Gujarat High Court
Kanubhai H Kubavat vs Joint Director Of Education & 2 on 31 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13416/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13416 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KANUBHAI H KUBAVAT....Petitioner(s)
Versus
JOINT DIRECTOR OF EDUCATION & 2....Respondent(s)
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Appearance:
MR RB THAKOR, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
-2
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 31/03/2016
ORAL JUDGMENT
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1. By this writ application under Article 226 of the Constitution of India, the petitioner, a retired District Education Officer, has prayed for the following reliefs;
"A. To release the first higher pay scale to the petitioner from 1989 on completion of 9 years service in Class II and to grant consequential benefits arising therefrom.
B. To grant interest at the rate of 18% on delayed payment of first higher pay scale to the petitioner.
C. To declare that non payment of higher pay scale by the respondents in case of the petitioner is violative of articles 14 and 16 of the Constitution of India.
D. To direct the respondents to calculate the pay fixation for pensionary benefits after taking into consideration the higher pay scale and the last pay drawn including the higher pay scale, for pensionary benefits.
E. Any other relief deemed fit, just and proper in the circumstances of this case.
9. Pending admission, hearing and disposal of this petition, your Lordships may be pleased to issue injunction direction the Respondents to release the first higher pay scale from 1989 till the date of retirement.
10. The petitioner has not filed any other petition of like nature either before this Hon'ble Court earlier or before any other Courts in India, and has also not approached before the Apex Court in India in the same subject matter except the Writ Petition challenging non payment of gratuity and pensionary benefits before this Hon'ble Court. The petitioner is also not having any other alternative, efficacious remedy either before this Hon'ble Court or before any other Courts in India except to approach before this Hon'ble Court by filing abovementioned Writ Petition.
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11. The petitioner craves leave to add, amend, alter or delete any of the paragraphs hereinabove in the interest of justice."
2. The facts of this case may be summarized as under;
2.1 The petitioner entered the service with the Panchayat in the year 1964. He attained superannuation on 30th September, 2000. It is his case that in the year 1980, he became a Class-II Officer. It is his case that on completion of nine years of service in the year 1989, he became eligible to receive the first higher pay scale. However, such benefit was not granted. In the year 1992, he came to be promoted as the District Education Officer, Class-I, and retired on 30th September, 2000. Hence, this petition.
3. On behalf of the Government, an affidavit-in-reply has been filed, inter alia, stating as under;
"1. I have read copy of the memorandum of the present petition and I have also perused relevant records pertaining to the same and I am conversant with the facts of the present petition. I am competent to file this affidavit-in-reply. Hence, I am filing the same as under.
2. At the outset, I deny all the allegations, averments and submissions made and the contentions raised in the petition, save and except, those which are specifically admitted by me hereinafter.
3. At present I am not dealing with the petition parawise and my non dealing with the petition parawise may not be construed as an admission on my part. I reserve my right to file further and detailed affidavit in reply, as and when need so arises.
4. By way of the present petition, the petitioner has prayed that the respondents be directed to release the first higher pay-scale to the petitioner from 1989 to Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Apr 05 01:22:30 IST 2016 C/SCA/13416/2003 JUDGMENT which date he has completed 9 years service in Class-II and grant consequential benefits arising there from and he has also prayed that the interest at the rate of 18% on delayed payment of first higher pay scale be given to the petitioner.
5. At the outset, I say and submit that the petitioner has joined the service on 18.02.1980 and he has completed 9 years of service on 17.02.1989. I further say and submit that as per the Government Resolution dated 05.07.1991, 06.05.1992 and 16.08.1994, an employee who has completed 9 years of service in one cadre and if there is no opportunity of promotion, then, as per the aforesaid Government Resolutions, the employee is entitled to get higher pay scale from 01.06.1987.
6. I further say and submit that three departmental inquiries were pending against the petitioner for a period between 07.11.1992 to 17.08.1994, during the year 1996 and 1997 respectively. I further say and submit that as per the clause 3(5) of the Government Resolution dated 16.08.1994, on the date of eligibility, if the departmental inquiry is pending or if an employee is under suspension, then higher pay scale cannot be granted to him. I therefore say and submit that in the present case, as stated above, when the application for higher grade was received, three departmental inquiries were pending against the petitioner during the period mentioned hereinabove and therefore, higher pay scale was not granted to the petitioner.
7. I further say and submit that it is true that on the date of eligibility/entitlement, there was no departmental inquiry pending against the present in the year 1989, but before Departmental Promotion Committee (D.P.C.) considers his case for higher pay scale, it was found that the Departmental inquiries were pending against the petitioner for a period between 17.11.1992 to 17.08.1994 and during the year 1996-1997 respectively and therefore, he was not found fit for promotion and in such type of cases, whether higher pay scale can be granted to the employee or not was in question before the Education Department and therefore on 17.10.2001, necessary clarification was asked for from the Finance Department. I further say that on 23.10.2001, the Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Apr 05 01:22:30 IST 2016 C/SCA/13416/2003 JUDGMENT Finance Department informed the Education Department, to wait for sometime in this matter. Same type of reply was received by the Education Department on 12.06.2002, 17.07.2002, 17.12.2002, 15.07.2003 and 06.10.2003.
8. I further say and submit that till today, it appears that Finance Department has not taken any decision in this respect because it is a policy matter and there are number of such cases pending before the Finance Department and therefore, they are considering the petitioner's case alongwith the said cases.
9. I view of the aforesaid facts and circumstances, I say and submit that there is no inaction on the part of the Education Department and as and when necessary instructions will be received from the Finance Department, necessary orders will be passed.
10. In view of what is stated hereinabove, the present petitioner is not entitled to claim any relief and the claim of the petitioner be rejected."
4. It also appears that there is one further affidavit-in-reply filed by the State Government, wherein it has been stated as under;
"1. It is respectfully submitted that as stated in by earlier affidavit in reply, the issue regarding grant of higher pay scale to the employees like petitioner was under consideration of the Finance Department. It is submitted that the said issue came to be decided by the Government, Finance Department and vide Government Resolution dated 31.03.2005, the Finance Department has resolved that, in the cases where after completion of departmental inquiry if the concerned employee is imposed with major penalty than in these cases such employees will not be entitled for higher pay scale whereas in the cases where, minor penalty is imposed, the concerned employee will be entitled for the higher pay scale. A copy of the Government Resolution dated 31.03.2005 is annexed herewith and marked as Annexure-R-I to this affidavit.
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2. It is respectfully submitted that in the present case the petitioner is imposed with 3 major penalties and different departmental inquiries and whereby the punishment of pension cut is imposed. Vide Government Order Education Department dated: 31.03.2001, the petitioner was imposed with the penalty of pension cut for an amount of Rs. 100 for 1 year. A copy of the aforesaid punishment order dated 31.03.2001 is annexed herewith and marked as Annexure-R-II to this affidavit. Vide Government Order Education Department dated:
25.03.2004 the petitioner is imposed with two different punishments for 2 different departmental inquiries wherein one punishment of pension cut for an amount of Rs. 250 for 2 years is imposed whereas in the other departmental inquiry the petitioner is imposed the punishment of Rs. 100 pension cut for the period of 2 years. Copies of the Punishment order dated 25.03.2004 are annexed herewith and marked as Annexure-R-III (Colly) to this affidavit.
3. It is submitted that as provided under Rule-24 of the Government Civil Service (Pension) Rules, 2002, the penalty in the pension cut is considered to be a major penalty as in the case of pension cut the procedure as provided under sub-clause (3) of Clause (B) of sub-rule (2) of Rule-24 of the Government Civil Service (Pension) Rules, 2002 has to be followed and therefore the petitioner is not entitled for the higher pay scale as prayed for. In view of the above in my humble submission the petitioner is denied on its merits and therefore the same may be dismissed and limine."
5. Thus, it appears from the stance of the State Government that although in the year 1989 when the petitioner became eligible to receive the first higher grade scale, there was no departmental inquiry, yet when the Departmental Promotion Committee considered the case of the petitioner for the higher pay scale, it was found that three departmental inquiries were pending. In such circumstances, a decision was taken not to sanction the first higher grade scale on completion of nine Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Apr 05 01:22:30 IST 2016 C/SCA/13416/2003 JUDGMENT years of service.
6. It also appears that out of the three departmental inquiries, in one of the inquiries, a penalty was imposed of deduction of sum of Rs.100/- from his pension every month for a period of one year.
7. Such order of penalty was challenged by the petitioner by way of Special Civil Application No.10768 of 2001. The said writ application was allowed vide order dated 25.3.2011 by the learned Single Judge, observing as under;
"16. It is not pointed out that the manner of promptness alleged was exceptional in sanctioning this particular select list, when the stand of the petitioner all along is that it has been a constant conduct on his part to show while discharging his duties. Resultantly, the findings on the second charge are also not found sustainable. One is conscious not to sit in an appeal and reappreciate all the facts unless ex facie perversity is pointed out in appreciating the facts and evidences. This being such a case, interference is found warranted.
17. For the alleged conduct of 1990-1994 admittedly the charge sheet has been issued in the year 1999 which is after more than 5-6 years. Although, this delay would not be fatal per se but, nevertheless that has been delayed. The affidavit-in-reply when taken to consideration, it explains delay suggesting the same as a routine manner in which Government Department functions, particularly when the departmental inquiries are to be initiated and to be conducted against the Government employee. The explanation cannot be said to be very satisfactory. However, nothing may turn on that. On the basis of facts discussed hereinabove charges are held proved as the present petition has been visited with major penalty considering the same as a grave misconduct and directing deduction of sum of Rs.100/- from his pension every month for a period of one year. The Court on having found that the decision of the Inquiry Officer and the subsequent decision of levying the penalty is not Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Apr 05 01:22:30 IST 2016 C/SCA/13416/2003 JUDGMENT based on the sound and tenable reasoning as emerged before the Court on the ground of perversity and unsoundness, the order passed on 30th March, 2011 against the petitioner requires to be quashed and set aside. Accordingly, petition is allowed with consequential benefits with no order as to costs. "
8. It appears that pursuant to the order passed by this Court referred to above, the Deputy Secretary, Education Department, issued an order dated 29th September, 2012 that since the order of penalty was ordered to be quashed by this Court, the requisite benefits may be extended to the petitioner.
9. It appears that so far as the penalty imposed in the other two inquiries is concerned, the orders were not challenged.
10. The learned counsel appearing for the petitioner is unable to make a positive statement whether those orders of penalties had been challenged or not. Be that as it may, two aspects deserve to be considered; first, Clause-3(5) of the Government Resolution dated 16th August, 1994 and the fact that in the year 1992, the petitioner came to be promoted as a Class-I Officer. If that be so, then I see no good reason why the first higher grade scale should not be provided.
11. In such circumstances referred to above, I direct that the case of the petitioner be reconsidered so far as the grant of the benefit of the first higher grade scale from 1990 is concerned. Let such decision be taken within a period of one month from the date of the receipt of the writ of the order. The decision shall be communicated to the petitioner in writing.
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12. This petition falls in the category of senior citizens matters. Priority has been given by this Court and I expect the respondents also to see that appropriate decision is taken in time. The authority concerned may also consider one more aspect that in the year 1989, there was no inquiry against the petitioner. Probably, the date on which the Departmental Promotional Committee met, there may be something, but what is more important is the date on which the petitioner became eligible to receive the first higher grade scale.
12. With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Apr 05 01:22:30 IST 2016