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2025 DIGILAW 327 (GUJ)

Bhikhubhai Balubhai Sidhpuria v. State of Gujarat

2025-03-26

PRANAV TRIVEDI

body2025
ORDER : (PRANAV TRIVEDI, J.) 1. Heard Mr. Rishabh Acharya, learned advocate on behalf of Ms. Harshal Pandya, learned advocate for the petitioner as well as Ms. Dharitri Pancholi, learned Assistant Government Pleader for the respondent State. 2. The prayers made in the writ petition are as under : “6. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to :- (A) direct the respondent authorities to grant second higher grade scale of Rs. 8000-14050 to the petitioner from his due date with all consequential benefits including arrears and consequential fixation of pay and pension, and (B) further be pleased to direct the respondent Board to pay interest on the delayed payment on amount flowing from prayer clause, at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (C) award the cost of this petition, and (D) pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to take decision with regard to grant of second higher grade scale to the petitioner from his due date, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to grant the second higher grade scale to the petitioner, and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.” 3. The present writ petition is preferred challenging the action on the part of the respondent authority of not granting second higher grade pay-scale to the petitioner whereas person junior to the petitioner is already granted second higher grade pay-scale. 4. The facts leading to filing of the present petition is that the petitioner joined the services of State Government as a Sub-Auditor, Gr-III on 9.12.1971. On 31.5.1978, the petitioner was promoted as Sub-Treasury Officer, the cadre of Deputy Accountant, Grade-II in the pay-scale of 425-800/-. Thereafter, the petitioner was again promoted as Accountant, Grade-I in the pay-scale of 500-900/- on 2.5.1980. On 31.5.1978, the petitioner was promoted as Sub-Treasury Officer, the cadre of Deputy Accountant, Grade-II in the pay-scale of 425-800/-. Thereafter, the petitioner was again promoted as Accountant, Grade-I in the pay-scale of 500-900/- on 2.5.1980. The pay-scale came to be revised as Rs.1640-2900/- with effect from 1.1.1986 pursuant to the 4 th Pay Commission. 5. As per the policy of higher grade pay scale of the State Government contained in Government Resolution dated 16.8.1994, the petitioner had completed 9 years of service in the said cadre on the same pay-scale and therefore, the petitioner was eligible for grant of first higher grade pay-scale of Rs.2000-3500/- with effect from 2.5.1989. The pay-scale of the petitioner on grant of first higher-grade pay scale came to be revised as Rs.6500- 10,500/-. 6. Pursuant to the receiving of first higher grade pay- scale, third promotion was granted to the petitioner to the Post of Junior Assistant Examiner, Class-II on 1.6.1998 on the same pay-scale without any further monetary benefit or change in the pay-scale. This factual aspect is never controverted by the respondent. Pursuant to the third promotion, the petitioner was posted in the Office of District Treasury, Navsari and thereafter was superannuated on 28.2.2007. It was the case of the petitioner that upon completion of another fifteen years of service after receiving first higher grad pay-scale, an employee is entitled to receive second higher grade pay- scale as per the policy of the State Government as envisaged in Government Resolution dated 16.8.1994 as modified vide Government Resolution dated 2.7.2007. It was the case of the petitioner that despite rendering service of another fifteen years after receiving first higher grade pay-scale, petitioner became entitled to benefit of second higher grade pay-scale with effect from 2.5.2004, which was not granted by the respondent authority, which culminated into filing of the present writ petition. 7. After hearing Mr. Rishabh Acharya, learned advocate for the petitioner as well as the learned Assistant Government Pleader, it is brought to the notice of this Court that the issue is already decided by Division Bench of this Court in the case in Letters Patent Appeal No. 80 of 2024, which was decided in favour of the employee who was working in the same Department as the present writ petitioner. Even in the case decided in Letters Patent Appeal No. 80 of 2024, the contention raised by the appellant was that after receiving three promotions and one higher grade pay-scale, he was entitled for second higher grade pay-scale as per GR dated 16.8.1994 as well as GR dated 2.7.2007. 8. This Court after observing the findings rendered in another Letters Patent Appeal being LPA No. 504 of 2020 decided on similar aspect granted the benefit to the employee. The facts of comparison of employment and promotion of all the three employees who are party to Letters Patent Appeal No. 80 of 2024 and Letters Patent Appeal No. 504 of 2020 as well as present petitioner are as follows: Name BB SIDHPURIYA Petitioner in SCA No. 18476 of 2014 TN Thakkar Appellant in LPA No. 80 of 2024 IH Bandhara Appellant in LPA No. 504 of 2020 Date Date Date Designation Date of Birth 23-02-1949 18-03-1946 26-01-1950 Sub Accountant- Class-11 First Promotion 09-12-1971 13-02-1968 14-09-1972 Deputy Accountant- Class-III Second Promotion 31-05-1978 15-04-1975 19-09-1977 Accountant - Class-III First Higher Pay Scale 02-05-1980 17-08-1978 18-02-1981 Accounts Officer Class- II Third Promotion 01-06-1998 14-09-1994 /- Accounts Officer Class- II Second Higher Pay Scale /- /- 18-02-2005 Accounts Officer Class- I Third Promotion 01-06-1998 14-09-1994 09-03-2007 Accounts Officer Class- II 9. This Court after going through the factual averments made in the Letters Patent Appeal No. 80 of 2024 was pleased to observe as follows: “12. In the case of the junior of the appellant–Shri.I.H. Bandara, after he was promoted on the post of Deputy Accountant Class-III on 19.09.1977, he was again promoted on 18.02.1981 as Accountant Class-II on completion of 9 years of service. His proposal specifically refers that he got three promotions and one higher pay-scale. Thus, when the proposal of Shri.I.H. Bandara was sent on 16.03.2009, he was granted three promotions and one higher pay-scale. After considering such details, the appellant’s junior was granted higher pay- scale with effect from 18.02.2005 with retrospective effect from 05.06.2009. It is pertinent to note that Shri.I.H. Bandara was granted the second higher pay-scale of Rs.8,000-14,050/- by the order dated 11.06.2009, after his retirement. Both, the appellant and his junior, retired hence, similar benefit was required to be extended to the appellant, which was not done which constrained him to file the writ petition. 13. It is pertinent to note that Shri.I.H. Bandara was granted the second higher pay-scale of Rs.8,000-14,050/- by the order dated 11.06.2009, after his retirement. Both, the appellant and his junior, retired hence, similar benefit was required to be extended to the appellant, which was not done which constrained him to file the writ petition. 13. The policy of the higher pay-scale for the first time was introduced by the State Government by the Resolution dated 05.07.1991, which was available to those employees who remained stagnant for 9, 8 and 27 years in service. Thus, the employee who had remained stagnated for all these years, he would be entitled for first higher pay-scale. The said policy was modified by the Resolution dated 16.08.1994 and it was decided that the effect of the first higher pay-scale would be given from 01.08.1987 and the employee would be entitled for the higher pay-scale, after completion of 9, 8 and 27 years of service. Thereafter, another Resolution dated 02.07.2007 was issued by the State Government by modifying the Resolution dated 16.08.1994. By the said Resolution, the modified scheme of 12 and 24 years of service was introduced. Paragraph No.2(4)(b) of the said Resolution categorically states that if an employee, who has been granted the first higher pay-scale on completion of 9 years of service, as per the Resolution dated 16.08.1994, he would be entitled to the second higher pay-scale after completion of 15 years of service from grant of the first higher pay-scale. 14. When the appellant pointed out that his junior was offered the second higher pay-scale with effect from 18.02.2005, he requested the respondent authorities to extend him such benefit. The respondent authority has specifically placed reliance on the communication dated 04.03.2008 of the Deputy Secretary, Finance Department clarifying Paragraph No.2(4)(b) of the Resolution dated 02.07.2007. 14. When the appellant pointed out that his junior was offered the second higher pay-scale with effect from 18.02.2005, he requested the respondent authorities to extend him such benefit. The respondent authority has specifically placed reliance on the communication dated 04.03.2008 of the Deputy Secretary, Finance Department clarifying Paragraph No.2(4)(b) of the Resolution dated 02.07.2007. The contents of the said Resolution are translated and reproduced as under :- “Paragraph 2(4)(b) of the Finance Department Resolution dated 02.07.2007 : Whoever have got two promotions and first higher pay- scale, they would be granted the second higher pay-scale subject to the fulfillment of conditions and entitlement after 15 years, 24 years from the date of grant of first higher pay-scale and those who have completed 12 years and 24 years of service, in view of the said Resolution, they would be granted the higher pay-scale, however provided that they are not granted more than two promotions. ” 15. In all the policies of the higher pay-scales, the common thread running through them is that an employee is not entitled to higher pay-scales in case, he has got more than two promotions. The Policy nowhere clarifies or bars an employee from getting higher pay-scales in case, an employee even after getting the second or third promotion remains in the same pay-scale. The policies of the higher pay-scale are introduced to see that a Government employee does not remain stagnated in the same pay-scale for number of years mentioned in such policies. Thus, when the appellant has remained stagnated in the same pay- scale even after grant of first higher pay-scale. 16. One of the reasons, which has weighed with the learned Single Judge, is delay in filing the writ petition. The appellant retired from services as Deputy Accounts Officer on 31.03.2004. After his junior was granted higher pay-scale vide order dated 11.06.2009, with effect from 18.02.2005, he filed the representation for the first time on 10.12.2009. Thereafter also, it appears that he did not do anything and ultimately, he filed a writ petition being Special Civil Application No.18708 of 2014, which was also withdrawn on 22.01.2015. The Deputy Secretary, Finance Department finally intimated the appellant that he would not be entitled for the second higher pay-scale as he got three promotions and one higher pay-scale which is impugned in the captioned writ petition. Hence, the delay cannot be ignored while granting arrears. The Deputy Secretary, Finance Department finally intimated the appellant that he would not be entitled for the second higher pay-scale as he got three promotions and one higher pay-scale which is impugned in the captioned writ petition. Hence, the delay cannot be ignored while granting arrears. The denial of the higher pay-scale to the appellant is continuing cause of action since he is also getting pension on reduced pay every month.” 9. In view of the same, it is now settled proposition of law that the higher pay-scale was acceded to the Junior of the present petitioner needs to be given to the present petitioner after completion of 15 years from the date of grant of first higher grade pay-scale. Further, the issue that even after third promotion, if the employee remains in the same pay-scale, there is no bar to grant second higher grade pay-scale in favour of employee, is conclusively decided by this Court in favour of employee in LPA No. 504 of 2020 and LPA No. 80 of 2024. 10. In view of the same, the present writ petition succeeds. The benefit shall be paid to the present petitioner within a period of 8 weeks from the receipt of the order of this Court failing which there will be an interest at the rate of 9% from the date of completion of 8 weeks till the payment is made. In view of the same, the writ petition is allowed. Rule made absolute.