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2024 DIGILAW 1847 (GUJ)

GNANESHWARY D. SHAH v. STATE OF GUJARAT

2024-10-03

VAIBHAVI D.NANAVATI

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JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. Heard Mr. Gnaneshwary D. Shah, learned party-in-person and Ms. Suman J. Motla, learned Assistant Government Pleader appearing for the respondent-State. 2. By way of preferring the present Petition, petitioner herein challenges the order dated 15.09.2016 passed by the respondent no. 3, cancelling the senior scale of the petitioner with retrospective effect, from the date of entitlement of senior paygrade, since 22.11.1999. By way of the amendment, petitioner herein has challenged the consequential order dated 07.10.2016 passed by the respondent no. 4, pursuant to the impugned order dated 15.09.2016, wherein, by the said order, the respondent no. 4 has directed the accounts department to reduce the pay of the petitioner, w.e.f. 22.11.1999 and calculate the same, whereby, the respondent no. 4 has removed/demoted the petitioner from in-charge Head of the Department and appointed one Mr. B.J. Panchal, as Head of the Department, with immediate effect, that too, in anticipation, that the respondent no. 2 would pass a similar order in future. 3. Being aggrieved and dissatisfied with the impugned orders as referred above, the same having been passed after more than 18 years, after the confidential report, is vitiated, on the ground of delay and latches and in view thereof, the same are required to be quashed and set aside. 4. By way of the present Petition, petitioner herein has prayed for the following reliefs: “(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of Certiorari and/or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 15.09.2016 as being arbitrary, illegal, violative of principles of natural justice and contrary to provisions of law. (A-1) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of Certiorari and/or any other appropriate writ, order or direction quashing and setting aside the impugned Orders dated 07.10.2016 [Annexure-A/1(Colly.)] as being arbitrary, illegal, violative of principles of natural justice and contrary to provisions of law. (B) Pending the hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order dated 15.09.2016 and direct Respondent Authorities to refrain from undertaking any further steps pursuant to the said impugned order dated 15.09.2016 including any steps towards recovery of any so called dues from the petitioner. (B) Pending the hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order dated 15.09.2016 and direct Respondent Authorities to refrain from undertaking any further steps pursuant to the said impugned order dated 15.09.2016 including any steps towards recovery of any so called dues from the petitioner. (B-1) Pending the hearing and final disposal of this petition, Your Lordship may be pleased to stay the operation and implementation of the impugned Orders dated 07.10.2016 [Annexure-A/1(Colly.)] and direct Respondent Authorities to refrain from undertaking any further steps pursuant to the said impugned Orders dated 07.10.2016 including any steps towards recovery of any so called dues from the Petitioner. (C) An ex-parte ad-interim relief in terms of prayer (B) may kindly be granted. (C-1) An ex-parte ad-interim relief in terms of prayer (B/1) may kindly be granted. (D) Your Lordships may be pleased to award the costs of the petition to the petitioner. (E) Pass such other and further order or orders as may be thought fit in the interest of justice.” 5.1. Briefly stated that, the undisputed facts are such that, the petitioner herein came to be appointed on ad-hoc basis in the year 1990 on the post of Lecturer in Government Polytechnic College in Plastic department. The services of the petitioner came to be regularized on 22.11.1993. The petitioner came to be granted senior scale of Rs. 1000-325-15200, which came to be approved, w.e.f. 22.11.1999, by order dated 21.11.2003 (Page-49). The petitioner was granted selection grade, which came to be approved and granted to the petitioner, w.e.f. 22.11.2004, as per the order dated 01.07.2006 (Page-53). 5.2. That vide order dated 15.09.2016, the senior scale and selection grade of the petitioner was cancelled/rejected, due to adverse remarks in the confidential report (CR) of the year 1998-1999, by the Director of Technical Education (DTE). On 07.10.2016, with reference to the order dated 15.09.2016, the senior scale and selection grade of the petitioner came to be cancelled/rejected, due to adverse remarks in CR of the year 1998-1999, by the Principal, Government Polytechnic College, Ahmedabad. 5.3. In reference to the order dated 15.09.2016, the charge of the petitioner as Head of the Department (HOD), was given to one Shri B.J. Panchal, on 07.10.2016. 5.4. 5.3. In reference to the order dated 15.09.2016, the charge of the petitioner as Head of the Department (HOD), was given to one Shri B.J. Panchal, on 07.10.2016. 5.4. Being aggrieved by the same, petitioner herein has approached this Court, having prayed for the reliefs as stated herein-above. 5.5. Pending the present petition, upon appointment of Shri B.J. Panchal, as HOD by office order dated 11.11.2016, the petitioner had preferred the Misc. Civil Application No. 3406 of 2016 for non-compliance of the interim order dated 11.11.2016, on 22.11.2016. 5.6. On 09.12.2016, the Director of Technical Education (DTE) passed an order, by virtue of which the present petitioner was in-charge of the HOD. On 27.04.2018, the said Misc. Civil Application No. 3406 of 2016 came to be disposed of. 5.7. On 08.05.2018, the petitioner had preferred the Misc. Civil Application (for Direction) No. 1 of 2018 in Misc. Civil Application No. 3406 of 2016, which came to be disposed of, vide order dated 14.12.2018. 5.8. The petitioner herein is governed by the Rules published through the resolution dated 20.06.2001, i.e. ‘Revision of pay scale of teachers in diploma level technical institutions’ (Page-36, Annexure-C), wherein, petitioner is governed by Clause-3 of the said Rules, with respect to the Lecturer (Senior Scale) and Lecturer (Selection Grade). 6.1. The learned party-in-person submits that the impugned orders, which are the subject matter of challenge, are adverse to the present petitioner and are passed without following cardinal principles of natural justice. The impugned order withdrawing/cancelling the petitioner’s senior scale by order dated 21.11.2003 (Page-49) and granting selection grade by order dated 01.07.2006 (Page-53), are passed, after a lapse of more than 8 years, on the ground of adverse remarks against the present petitioner for the year 1998-1999. 6.2. Reliance is placed on the government resolution for ‘Revision of pay scale of teachers in diploma level technical institutions’ (Page-36, Annexure-C), dated 20.06.2001, wherein, the petitioner herein is governed by Clause-3- Lecturer (Senior Scale) and Lecturer (Senior Grade). It is submitted that, for eligibility to the aforesaid, the petitioner complies with both the conditions as enumerated in the said Clause-3(c) and 3(d) respectively. 6.3. It is submitted that the petitioner herein has been granted the aforesaid, upon due verification, wherein the petitioner names figured in the order dated 22.11.2003 at serial no. It is submitted that, for eligibility to the aforesaid, the petitioner complies with both the conditions as enumerated in the said Clause-3(c) and 3(d) respectively. 6.3. It is submitted that the petitioner herein has been granted the aforesaid, upon due verification, wherein the petitioner names figured in the order dated 22.11.2003 at serial no. 51, w.e.f. 22.11.1999 and by the order dated 01.07.2006, the selection grade was approved and granted to the petitioner, w.e.f. 22.11.2004, petitioner figured at serial no. 9. It is submitted that the aforesaid has been granted upon due verification and audit report, which is duly relied upon by the petitioner. 6.4. Placing reliance on the aforesaid order dated 01.07.2006, whereby, the petitioner was granted the benefit of selection grade, w.e.f. 22.11.2004, the petitioner’s name figured at serial no. 9 (Page-57). The aforesaid was given, after due verification and audit report, which is duly relied upon by the petitioner at Annexure-G, Page-58. 6.5. Reliance is also placed on the service book entry dated 26.03.2003 (Annexure-G, Page-58). Learned party-in-person also placed reliance on the pay fixation under the Gujarat Civil Services (Revision of Pay) Rules, 2009, dated 30.08.2011 (Annexure-H Page-61), whereby, the petitioner was also granted the said benefit, wherein, the statement of the said fixation with respect to the petitioner is produced at Page-62. 6.6. Reliance is also placed on the receipts of the Pay Verification Unit, duly produced at Annexure-I, Page-63, wherein, the revised pay was fixed in accordance with the 6th Pay Commission. 6.7. It is submitted that it is utter shock and surprise for the petitioner to receive a communication dated 28.09.2016, which came to be issued, as to why the recovery should not be effected. The said communication is duly produced at Annexure-J, Page-64. The aforesaid is issued by the Principal, Government Polytechnic College, Ahmedabad. 6.8. Placing reliance on the aforesaid, it is submitted that, with respect to the adverse remarks against the petitioner for the year 1998-1999, the petitioner was communicated with respect to the same in the year 2000. The petitioner made a representation, against such communication in December, 2000. It is stated that the said representation was rejected on 22.08.2001. 6.8. Placing reliance on the aforesaid, it is submitted that, with respect to the adverse remarks against the petitioner for the year 1998-1999, the petitioner was communicated with respect to the same in the year 2000. The petitioner made a representation, against such communication in December, 2000. It is stated that the said representation was rejected on 22.08.2001. It is submitted that the same was never communicated to the petitioner and in view thereof, the reliance placed by the respondents that the petitioner’s senior scale and selection grade came to be cancelled, pursuant to the adverse remarks for the year 1998-1999 are such that the same cannot be accepted. 6.9. It is submitted that, in view thereof, the prayers as prayed for, in the present petition may be allowed and the impugned order dated 15.09.2016 and consequential order passed by the respondent no. 4 dated 07.10.2016, be quashed and set aside. 7.1. Ms. Suman Motla, learned Assistant Government Pleader appearing for the respondent-State relied upon the affidavit-in-reply filed by the respondent authorities, while reiterating the facts as stated by the learned party-in-person, and submitted that the petitioner’s grievance as such does not survive, in view of the fact that, pursuant to the order dated 09.12.2016, the petitioner herein is in-charge HOD and in view thereof, as such, it cannot be said that the petitioner herein can be said to be aggrieved. 7.2. Reliance is also placed on the affidavit-in-reply, which is duly produced at Page-112 and placing reliance on the same, it is submitted that the petitioner herein is drawing the salary as per the directions of the interim order dated 10.10.2016 passed by the Court and the benefits are also granted to the petitioner in compliance of the said order. 8. The Notice came to be issued on 10.10.2016, whereby, the interim relief in terms of Para-11(B) and 11(B/1) is directed to continue till then. 9. Having heard the learned advocates appearing for the respective parties, it is not in dispute that the petitioner herein is governed by the government resolution dated 20.06.2001 (Page-36). It is apposite to refer to the qualification criteria for the post of Lecture (Senior Scale) and Lecturer (Selection Grade), as per the Clause-3(c) and (d), which reads thus: For promotion under Career Advancement scheme: “3.0. It is apposite to refer to the qualification criteria for the post of Lecture (Senior Scale) and Lecturer (Selection Grade), as per the Clause-3(c) and (d), which reads thus: For promotion under Career Advancement scheme: “3.0. xxx xxx xxx (c) Lecturer (Senior Scale) A lecturer will be eligible for placement as Lecturer (Senior Scale), through a process of selection if he/she has: (i) completed 6 years of service after regular appointment as a lecturer, with relaxation of 2 years for those with Ph.D. and one year for those with M.Phil/M.E./M.Tech. (ii) participated in one orientation course/induction training and one refresher course or industrial training of aggregate duration of 8 weeks, or has undertaken other appropriate continuing education or training programmes of comparable quality and duration as may be specified or approved by AICTE. Those with Ph.D. degree would be exempted from these course/training requirements. (d) Lecturer (Selection Grade) A Senior Lecturer/Lecturer (Senor Scale) who has a Master's degree and 5 years experience as Senior Lecturer or Lecturer (Senior Scale), and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee. AICTE would in due course, specify the guidelines for the selection process and the composition of the selection committee for promotion under career advancement scheme. Until the AICTE scheme is announced, selection committees same as prescribed for direct recruitments to the corresponding posts may be used for such promotions.” 10. Upon perusal of the aforesaid, as also the documents which are on record, wherein, the petitioner herein figured at serial no. 14 in the list for grant of senior scale, upon due audit verification, in line of Clause-3(c) of the aforesaid resolution. 11. The petitioner is granted selection grade on 01.07.2006, w.e.f. 22.11.2004, wherein, the name of the petitioner appears at serial no. 9 (Page-57). Initially pay fixation under the revision of pay scale of Polytechnic Teachers was sanctioned vide order dated 20.06.2001, wherein, the audit was conducted by the officer in-charge audit squad department of Technical Education, Gandhinagar dated 26.03.2003, therefore, the aforesaid is duly audited. Further, at Page-59 and 60, the initial pay fixation and selection grade was duly audited. 9 (Page-57). Initially pay fixation under the revision of pay scale of Polytechnic Teachers was sanctioned vide order dated 20.06.2001, wherein, the audit was conducted by the officer in-charge audit squad department of Technical Education, Gandhinagar dated 26.03.2003, therefore, the aforesaid is duly audited. Further, at Page-59 and 60, the initial pay fixation and selection grade was duly audited. The pay fixation under Gujarat Civil Services (Revision of Pay) Rules, 2009, petitioner’s statement of fixation of pay dated 17.08.2011 (Page-61), Accounts Officer, Pay Verification Unit, Examiner Local Fund Audit, Finance Department also examined the same, which is duly produced at Page-63. 12. Upon perusal of the aforesaid, it emerges that senior scale of the petitioner was approved and granted, w.e.f. 22.11.1999, by order dated 22.11.2003 (Page-49) and selection grade was approved and granted, w.e.f. 22.11.2004, by order dated 01.07.2006 (Page-53) and the impugned order dated 15.09.2016 cancelling the petitioner’s senior scale, came to be passed after a period of eight years, due to adverse remarks in the petitioner’s CR for the year of 1998-99, by the DTE. The petitioner herein is duly qualified as per the requirement of Clause-3 for the post of Lecturer (Senior Scale) and Lecturer (Selection Grade). 13. Ms. Motla, learned AGP is also not in a position to controvert the aforesaid factual position. 14. From the record, it emerges that, the said adverse remarks were never conveyed to the petitioner herein and in view thereof also, taking the case of the respondents as it is, the aforesaid action could not have been taken by the respondent authorities qua the petitioner herein, at such a belated stage. In view thereof, submissions advanced by the learned-in-party person on behalf of the petitioner requires consideration. Accordingly, in exercise of the extraordinary jurisdiction under Article-226 of the Constitution of India, the impugned order dated 15.09.2016 cancelling the senior scale of the petitioner and consequential order dated 07.10.2016, re-fixing the petitioner’s salary, w.e.f. 22.11.1999, are quashed and set aside. In view of the aforesaid, the respondent authorities are directed to grant all the consequential benefits arising thereof, in accordance with law. 15. For the foregoing reasons, the present Petition stands ALLOWED. Rule is made absolute. Direct service is permitted.