolution was replaced by the Government Resolution dated 16.08.1994 and therefore, each of the petitioner were eligible on the ground that they have completed nine years of services prior to 05.07.1991. It is only by way of Government Resolution dated 16.08.1994 that a condition to clear the departmental examination to avail the benefit of higher pay scale, in case of time scale promotion in view of actual promotion was introduced. The petitioner could clear the examination only in the year 1998. In the year 1998, considering the length of service, each of the petitioner has completed 18 years services and therefore, they have claimed that their second higher pay scale is required to be granted from the year 1998. 29. When the main object of each of Government Resolution dated 05.07.1991, 16.08.1994 and 02.07.2007 was to consider the length of service of employee and to provide benefit of higher pay scale considering the actual length of service, if the petitioners are not granted the benefits of the aforesaid Government Resolutions applicable from time to time, in that case, the very object behind the aforesaid Government Resolution would be frustrated. 30. The petitioners have completed nine years of services prior to the year 1994 or prior to even 05.07.1991 and therefore, since, at that point of time, Government Resolution was applicable, the petitioners were rightly granted the benefit of first higher pay scale in the year 1992 giving an effect from the year 1987. 30. The petitioners have completed nine years of services prior to the year 1994 or prior to even 05.07.1991 and therefore, since, at that point of time, Government Resolution was applicable, the petitioners were rightly granted the benefit of first higher pay scale in the year 1992 giving an effect from the year 1987. By Government Resolution dated 16.08.1994 for grant of higher pay scale, a person was required to pass the departmental examination, that also the petitioner passed in the year 1998. Therefore, when the petitioners passed the departmental examination in the year 1998 and that time they already put in more than 18 years of services, if the Government Resolutions dated 16.08.1994 as well as 05.07.1991 are considered in its true letter and spirit by keeping in mind the object of the aforesaid Government Resolution, the petitioner were entitled to the higher pay scale from the date on which they completed departmental examination. Government Resolution dated 02.07.2007 came later on providing for time scale promotion on completion of 12 and 24 years, by that time the petitioners had already completed more than 18 years services and had cleared the departmental examination and therefore, even if the Government has granted them either actual promotion or benefit of second higher pay scale from the year 2012, 2013, the petitioners actual entitlement for the same would start from the date on which they completed nine years of services i.e. in the year 1987 or in case of the petitioner who joined the services in the year 1979 in that case from the year 1988.” 7. The learned Assistant Government Pleader is unable to dispute that the appellant - authorities did not hold the examination during the eligibility period of the respondents and it appears that the departmental examination was held in the year 1998, pursuant to the Government Resolution dated 16.08.1994 and accordingly, they had also cleared the departmental examination meant for promotion. Hence, the action of the appellant - authorities cancelling their higher pay scale, which was granted in view of the Resolution dated 05.07.1991 is premised on incorrect fact, as no documentary evidence is pointed out to us, which can show that the departmental examination was held during their eligibility period. Hence, the impugned action of the appellant-authorities cancelling their higher pay scale in the year 1994 is precisely held to be illegal by the learned Single Judge. Hence, the impugned action of the appellant-authorities cancelling their higher pay scale in the year 1994 is precisely held to be illegal by the learned Single Judge. However, on the aspect of delay in approaching the Court, the learned Single Judge has held thus : - “32. So far as aspect of the delay is concerned, learned Senior Advocate Mr. Joshi has submitted that all the three petitioners are ready and willing to forgo all the benefits actually and would be accepting if those benefits are granted them notionally by directing the respondents to refix their salary on the basis of their entitlement, if they are held entitled to first and second higher pay scale from the year 1987 or 1988 and second higher pay scale from the year 1999. 33. Keeping in mind the fact that though at the relevant point of time, the petitioners did not challenge the aforesaid action but at the same time, the petitioners have suffered a huge financial loss by not challenging the action at the relevant point of time, if after they retired then also entire length of service including the length of service for the purpose of benefit of time scale promotion is not considered that would cause a great injustice to the people who have actually served the department and yet benefit has not been given to them at the right time. 34. In view of that, though there is a delay in the petitions in challenging the aforesaid action but since, the petitioners are not praying for any actual benefit in terms of monetary benefits as well as considering the fact that denial of the benefits as prayed for by the petitioner would impact their retiral benefits in form of pension as well and as any pension less than the entitlement of the petitioner is a continuous cause of action, the aspect of delay could have been considered by this Court had petitioner prayed for actual monetary benefits, in view of the facts that the petitioners are praying for only notional pensionary benefits, the same is held in favour of the petitioners and the contention about delay raised by the respondent – authority is not accepted. More particularly, when the petitioners are seeking only revision of pension from the date of order and not with retrospective effect, the services put in by the petitioners from the year 1978 and 1979 till 2016 cannot be permitted to be wiped out only on the ground of delay” 8. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Rushibhai Jagdishchandra Pathak (supra), which read as under : - “12 In Tarsem Singh (supra), the delay of 16 years in approaching the courts affected the consequential claim for arrears and thus, this Court set aside the direction to pay arrears for 16 years with interest. The Court restricted "the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser". Further, the grant of interest on arrears was also denied. 13 The aforesaid ratio in Tarsem Singh (supra) has been followed by this Court in State of Madhya Pradesh and Others v. Yogendra Shrivastava, (2010) 12 SCC 538 and Asger Ibrahim Amin v. Life Insurance Corporation of India., (2016) 13 SCC 797 14 In the facts of the present case, it is accepted that the respondent- Corporation had accepted the interpretation rendered by the High Court of Gujarat to the Scheme whereby the appellants, on financial upgradation, would be entitled to the higher grade payscale of the next promotional post, which is Rs.5,000- 8,000/- in the present case. As noted above, the impugned judgment of the Division Bench accepts the said position and grants the appellants the said pay-scale but restricts the benefit from the date of the judgment of the Single Judge in the Writ Petitions filed by the appellants, that is, with effect from 31st July 2018. The Division Bench should not have taken the date of the decision/judgment of the Single Judge for grant of the said benefit in view of the decision and ratio in Tarsem Singh (supra) which has been followed in several other decisions. That apart, the date of the decision of the Single Judge is a fortuitous circumstance. Only the date of filing of the writ petition is relevant while examining the question of delay and laches or limitation. That apart, the date of the decision of the Single Judge is a fortuitous circumstance. Only the date of filing of the writ petition is relevant while examining the question of delay and laches or limitation. The appellants would, in consonance with the case law referred to above, be entitled to the arrears for three years before the date of filing of the Writ Petition.” 9. The Supreme Court has held that the claim, which is related to service benefits, one of the exceptions to the said rule of delay and latches relating to a continuing wrong. It is held that where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is exception to the exception. Ultimately, it is held that the High Courts will restrict consequential relief relating to arrears normally to a period of 3 years prior to the date of filing of the writ petition. The Supreme court in case of Rushibhai Jagdishchandra Pathak (supra) has held that the High Court should not have taken the date of decision / judgment of the learned Single Judge for grant of benefits in view of the decision and ratio laid down in the case of Tarsem Singh (supra), and further it is clarified that “only the date of filing of the writ petition is relevant while examining the question of delay and latches or limitation, and the arrears are to be confined for three years before the date of filing of the writ petition.” The action of the appellant – authorities has also affected the pensionary benefits of the respondents, hence the action of withdrawal of higher pay-scale has travelled till their retirement. 10. Thus, in fact, the respondents were gracious enough not to claim the actual benefits as recorded by the learned Single Judge and they have not claimed for benefits restricting for three years, as per the law enunciated by the Supreme Court. Hence, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge. The Letters Patent Appeals need to be rejected. 11. Hence, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge. The Letters Patent Appeals need to be rejected. 11. In view of the foregoing reasons and in light of the aforesaid facts, the present Letters Patent Appeals fail and the same are rejected accordingly. 12. As a sequel, the civil applications for stay do not survive and the same stand disposed of. 13. Registry to place a copy of this order in each of the connected matters.