Gujarat High Court
Anil Kanawal Gidwani vs Union Of India on 11 March, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/102/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 102 of 2019
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ANIL KANAWAL GIDWANI
Versus
UNION OF INDIA
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Appearance:
MR NIKHIL S KARIEL(2315) for the Petitioner Nos. 1,2,3,4,5,6,7,8
MR CHIRAYU MEHTA ADVOCATE FOR MR DEVANG VYAS(2794)
for the Respondent Nos. 4, 5
NOTICE SERVED(4) for the Respondent No. 3
UNSERVED WANT OF TIM(31) for the Respondent No. 1, 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V. B. MAYANI
Date : 11/03/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Learned counsel for the petitioners has invited Court's attention to the order passed by this Court in similar matter being Special Civil Application No.19273 of 2018 on 26.12.2018 and submitted that the present petitioners are identically situated with only difference that now the petitioners are retired, else the substantive question of law of the facts are identical, so that similar order can be passed. Even in the earlier matter, cited hereinabove, the Supreme Court's decision which has rendered the persons like the petitioners eligible, is relied upon.
2. Shri Chirayu Mehta, learned counsel for Shri Devang Vyas, learned counsel for the respondent nos.4 and 5, Page 1 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER also does not dispute the said fact and submitted that it cannot be disputed that they are not similarly situated and Court may pass similar order in this proceeding also. Orders accordingly.
3. Facts, in brief, as could be culled out from the memo of petition, deserves to be set out as under:
3.1 The petitioners were serving at various Commissionerates within Gujarat and all the petitioners had retired from service as Superintendents. While in service the petitioners had completed four years of regular service with the respondents in Grade Pay of Rs.4800/- in pay band-2 and as per the Government Resolution dated 29.08.2008 the pay of the present petitioners was required to be fixed in the grade pay of Rs.5400/- in pay band-2 w.e.f. The date of completion of four years of regular service.
3.2 The respondents had denied the benefit of grade pay to the petitioners relying upon the clarification dated 11.02.2009 and 16.09.2009, wherein it is clarified that the non-functional grade pay of Rs.5400/- in pay band-2 will not be granted to such of those group officers who have got grade pay of Rs.4800/- on upgradation under Assured Career Progression Scheme. The same issue came up before the Madras High Court, wherein the order of the Tribunal was set aside and the respondents were directed to extend the benefit of grade pay of Rs.5400/- to the petitioners. The same order was challenged before the Supreme Court, wherein the Supreme Court by order dated 10.10.2017 rejected the appeal preferred by the respondents and upheld the view of the Page 2 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER Madras High Court.
3.3 The respondent department herein had preferred a review application with regard to order dated 10.10.2017 in Civil Appeal No.8883 of 2011, which was dismissed by the Supreme Court. A group of 25 officers from the same respondent department, wherein the present petitioners are serving had approached this Court by way of Special Civil Application No. 346 of 2018 being aggrieved by the decision of the C.A.T., Ahmedabad Bench. This Court vide judgment dated 10.04.2018, allowed the petition and directed the respondent department to implement the decision of the Supreme Court and grant the benefit of grade pay of Rs.5400 to the petitioners.
3.4 The present petitioners are also similarly situated to the persons in the aforementioned petition and as this Court held in the aforesaid petition that the benefit of Grade Pay of Rs.5400/- could not now be denied to the said persons, the respondent department has opposed the grant of grade pay of Rs.5400/- to the present petitioners. Hence, the present petition.
4. This Court in Special Civil Application No.19273 of 2018 passed an order on 26.12.2018. Para-6 to 11 of the said order reads as under:
"6. We have considered said submissions.
7. At this stage, it would be appropriate to take into account the observations in paragraph Nos.6 to 9 by the decision by Page 3 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER Hon'ble High Court of Judicature at Madras in Writ Petition No.13225 of 2010, which read thus:"
6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Rs.5400/ in pay Band 2 on non functional basis to the Group B Officers of the Department of Posts, Revenue etc. who completed four years of regular service in the grade pay of Rs.4800.00 in pay band 2. According to the petitioner, he has already reached the pay scale of Rs.7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Posts) and therefore, on completion of four years, he is entitled to the grade pay of Rs.5400/with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs.7500-12000. However the claim of the petitioner was denied based on the clarification issued by the Central Board of excise and Customs dated 11.2.2009, wherein, it was clarified that the officers who got the pre revised pay scale of rs7500-12000 (corresponding to grade pay of Rs.4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non functional upgradation to the pre revised pay scale of Re.8000- 13500 (corresponding to grade pay of rs.5400) on completion of four years in the pre revised pay scale of Rs.7500-12000.
7. We are unable to agree with this clarification given by the Under Secretary to the Government of India, Page 4 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the four years period is to be counted for the purpose of granting non functional upgradation to Group B officer, i.e. whether the four years period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force. It was clarified that the four year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre revised).
8. Thus. If an officer has completed four years on 1.1.2006 or earlier, he will be given the non functional upgradation with effect from 1.1.2006 and if the officer completes four years on a date after 1.1.2006, he will be given non functional upgradation from such date on which he completes four year in the pay scale of Rs.7500-12000 (prerevised) since the petitioner; admittedly completed four years period in the pay scale of Rs.7500- 12000 as on 1.1.2008, he is entitled to grade pay of Rs 5400. Infact, the Government of India, having accepted the recommendations of the 6th Pay Commission, issued a resolution dated 29.8.2008 granting grade pay of Rs.5400 to the Group B officers in pay Band 2 on non functional basis after four years of regular service in the grade pay of Rs.4800 in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
Page 5 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER9. Accordingly, the writ petition is allowed setting aside the order of the Tribunal, dated 19.4.2010 passed in O.A.No.167 of 2009. The respondents are directed to extend the benefit of grade pay of Rs.5400/to the petitioner from 1.1.2008 as per the resolution dated 29.8.2010. No costs."
8. It would be also appropriate to take into account the observations by this Court in the decision dated 10.4.2018 in Special Civil Application No.346 of 2018. This Court has observed in the said decision thus:
"3.0. Having heard the learned advocates for the respective parties and considering the impugned order passed by the learned Tribunal, it appears that at the relevant time SLP before the Hon'ble Supreme Court against the decision of the Madras High Court was pending and therefore, the petitioners and other similarly situated persons, the employees were not granted the benefit of fixation of Grade Pay of Rs.5400/in Pay Band 2. It is not in dispute that the petitioners are similarly situated to those employees in whose favour there is a decision of the Madras High Court. It is also not in dispute that now the decision of the Madras High Court on the point has been confirmed by the Hon'ble Supreme Court and the SLP has been dismissed by the Hon'ble Supreme Court vide order dated 10.10.2017. Under the circumstances, there is no impediment now in the way of the department to grant benefit sought in the present petition in light of the decision of the Madras High Court confirmed by the Hon'ble Supreme Court. Under the circumstances, concerned respondent authorities are hereby directed to grant the benefit of fixation of Grade Pay of Rs.5400/ in Pay Band 2 considering the decision of the Madras High Court in the case Page 6 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER of Shri M.Subramanyam vs. Union of India and ors rendered in Writ Petition No. 13225 of 2010 confirmed by the Hon'ble Supreme Court with all consequential and ancillary benefits which may be available to the respective petitioners. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted."
9. At this stage, a profitable reference can be had to the observation by Hon'ble Apex Court in case of State of Uttar Pradesh v. Arvind Kumar Srivastava [AIR (SCW) 2014 0 6519] wherein Hon'ble Apex Court while clarifying that identically situated persons need to be treated alike by extending the benefit, has observed and held that:-
"(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and Page 7 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them.
They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some Page 8 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above." (emphasis supplied)
10. Besides this, it is necessary to also take into account the observations by the Court in Special Civil Application No.1314 of 2009 wherein this Court has observed that once the issue is adjudicated and decided by the Court and the said adjudication has attained finality, then unless there is any strong justification to take a different stand the benefits should be extended by the authority to similarly placed employees and similarly placed employee should not be made to approach the Court to seek same benefits. In the said decision, the Court has observed, inter alia, that:-
"10. In view of the above, the action of the respondent Nos. 1 and 3 and more particularly, respondent No.3 i.e. office of the Local Fund raising the same/similar objection again and again while considering the grant of Page 9 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER benefit of higher grade pay scale is highly deprecated. As such it is not believable that the respondent No.3 was not aware of the decision of this Court. In fact, in the communication from the office of the respondent No.2 there is a reference to the decision of this court, therefore, the submission on behalf of the respondent No.3 that he was not aware of the decision of this Court cannot be accepted.
However, in view of the unconditional apology tendered by the respondent No.3 and assurance to this Court that in future respondent No.3 and its Office shall take care and that it was not his intention to disregard and / or disrespect the orders passed by this Court, unconditional apology is accepted. Respondent Nos. 1 and 3, more particularly respondent No.3 and its Officers are warned that as and when not only in the case of grant of higher pay scale but in any other cases as and when it is brought to their knowledge the decision of the Hon'ble Supreme Court and / or this Court in other similar case they will apply their mind and grant the benefit without insisting for individual orders from the Court. All the authorities under the State are bound to consider the decisions of this Court as well as the Hon'ble Supreme Court even if the decisions are with respect to other similarly situated employees. The same would avoid the further litigation and decrease the burden of the Court and also similarly situated employee may not have to incur expenditure on the legal proceedings. If, in future it is found that the authority has insisted for the individual orders from the Court though covered by the decisions of the Court with respect to other similarly situated employees and the employee is driven to the litigation and the Courts it would be viewed very seriously. The Secretary Legal Department as well as Secretary General Administrative Department are hereby directed to issue necessary circular to all the departments Page 10 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER accordingly not to insist for individual order when the controversy is concerned by the decision in other employees case."
11. Having regard to above discussed facts and circumstances and having regard to the fact that the issue which is raised by present petitioners is already adjudicated and has attained finality and also having regard to the undisputed fact that present petitioners are similarly placed, we consider it appropriate to direct present respondents to act in accordance with the decision by Hon'ble Apex Court in Civil Appeal No.8883 of 2011 and the decision in Writ Petition No.13225 of 2010 decided on 6.9.2010 by Hon'ble High Court of Judicature at Madras and the decision by this Court in Special Civil Application No.346 of 2018. The respondents will ensure that necessary steps are taken, appropriate modification in applicable pay scale of the petitioners is given effect and appropriate fixation of grade pay is made and if any arrears became payable, are paid to the petitioners and entire process is completed as early as Page 11 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER possible and preferably within 3 months.
With aforesaid directions, present petition stands disposed of."
5. Therefore, in this petition also, as there is no dispute qua applicability of the judgment rendered by the Supreme Court as well as by this Court on 26.12.2018, the present petition also shall be governed and similar directions are required to be issued.
6. Having regard to the fact that the issue which is raised by the present petitioners is already adjudicated and has attained finality and also having regard to the undisputed fact that present petitioners are similarly situated, we consider it appropriate to direct present respondents to act in accordance with the decision by Hon'ble Apex Court in Civil Appeal No.8883 of 2011 and the decision in Writ Petition No.13225 of 2010 decided on 06.09.2010 by Hon'ble High Court of Judicature at Madras and the decision by this Court in Special Civil Application No.346 of 2018. The respondents will ensure that necessary steps are taken, appropriate modification in applicable pay scale of the petitioners is given effect and appropriate fixation of grade pay is made and if any arrears became payable, are paid to the petitioners and entire process is completed as early as possible and preferably within 3 months.
Page 12 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019 C/SCA/102/2019 ORDER7. With aforesaid directions, present petition stands disposed of. Direct service permitted.
(S.R.BRAHMBHATT, J.) (V. B. MAYANI, J.) Pankaj Page 13 of 13 Downloaded on : Sat Aug 10 02:05:46 IST 2019