Research › Search › Judgment

Gujarat High Court · body

2026 DIGILAW 62 (GUJ)

Ayashaben Umarji Yusuf Patel v. State of Gujarat

2026-02-05

NIRZAR S.DESAI

body2026
ORDER : 1. How the greed of a person can lead him to suppress even the most important facts can be seen from this petition. This is the third attempt of the petitioner, and as the petitioner could not succeed on the earlier two occasions, this petition is preferred. 2. By way of this petition, by suppressing the material facts, which I shall be incorporating in the later part of the order, the petitioner has prayed for the following relief: a. That this Hon'ble Court may be pleased to admit and allow this petition. b. That this Hon'ble Court may be pleased to issue writ of or in nature of, Mandamus or any other appropriate writ, order or directions directing the respondent authorities to pay service benefits i.e. benefits of 4th, 5th and 6th Pay Commission respectively, 3% Increment in salary every year for the period commencing from 1979 to 2008, Pension, Group Insurance, commuted pension and provident fund benefits and further higher pay scale on completion of service of 9, 18 and 27 years, outstanding last three months' salary before retirement as well as directions to respondent authorities to make entry regarding passing of examination of supervisor in petitioner's service book and to fix the salary on the basis of supervisor as well as to pay difference of amount of Rs. 2,68,437/- for the period commencing from 01.01.2006 to 01.10.2008 as per calculation provided in application at Annexure-I and after fixing all above referred benefits to direct the respondent authorities to pay the revised amount of pension as well as to pay the amount of Gratuity, provident fund, group insurance and any other arrear of salary etc. as per the law along with 9% interest in the interest of justice. as per the law along with 9% interest in the interest of justice. c. That this Hon'ble Court may be pleased to quash and set aside the decision dated 28.10.2022 of the respondent authorities of considering increments from the year 1979 to 2008 as 'notional' as per entry reflected in petitioner's service book, as well as to quash and set aside the decision to consider the new pay fixation as notional for the period from 01.01.2006 to 01.10.2008 as per Annexure-I and further be pleased to quash and set aside decision date 28.10.2022 at Annexure-L. d. That this Hon'ble Court may be pleased to issue a writ in the nature of mandamus or any other appropriate writ or appropriate directions to respondent authorities directing them to complete the service book of the petitioner. e. That this Hon'ble Court may be dispensed with the original/Certified copy of the decision dated 28.10.2022 at Annexure-L as the petitioner has annexed the letter as received by the petitioner from the respondent authorities. f. That this Hon'ble Court may be pleased to pass such further and other orders or directions as the nature and circumstances of the case may require in the interest of justice. 3. Heard learned advocate, Mr. Hannan Qureshi. A perusal of the prayer creates an impression as if the petitioner has been meted out with great injustice. However, a close scrutiny of the annexures indicates that the petitioner has not approached this Court with clean hands and, despite being fully aware of the facts and the reasons for which the reliefs as prayed for could not be granted, the petitioner has projected her case as if she is a victim of the system and that, despite her entitlement, the benefits which ought to have been granted to her have not been extended. 4. The facts of the petitioner, as stated by learned advocate Mr. Hannan Qureshi, are that the petitioner was appointed as an Auxiliary Nurse Midwife (ANM) on 05.02.1976 in the Bharuch District Panchayat and retired on 31.10.2008 as a Female Health Worker. According to the petitioner, during her 32 years of service, though she served as a permanent employee, she passed the examination of Female Health Supervisor in August 2007. It is further the case of the petitioner that, though she retired on 31.10.2008, she was not given her service book until the year 2014. 4.1. According to the petitioner, during her 32 years of service, though she served as a permanent employee, she passed the examination of Female Health Supervisor in August 2007. It is further the case of the petitioner that, though she retired on 31.10.2008, she was not given her service book until the year 2014. 4.1. According to the petitioner, she has not been granted the benefits of the 4th Pay Commission with effect from 1986, the 5th Pay Commission with effect from 1996, and the 6th Pay Commission with effect from 2006. In addition thereto, the petitioner contends that she was denied annual increments at the rate of 3% during the period from 1983 to 2008. It is further stated that she was not granted the higher pay scale upon completion of 9, 18 and 27 years of service and that she has not been paid salary for the last three months prior to her retirement. 5. The petitioner has completely concealed the facts which are relevant for determining the issue at hand, and except for the facts stated hereinabove, no other material facts have been disclosed in paragraphs 4.1 to 4.4. From paragraph 5.1 onwards, the petitioner has stated the events which occurred after her retirement. 5.1. In the petition, it is nowhere stated that the petitioner had submitted the certificate evidencing the passing of the Hindi examination. On the contrary, in paragraphs 4.5 and 4.6, reference is made to the respondents’ communication dated 18.03.2011 addressed to the petitioner, which is an intra-departmental communication, wherein the District Panchayat had written to the Block Health Officer to call for the service book of the petitioner, which was in the custody of the Primary Health Centre or the office where the petitioner was serving. Thereafter, another letter dated 21.11.2021 was addressed to the petitioner, calling upon her to produce the mark sheet indicating that she had passed the SSC examination with Hindi as one of the subjects. 5.2. At Annexure-G, page 42, vide communication dated 24.11.2011, the petitioner addressed a letter to the Block Health Officer, Dediapada, and produced the necessary documents, wherein it is nowhere stated that on any earlier occasion, the petitioner had already provide such documents. 5.2. At Annexure-G, page 42, vide communication dated 24.11.2011, the petitioner addressed a letter to the Block Health Officer, Dediapada, and produced the necessary documents, wherein it is nowhere stated that on any earlier occasion, the petitioner had already provide such documents. Despite this, submissions were made before this Court that the petitioner had already produced the said documents to the respondent authorities and that, despite such production, due to the mistake of the respondents in not acknowledging receipt of those documents, the petitioner was made to suffer. Not only that, even the service book of the petitioner indicates that the petitioner was able to produce the certificate of passing the SSC examination with Hindi as one of the subjects only on 27.06.2012, i.e., nearly four years after the petitioner’s retirement. The petitioner was thereafter granted the benefit of increments notionally, and the service book further indicates that the petitioner’s eligibility and entitlement with regard to pension were also considered and duly recorded therein. 5.3. A perusal of the extract of the service book produced at page 38 indicates that the petitioner’s family pension was fixed at Rs.589/-, gratuity at Rs.1,91,310/-, ad-hoc sanctioned pension at Rs.2,895/- per month, and the total pension at Rs.3,544/- per month. The petitioner, as stated in the foregoing paragraphs, has elaborately narrated the events that took place after her retirement and has stated that she is entitled to a total amount of Rs.3,92,180/-. As against this, the petitioner claims to have received only a sum of Rs.1,23,743/-, which is less by Rs.2,68,437/- from her alleged entitlement. However, except for the aforesaid averments, the petitioner has not stated anywhere in the petition as to how she has arrived at the above referred amount. 5.4. Furthermore, the petitioner has stated in the petition that, in the past, the petitioner had preferred two petitions, the orders whereof are produced at pages 43 and 51 respectively. One such order is dated 11.09.2014 passed in Special Civil Application No. 8345 of 2013. The said order reads as under: “1. This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to direct the respondents to immediately sanction and pay regular (full) pension to the petitioner. 2. One such order is dated 11.09.2014 passed in Special Civil Application No. 8345 of 2013. The said order reads as under: “1. This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to direct the respondents to immediately sanction and pay regular (full) pension to the petitioner. 2. When the petition is taken up today, Mr.Krunal D. Pandya, learned advocate for the petitioner submits that respondent No.3 has now sanctioned full pension to the petitioner as per the Pension Payment Order dated 25.06.2013, annexed at Page 33 to the affidavit- in-reply filed by the said respondent. It is submitted that in view of the above, the grievance of the petitioner, qua pension is redressed. However, according to the petitioner she is not being paid pension as paid to similarly situated persons, therefore, the right of the petitioner to agitate this aspect may be kept open. It is submitted that as the grievance made in the petition has substantially been redressed, the petition may be disposed of, accordingly. 3. In view of the above statement made by the learned advocate for the petitioner and as the prayers made by the petitioner in the present petition have been substantially redressed, the petition stands disposed of. However, it is made clear that if the petitioner has any issues regarding payment of pension which is not in consonance with that paid to similarly situated persons, the petitioner is at liberty to agitate this aspect before the concerned authority. 4. The petition is disposed of, in the above terms, without entering into the merits of the case.” 5.5. A reading of the aforesaid order indicates that the prayers made in the present petition were probably not made at the relevant point of time. While referring to the prayers made in the earlier petition, the Coordinate Bench of this Court observed that the petitioner had preferred the petition inter alia with a prayer to direct the respondents to immediately sanction and pay regular (full) pension to the petitioner, and the learned advocate for the petitioner himself made a statement before the Court that the grievance of the petitioner stands redressed. The liberty which was reserved in favour of the petitioner was only to the extent that certain benefits paid to similarly situated persons had not been paid to the petitioner, and it was only qua those benefits that liberty was granted. The aforesaid order does not say anything about a series of prayers to indicate that the injustice is done to the petitioner was not there at the relevant point of time. 5.6. Be that as it may, the petitioner thereafter preferred another petition, being Special Civil Application No. 2205 of 2019, before this Court, wherein, vide order dated 22.08.2019, the Coordinate Bench of this Court passed the following order: “1. Learned advocate Mr.Hardik D. Muchhala for the petitioner has submitted that pursuant to the order of this Court dated 23.08.2022, the petitioner remained present before the concerned authority of the District Panchayat – respondent No.3 and the authority has taken a decision on 28.10.2022, which he has tendered before this Court today. The same is taken on record. 2. In view of above, at the outset, he has fairly submitted that without prejudice to his rights and contentions, under instructions, he seeks permission to withdraw this petition, with a view to challenge the subsequent order dated 28.10.2022. 3. Other side has no objection. 4. Permission, as prayed for, is granted. This petition is disposed of as withdrawn. Notice is discharged. Interim relief, if any, stands vacated. 5. It is clarified that this Court has not gone into the merits of the matter.” 5.7. The aforesaid order indicates that, though by order dated 23.08.2022 the authority had considered the grievance of the petitioner and had passed a further order as far back as 28.10.2022, the said order was brought to the notice of this Court only on 22.08.2025, i.e., after almost two and a half years. Such conduct on the part of the petitioner also indicates that had the order dated 28.10.2022 been contrary to the provisions of law, the petitioner would not have waited for more than two and a half years to produce the same before the notice of the Court. However, after a lapse of two and a half years, vide order dated 22.08.2025, upon a request made by the learned advocate for the petitioner, the Court permitted the petitioner to withdraw the petition with a view to challenge the subsequent order dated 28.10.2022. 6. However, after a lapse of two and a half years, vide order dated 22.08.2025, upon a request made by the learned advocate for the petitioner, the Court permitted the petitioner to withdraw the petition with a view to challenge the subsequent order dated 28.10.2022. 6. The order dated 28.10.2022 is also annexed to the present petition at Annexure-L, page 53. The said order dated 28.10.2022 refers to and deals with various grievances raised by the petitioner. 6.1. The first grievance pertains to the petitioner’s claim that she was not granted increments for the period from 1979 to 2008, to which the respondents have replied that since the said increments were granted notionally, the petitioner is not entitled to the same. 6.2. As regards the petitioner’s grievance that she was denied the benefits of the Fourth, Fifth and Sixth Pay Commissions, the respondents have replied, on the basis of the service book, that the said benefits were in fact granted to the petitioner. In the present petition, there is no material placed on record, nor has any additional document been shown by the learned advocate Mr. Qureshi, to indicate that such benefits were not granted to the petitioner or that the order dated 28.10.2022 was passed on an incorrect foundation. 6.3. As far as the benefit of grant of higher pay scale upon completion of 9, 18 and 27 years of service is concerned, the authority, in its reply, has stated that no such representation was ever received. In addition thereto, the authority has also stated that during her service tenure, the petitioner had faced two departmental inquiries and that a punishment of stoppage of increment was imposed upon her, as reflected from the notings in the service book. A perusal of the petition indicates that the petitioner has never challenged either the departmental inquiries or the punishment of stoppage of increment. 6.4. In this regard, as per the Government Resolution dated 16.08.1994, though the said Resolution is not placed on record, this Court directed the learned AGP, Ms. Trivedi, to point out the relevant clause thereof which would disentitle the petitioner from claiming the higher pay scale. The learned AGP, Ms. 6.4. In this regard, as per the Government Resolution dated 16.08.1994, though the said Resolution is not placed on record, this Court directed the learned AGP, Ms. Trivedi, to point out the relevant clause thereof which would disentitle the petitioner from claiming the higher pay scale. The learned AGP, Ms. Trivedi, pointed out before the Court that the aforesaid Government Resolution provides that “no higher grade scale shall be granted to employee who is under suspension on date of eligibility or who is given charge sheet under Rule 9 or 10 of Disciplinary and Appeal Rules, when an employee is exonerated in the departmental inquiry against him and reinstated on duty, the higher grade scale shall be granted on the basis of eligibility. If an increment is stopped with or without future effect, higher pay scale may be granted on the basis of eligibility upon completion of 9 increments” 6.5. In the instant case, considering the fact that the petitioner could not produce the necessary documents during her service tenure and that the same were produced only in the years 2011–2012, the petitioner was granted increments only on a notional basis, as can be seen from the contents of the order dated 28.10.2022. At no point of time, therefore, could the benefit of the higher pay scale have been recommended to the petitioner. 7. At this stage, learned advocate Mr. Qureshi drew the attention of this Court to the order dated 04.04.2005 passed by the Health Department of the Narmada District Panchayat, whereby the punishment of stoppage of one increment without future effect was imposed upon the petitioner. A reading of the said order further indicates that the charges levelled against the petitioner were that she did not remain present in the Pulse Polio Programme and that she did not remain present at the headquarters assigned to her, both of which charges were held to be proved against the petitioner. 7.1. A reference to the various communications mentioned in the said order also indicates that the petitioner had remained under suspension. Therefore, considering the aforesaid contents of the order dated 04.04.2005, produced at page 80 of the petition, the authority has tried to justify its action vide the impugned order dated 28.10.2022. 8. As far as the petitioner’s grievance regarding commuted pension is concerned, the impugned order states that the same has already been recommended. 8.1. Therefore, considering the aforesaid contents of the order dated 04.04.2005, produced at page 80 of the petition, the authority has tried to justify its action vide the impugned order dated 28.10.2022. 8. As far as the petitioner’s grievance regarding commuted pension is concerned, the impugned order states that the same has already been recommended. 8.1. As far as the grievance regarding non-payment of salary for the last three months, i.e. August, September and October 2008, is concerned, the authority has stated that the record for the year 2008 is required to be verified to ascertain whether the petitioner had made any application at the relevant point of time or not, that has to be examined by verifying the aforesaid facts with the original record. 8.2. As far as the petitioner’s grievance regarding denial of the benefit of the Supervisor scale is concerned, the authority has observed that the petitioner had never informed the authority about having passed such examination and, therefore, in the absence of any such details provided by the petitioner, the said benefit could not be granted. 8.3. The petitioner has also raised the grievance, which is answered in the aforesaid letter, that the petitioner’s pay fixation was not done in a proper manner and that the same resulted in loss of gratuity, whereas the respondents have stated that the record indicates that the aforesaid facts are incorrect. 9. A perusal of the aforesaid order indicates that during her service tenure, the petitioner had remained under suspension, faced two departmental inquiries, and one of the inquiries resulted in the punishment of stoppage of one increment. There are no averments in the petition to indicate that the petitioner fulfills all the conditions of the Government Resolution dated 16.08.1994 or the Government Resolution dated 02.07.2007, which provide for higher pay scales upon completion of 12 and 24 years of service, nor have any of the Government Resolutions, on the basis of which the petitioner claims entitlement to the first, second or third higher pay scale upon completion of 9, 18 or 27 years of service, been placed on record. 10. In this background, the matter was argued by learned advocate Mr. Qureshi. Learned advocate Mr. 10. In this background, the matter was argued by learned advocate Mr. Qureshi. Learned advocate Mr. Qureshi, however, fairly pointed out before this Court that the petitioner had also preferred Special Civil Suit No. 16 of 2017 before the Court of the learned Principal Senior Civil Judge, Rajpipla, praying for fixation of her salary by granting the aforesaid benefits, payment of arrears as well as pension, and regularisation of the service book by making necessary entries. It was further stated that the said suit was withdrawn on technical grounds. Though such averment has been made, the order of withdrawal has not been annexed with the petition. However, as the aforesaid facts were disclosed by learned advocate Mr. Qureshi, this Court does not consider the said fact to be a case of suppression by the petitioner. 11. Considering the overall facts and circumstances, as can be seen from the impugned order dated 28.10.2022, the respondents have sought to justify each and every action taken by them. At one point, learned advocate Mr. Qureshi emphasised the grievance regarding non-payment of salary for three months. Similarly, as regards commuted pension, the order dated 28.10.2022 itself indicates that the same has already been recommended; however, if the said amount has not been paid till date, the respondents would be required to consider the said aspect. 12. As regards the petitioner’s entitlement to the first, second and third higher grade scales, this Court finds that the order annexed with the petition indicates that the petitioner was under suspension only during the period from 2003 to 2005 and that thereafter a punishment was imposed. The Government Resolution dated 16.08.1994 provides for consideration of the case of an employee upon exoneration from a departmental inquiry or, in the case of stoppage of increment, upon completion of nine increments. Therefore, on the ground of suppression as well as on merits, this Court finds that the petition does not have any merit. All the grievances raised by the petitioner have been duly considered by the respondents, and the petitioner could not have been granted the benefit of increments on account of a fault attributable solely to her, as the necessary documents were submitted only after her retirement. 13. All the grievances raised by the petitioner have been duly considered by the respondents, and the petitioner could not have been granted the benefit of increments on account of a fault attributable solely to her, as the necessary documents were submitted only after her retirement. 13. However, though the present petition is being dismissed, this Court is satisfied that the respondents have passed a detailed order and have tried to justify their action regarding non-payment of various benefits as prayed for by the petitioner. The Court is of the view that if the salary for the last three months, despite the petitioner having worked during the said period, has not been paid, and if the amount of commuted pension, which has already been recommended as per the order dated 28.10.2022, has not yet been paid to the petitioner, the respondents are directed to pay the same within a period of three months from today. 14. As regards the remaining prayers, since the petition is not supported by the necessary documents or averments and on the ground of suppression, this Court does not propose to grant any other relief. Prima facie, the Court is satisfied that the remaining benefits have already been duly extended to the petitioner. 15. Resultantly, except for the aforesaid directions, no case is made out. Accordingly, the petition deserves to be dismissed and same is dismissed. At this juncture, learned advocate Mr. Qureshi clarified that since the petition was preferred by him in his capacity as a panel advocate of the Legal Aid Committee, and in the absence of specific instructions from the client, certain facts could not be incorporated in the petition, such omission cannot be attributed to the learned advocate nor construed as suppression on his part. It is further clarified that when a petition is preferred through the Legal Aid Committee, the intention of the advocate cannot be questioned. If the litigant fails to provide necessary details, the advocate cannot be expected to be aware of every minute fact, particularly those concealed by the petitioner. Therefore, the aspect of suppression is being considered by this court, the same cannot be attributed to the learned advocate appearing for the petitioner.