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2024 DIGILAW 335 (GUJ)

Jasvant Haribhai Dave v. State Of Gujarat

2024-02-16

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition under Article 226 & 227 of the Constitution of India, the petitioner has prayed for the following reliefs : “(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ order or direction and be pleased to pass an order or direction on Respondent to pay difference of second higher pay scale and give all terminal benefits to petitioner from date : 12/02/2011 till the date of realization. (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ order or direction and be pleased to pass an order or direction on Respondent to pay petitioner pension considering second higher pay scale from date : 12/02/2011 during the pendency of this petition. (C) YOUR LORDSHIPS be pleased to grant such other and further relief as are deemed fit and proper by this Hon’ble Court, in the interest of justice.” 2. The brief facts giving rise to the present petitioner are as under : 2.1 The Petitioner was appointed as Instructor (Electroplating) by the respondent vide order dated 13/01/1984. The respondent had made negative remarks in Confidential Report dated 19/05/2009 against the petitioner for the period from 01/06/2008 to 31/03/2009 and the petitioner was informed to give reply of such report in six weeks. Accordingly, petitioner has submitted reply dated 14/07/2009 to Respondent stating that he has followed all instructions of the office and completed all training satisfactorily. 2.2 It is the case of the petitioner that he had worked in the institution from 01/01/1980 till date of retirement on 31/03/2011, but none of the superior officers has given adverse remarks against petitioner. However, vide letter/order dated 27/10/2009, the respondent has informed the petitioner that his reply has not been considered. The petitioner has not challenged the respondent's letter dated 27/10/2009 in this petition. But it is pertinent to note here that after adding 273 days, (so-called negative report during period from 01/06/2008 to 31/03/2009) in the eligibility date i.e. 16/05/2010 for second higher pay scale, then even, the petitioner has not been granted second higher pay scale from 12/02/2011. It is further the case of the petitioner that the respondent vide resolution dated 03/10/2009 merged the post of Rector-cum- Superintendent and Instructor. The respondent has treated Rector-cum-Superintendent as one post vide resolution dated 03/10/2009. It is further the case of the petitioner that the respondent vide resolution dated 03/10/2009 merged the post of Rector-cum- Superintendent and Instructor. The respondent has treated Rector-cum-Superintendent as one post vide resolution dated 03/10/2009. Thereafter, after number of representations made by the present petitioner, meeting of superior officer was held on 04/12/2010 at the head office of the respondent for granting higher pay scale to petitioner and other employees wherein final decision was taken. It was decided by the respondent that the petitioner is eligible for the higher pay scale from 12/02/2011 by adding another 273 days (bad entry in personal report of petitioner: 01/06/2008 to 31/03/2009) in original eligible date 16/05/2010. However, the respondent had not granted higher pay scale without taking into consideration the decision taken in the meeting dated 04/12/2010. 2.3 It is further the case of the petitioner that petitioner had not received any positive reply from the respondent. The petitioner retired on 31/03/2011. Hence, the petitioner has approached to Permanent Lok Adalat in the High Court of Gujarat and the notice was issued to respondent, pursuant to which, the respondent appeared and repeated the same contention. Hence, Permanent Lok Aalat could not settle the dispute and hence, in the above circumstances, the petitioner was constrained to approach this Court by way of this petition under Articles 14, 16, 21, 226 and 227 of the Constitution of India challenging the impugned decision. 3. Heard learned advocate Mr.Hardik Shah, appearing on behalf of the petitioner and learned Assistant Government Pleader Ms.Nirali Sarda, appearing on behalf of the respondent – State. 4. Learned advocate Mr.Hardik Shah for the petitioner has submitted that the decision of the respondent authority is unjust, illegal and unreasonable and in violation of the principles of equity and natural justice. He has submitted that the petitioner was appointed by the respondent vide order dated 13/01/1984 and on completion of nine years of his service, he was granted first higher pay scale as per G.R. dated 16/08/1994. He has further submitted that the petitioner was eligible for the second higher pay scale after five years from the date of first higher pay scale, however, the petitioner has not received the benefits of second higher pay scale as he retired on 31/03/2011 on reaching the age of superannuation. He has further submitted that the petitioner was eligible for the second higher pay scale after five years from the date of first higher pay scale, however, the petitioner has not received the benefits of second higher pay scale as he retired on 31/03/2011 on reaching the age of superannuation. He has further submitted that in the meeting dated 04/12/2010, it was decided that petitioner is eligible for the second higher pay scale after adding 273 days (negative remarks for the period from 01/06/2008 to 31/03/2009) in the eligible date for second higher pay scale, even then, the petitioner has not been granted second higher pay scale from 12/02/2011. 4.1 Learned advocate Mr.Shah has further submitted that the petitioner has completed 15 years in service after he received his first higher pay scale, which was granted after completion of nine years and therefore, he is entitled for the same. He has further submitted that till today no departmental inquiry or criminal proceedings or any kind of disciplinary action have been initiated against the petitioner and therefore, the action on the part of the respondent is arbitrary and unjust and the present petition be allowed and the respondent be directed to pay the retiral dues to the petitioner. 4.2 In support of his submissions, learned advocate Mr.Shah has submitted written submissions alongwith the decision of the Hon’ble Apex Court, which he is relying upon, in case of State of Haryana Vs. P.C. Wadhwa and Ors., reported in [1987] 2 SCC 602, wherein, the Hon’ble Apex Court has observed and held in paragraphs 9, 10 and 11 as under : “9. It is, however, submitted by Mr. Nariman, learned Counsel appearing on behalf of the State of Haryana, that the Home Secretary is the head of the Police Department under the Business of the Haryana Government (Allocation) Rules, 1974, hereinafter referred to as the Business Rules. The Business Rules have been framed by the Haryana Government in exercise of the power conferred by clauses (2) and (3) of Article 166 of the Constitution of India. Rules 1 to 4 of the Business Rules are as follows:- 1. These rules may be called the Business of the Haryana Government (Allocation) Rules, 1974. 2. The Business Rules have been framed by the Haryana Government in exercise of the power conferred by clauses (2) and (3) of Article 166 of the Constitution of India. Rules 1 to 4 of the Business Rules are as follows:- 1. These rules may be called the Business of the Haryana Government (Allocation) Rules, 1974. 2. The Business of the Government of the State of Haryana shall be transacted in the Departments specified in the Schedule annexed to these rules and shall be classified and distributed among those Departments as laid down therein. 3. The Governor shall, on the advice of the Chief Minister, allot among the Ministers the business of the Government by assigning one or more Departments to the Charge of a Minister. Provided that nothing in this rule shall prevent the assigning of one Department to the charge of more than one Minister. 4. Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be the official head of that Department, and of such other officers and servants subordinate to him as the State Government may determine: Provided that:- (a) more than one Department may be placed in charge of the same Secretary; and (b) the work of a Department may be divided between two or more Secretaries." 10. Rule 2 provides inter alia that the Business of the Government of the State of Haryana shall be transacted in the Departments specified in the Schedule. Under rule 4 each Department of the Secretariat shall consist of the Secretary to the Government, who shall be official head of that Department. In the Schedule to the Business Rules, Item No. 17 under the Home Department inter alia relates to "Police, Railway Police and P.A.P." Much reliance has been placed by the learned Counsel for the State of Haryana on Rule 4 read with Item No. 17. It is submitted by him that the Home Secretary being the head of the Home Department and as the Police Department has been placed under the Home Department, the Home Secretary must necessarily be the head of the Police Department. We are unable to accept this contention. The Business Rules have been framed under clauses (2) and (3) of Article 166 of the Constitution for the more convenient transaction of the business of the Government of Haryana and for the allocation of business among the Ministers. We are unable to accept this contention. The Business Rules have been framed under clauses (2) and (3) of Article 166 of the Constitution for the more convenient transaction of the business of the Government of Haryana and for the allocation of business among the Ministers. Under Rule 4, the Secretary of each Department of the Secretariat is the head of that Department. Thus, the Secretary of the Home Department is the head of the Home Department being a Department of the Secretariat, but merely because he has to conduct the business, on behalf of the Government, of the Police Department, he does not thereby become the head of the Police Department. Item No. 37 under the General Administration Department in the Schedule relates to Judges of the High Court and officers of the Superior Judicial Service. The Chief Secretary of the Government of Haryana is the head of the General Administration Department by virtue of Rule 4 of the Business Rules. But that does not mean that the Chief Secretary is also the head of the Administration relating to the Judges of the High Court and officers of the Superior Judicial Service. Similarly, Item No. 21 of the General Administration Department relates to Council of Ministers and its Committees. Surely, the Chief Secretary has no authority whatsoever on the Council of Ministers and its Committees. There is, therefore, no substance in the contention made on behalf of the appellant that as Police, Railway Police and P.A.P. have been placed under the Home Department, the Secretary of the Home Department is the head of the Police Department by virtue of Rule 4 of the Business Rules. The Rules of Business that have been framed under Article 166 cannot override the provisions of the Act or any statutory rules. Indeed, the Business Rules also do not attempt to override Rule 1.2 of the Punjab Police Rules, for it cannot. There is much substance in the contention made by the respondent appearing in person and Mr. Garg, learned Counsel appearing on behalf of the intervener, the IPS Officers' Association, that the Business Rules framed under Article 166 cannot be relied upon for the purpose of interpreting the provision of clause (e) of Rule 2 of the Rules. 11. There is much substance in the contention made by the respondent appearing in person and Mr. Garg, learned Counsel appearing on behalf of the intervener, the IPS Officers' Association, that the Business Rules framed under Article 166 cannot be relied upon for the purpose of interpreting the provision of clause (e) of Rule 2 of the Rules. 11. In view of sections 3 and 4 of the Police Act read with Rule 1.2 of the Punjab Police Rules, the Inspector General of Police, Haryana, is the head of the Police Department. The immediate authority superior to the Inspector General of Police is the Minister-in-Charge of the Police Department. The only authority who could be specifically empowered as the reporting authority in regard to the Inspector General of Police under clause (e) of Rule 2 of the' Rules is the Minister-in-Charge and the Chief Minister, being superior to the Minister-in-Charge, may be the reviewing authority under clause (f) of Rule 2. In acting as the reporting authority the Minister-in- Charge may be assisted by the Home Secretary, but the confidential report relating to the performance of the Inspector General of Police has to be written by the Minister-in-Charge. The Minister-in-Charge of the Police Department is supposed to be aware of the performance of the Inspector General of Police. As the Chief Minister is the reviewing authority, he will also act as the accepting authority on the basis of the principle as laid down under Rule 6B of the Rules providing that where the accepting authority writes or reviews the confidential report of any member of the Service, it shall not be further necessary to review or accept any such report. In other words, the Chief Minister will act both as the reviewing authority and the accepting authority.” 5. As against that, learned AGP Ms.Nirali Sarda, appearing for the respondent - State has vehemently opposed the present petition and submitted that as per the prevailing rules, for grant of higher pay scale, the last five years’ Confidential Reports is to be taken into consideration i.e. 01/04/2009 to 31/03/2014, but the petitioner has retired from service on 31/03/2011 upon attaining the age of superannuation, and hence, the second higher pay scale is not admissible. She has referred to and relied upon the affidavit-in-reply filed on behalf of the respondent authority, which is at page 46 of the compilation, more particularly paragraph 6, which reads as under : “6. It is most humbly stated that the writ applicant Shri J. H Dave, is appointed in the cadre of Instructor on dated 16.01.1984 in pay scale of 1350-2200. The entitlement of the second higher pay scale is not admissible considering the following prevailing rules stated as under : 6.1 The policy for the grant of higher pay scale is governed by the Government Resolution dated 16.08.1994, by which the higher pay scale is admissible at the interval upon completion of 9 - 18 - 27 years of service subject to the conditions as per the policy. The copy of the Resolution is appended as (Annexure R-I.) 6.2 That as per the prevailing rules the 1st High Pay scale is admissible upon completion of 9 years of service i.e. admissible on 16.01.1993. 6.3 The next higher post for promotion is Rector-cum- Superintendent, pay scale of (1400-2300). That as per the Recruitment Rules is of 10.09.1963, the educational qualification is Science Graduate Diploma (course) in engineering. The copy of the Recruitment Rules, dated 10.09.1963 is appended as Annexure R-II. 6.4 As the writ applicant Shri Dave is not entitle for the 1st higher pay scale on 16.01.1993 for the next higher post Rector-cum- Superintendent pay band of (1400-2300) considering the fact that Shri Dave is not having the educational qualification on the date of entitlement of the next higher pay scale on dated 16.01.1993. 6.5 The new Recruitment Rules came into force on 16.05.1995. The copy of the Recruitment Rules, 16.05.1995 is appended as Annexure R-III. That as per the new Recruitment Rules, the qualification of education is deleted, the writ applicant Shri Dave became entitle for the 1st higher pay scale on dated 16.05.1995 in a pay scale of Rs. 1400-2300. 6.6 The policy of the Higher Pay Scale is replaced by the Government Resolution dated 02.07.2007. That as per the new policy of the higher pay scale is 12 & 24 years, which is replaced against the earlier policy of 9, 18, 27 years of service. The copy of the Resolution dated 02.07.2007 is appended as Annexure R-IV. 1400-2300. 6.6 The policy of the Higher Pay Scale is replaced by the Government Resolution dated 02.07.2007. That as per the new policy of the higher pay scale is 12 & 24 years, which is replaced against the earlier policy of 9, 18, 27 years of service. The copy of the Resolution dated 02.07.2007 is appended as Annexure R-IV. That as per the Resolution dated 02.07.2007, the entitlement of 2nd pay scale is admissible as per clause 2(4) (a) & (b) upon completion of 15 years of service from the first higher pay scale. Thus the second higher pay scale is admissible on 16.05.2010. 6.7 That considering the Clause 12(a) of the Resolution dated 02.07.2007, in grant of second higher pay scale, the last 5 years confidential reports to be examined. And that for the entitlement of the next higher pay scale i.e. 2nd higher pay scale became due on 16.05.2010, and hence considering the last 5 years confidential reports to be considered for the period of 2005-06 to 2009-2010. 6.8 That in consideration of the last 5 years Confidential Reports, the adverse remarks for the period 01.06.2008 to 31.03.2009 is found in the case of the present writ applicant Shri Dave. Thus for the grant of the 2nd higher pay scale, the last 5 years confidential reports to be evaluated for the period starting from 01.04.2009 to 31.03.2014. But the present writ applicant has superannuated upon attaining the age of retirement on dated 31.03.2011 and therefore present writ applicant Shri Dave is not became entitle for the next higher pay scale as he is not full filling the requirement as per the prevailing Rules and policy of the State Government.” 5.1 She has submitted that as the petitioner was appointed in the cadre of Instructor on 16/01/1984 in the pay scale of 1350- 2200, he was entitled for higher grade pay-scale only on completion of 15 years from the first higher grade pay-scale, and since the petitioner had retired prior to completion of 15 years, his case was not considered by the respondent authorities in 2010 but, while re-commended the case of the petitioner, the respondent authorities had taken into consideration the ACR of last five years and for the year 2008- 2009, there was an adverse entry posted in his service record, which was immediately communicated to the petitioner. She has submitted that the petitioner made representation dated 14.07.2009 and admittedly in response to the said representation, respondent authority rejected the same vide communication/order dated 27.10.2009, which is not assailed further by the petitioner. 5.2 Learned AGP Ms.Sarda has further submitted that the office of the Commissioner of Kutir and Gramudhyog, by its communication dated 07/01/2011 intimated to the petitioner with regard to the grant of the 2nd higher pay scale which is to be made applicable to him after the period of the adverse remarks of 01/06/2008 to 31/03/2009, is not in consonance with the policy, which is specifically mentioned in para 6 of the reply. She has submitted that as per the prevailing policy, Government Resolution dated 02/07/2007, the last 5 years’ confidential reports to be examined and therefore, if any adverse remarks is found during that period, the period of last 5 years to be calculated after the period of the adverse remarks. She has submitted that therefore, the present petitioner did not become entitle to get the 2nd higher pay scale, due to the minimum requirement of last 5 years’ confidential reports as good i.e. for the period of 01/04/2009 to 31/03/2014, but, before the entitlement of 2nd higher pay scale, the petitioner was superannuated upon attaining the age of retirement on 31/03/2011. She has submitted that thus, the present petitioner is not entitled for the 2nd higher pay scale from 12/02/2011, considering the fact that as per Clause 12(a) of the Resolution dated 02/07/2007, the last 5 years’ confidential reports are required to be evaluated and therefore, the present petitioner is not entitled to get the 2nd higher pay scale from 12/02/2011 as claimed by the petitioner, and hence, the captioned writ petition deserves to be rejected. 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. The respondent, in paragraph 6 of the affidavit-in-reply, has clarified the factual position so far as the petitioner’s case is concerned, more particularly in paragraph 6.6, wherein it has been stated that the policy of the Higher Pay Scale is replaced by the Government Resolution dated 02/07/2007 and as per the new policy of the higher pay scale, the earlier policy of 9, 18, 27 years is replaced by 12 & 24 years, therefore, on completion of 24 years of service in total, the petitioner will become entitle for second higher pay scale. The petitioner has already availed first higher pay scale on completion of 9 years and on completion of 24 years of service considering 15 years remaining period of the second higher pay scale as per subsequent G.R. dated 02/07/2007, it was calculated that on 16.05.2010, the petitioner becomes eligible for the second higher pay scale vis-a-vis the last 5 years’ SCR is also to be taken into consideration at the time of considering second higher pay scale and in case of present petitioner, from 01/06/2008 to 31/03/2009 i.e. for 273 days, there was an adverse remarks, made in the service record. That decision was challenged by the present petitioner before the appellate authority and the appellate authority has confirmed that decision and considering total length of 15 years alongwith 273 days it crosses the period before which the petitioner got retired on reaching the age of superannuation and therefore, the respondent has not considered the case of the petitioner. 6.1 The petitioner, by filing the re-joinder, has reiterated that the issue of adverse remarks period (01/06/2008 to 31/03/2009) is decided by the committee of the Commissioner – Chairman, Joint Commissioner (Administration), Joint Commissioner (Textiles), Account Officer, Assistant Commissioner (Administration) on 04/12/2010, wherein it was held that he was eligible and entitled for second higher pay scale by adding 273 days of adverse remarks in the actual eligible date i.e. 16/05/2010 + 273 from the date 12/02/2011 but not eligible at present i.e. on 04/12/2010, the date of meeting by committee. With regard to the same, the respondent has filed its affidavit clarifying that as per the Departmental Promotion Committee conducted on 21.01.2023 as there were adverse remarks against the petitioner for the year 2008-09, hence, next five years annual confidential report is to be considered for grant of Second Higher Pay Scale, however, the petitioner had superannuated on 31/03/2011 and therefore, there was no question of considering the proposal for second higher pay scale of the petitioner as his ACR for the next five years after 2009 were not evaluated. Moreover, the respondent had sought clarification from the Cottage and Rural Industries, who has also given opinion that since the petitioner reached the age of superannuation before the due date of his second higher pay scale, the case of the petitioner was not considered by the respondent. Hence, it is crystal clear that the petitioner had long ago retired from the service on 31/03/2011. 6.2 The judgment relied upon by the learned advocate for the petitioner would not come in rescue of the present petitioner as in the facts of the said case, there was delay also occurred while considering the adverse remarks. However, in the present case, there was no delay as the petitioner was immediately communicated about his adverse remarks posted in the service record and against the same, the petitioner had preferred departmental appeal challenging the said decision and the said adverse remarks had remained as it is. 7. For the foregoing reasons, the present petition being devoid of any merits, deserves to be dismissed and it is accordingly dismissed. Rule is discharged. No order as to costs.