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2024 DIGILAW 358 (GUJ)

Jyotikaben Dilipbhai Darji v. State Of Gujarat

2024-02-20

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition, under Articles 14, 16 and 226 of the Constitution of India, the petitioner has challenged order/communication dated 13.2.2012 passed by the Administrative Officer, Nagar Prathmik Sikshan Samiti, Vadodara whereby the representation made by the petitioner requesting the concerned authorities to rectify the mistake in taking into account the date of 1.2.2002 instead of 20.7.2001 while extending the benefit of Second Higher Pay Scale has been turned down. 2. With aforesaid grievance, the petitioner, in present petition, has prayed inter alia that:- “7(A) Be pleased to admit this petition; (B) Be pleased to issue appropriate writ, order or direction, quashing and setting-aside the communication/order dated 13.2.2012 made by respondent No.3 whereby the representation made by the petitioner for rectification of error crept up by the authorities while extending the benefit of 2nd higher pay scale w.e.f. 20.7.2001 instead of 1.2.2002 has been turned down and be pleased to hold that the petitioner is entitled to get the benefit of 2nd higher pay scale w.e.f. 28.7.2001 in the aforesaid peculiar facts and circumstances of the case; (C) Be pleased to issue appropriate writ, order or direction, directing the concerned respondent authorities to extend the benefit of 2nd higher pay scale w.e.f. 20.7.2001 with all the consequential benefits in the aforesaid peculiar facts and circumstances of the case; (D) Be pleased to pass such other and further orders as may be deemed fit in the interest of justice" 3. The brief facts giving rise to present petition are that the petitioner was initially appointed as Assistant Teacher by an order dated 17.7.1981. The petitioner was given appointment on adhoc basis by the aforesaid order. The petitioner had resumed her duties w.e.f. 20.7.1981. In view of the fact that the pay scale of one junior Assistant Teacher, namely, Shri Mahavir Prasad was more than that of the pay scale of the petitioner, the case of the petitioner was required to be considered for stepping up and accordingly by an order dated 13.3.1996, the petitioner was granted the benefit of stepping up w.e.f. 1.2.1986. 3.1 Thereafter, the State Government had floated the scheme for extending the benefit of higher pay scale to the employees serving in the various cadres in State Government and Panchayat Department. 3.1 Thereafter, the State Government had floated the scheme for extending the benefit of higher pay scale to the employees serving in the various cadres in State Government and Panchayat Department. The petitioner had completed 9 years service on 20.7.1990 and she had become entitled to get the benefit of First Higher Pay Scale on completion of 9 years service on 20.7.1990. Therefore, petitioner was extended the benefit of First Higher Pay Scale w.e.f. 20.7.1990 by an order dated 1.9.1993. Thereafter, petitioner had completed 20 years service on 20.7.2001. Therefore, as per the scheme floated by the State Government, the petitioner had become entitled to get the benefit of Second Higher Pay Scale w.e.f. 20.7.2001 on completion of 20 years service. 3.2 Thus, the petitioner was required to be extended the benefit of Second Higher Pay Scale w.e.f. 20.7.2001. However, the petitioner was extended the benefit of Second Higher Pay Scale w.e.f. 1.2.2002. Therefore, the petitioner made representations dated 8.12.2008 and 5.2.2009 requesting the respondent No.3 to rectify the mistake while extending the benefit of Second Higher Pay Scale and to extend the benefit of Second Higher Pay Scale w.e.f. 20.7.2001 instead of 1.2.2002. However, the aforesaid representations made by the petitioner went in vain and, therefore, petitioner was constrained to prefer Special Civil Application being No.1179 of 2010 before this Court seeking directions upon the concerned respondent authorities to rectify the error crept up by them in taking into account the date of 1.2.2002 instead of 20.7.2001 while extending the benefit of Second Higher Pay Scale to the petitioner. 3.3 In the aforesaid petition, order came to be passed by this Court on 22.3.2010 whereby the petitioner was permitted to withdraw the said petition with a view to make representation before the authorities concerned and authorities concerned were directed to consider the representation, if it is made by the petitioner. Therefore, pursuant to the aforesaid order, petitioner had made representation dated 13.7.2010. However, the concerned respondent authorities were not decided the representation made by the petitioner dated 13.7.2010. Therefore, the petitioner was constrained to prefer Special Civil Application No.1258 of 2011 before this Court seeking directions upon the concerned respondent authorities to decide the representation made by the petitioner dated 13.7.2010 with regard to rectification of date while extending the benefit of Second Higher Pay Scale to the petitioner. Therefore, the petitioner was constrained to prefer Special Civil Application No.1258 of 2011 before this Court seeking directions upon the concerned respondent authorities to decide the representation made by the petitioner dated 13.7.2010 with regard to rectification of date while extending the benefit of Second Higher Pay Scale to the petitioner. 3.4 Ultimately, in the aforesaid petition, an order came to be passed by this Court dated 10.2.2011 whereby the respondent No.2 was directed to consider and decide the representation made by the petitioner dated 13.7.2010 within a period of three months from the date of the receipt of the copy of the order. The aforesaid order came to be served upon the concerned respondent authorities. Ultimately, by an order dated 13.2.2012, the representation made by the petitioner dated 13.7.2010 has been turned down and petitioner has been informed that she has been rightly extended the benefit of Second Higher Pay Scale w.e.f. 1.2.2002 and petitioner cannot be extended the benefit of Second Higher Pay Scale w.e.f. 20.7.2001. The petitioner was initially appointed as Assistant Teacher by an order dated 17.7.1981 and petitioner had resumed her duty w.e.f. 20.7.1981 and petitioner had completed 9 years service on 20.7.1990 and she came to be extended the benefit of First Higher Pay Scale w.e.f. 20.7.1990 and, therefore, the petitioner had become entitled to get the benefit of Second Higher Pay Scale w.e.f. 20.7.2001 i.e. on completion of 20 years service. However, the petitioner has been extended the benefit of Second Higher Pay Scale w.e.f. 1.2.2002. 3.5 Therefore, the petitioner had rightly requested the concerned respondent authorities to rectify the mistake crept up by them in taking into account the date of 1.2.2002 instead of 20.7.2001 while extending the benefit of Second Higher Pay Scale to her. However, on the ground that the pay scale of Rs.1440/- was fixed on 1.2.1991, while granting her the benefit of stepping up, her representation dated 13.7.2010 for extending her the benefit of Second Higher Pay Scale w.e.f. 20.7.2001 has been turned down by respondent authority vide a communication/order dated 13.2.2012. 4. In view of the aforesaid facts, the petitioner has preferred present petition seeking quashment of an order/communication dated 13.2.2002. 5. Heard Mr. N.K. Majmudar, learned Counsel for the petitioner, Mr. Haresh Trivedi, learned Counsel for the respondent No.2 and Ms. Nirali Sarda, learned Assistant Government Pleader for the respondent No. 1 5.1 Mr. 4. In view of the aforesaid facts, the petitioner has preferred present petition seeking quashment of an order/communication dated 13.2.2002. 5. Heard Mr. N.K. Majmudar, learned Counsel for the petitioner, Mr. Haresh Trivedi, learned Counsel for the respondent No.2 and Ms. Nirali Sarda, learned Assistant Government Pleader for the respondent No. 1 5.1 Mr. N.K. Majmudar, learned Counsel for the petitioner has submitted that the petitioner was legally appointed on the post of Assistant Teacher and the petitioner had completed service of 20 years w.e.f. 20.7.2001, therefore he is entitled to get benefit of Second Higher Pay Scale w.e.f. 20.7.2001, however instead of that he was granted benefit of Second Higher Pay Scale from 1.2.2002. He has further submitted that the petitioner is suffering from huge financial loss due to impugned decision of the respondent authority. 5.2 Mr. N.K. Majmudar, learned Counsel for the petitioner has submitted that the petitioner had also made representation to that effect, however without any justifiable reason, the request of the petitioner was turned down. 5.3 In view of the above, Mr. N.K. Majmudar, learned Counsel for the petitioner urges that present petition may be allowed and the impugned communication / order dated 13.2.2012 may be quashed and set aside and the petitioner may be granted benefit of Second Higher Pay Scale w.e.f. 20.7.2001 instead of 1.2.2002. 6. On the other hand, Mr. Haresh J. Trivedi, learned Counsel for the respondent has raised objection against present petition. He has relied upon an affidavit-in-reply dated 14.8.2012 filed by the respondent No.3. 6.1 Mr. Haresh J. Trivedi, learned Counsel for the respondent has submitted that the petitioner has already availed the benefit of stepping up with retrospective effect and therefore, the petitioner is entitled to get Second Higher Pay Scale benefit from 1.2.2002 and not from 20.7.2001 and therefore, the petitioner is not entitled to get any benefits as prayed for in the petition and there is no any infirmity in the impugned order of respondent. 6.2 Mr. Haresh J. Trivedi, learned Counsel for the respondent has further submitted that the respondent has rightly considered the request made by the petitioner by taking into account all the relevant documents. 6.2 Mr. Haresh J. Trivedi, learned Counsel for the respondent has further submitted that the respondent has rightly considered the request made by the petitioner by taking into account all the relevant documents. He has submitted that the petitioner has already availed the benefit of stepping up at the relevant point of time and on the basis of that the option was submitted by the petitioner, wherein it was clearly mentioned that after submission of the option form, the date will not be changed and in that form the date was mentioned considering the total period of service of 11 years i.e. 1.2.2002. He has further submitted that even after taking into account the resolution dated 16.8.1994, the respondent has rightly considered the case of the petitioner and passed the impugned communication/order dated 13.2.2012, relevant part of which, reads as under:- "It is to state that the Hon’ble High Court has disposed of the application being Sp.C.A. No.1197/2010 vide Order dated 22/03/2010 as withdrawn as per your prayer. Moreover, the Hon’ble Court directed the Competent Officer to take action as per law if any application is made from your end. Please take note about the following details with regard to your application dated 13/07/2010. 1) You have mentioned that date of your joining the department is 20/07/1981 and accordingly, you submitted that you are entitled to first higher pay scale upon completion of 9 years i.e. on 20/07/1990 and second higher pay scale upon completion of 20 years i.e. 20/07/2001 and prayed to amend the dates accordingly. Findings: The fact that date of your joining the department is 20/07/1981 and therefore, you were granted First Higher Pay Scale on completion of 9 years on 20/07/1990. As you requested for stepping up on the ground that Mr. Mahavirprasad A. Rathore, a teacher junior to you was getting higher pay than you, you were granted benefit of stepping up by changing the date of increment to 01/02/1986 instead of the date of 01/07/1986 with retrospective effect. As per your demand of stepping up, you were entitled for the pay of Rs.1350/- on 20/07/1990 in the pay bend of Rs.1200/- to 2040/- and the pay fixation in the first higher pay scale was to be fixed at Rs.1400/- and the date of next increment was to be fixed on 01/07/1991. As per your demand of stepping up, you were entitled for the pay of Rs.1350/- on 20/07/1990 in the pay bend of Rs.1200/- to 2040/- and the pay fixation in the first higher pay scale was to be fixed at Rs.1400/- and the date of next increment was to be fixed on 01/07/1991. However, the date of increment was fixed to 01/02/1991 consequent to the benefit of stepping-up. Therefore, as per the option selected by you and in the interest of your benefit, the fixation of pay of Rs.1440/- was granted on 01/02/1991. Therefore, (on the basis of the said option), second higher pay scale was granted after completion of 11 years to 01/02/1991 i.e. on 01/02/2002, which has been approved and sanctioned by the Local Fund Account Office, Vadodara. This is the final option given as per Annexure- 3 Undertaking of Government Resolution No. PGR-1194- 45-M dated 14/08/1994 of the Finance Department of the Government of Gujarat and it shall never be changed henceforth. Accordingly, the pay fixation fixed in the second higher pay scale on 01/02/2002 was sanctioned by the Local Fund Account Office Vadodara, which is just. Therefore, the change in the dates of higher pay scale as per your prayer are not liable to be made." 6.3 In view of the above, Mr. Haresh J. Trivedi, learned Counsel for the respondent urges before the Court that this Court may not interfere in the impugned order / communication passed by the respondent authority and present petition may be not entertained and the same may be dismissed. 7. I have perused the relevant papers and material available on record along with the impugned communication / order passed by the respondent authority. 8. On perusal of the order dated 13.2.2012 passed by the respondent No.3, it is established that the petitioner was appointed on 20.7.1981. It is also established that on the basis of that, the petitioner was availed First Higher Pay Scale on completion of 9 years of service i.e. on 20.7.1990 but in 1986 the petitioner opted for stepping up benefit and that benefit was granted with retrospective effect i.e. from 1.2.1986 instead of 1.7.1986 and on the basis of that the pay fixation was done by the respondent. Accordingly, on 20.7.1990, First Higher Pay Scale was paid to the petitioner on the basis of stepping up benefits and since the petitioner had availed the stepping up benefits therefore, the date of First Higher Pay Scale was fixed as 1.2.1991. Therefore, considering the service of 11 years of First Higher Pay Scale benefit, the Second Higher Pay Scale is due and payable on 1.2.2002. 9. Therefore, the respondent has rightly paid the Second Higher Pay Scale from 1.2.2002 and there was no any discrepancy to that effect, as the same was mentioned in the option form and on the basis of that the date was fixed and on completion of 11 years, the petitioner was granted benefit of Second Higher Pay Scale from 1.2.2002, which is in consonance with the resolution dated 16.8.1994. Therefore, the petition is devoid of any merits and the same deserves to be dismissed. The order/ communication of dated 13.2.2012 is just and proper, no interference is required to be made in such order/communication. 10. In view of the above, present petition is not required to be entertained. Hence, present petition is hereby dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith.