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2024 DIGILAW 318 (GUJ)

Yuvraj Banesinh Solanki v. State Of Gujarat

2024-02-15

N.V.ANJARIA, PRANAV TRIVEDI

body2024
JUDGMENT : N.V.ANJARIA, J. It is the order dated 7.7.2021 of learned single Judge dismissing the Special Civil Application of the petitioner-appellant, which is called in question by filing this Letters Patent Appeal. 2. The prayer advanced in the petition, negatived by learned single Judge, was to direct the respondents to implement the communication dated 21.11.2020. By the said communication, the Additional Director of the Health Services and Medical Education, communicated to the Medical Officer of the respondent No.4- Hospital that the remuneration of Rs.40,000/- was sanctioned for the appellant-petitioner who was a Legal Advisor working thereat. The respondent No.4- Hospital was run by the State authorities. It was further contemplated and communicated to increase the amount of T.A.D.A. from Rs.750/- to Rs.900/-. 3. The basic facts to be noticed are inter alia that the petitioner joined his duties as Legal Advisor with effect from 3.2.2014 under the respondent No.4. He was on contractual employment with salary of Rs.12,500/- per month and further entitlement to the T.A.D.A. amount. It appears that representation dated 4.9.2020 was made by the petitioner requesting for enhancement in the remuneration on the basis of Circular of the Finance Department of the State Government. The circular-cum-communication dated 13.1.2016 (Annexure C, Page 28) which provided that the Legal Officers functioning under different departments shall be entitled to enhanced remuneration of Rs.40,000/-. 3.1 The request of the petitioner was processed at the different hierarchy of the Government. It ended up with communication dated 21.11.2020 (Annexure C, Page 27. It mentioned that recommendation made by the governing body called Rogi Kalyan Body of respondent No.4, Sir T. Hospital to pay Rs.40,000/- as remuneration to the petitioner, was approved by the Commissioner of Health and Education, State Government. Despite the above reflection and communication by the competent highest authority addressed and intimated to the employer of the petitioner, somehow it was not implemented and time passed by. The petitioner went on making representations. 3.2 In the meantime, there was change of guard in the Rogi Kalyan governing body of respondent No.4. In a meeting held on 19.6.2021 of the Executive Committee, the question of payment of remuneration to the petitioner, was sought to be reconsidered by putting up a special agenda item. The benefit conferred under aforementioned communication dated 21.11.2020 was declined to be given by the governing body. In a meeting held on 19.6.2021 of the Executive Committee, the question of payment of remuneration to the petitioner, was sought to be reconsidered by putting up a special agenda item. The benefit conferred under aforementioned communication dated 21.11.2020 was declined to be given by the governing body. 3.3 The aforesaid denial led the petitioner to file the Special Civil Application, the prayer wherein was rejected by learned single Judge resulting into the challenge in the present Letters Patent Appeal. 4. Learned advocate for the appellant Mr.Maulik Shelat would submit that the benefit conferred on the petitioner to enhance the remuneration of Rs.40,000/- was based on the Circular of the Finance Department and that the respondent-government at its proper departmental level considered the request and issued the communication dated 21.11.2020, the governing body was not within its competence to reverse the same. 4.1 On the other hand, learned Assistant Government Pleader Ms.Sanjay Udhwani relied on affidavit-in-reply and the contention raised therein filed by respondent No.4. In order to harp that there was no decision taken, he relied on the decision of the Supreme Court in Mahadeo Vs. Sovan Devi & Ors. [ 2022 (12) Scale 654 ] in particular para 14 thereof to contend that what was mentioned in the communication dated 21.11.2020 was only an inter-departmental communication and the file noting cannot be considered as decision of the Government. 4.2 In addition to highlighting the contentions raised in the affidavit-in-reply, it was firstly submitted that the communication dated 21.11.2020 was not an implementable decision. According to learned Assistant Government Pleader, the same could not be termed as the decision which could be applied to the petitioner to allow him to draw the higher salary. He next submitted that the appointment of the petitioner was contractual, therefore the enhancement in the remuneration could not have been given. It was his third submission that Circular dated 13.1.2016 of the Finance Department pertained to the grant of benefit to the Legal Officers, whereas the petitioner was Legal Advisor. 5. Dealing with the last contention first namely that the Circular dated 13.1.2016 would apply to the Law Officers only and that not to the petitioner who was Legal Advisor, is a submission creating artificial distinction. 5. Dealing with the last contention first namely that the Circular dated 13.1.2016 would apply to the Law Officers only and that not to the petitioner who was Legal Advisor, is a submission creating artificial distinction. The court does not see any real distinction between the Law Officers and Legal Advisors atleast for the purpose of conferment of this benefit in the facts of the present case. They belong to the homogeneous class and could well be considered notwithstanding their different nomenclature to stand governed under the said Resolution of the Finance Department. Acceptance of such a flimsy ground would amount to meting out an arbitrary treatment to the persons belonging to the same class. 5.1 The submission that the petitioner was contractual therefore could not get the enhanced remuneration has no legs to stand inasmuch as the concept of contractual nature of employment would not be imported while considering the entitlement of the petitioner in light of the circular and the claim for enhanced remuneration which otherwise is a part of the policy of the State Government as reflected in the Resolution as well as approved by the competent authority in communication dated 21.11.2020. 5.2 Learned single Judge misdirected himself in adopting the reason that the petitioner was appointed on contractual basis and could not claim the enhanced salary. Learned Assistant Government Pleader also fell in same error while canvassing the submission on the said score. The contractual status of the petitioner would not prevent the entitlement once the policy contemplates and that the governing body of respondent No.4 itself recommended the benefit which at a later juncture was approved by the Commissioner of Health Education- the highest authority. 5.3 The submission based on the decision of the Supreme Court in Mahadeo (supra) is found meritless when the contents of communication dated 21.11.2020 is attentively examined and analyzed. It reflects the approval of grant of enhanced remuneration to the petitioner by the Commissioner. This approval competently taken stood converted into communication dated 21.11.2020. The said communication was a formal communication addressed to the employer of the petitioner which suggested in no uncertain terms that the petitioner was treated to be entitled to the enhanced remuneration. 5.4 The said decision communicated to the employer became enforceable in nature. This approval competently taken stood converted into communication dated 21.11.2020. The said communication was a formal communication addressed to the employer of the petitioner which suggested in no uncertain terms that the petitioner was treated to be entitled to the enhanced remuneration. 5.4 The said decision communicated to the employer became enforceable in nature. This communication by the Additional Director of Health Department was a decision communicated to the employer of the petitioner to be served through the employer. It could not be said that the communication remained only at the stage of notings on the file not to become the decision. 5.5 In Mahedeo (supra), the Supreme Court held that interdepartmental communication cannot be treated as letter of allotment. It was an issue about allotment of land to a war disabled ex-serviceman. It was observed that what was proceeded was the process of consideration only and the appropriate decision had not culminated. In paragraph 17, the Supreme Court observed "thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law". In the present case, once the competent authority had given approval and the same was communicated to the employer-petitioner, it tantamount to decision. The process of decision making had culminated and was over. The right to receive higher remuneration was fructified for the petitioner. 5.6 Any decision of the government department is a process which culminates into a competent communication. The parameters leading the process to become the competent decision are satisfied. 6. For all the aforesaid reasons, this court is inclined to accept the prayer of the petitioner advanced in the main petition. The judgment and order of learned single Judge, for all the aforestated reasons, could not sustain. 6.1 In the aforesaid view, the judgment and order dated 7.7.2021 of learned single Judge impugned in this Letters Patent Appeal is set aside. 7. The Letters Patent Appeal is allowed. The petitioner is held entitled to receive the enhanced remuneration as per the decision taken by the respondent authorities and duly approved by the competent authority reflected in the communication dated 21.11.2020 as addressed to the employer. The benefits arising therefrom shall be paid to the petitioner within eight weeks from today. Direct service is permitted.