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2024 DIGILAW 322 (GUJ)

Arunkumar Shankargiri Goswami v. State Of Gujarat

2024-02-15

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. The present group of petitions is arising out of the common question of law and facts. The Court has taken up the petitions for hearing by treating Special Civil Application No.2358 of 2016 as a lead matter and for the sake of convenience, the facts are taken from the said petition. So far as the lead matter, i.e. Special Civil Application No.2358 of 2016 is concerned, the same is arising from the following background of facts : 1.1 It is the case of the petitioner that the petitioner had joined service on 20.07.1982 and thereafter, he was sent for Pre Service Examination from 14.03.1988 to 12.05.1988 at Rajkot. The petitioner passed the said examination in 4th attempt as per the notification of the Sardar Patel State Administration Bhavan, Ahmedabad dated 18.01.1991. It is the say of the petitioner that as per his initial entry in service on 20.07.1982, he was given the benefit of higher grade vide order of District Development Officer, Jamnagar dated 13.10.1992 as per the resolutions of the State Government dated 5.7.1991 and 16.8.1994 and other resolutions of the State Government issued from time to time w.e.f. 20.7.91 in the pay scale of Rs.1200- 2040. The DDO Jamnagar thereafter cancelled the first higher grade benefit vide his order dated 27.4.1998 considering the date of his passing the pre service training examination. It is the say of the petitioner that the passing of the pre service training examination could not come in his way for the purpose of seniority and entitlement for first higher grade and he is entitled for higher grade benefit only on the basis of his first/initial entry in service but the respondents granted him benefit of first higher grade on the basis of passing of the said examination by order dated 18.9.2000 with effect from 18.9.2000 and thereby, deprived him of the benefit of first higher grade on completion of nine years from the date of his joining service. 1.2 It is the case of the petitioner that the petitioner was sent for Pre Service Training Examination as per order of the Dy. DDO (Estt) District Panchayat, Jamnatar dated 8.3.1988 and he passed the said training examination in Special Attempt for which permission was granted by the Under Secretary, Panchayat and Rural Housing Development Department dated 10.7.1991 wherein, he passed the said examination as stated above. DDO (Estt) District Panchayat, Jamnatar dated 8.3.1988 and he passed the said training examination in Special Attempt for which permission was granted by the Under Secretary, Panchayat and Rural Housing Development Department dated 10.7.1991 wherein, he passed the said examination as stated above. Since the request of the petitioner to grant him benefit of 1st higher grade on completion of nine years from the date of his joining the service was not granted by the respondent authority, the petitioner had filed Special Civil Application No.17507 of 2012 with other allied matters before this Court wherein, this Court passed common order dated 17.6.2015 quashing and setting aside two orders dated 27.4.1998 and 18.09.2000 and directed the DDO Jamnagar to hear the petitioners and then pass fresh order determining the exact date of the benefit of first higher grade. It was clearly directed by this Court that the DDO Jamnaar shall keep in mind GR dated 7.4.1995 and to complete the exercise within eight weeks from the date of the said order. Thus, within eight weeks from 17.6.2015, the respondent DDO Jamnagar was required to decide the matter in terms of the order dated 17.6.2015 but after inordinate delay, the respondent DDO Jamnagar rejected his claim by order dated 27.11.2015. The said order is passed by the respondent authority without taking into consideration the GR dated 7.4.1995 in its proper perspective though it was directed by this Court. Thereafter, the petitioner had made several representations to the respondent authorities for deciding his case as per the direction of this Court but in no vain. 2. The present group of petitions raising almost similar issue with respect to inaction on the part of the respondent – authority has been brought before this Court by exercising the jurisdiction under Article 226 of the Constitution of India. Almost similar reliefs are prayed for and as such, the relief clause contained in the lead matter is reproduced hereunder : “(A) Admit and Allow this petition. (B) Quash and set aside the order of Respondent district Development Officer, Jamnagar dated 27.11.2015 as illegal, unjust, improper, bad in law and unconstitutional. (BB) Your Lordships be pleased to quash and set aside the order dated 27.11.2015 (Annexure C) and 09.03.2018 (Annexure F) passed by the respondent District Development Authority, Jamnagar by declaring same as illegal, improper and unconstitutional. (B) Quash and set aside the order of Respondent district Development Officer, Jamnagar dated 27.11.2015 as illegal, unjust, improper, bad in law and unconstitutional. (BB) Your Lordships be pleased to quash and set aside the order dated 27.11.2015 (Annexure C) and 09.03.2018 (Annexure F) passed by the respondent District Development Authority, Jamnagar by declaring same as illegal, improper and unconstitutional. (C) Declare that the petitioner is entitled for the benefit of 1st higher grade benefit on completion of nine years from the date of his entry in service and consequently direct the respondents to grant and extend the benefit of 1st higher grade on completion of nine years from the date of his joining the service will all consequential benefit and direct the respondents to revise and refix the salary and pension of the petitioner in the interest of justice. (D) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to grant relief in terms of para 11(B) as interim or ad interim relief. (E) Grant such other and further reliefs deemed just and proper by this Hon’ble Court in the facts and circumstances of the case.” 3. Heard learned advocate Mr.Hasit Joshi, appearing on behalf of the petitioner, learned Assistant Government Pleader Ms.Dharitri Pancholi, appearing on behalf of the respondent Nos.1 and 2 and learned advocate Mr.H.S. Munshaw, appearing on behalf of the respondent No.3. 4. Learned advocate Mr.Joshi for the petitioners has submitted that the Government Resolutions dated 05.07.1991 and 16.08.1994 make it clear that an employee is entitled for 1st higher grade on completion of nine years service in one post and one pay scale and stagnation and no other things are required to be considered for this purpose such as seniority etc. Therefore, the order and action impugned in these petitions is contrary to the provisions of GR dated 05.07.1991 and 16.08.1994 since the petitioners have completed nine years in one post and in one pay scale after joining the service. He has submitted that the petitioners were sent for pre service training after about five years. He has submitted that the respondents are not sending the employees for such training before joining of service though the training is named as Pre Service Training. He has submitted that the petitioners were sent for pre service training after about five years. He has submitted that the respondents are not sending the employees for such training before joining of service though the training is named as Pre Service Training. In view of that and in view of the language of the GRs dated 05.07.1991 and 16.08.1994, the action on the part of the respondents is ex facie illegal, unjust, improper and requires interference of this Court. He has submitted that the chart below would make the picture clear as regards the date of joining of service as well as other details : Name of Employee DOB Date of Joining Year during which the employee sent for pre-service training exam No. of Attempts Batch in which exam was cleared V.N. Dangar 14.6.57 20.9.80 10.6.82 to 8.8.1982 4th 29.10.91 30.10.91 B.V. Bathiya 03.04.57 20.9.80 29.10.82 to 27.12.80 4th 26.8.91 27.8.91 A.V. Rajani 05.01.57 18.2.82 1.1.88 to 29.2.88 4th 26.8.91 27.8.91 A.S. Goswami 31.10.55 20.7.82 14.3.88 to 12.5.88 4th 26.8.91 27.8.91 N.D. Sonagra 21.11.55 04.07.8 8 01.12.89 to 2.1.90 4th 20.11.92 21.11.92 4.1 Learned advocate Mr.Joshi has further submitted that as per the decision of this Court in Safimiya Malek versus State of Gujarat, 1992 (1) GLR 704 and SCA No.1220 of 1983 in JK Darji versus State of Gujarat and SCA No.2434 of 1983 in MJ Pandya versus Gujarat Maritime Board, seniority of the employee is to be considered on the basis of continuous service and not from the date of passing of pre-service training examination and, therefore, for considering case for benefit of 1st higher grade also, date of joining service is required to be taken into consideration and not the date of passing the pre-service training examination and therefore, the decision of the respondent authority is also contrary to the judgments of this Court. He has further submitted that from the plain and clear language of the above said resolutions and the decisions of this Court as referred to above, it is a clear case wherein, the respondents have travelled beyond the resolutions of the Government and the decisions of this Court and, therefore, such an approach of the respondents is required to be deprecated. 4.2 Learned advocate Mr.Joshi has further submitted that the matter at issue is entitlement of the petitioners, whether the petitioners are entitled for 1st higher grade benefit considering their initial entry in the service or not is the issue which is already decided by this Court in various decisions namely (1) Vipulkumjar Atmaram Parekh & Others versus State of Gujarat and others in Special Civil Application No.1314 of 2009 decided on 24.3.2009 wherein, the respondent authority was directed to grant such benefit as per GR dated 16.08.1994 considering the service of the petitioners therein from the date of their first appointment as assistant (Junior Clerk). (2) Division Bench of this Court in Safimiya G. Malek & Others v. State of Gujarat & Ors., reported in 1992(1) GLR page 704 considered the same issue. He has submitted that the resolution of the State Govt. dated 22.3.1966 provides that an employee is required to be taken in service after providing him necessary training and if the employees are taken into service without providing training, then, to such employee pre-service training is not applicable meaning thereby, question of undergoing pre-service training after joining service is not arising. He has submitted that since the failure to pass pre-service training examination had not resulted into break in service of the petitioners and since the petitioners’ service had remained continuous, they are entitled for 1st higher grade benefit on completion of nine years from the date of their joining the service. 4.3 Learned advocate Mr.Joshi has submitted that the District Assistant Inspector, Local Fund, Jamnagar was wrong because in the matter of higher grade, question of seniority is not arising. However, only on the basis of the objections raised by the District Asstt. Inspector, Local Fund, Jamnagar, benefit of 1st higher grade granted as per their date of joining service was cancelled by the DDO Jamnagar. He has submitted that the petitioners have already retired from service as per the age of superannuation. Even otherwise, action on the part of the respondents is illegal, improper, unjust and contrary to the GRs dated 05.07.1991, 16.08.1994 and various decisions of this Court. In support of his submissions, learned advocate Mr.Joshi has referred and relied upon the decision of the Hon'ble Apex Court in case of K.K. Gohil Vs. Even otherwise, action on the part of the respondents is illegal, improper, unjust and contrary to the GRs dated 05.07.1991, 16.08.1994 and various decisions of this Court. In support of his submissions, learned advocate Mr.Joshi has referred and relied upon the decision of the Hon'ble Apex Court in case of K.K. Gohil Vs. State of Gujarat and Others, reported in [2015] 9 SCC 652, more particularly paragraph 11, which reads as under : “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. 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.” 4.4 He has submitted that the order of the respondent authority is improper, bad in law and requires to be quashed and set aside as it is not properly interpreting the decision of the Hon'ble Supreme Court in KK Gohil (Supra). He has submitted that the interpretation made by the respondents is absolutely contrary to the spirit of reading of that particular paragraph of the G.R. dated 07.04.1995, whereby, paragraph 8 of the earlier G.R. dated 22.03.1966 has been replaced and therefore, the respondents have committed a mistake while interpreting the said G.R. and thereby the action on the part of the respondents to withdraw the benefits which were extended earlier in favour of the petitioners is in complete violation of the fundamental rights and therefore, the impugned orders dated 27.11.2015 & 09.03.2018 passed by the respondents may be quashed and set aside. He has also submitted that since the petitioners have passed the pre-service training examination in the years 1991 and 1992 meaning thereby, prior to the issuance of G.R. dated 07.04.1995, since the G.R. dated 07.04.1995 is not having retrospective effect, the action of applying that G.R. dated 07.04.1995 retrospectively is unjust and improper. 5. As against that, learned advocate Mr.Munshaw, appearing for the respondent No.3 – District Development Officer, has vehemently opposed the present petition and submitted that the averments made by the petitioner are thoroughly baseless, far from truth and as such respondent No.3 has acted in accordance with the G.R. with regard to the grant of first higher pay scale by passing the impugned order dated 27..11.2015 and therefore, petitioner is not entitled to any relief as prayed for. Learned advocate Mr.Munshaw has referred to the affidavit-in-reply filed on behalf of the respondent No.3, which reads as under : “2. The Respondent No.3 submits that the petitioner herein joined the service of Jamnagar District Panchayat as Junior Clerk on 20.7.82 and clear the pre-service training examination held by Sardar Patel Institute of Public Administration on 18.1.91 at the 4th attempt. The Respondent No.3 submits that as per the applicable rules and regulations and the service conditions petitioner was required to clear the same within three attempts to maintain his seniority and derived all the benefits. The Respondent No.3 submits that the Govt. of Gujarat through its Finance Dept. introduced a scheme known as higher pay scale scheme through G.R. dated 5.7.91. It is submitted that immediately thereafter petitioner was granted a benefit of first higher pay scale through order dated 13.10.92 on completion of nine years of service as Junior Clerk. The Respondent No.3 submits that, however, the office of Asstt. of Gujarat through its Finance Dept. introduced a scheme known as higher pay scale scheme through G.R. dated 5.7.91. It is submitted that immediately thereafter petitioner was granted a benefit of first higher pay scale through order dated 13.10.92 on completion of nine years of service as Junior Clerk. The Respondent No.3 submits that, however, the office of Asstt. Examiner of Local Fund Audit, Jamnagar raised objections on release of first higher pay scale by the authority through order dated 13.10.92 by way of relying upon G.R. dated 6.5.92 issued by the Finance Dept. of the Govt. of Gujarat. It is submitted that the Govt. of Gujarat has also issued a resolution dated 7.4.95 laying down that the seniority of an employee would be counted from the date of joining the service as Junior Clerk provided he cleared pre- service training examination within specified attempts. The said resolution also provides that otherwise the seniority would be counted from the date of passing of the examination. In other words as the present petitioner has passed the pre service training examination after specified 3 attempts his name was placed in the seniority list accordingly. The Respondent No.3 submits that even through another resolution dated 16.10.93 the Govt. of Gujarat through Finance Dept. [Clause No.7] has reiterated that the benefit of first higher pay scale is to be released on completion of the date of regularization in service. In other words, date of passing of pre service training examination in the present case as even his seniority is fixed accordingly and he is placed in the seniority list on that basis. 3. The Respondent No.3 humbly submits that in view of these facts the objections raised by the office of Asstt. Examiner of Local Fund Audit at Jamnagar it was thought fit to withdraw the benefits of first higher pay scale granted in favour of the petitioner on the basis of the date of appointment by way of passing appropriate orders on 27.4.98. 4. The Respondent No.3 submits that in the present case as the petitioner has cleared the pre service training examination on 19.7.91 through another order dated 18.9.2000 he is granted the benefit of first higher pay scale on completion of service of nine years with effect from 26.8.2000. 4. The Respondent No.3 submits that in the present case as the petitioner has cleared the pre service training examination on 19.7.91 through another order dated 18.9.2000 he is granted the benefit of first higher pay scale on completion of service of nine years with effect from 26.8.2000. The Respondent No.3 submits that as per the G.R. referred to hereinabove though the petitioner joined the service on 20.7.82 he could clear the pre service training examination after specified attempts only on 19.7.91 and, therefore, he is granted the benefit with effect from 26.8.2000. The Respondent No.3 submits that the petitioner at the fag end of his career challenged the same by way of filing a Special Civil Application No.15507/12 and after hearing all the parties Hon'ble Court through order dated 17.6.15 directed for a fresh decision. The Respondent No.3 submits that thereafter the matter is examined afresh and after considering all the aspects and relying upon the G.R. it has been decided through order dated 27.11.15 that the petitioner is entitled to a first higher pay scale with effect from 26.8.2000.” 5.1 Learned advocate Mr.Munshaw has therefore, submitted that the impugned orders are passed on the basis of time to time Govt. policy brought in force through different Govt. Resolutions and therefore, there is no any breach or violation of any fundamental rights of the petitioner is committed by the respondents and, therefore, he has urged not to grant any relief and reject the present petition. 5.2 Learned AGP Ms.Pancholi, appearing for the respondent Nos.1 and 2 has also strongly objected the present petition and submitted that the impugned orders passed by the respondent authorities are in consonance with the G.R. Even considering the G.R. dated 05.07.1991, more particularly, Clause 7 that from this G.R. the higher grade pay scale was introduced by the State Government and considering Clause 9 read with Clause 17, the respondents have rightly considered the case of the petitioner and therefore, there is no irregularity or any illegality committed by the respondents. 6. I have heard the learned counsels appearing for the respective parties and perused the material placed on record. 6. I have heard the learned counsels appearing for the respective parties and perused the material placed on record. It appears that pursuant to the direction given by this Court while remitting the matter back to the respondent authorities for re-hearing of the issues in light of the G.R. dated 07.04.1995, the respondents have passed the impugned orders and observed that considering Clause 8 of the said G.R., the respondents have considered the case of the petitioners that from the date of clearing examination they have considered further 9 years and on completion of that 9 years they have considered the case of the present petitioners for getting the benefits under first higher grade pay scale. The said clause 8 of the G.R. dated 07.04.1995 is reproduced as under : “8. The employee who passes the examination held at the end of training within prescribed attempts, his Seniority shall be calculated from the date of joining the service. If any employee fails to pass the examination within prescribed attempts, then his Seniority shall be calculated from the date of passing the examination. In the cadre, wherein no provision is made regarding pre-service training or examination held at the end of pre-service training, then in such case, Seniority shall be calculated from the date of joining the service.” 6.1 If we calculate in simple manner that the petitioners have completed 9 years from entering into service prior to the date of examination, however they have not claimed the benefits from that date on completion of 9 years, then also if we consider clearing the examination in the 4th attempt in the very year i.e. completion of 9 years, so they are entitled to get the benefits from the completion of their first 9 years in service, therefore, the respondent No.3 has considered the case of the petitioners and extended the benefits which was rightly considered and therefore, withdrew the benefits which they have extended in favour of the petitioners in illegal, arbitrary and under the false interpretation of that particular portion of Clause 8 of the G.R. dated 07.04.1995. 6.2 If we consider the submission made on behalf of the respondents then their case for considering first higher grade pay scale is almost after 18 years, the petitioners are entitled for it, which is not the correct interpretation of the G.R. since they have completed their 9 years in service in the years 1991 and 1992, of course the petitioners had not cleared examination within three attempts as provided under the G.R. but on 4th attempt which is also within completion of 9 years of service and therefore, on completion of that 9 years, the petitioners became entitled to get the benefits from clearing their examination though they have cleared in 4th attempt but, it is not barred in that particular G.R., on the contrary, it is stated in the G.R. that either completion of 9 years from clearing the examination within three attempts or subsequently as and when the petitioners clear their examination, their case will be considered for first higher grade pay scale and therefore, the decision of the respondents is not in consonance with the G.R. dated 07.04.1995 or G.R. dated 22.03.1966. In my opinion, petitioners are entitled to get the benefits from clearing their examination after completion of 9 years and therefore, the benefits which were extended in favour of the petitioners by the respondents were rightly decided by the respondent No.3 and therefore, the respondent No.3 is directed to pay all the consequential benefits from the date of completion of 9 years from the date of examination, otherwise in the case of the petitioners, all the petitioners have put up more than 18 years of service and that was not the intention of the Government to give the benefits to the employee infact, the G.R. which was considered by the respondent authority, its interpretation is absolutely incorrect. 7. Considering the facts and circumstances of the case and considering the ratio laid down by the Hon'ble Apex Court in case of K.K. Gohil (Supra), wherein it is clearly mentioned that after considering merit-cum-seniority, the case of the petitioners was rightly considered by the respondent authority and therefore, the objections raised by the office of Asstt. Examiner of Local Fund Audit, Jamnagar with regard to the extension of benefits in favour of the petitioners is against the settled principles of law. Examiner of Local Fund Audit, Jamnagar with regard to the extension of benefits in favour of the petitioners is against the settled principles of law. Considering all these aspects, I am of the opinion that the present petitions deserve to be partly allowed and the impugned orders dated 27.11.2015 & 09.03.2018 passed by the respondent No.3 are required to be quashed and set aside. 7.1 Accordingly, the petitions are partly allowed. The impugned orders dated 27.11.2015 & 09.03.2018 passed by the respondent No.3 are hereby quashed and set aside. The petitioners are held to be entitled for the first higher grade benefits from the date of clearing the examination, which is as under : Name of Employee SCA NOS. Date on which exam was cleared V.N. Dangar 2360/2016 29.10.91 30.10.91 B.V. Bathiya 2362/2016 26.8.91 27.8.91 A.V. Rajani 2361/2016 26.8.91 27.8.91 A.S. Goswami 2358/2016 26.8.91 27.8.91 N.D. Sonagra 2359/2016 20.11.92 21.11.92 7.2 So far as the petitioner namely, V.N. Dangar is concerned, who passed away pending the petition, the respondents are directed to re-calculate the benefits which is drawn from the G.R. dated 07.04.1995 and accordingly his pensionary benefits to be calculated on the basis of first higher grade pay scale from the date of clearing his examination and not from the date which is mentioned by the respondent no.3 in the impugned order and pay the same to the legal heirs who are on record. 7.3 The respondent authorities are directed to pay all the requisite benefits to the petitioners of this group of petitions within three months from the date of receipt of copy of this order. 8. Rule is made absolute to the aforesaid extent. Direct service is permitted.