Gujarat High Court
D.P. Vyas vs State Of Gujarat & on 6 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16450/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16450 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
NO
India or any order made thereunder ?
==========================================================
D.P. VYAS....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/09/2016
ORAL JUDGMENT
Page 1 of 4
HC-NIC Page 1 of 4 Created On Thu Sep 08 00:19:09 IST 2016 C/SCA/16450/2007 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, serving as a 'Medical Officer, Class I', has prayed for the following reliefs:
"10(A)Your Lordship be pleased to admit and allow this petition;
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the illegal, arbitrary and discriminatory action of the respondent authorities of not granting the benefit of higher payscale to the petitioner considering his initial date of appointment in ClassI service, and further be pleased to direct respondent authorities to grant higher payscale after considering the services rendered by the petitioner as adhoc class I Medical Officer right from 13.10.2000, by applying the principle of "continuous officiation", and the said benefit be ordered to be disbursed with 12% interest p.a.;
(c) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order, holding and declaring that Notification dated 21.7.2006 cannot operate retrospectively, and in view of the principle of "continuous officiation" as laid down by the Hon'ble Apex Court, the action of the respondent authorities of denying the benefit of higher payscale to the petitioner, and action on the part of the respondent authorities of not counting adhoc services for granting benefit of higher payscale is perse illegal and arbitrary;
(D) Be pleased to issue appropriate writ, direction or order quashing and setting aside impugned order dated 11.5.2007 issued by respondent No.1, as the same is illegal, illogical, arbitrary, discriminatory and violative of various Rules, Regulations and Circulars;
(E) Pending admission hearing and final disposal of this petition, be pleased to grant interim direction, directing the respondent authorities to consider the case of the petitioner for granting benefit of higher payscale considering the adhoc services rendered by the petitioner as adhoc ClassI Medical Officer right from 13.10.2000, and the said benefit be ordered to be disbursed in cash with 12% interest p.a.;
(F) Be pleased to grant any other further relief that may be deemed fit in the facts and circumstances of the case;"
2 The State Government has filed affidavitinreply duly affirmed by the Deputy Secretary, Health and Family Welfare Department inter alia stating as under:
Page 2 of 4HC-NIC Page 2 of 4 Created On Thu Sep 08 00:19:09 IST 2016 C/SCA/16450/2007 JUDGMENT
"3 I say and submit that by filing the petition, the petitioners has prayed for the relief to the effect that this Hon'ble Court may be pleased to quash and set aside the order dated 11.05.2007 and the action of respondent authorities of not granting the benefit of higher pay scale considering his initial date of appointment in ClassI service and to grant higher pay scale after considering the service rendered by the petitioner as adhoc ClassI right from 13.10.2000 by applying the principle of "continuation officiation".
4 I say and submit that Health and Family Welfare Department vide a Government Resolution dated 24.07.2008 has already extended the benefit of second higher pay scale admissible to the petitioner as per the recommendation of Tiku Commission from 13.10.2006. Hence, the grievance voiced by the petitioner in the present petition is already dissolved. A copy of Government Resolution dated 24.07.2008 is annexed hereto and marked as AnnexureR1 to this affidavit in reply.
5 I respectfully say and submit that the petitioner has prayed to club the service of ClassII and ClassI. For the said prayer the file is moved before General Administration Department and Finance Department and the decision would be taken within 3 months by the said department and the petitioner will be informed immediately after the decision is taken.
6 In view of the above facts and circumstances of the case the relief prayed for by the petitioner has already been granted and therefore the present petition becomes infructuous and thus, the present petition may be disposed off as it becomes infructuous."
3 Thus, it appears from the stance of the State Government that the relief sought for is under consideration and an appropriate decision would be taken within three months.
4 A statement is being made by Mr. Majmudar, the learned counsel appearing for the writ applicant that by and large, his client has received the benefit, except the writ applicant of the Special Civil Application No.9116 of 2008. In such circumstances, the Special Civil Application No.9116 of 2008 shall be detached.
5 The learned Assistant Government Pleader shall take appropriate
Page 3 of 4
HC-NIC Page 3 of 4 Created On Thu Sep 08 00:19:09 IST 2016
C/SCA/16450/2007 JUDGMENT
instructions so far as the Special Civil Application No.9116 of 2008 is concerned.
6 The present writ application is disposed of in view of the stance of the State Government. In case of any difficulty, it would be open for the writ applicant to once again approach this Court. I clarify that I have otherwise not gone into the merit of the matter.
7 Let the Special Civil Application No.9116 of 2008 be notified in the next week.
8 At this stage, Mr. Majmudar made a request that the Special Civil Application No.27452 of 2007 shall also be detached and be heard independently, as instructed by his client.
(J.B.PARDIWALA, J.) chandresh Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Sep 08 00:19:09 IST 2016