Gujarat High Court
Dr.Jordan Manasha Christoper vs State Of Gujarat on 13 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/18923/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18923 of 2015
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DR.JORDAN MANASHA CHRISTOPER
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2,3,4
MR NIRAJ ASHAR, AGP (1) for the RESPONDENT(s) No. 1,3
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/03/2018
ORAL ORDER
1. Heard Mr.Sonar, learned advocate for Mr.Majmudar, learned advocate for the petitioner, Mr.Ashar, learned AGP for respondent No.1 & 2 State as well as Mr.Munshaw, learned advocate for respondent No.4.
2. In this petition, the petitioner has prayed, inter alia, that:
"7(B) Be pleased to issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pass appropriate order for granting / disbursing the benefits of higher pay scale to the petitioner as per Government Resolution dated 17.10.1994 and other connected Government Resolutions and be pleased to issue directions upon the respondent authorities to grant / disburse the benefit of higher pay scales to the petitioner, as petitioner has already completed prescribed period of services as per the Government Page 1 of 8 C/SCA/18923/2015 ORDER Resolution dated 17.10.1994, and difference of salary be ordered to be paid to the petitioner with 12% interest and retirement dues, pension be revised after granting benefit of higher pay scale and difference of retirement dues, pension and other consequential benefits be ordered to be paid with 12% interest to the petitioner;
ALTERNATIVELY (B) Be pleased to issue appropriate writ, order or direction and be pleased to direct the concerned respondent authorities to consider and decide the application dated 01.05.2015, as expeditiously as possible;"
3. So as to support and justify the the relief prayed for by the petitioner, the petitioner has averred and stated that:
"3.1) The petitioner states that, petitioner came to be appointed as Medical Officer, ClassIII by order dated 23.11.1970 and she was promoted as Medical Officer Class by order dated 02.11.1979. The petitioner has attained the age of superannuation on 31.12.2001.
3.2) The petitioner states that, petitioner had served continuously, uninterruptedly and without there being any break and has remained in one particular cadre and in one particular scale all throughout, as in Ayurved Department or under respondent no.3 there were hardly promotional avenues made available for Medical. Officers serving in various Health Centers, Public Heath Centers, Dispensaries Paramedical Centers, Community Health Centers, etc. The petitioner states that, as Medical Officers were not having enough promotional avenues, to provide advancement opportunities for Medical Officers, Class the State of Gujarat was pleased to accept the recommendations made by Tiku Pay Commission and ultimately Government Resolution dated 17.10.1994 came to be published which provides for grant of higher pay scales in lieu of actual promotions to the Medical Officers.
3.3) The petitioner states that, even by Resolution Circular dated 01.01. 1999 the Insurance Medical Officers Medical Officers serving under Employees State Insurance Scheme were also granted extended the benefits of higher pay scales on the basis of the Resolution dated 17.10.1994.
3.4) The petitioner states that, as similarly situated Medical Officers who were having qualification of Ayurved i.e. B.S.A. M. or B. A.M.S. they have not granted the benefits of higher pay scale, ultimately, petitions came to be preferred before the Hon'ble High Court by one Association representing its members who were Medical Officers serving in State of Gujarat with Non M.B.B.S. degrees. The petitioner states that, in fact, even other similarly situated Medical Officers with Ayurved degrees have also preferred petitions before the Hon ble High Court, wherein the Hon'ble Single Judge (Coram:
Hon'ble Mr. Justice K.S. Jhaveri) was pleased to pass an order dated 26.07.2012 by which the group of petitions came to be allowed and directions came to be issued upon the Government Page 2 of 8 C/SCA/18923/2015 ORDER authorities for granting / disbursing benefits of higher pay scales to the incumbents having Non M.B.B.S. degrees including the Medical officers who had already attended the age of superannuation. Copy of order dated 26.07.2012 passed by the Hon'ble Single Judge is annexed herewith and marked as ANNEXUREA to this Petition.
3.5) The petitioner states that, the State of Gujarat had preferred Letters Patent Appeal No.295 of 2013 and other connected appeals before the Hon'ble Division Bench, and by an order dated 17.01.2014 the Hon'ble Division Bench of the Hon'ble Gujarat High Court (Coram: Hon'ble the Chief Justice Mr. Bhaskar Bhattacharya and Hon'ble Mr. Justice J. B. Pardiwala) was pleased to reject the said Letters Patent Appeal preferred by the Government of Gujarat confirming the judgment of the Learned Single Judge by which the benefit was ordered to be extended to the Medical Officers having Ayurved degrees.
Copy of order dated 17.01.2014 passed by the Hon'ble Division Bench in Letters Patent Appeal No. 295 of 2013 and other connected appeals is annexed herewith and marked as ANNEXUREB to this Petition.
3.6) The petitioner states that, against the aforesaid judgment and order of the Hon'ble Division Bench of the Hon'ble High Court of Gujarat confirming the order passed by the Hon'ble single Judge, the State of Gujarat has preferred Special Leave to Appeal I No 86358639 of 2014 before the Hon'ble Supreme Court of India. That by order dated 08.09.2014 the Hon'ble Supreme Court was pleased to pass an order granting leave in the aforementioned group of Special Leave Petitions and was pleased to direct the Government authorities to pay 50% amount of the higher pay scale within two months from the date of the order. The Hon'ble Supreme Court of India was thereafter pleased to grant further extension of 3 months to the State of Gujarat. Copy of order dated 08.09.2014 passed by the Hon'ble Supreme Court of India in Special Leave to Appeal I No. 8635 8639 of 2014 is annexed herewith an marked as ANNEXUREC to this Petition.
3.6) The petitioner states that, in fact, as per the principle of law laid down by the Hon'ble Courts, there is no distinction between Medical officers having M.B.B.S degrees and Medical Officers having NonM.B.B.S degrees, even Medical Officers having M.B.B.S. degrees or having Post Graduate degrees are also granted higher pay scale on completion of prescribed period of services.
3.8) The petitioner states that, one communication dated 21.01.2015 has been issued. Copy of communication dated 21.01.2015 is annexed herewith and marked as ANNEXURED to this Petition. The petitioner states that due to non availability of confidential report of the petitioner for a period mentioned therein, the petitioner was not granted the benefits of higher pay scales, however, after issuance of the said communication, the confidential report record for the period mentioned in Column no.6 have already been submitted and compliance is already been made, as confidential report came to be received by the petitioner from the concerned officers duly signed and petitioner had already handed over the same to the Government authorities to enable the Government authorities to pass orders for higher pay scale. The petitioner states that in the said communication alongwith the name of the petitioner one another Medical Office viz. Shri D.B. Vyas who was also not granted benefit of higher pay scales on the ground of non receipt of confidential reports, however, thereafter he had already obtained the confidential report and submitted the same and he has also been granted the benefits of higher pay scales, Page 3 of 8 C/SCA/18923/2015 ORDER however, petitioner has not been granted the same. Copy of the order dated 26.08.2015 by which other similarly situated Medical Officer including Shri D.B. Vyas came to be granted the benefits of higher pay scale whose name appears at serial no 42 is annexed herewith and marke as ANNEXUREE to this Petition."
4. From the details mentioned by the petitioner, it has emerged that the petitioner was serving with the respondent as Medical Officer (Class III). The petitioner sought voluntary retirement. The request was accepted. Consequently, the petitioner retired from service, on voluntary retirement, on 31.12.2001.
5. In this backdrop, the petitioner felt aggrieved on the ground that the respondents have not considered her case for higher pay scale and the said benefit is not granted to the petitioner.
6. It appears that the delay or discrepancy has occurred in view of the fact that at the time when the petitioner sought voluntary retirement, her case was under consideration for promotion. By the time, the competent authority could decide the petitioner's case for promotion, she tendered Page 4 of 8 C/SCA/18923/2015 ORDER application for voluntary retirement.
7. On the other hand, the petitioner claims that her claim is delayed in view of the fact that the respondents informed the petitioner that confidential reports for relevant periods are not available.
8. Be that as it may, it has emerged from the record that almost 14 years after the petitioner retired, on voluntary retirement, the petitioner submitted an application / representation and demanded benefit of higher pay scale.
9. It has also emerged that the said application / representation is pending before the competent authority and any final decision, either accepting request or rejecting the demand, is yet not taken by the competent authority.
10. In this background, it would not be possible, in present proceedings, to decide, at this stage, as to whether the petitioner is entitled for benefit of higher pay scale or not. The said Page 5 of 8 C/SCA/18923/2015 ORDER decision depends on various aspects including confidential reports for relevant period.
11. Under the circumstances, it appears that it would be appropriate, at this stage, to accept the petitioner's request in paragraph No.7(B) (alternative), i.e. to direct the respondents to decide the petitioner's application / representation dated 1.5.2015 expeditiously.
12. In this view of the matter, the following order is passed.
13. The competent authority of the respondents shall take up the petitioner's application / representation dated 1.5.2015 for appropriate order.
13.1 The competent authority shall consider the said application / representation in light of the facts of the case and in light of the applicable rules and policy and take appropriate decision as expeditiously as possible, but not later than 30.4.2018.
Page 6 of 8 C/SCA/18923/2015 ORDER 13.2 The authority shall convey the decision to the petitioner.
13.3 If the authority holds that the petitioner is entitled to the said benefit, then the authority will take necessary steps to refix the salary of the petitioner and pay the amount / arrears to the petitioner as expeditiously as possible and preferably within three months after the decision in respect of the petitioner's application / representation dated 1.5.2015. 13.4 However, if the authority holds that the petitioner is not entitled for the said benefit, then the authority shall pass a speaking and reasoned order on or before 30.4.2018 and said reasoned decision shall be conveyed to the petitioner.
13.5 It is clarified that the disposal of the petition with the aforesaid clarification and direction shall not stand in way of the petitioner if the petitioner feels aggrieved by Page 7 of 8 C/SCA/18923/2015 ORDER the decision of the competent authority in respect of the application / representation dated 1.5.2015 and it would be open to the petitioner to follow such course of action, against such decision, as the petitioner considers appropriate.
With the aforesaid clarifications and directions, the petition is disposed of. Orders accordingly.
(K.M.THAKER, J) Bharat Page 8 of 8