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2024 DIGILAW 705 (GUJ)

H. M. Dhuvad v. State Of Gujarat

2024-04-02

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “A) Admit this petition. (B) Issue appropriate Writ, order or direction directing the respondents authorities to grant benefit of higher Pay Scale to the petitioner as per Government Resolution, circulars pursuant to the recommendations made by Tikku Pay Commission, considering initial date of appointment and joining of service as that of 27/11/1978 and suitable direction be issued to the respondents authorities to grant all the 1st, 2nd and 3rd pay scales and the difference of amount of consequential benefits may be ordered to be paid with 18% interest and further direction may be issued for revising retirement dues and pensionery benefits to the petitioner. ALTERNATIVELY Be pleased to issue appropriate writ, order or direction to the Respondents authorities to consider and decide the representations made by the petitioner, i.e. representations dated 3/1/2008, 17(21)/5/2007, 19/3/2007, 14/2/2007, 29/12/2006 and direct the Respondents authorities to grant benefit of Higher Pay Scales and other consequential benefits to the petitioner. Added as per Hon’ble Court’s order dated 31/01/2017: 11(BB) Be pleased to issue a writ of mandamus or any other appropriate writ order or direction quashing and setting aside order dated 10.09.2008 passed by Dy. Secretary, Health and Family welfare Department, by which it has been decided that the petitioner is not entitled to get the benefit of higher pay scale. (C) Grant interim relief and further be pleased to direct the respondents authorities to reconsider/consider the request of the petitioner for granting benefit of higher pay scales as per various representations made by the petitioner and orders thereon may be ordered to be placed on record of this petition, pending admission and/or final hearing of this petition; Added as per Hon’ble Court’s order dated 03/05/2017: 11(CC) Be pleased to direct the respondent authorities to grant/disburse all the higher Pay Scale on completion of 6, 13 and 19 years of service from initial date of appointment in view of the notes/records of the Government authorities and in view of the decision taken by the departmental promotional committee to pay the same with 12% interest, along with pension, gratuity and all other benefits deriving out of the tenure of the petitioner and the same may be revised and the difference amount may be directed to be paid with 12%. (D) Pass such orders as thought fit in the interest of justice. Added as per Hon’ble Court’s order dated 14/07/2023: 11(DD) Be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the impugned order/communication dated 05.04.2023 passed by the concerned respondent authorities and the concerned respond authorities may kindly be directed to pass appropriate order for granting 1st, 2nd and 3rd higher pay scale with all consequential benefits and the retirement dues, pension, gratuity and other benefits may kindly be revised and difference may kindly be paid to the petitioner accordingly and last pay drawn by the petitioner on 31.10.2005 may kindly be recalculated/revised after addition of higher pay scales, in the interest of justice.” 2. The brief facts giving rise to the present petition are that, initially the petitioner came to be appointed by order dated 10.10.1978 as Medical Officer (Adhoc) Class-II. Thereafter, the petitioner had passed GPSC examination and vide order dated 10.12.1979, he was appointed on permanent basis. It is the say of the petitioner that, there is no break between the Adhoc service and the services which came to be regularized. There was no even adverse remarks through-out his service tenure. That the entire service record is satisfactory and even the petitioner was permitted to cross the Efficiency Bar. It is the case of the petitioner that he was served with the charge-sheet dated 25.05.1988 and pursuant to the same an order dated 19.09.1997 came to be issued by which the petitioner was imposed penalty and was placed in the lower stage of the Pay Scale of Medical Officer – Class-II, i.e. the petitioner was drawing Rs.3,700/- in August, 1997 and was placed in lower stage of Pay Scale of Rs.2,200 – Rs.4,000 i.e. Rs.3,600/- for a period of one year only without future effect. 2.1 It is the case of the petitioner that he made number of representations before the concerned respondent authorities for granting him benefit of higher pay scales. 2.1 It is the case of the petitioner that he made number of representations before the concerned respondent authorities for granting him benefit of higher pay scales. The petitioner also preferred number of writ petitions before this Court, even the representations dated 03/01/2008, 17(21)/05/2007, 19/03/2007, 14/02/2007 and 29/12/2006 came to be preferred by the petitioner requesting the concerned authorities to give benefits of Higher Pay Scales from the initial date of appointment as he has passed GPSC examination in first attempt, but unfortunately, the petitioner was not granted the benefits of Higher Pay Scales considering his initial date of appointment. The petitioner attained the age of superannuation in October, 2005. 2.3 Feeling aggrieved and dissatisfied with the impugned action on the part of the respondent authorities, the petitioner has preferred the present petition under Article 226 of the Constitution of India with the aforesaid prayers. 3. Heard learned advocate Mr.N.K. Majmudar, appearing on behalf of the petitioner and learned Assistant Government Pleader Ms.Dharitri Pancholi, appearing on behalf of the respondent – State Authorities. 4. Learned advocate Mr.Majmudar has submitted that the petitioner was having good service record and even the Confidential Reports/Records of the petitioner are unblemished through-out his service career and the Department had also permitted the petitioner to cross the Efficiency Bar. He has submitted that the petitioner was denied the benefits of all the 1st, 2nd and 3rd Higher Pay Scales and therefore, the petitioner was deprived by the respondent authorities and his legal and fundamental rights were infringed by the respondent authorities by not extending the benefits of higher pay-scale. He has further submitted that during the service tenure of the petitioner, he was served with only one charge-sheet dated 25.05.1988 and pursuant to the same, an order dated 19.09.1997 came to be issued by which the petitioner was imposed penalty and was placed in the lower stage of the Pay Scale of Medical Officer – Class-II, i.e. the petitioner was drawing Rs.3,700/- in August, 1997 and was placed in lower stage of Pay Scale of Rs.2,200 – Rs.4,000 i.e. Rs.3,600/- for a period of one year only without future effect and therefore, the petitioner was deprived of his legal entitlement of the benefits under higher pay-scale and the same was not extended in favour of the petitioner. 4.1 Learned advocate Mr.Majmudar has further submitted that the Government Resolution dated 31.03.2005 sought to be relied upon by the respondent authorities is not applicable to the case of Medical Officer while granting the benefit of higher pay-scale, as the said resolution is applicable to other government employees who are getting the benefits of higher pay-scale as per the G.R. dated 16.08.1994. He has submitted that the present petitioner being a Medical Officer, the G.R. which is issued pursuant to the implementation of TIKU Pay Commission is dated 17.10.1994 and the petitioner is governed by the said G.R. dated 17.10.1994, by which, it has been resolved to extend the benefit of higher pay-scale to Medical Officer, which does not provide that is the incumbent is punished after conclusion of inquiry, he or she should not be extended the benefit of higher pay-scale. He has therefore, submitted that the G.R. dated 17.10.1994 is to be applied in case of the present petitioner and the petitioner is entitled to get benefits of 1st, 2nd and 3rd higher pay-scales on completion of 6 years, 7 years and further 6 years and the 3rd higher pay- scale is on completion of 19 years of service, however, in case of the present petitioner the same were not extended by the respondent authorities and therefore, the impugned action of the respondent authorities is required to be quashed and set aside. 4.2 Learned advocate Mr.Majmudar has submitted that pending the petition, the petitioner was directed by this Court to make a detailed representation, however, the said representation was also dismissed by the respondent authorities by order dated 05.04.2023 on the same ground which was considered in the first order. He has further submitted that the case of the petitioner was not required to be considered as per the G.R. dated 31.03.2005, since the said G.R. would not be applicable in case of the present petitioner as the petitioner had retired from service and the effect of the said G.R. cannot be given retrospectively and therefore, the impugned action of the respondent authorities relying upon the said G.R. is erroneous and the same deserves to be quashed and set aside. He has submitted that the petitioner is entitled to get the benefits under the G.R. dated 17.10.1994 and therefore, the present petition be allowed and the prayers prayed in the present petition be granted in favour of the petitioner. Considering all the relevant documents and the G.R. annexed to the petition, the learned advocate for the petitioner urged that in view of the G.R. dated 17.10.1994, the benefits of all the three higher pay-scales be extended in favour of the petitioner and the impugned action on the part of the respondent, being illegal, arbitrary and erroneous, be quashed and set aside. 5. As against that, the learned AGP Ms.Dharitri Pancholi, appearing for the respondent – State Authorities, has vehemently opposed the present petition. She has referred and relied upon the affidavit-in-reply filed on behalf of the respondent No.1 and submitted that the petitioner has not stated correct facts and suppressed the material facts before this Court by way of raising contentions/averments in paragraph 3.2 of the petition. She has submitted that the petitioner has intentionally referred to only one charge-sheet and the punishment imposed on the basis of the said charge- sheet, however, the respondent authority has given complete details in paragraph 9 of the affidavit-in-reply, wherein, it has been stated that the petitioner was facing as many as 5 charge-sheets and out of 5 charge-sheets, the first 3 charge- sheets came to be issued prior to the G.R. dated 17.10.1994 came in existence, therefore, even before the G.R. dated 17.10.1994 came into force, the petitioner was already charge- sheeted for 3 alleged misconduct, however, subsequent thereto, the petitioner was further charge-sheeted and he was put in suspension for the alleged misconduct and again he was taken in service and he was imposed major and minor punishments prior to the G.R. dated 17.10.1994 and therefore, the case of the petitioner was not considered by the respondent authorities as stated in paragraphs 8, 9, 10 and 11 of the affidavit-in-reply. 5.1 Learned AGP Ms. 5.1 Learned AGP Ms. Pancholi has referred and relied upon the G.R. dated 17.10.1994, wherein, it has been stated that if an employee is facing any departmental inquiry and if there is any criminal complaint/case pending against the employee, he is not entitled to get benefits of higher pay-scale and the present petitioner was already punished by way of imposing major and minor punishments by the department prior to the G.R. dated 17.10.1994 came into force and therefore, relying upon the G.R. dated 31.03.2005, more particularly Clause 4(B), which prescribes that “if after the departmental inquiry, major penalty is imposed then no higher pay-scale can be sanctioned in any case” and therefore, the case of the petitioner was not considered by the respondent authorities. She has further submitted pursuant to the directions issued by this Court vide order dated 27.03.2023, the representation made by the petitioner was considered by the respondent authorities for which the respondent authorities have filed compliance affidavit alongwith the copy of the decision dated 05.04.2023, wherein in paragraph 5 it has been stated that “this particular affidavit has been filed for the limited purpose of the compliance of the order dated 27.03.2023 of this Hon’ble Court.” Learned AGP Ms.Pancholi has submitted that in light of all the pending departmental proceedings against the petitioner at the relevant point of time and major penalty imposed upon the petitioner and considering the Clause 4(B) of the resolution dated 31.03.2005 issued by the Finance Department, the petitioner cannot be granted higher pay-scale and hence, no higher pay-scale is granted to the petitioner in accordance with the said G.R. dated 31.03.2005 and therefore, the present petition be dismissed. 6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. I have also examined the documents appended with the petition and the order passed by the respondent authorities upon the directions issued by this Court. It is pertinent to note herein that, the petitioner retired on attaining the age of superannuation in October, 2005, whereas, the present petition was preferred by the petitioner in the year 2008 almost after three years, the reason best known to the petitioner. Moreover, the petitioner has not stated true and correct facts before the Court and the material facts were suppressed by the petitioner while filing the present petition. Moreover, the petitioner has not stated true and correct facts before the Court and the material facts were suppressed by the petitioner while filing the present petition. Though he was aware that he was facing as many as 5 charge-sheets and out of 5 charge-sheets, he was punished for almost 2 charge-sheets and major and minor punishments were imposed upon him and even he was facing a criminal case. All these facts were either intentionally or inadvertently not mentioned in the petition and therefore, the petition deserves to be dismissed solely on the ground of suppression of material facts. The details of all the five charge-sheets issued against the petitioner are as under : Sr. Particulars of Departmental Inquiry Penalty imposed at the end of Departmental Inquiry 1 Charge-sheet was issued on 25/05/1988 Pursuant to the said charge-sheet, Inquiry Branch of the Department imposed penalty vide order dated 19/09/1997 to reduce to a lower stage from his present scale of pay of Rs.3700/- in the existing pay band of Rs.2200-4000/- for 1 (one) year without future effect. 2 Charge-sheet was issued on 27/08/1993 Pursuant to the said charge-sheet, a censure was issued vide Order dated 16/09/1993. 3 Charge-sheet was issued on 08/10/1987 Pursuant to the said charge-sheet, penalty was imposed to withhold 3 annual increment with future effect vide Order dated 13/12/1994. 4 Charge-sheet was issued on 07/02/1995 Pursuant to the said charge-sheet, exonerated vide Order dated 29/06/1998. 5 Charge-sheet was issued on 02/03/1993 Pursuant to the said charge-sheet, a censure was issued vide Order dated 17/01/2000. 6.1 The G.R. dated 31.03.2005 issued by the Finance Department, which is applicable to all the employees of the State Government and so also to the present petitioner, more particularly Clause 4(B), is very much clear and therefore, the decision of the respondent authorities cannot be faulted with and the petition is not tenable in the eye of law, vis-a-vis the petitioner was facing serious charges with regard to misappropriation and malpractice and the said fact is very much clear from the record. Therefore, the findings recorded by the respondent authorities with regard to imposition of penalty is rightly considered by the respondent authorities while considering the case of the petitioner for extending the benefits of higher pay-scale in favour of the petitioner. Therefore, the findings recorded by the respondent authorities with regard to imposition of penalty is rightly considered by the respondent authorities while considering the case of the petitioner for extending the benefits of higher pay-scale in favour of the petitioner. The decision is taken by the respondent authorities in light of the G.R. dated 17.10.1994, which is referred in the G.R. dated 31.03.2005. The effect of the G.R. dated 31.03.2005 is not a retrospective effect but it is based on the earlier G.R. which is discussed in the subsequent G.R. and the provisions of earlier G.R. itself is very much clear and relying upon that the decision is taken by the department, which is just and proper in case of the present petitioner. It is also relevant to note herein that the decision is taken by the respondent authorities in consultation with the Finance Department and therefore, it is just and proper and no interference is required to be called for. 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. However, it is observed that the petition was not decided only on the ground of suppression of material facts but also on merits.