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2024 DIGILAW 1688 (GUJ)

KAMLESHBHAI HEMANTBHAI JOSHI v. STATE OF GUJARAT

2024-08-08

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal emanates from the order dated 19.06.2019, whereby the learned Single Judge has rejected the writ petition filed by the appellant seeking fixation of pension based on his last pay drawn as Deputy Chitnis along with pay difference of amount from 2010. 2. At the outset, learned senior advocate Mr.Joshi has submitted that the learned Single Judge fell in error in rejecting the writ petition on the ground of delay since denial of pension on the enhanced pay, as claimed by the appellant, would be recurring cause of action. He has submitted that the appellant was promoted by the order dated 03.04.2006 to the post of Deputy Chitnis with condition that he has to pass the departmental examination. It is submitted that the appellant appeared in the departmental examination, which was held in the year 2006 however, he could not clear the same and thereafter, he retired on the same post on 30.11.2010. While placing reliance on the rules governing the departmental examination to the post of Deputy Chitnis, he has pointed out the notification dated 20.08.2002 more particularly, Rules 3 and 5 thereof and has submitted that the appellant still had two chances to appear in the departmental examination however, since the same was not held, he retired on the post of Deputy Chitnis and he was never reverted from the said post on the ground that he did not clear the departmental examination. 3. Learned senior advocate Mr. Joshi has referred to the certificate issued on 28.03.2012 by the Deputy Secretary of the respondent-department and has submitted that it is admitted that from 08.06.2006 to July, 2011, no departmental examination was held for the post of Deputy Chitnis however, the said certificate refers to an issue of grant of second higher pay-scale. It is submitted that the claim of higher pay-scale has been introduced by the State Government in lieu of promotion and employee, who remained stagnated for particular years, subject to passing of the departmental examination, as envisaged in the notification dated 20.08.2002. Thus, it is submitted that the appellant cannot be denied fixation of pension on the pay, which he has received at the time of retirement on the post of Deputy Chitnis for the sole reason that he did not clear the departmental examination. Thus, it is submitted that the appellant cannot be denied fixation of pension on the pay, which he has received at the time of retirement on the post of Deputy Chitnis for the sole reason that he did not clear the departmental examination. He has submitted that the appellant cannot be made to suffer for inaction of the respondent authorities of not holding the departmental examinations, as per the rules. In support of his submissions, he has placed reliance on the judgment dated 19.03.2019 passed in the writ petition being Special Civil Application No. 12488 of 2015. Thus, it is urged that the order passed by the learned Single Judge and the action of the respondent authorities in denying the pension fixation on the basis of feeder post is required to be quashed and set aside. 4. Per contra leaned AGP, while vehemently opposing the present appeal has submitted that the impugned order passed by the learned Single Judge does not require any interference and the same is appropriately passed. He has submitted that the appellant had retired in the year 2010, whereas the writ petition has been filed in the year 2019 i.e. after 9 years, seeking fixation of pension and hence, the writ petition is required to be rejected on the ground of delay. He has submitted that the appellant was promoted to the post of Deputy Chitnis with a specific condition of clearing the departmental examination however, since he did not do so, his pension was fixed at the pay he received on the feeder post i.e. Senior Clerk. It is submitted that the prayers made by the petitioner-appellant are precisely rejected by the learned Single Judge as unquestionably the appellant did not clear the departmental examination, which is required under the Rules. He has further submitted that till retirement, the appellant worked as a Deputy Chitnis and as per the promotional order, since he did not clear the departmental examination, he has been treated as ad hoc basis and his pension is not required to be fixed on such post. This, it is urged that the present appeal may not be entertained. 5. We have heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. This, it is urged that the present appeal may not be entertained. 5. We have heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. The facts, which are established from the pleadings, are that the appellant was working on the post of Senior Clerk and by the order dated 03.04.2006, he has been promoted to the post of Deputy Chitnis subject to clearing the departmental examination. It is not in dispute that the departmental examination has to be held as per the Deputy Chitnis (Panchayat Service) Departmental Examination Rules, 2002, which are promulgated vide notification dated 20.08.2002. The relevant rules to decide the said issue raised in the present appeal would be Rule 3, Rule 5 and Rule 10, the same are as under: “RULE 3: Requirement of passing of the Examination: (1) Subject to the provisions of these rules: (a) every direct recruit, appointed to the post of Deputy Chitnis (Panchayat Service) after commencement of these rules, shall be required to pass the examination during probation period, within specified chances. (b) a direct recruit, appointed before commencement of these rules and who has not passed the departmental examination held under the old rules, shall be required to pass the examination within specified chances. “(b-1) A person who has complete three years continuous service in the cadre of Senior Clerk shall be eligible for appearing in departmental examination under the said rules.” (c) a person who, before the commencement of these rules, is appointed by promotion to the post of Deputy Chitnis (Panchayat Service) and has not passed the Departmental Examination held under the old rules, shall, unless he has been exempted from passing such examination under these rules be required to pass the examination within specified chances from the date of his completing five years continuous service from the date of promotion, or from the date of commencement of these rules, whichever is later. (2) If the specified period expires before the date of commencement of the examination in which a candidate had his last chance, in such cases, such period shall be deemed to have been extended upto the date of the declaration of the result of the examination so held. (2) If the specified period expires before the date of commencement of the examination in which a candidate had his last chance, in such cases, such period shall be deemed to have been extended upto the date of the declaration of the result of the examination so held. (3) If the direct recruit fails to pass the examination within the specified period, such specified period may, if in the opinion of the Government, his services were otherwise satisfactory, be extended to one year to enable him to pass the examination in not more than specified chances, including the chances exhausted earlier. RULE 5: Specified chances: (1) A person shall be required to pass the examination in three successive chances (four successive chances in case of person belonging to Scheduled Castes or Scheduled Tribes or Socially and Educationally Backward Classes). (2) The chances, already availed of under the old rules before the commencement of these rules, shall be counted as chances having been availed of under these rules. RULE 10: Holding of the Examinations: (1) The examination shall be held by the Board, twice in the year. (2) The Board shall publish necessary notice regarding the date of commencement of the examination, detailed programme and venue and shall place it on the notice board of the Board and shall also send it to all District Development Officers for necessary action. (3) After receipt of the notice from the Board under sub-rule (2), the District Development Officer shall communicate it to all concerned employees and thereafter communicate the names and particulars of persons who are required to appear at the examination, in accordance with these rules and wish to appear at the examination, strictly according to their seniority.” 7. A combined reading of the provisions of the aforesaid Rules 3, 5 and 10 explicit that a person who is either directly appointed or promoted to the post of Deputy Chitnis has to clear the departmental examination within three chances in case, he belongs to general category, (which is the case in the present appeal) and such departmental examination has to be held twice in a year. 8. 8. It is not in dispute that the appellant appeared in the departmental examination, which was held in the year 2006, which he could not clear and he still had two chances to further clear the departmental examination till he retired in the year 2010 on reaching the age of superannuation. In this regard, the certificate dated 28.03.2012 issued by the Deputy Secretary of the respondent-Department gains significance. As per the certificate from 08.06.2006 to July, 2011, no departmental examination of the Deputy Chitnis was conducted. This certificate would categorically establish that no departmental examination, as envisaged in the aforesaid Rules was held (from 08.06.2006 to July, 2011). Thus, before us also the respondents have been unable to establish the fact of holding the departmental examination twice in a year as per the requirement of Rule 10. The respondents have to point out that the examination were held twice in a year, and the appellant, though was having the knowledge did not appear or he appeared and was unable to pass the same. No documentary evidence has been pointed out to us in this regard. 9. At this stage, it would be apposite to refer to the decision of the Apex Court in the case of K.K. Gohil Vs. State of Gujarat and Ors. (2015) 9 SCC 652 (Page 43): “10........At this stage, it would be apposite to refer to the judgment of the Apex Court in the case of K.K. Gohil (supra). The Apex Court while examining the issue of denying higher pay-scale on the ground of non-passing of the departmental examination has observed thus: “11. As per the Government Resolution dated 16.8.1994, upon completion of 9 years service the concerned government servant is entitled for the benefit of higher grade scale if he has not been promoted or that the requisite departmental examination for entitlement of higher post or for maintenance of the very post, are not cleared. The purpose of the policy was to see that no stagnancy was created in service on account of the fact that no higher posts are available. But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental examination. But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental examination. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. It was not by way of compromising the merit that the benefit was to be given, just because the requisite length of service was completed but also dependent upon the merit and acceptance of the promotion. 12. From perusal of the Government Resolution dated 16th August, 1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn. 13. However, by circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court's order and directed that in cases where for getting higher pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organised in time. Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law.” 11. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law.” 11. The Apex Court has specifically observed that the higher pay-scale cannot be stalled on the ground of non-passing of departmental examination, if it is not organized in time.” 10. Thus, the appellant cannot be made to suffer for inaction of the respondent authorities in not holding the departmental examination from 2006 till he retired in 2010. For all these years, the appellant had worked on the post of Deputy Chitnis and his pay was also fixed accordingly. 11. By pay fixation order of the appellant, which was issued on 15.06.2009 (Page No. 50) it is apparent that as on 30.11.2010, his pay was fixed in pay-band of Rs.9,300-34,800/- on the promotional post of Deputy Chitnis w.e.f. 01.01.2006. Thus, when he retired from service, his pay was already fixed on the post of Deputy Chitnis w.e.f. 04.04.2006. 12. As per Section 43 of the Gujarat Civil Services (Pension) Rules, 2002, the ‘Pensionable Pay’ means the average pay earned by a Government employee during the last ten months’ service. Hence, the respondent authorities were under an obligation to fix pension of the appellant on the basis of his pay earned by him during last ten months’ service before his retirement. 13. The learned Single Judge has rejected the writ petition on the ground of delay as the writ petition was filed after a period of 9 years. At this stage, it would be apposite to refer to the decision of the Apex Court in the case of Union of India Vs. Tarsem Singh, 2008 (8) SCC 648 , where the issue pertains to the issue of belated service related claim. The Apex Court has held thus: “5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. 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 an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 14. The aforementioned judgment is considered by the Apex Court in the case of Rushibhai Jagdishchandra Pathak vs. Bhavnagar Municipal Corporation, JT 2022 (5) SC 470. It is reiterated thus: “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 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. 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.” 15. The Apex 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. 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 Apex Court in the 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 ration in 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.” 16. The claim of the appellant rests on higher pedestal since he was claiming pension on the basis of pay-scale which he got at the time of retirement. His pension was fixed on the feeder cadre post, and not on the promotional post of Deputy Chitnis. He was never reverted from the post. The learned Single Judge fell in error in rejecting the writ petition on the ground of delay. The learned Single Judge failed to appreciate the cause of denial of pension. It was a recurring cause, since every month the appellant is getting pension at a reduced rate. However, the fact remains that he has approached this Court after a period of nine years. Hence, the date of filing of the writ petition becomes very relevant and, therefore, the arrears are restricted to the period of three years prior to the date of filing of the captioned writ petition. 17. In light of the foregoing observations, we are inclined to allow the appeal. The same is hereby allowed. The order passed by the learned Single Judge is quashed and set aside. 18. The respondents are directed to fix and pay pension to the appellant on the basis of his last pay drawn on the post of Deputy Chitnis as per the pay fixation order. The same is hereby allowed. The order passed by the learned Single Judge is quashed and set aside. 18. The respondents are directed to fix and pay pension to the appellant on the basis of his last pay drawn on the post of Deputy Chitnis as per the pay fixation order. The arrears however, are restricted to the period of three years from the date of filing of the writ petition. The entire exercise of re-fixation of pension and payment of arrears shall be carried out within a period of 08 (eight) weeks from the date of receipt of writ of the order of this Court, failing which the amount shall further carry 12% interest p.a.