Gujarat High Court
Nazirkhan Ahmedkhan Pathan vs State Of Gujarat & 2 on 26 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6655/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6655 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 6663 of 2015
==========================================================
NAZIRKHAN AHMEDKHAN PATHAN....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/04/2016
COMMON ORAL ORDER
Since the issue raised in all these writ-applications are more or less the same, those were heard analogously and are being disposed of by this common order.
For the sake of convenience, the Special Civil Application No.6655 of 2015 is taken up as the lead matter.
By this writ-application under Article 226 of the Constitution of India, the petitioners, serving as Laboratory Technicians, have prayed for the following reliefs :
"A) admit this petition;
B) issue appropriate writ, order or direction and be pleased to quash and set Page 1 of 9 HC-NIC Page 1 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER aside the order dated 3.12.2013 and 4.2.2015 and the respondents may be directed to grant benefit of 1st Higher Pay Scale to the petitioner on completion of 12 years services w.e.f. 13.6.2000 and the difference of salary and other consequential benefits may also be ordered to be paid to the petitioner with 12% interest;
C) grant interim relief and by way of interim relief be pleased to direct the respondent authorities to grant 1st Higher Pay Scale to the petitioner, pending admission and final disposal of this petition;
D) pass such orders as thought fit in the interest of justice."
The facts of this case may be summarised as under :
The petitioner came to be appointed as a Laboratory Assistant by order dated 20th January 1987. The State of Gujarat floated a scheme for granting the benefits of the higher grade scale by the Government Resolution dated 5th July 1991, 16th August 1994 and 2nd July 2000 respectively. It is the case of the petitioner that as he completed 9 years of service, according to the Government Resolution dated 16th August 1994, by order dated 25th July 1997, he was granted the first higher grade scale. It is his case that by order dated 9th June 1998, he was promoted to the post of Laboratory Technician. However, on account of personal difficulties, he refused to accept the promotion. In such circumstances, the benefit of the first higher grade scale came to be withdrawn by order dated 10th August 1998. Thereafter, by order dated 13th June 2000, he came to be promoted as Laboratory Technician. It is his case that he has completed more than 12 years of service in the cadre of Laboratory Technician and has now become eligible to receive the benefits of the first higher grade scale. However, the same has not been granted. He also preferred a representation but the same was turned down.
Mr.Majmudar, the learned counsel appearing for the petitioner, submitted that it is true that at the relevant point of time when the promotion was offered, his client had declined and, therefore, the benefits of the first higher grade scale were withdrawn. However, Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER within two years thereafter his client was promoted, and having completed more than 12 years of service, he would atleast now be entitled to the benefits of the first higher grade scale.
On the other hand, all these writ-applications are vehemently opposed by Mr.Goutam, the learned AGP appearing for the State Government. He submitted that the petitioners are not entitled to the grant of the higher grade scale since they had declined at a point of time to accept the promotion on the post of Laboratory Technician when it was offered. Mr.Goutam has placed reliance on the following averments made in the affidavit-in-reply, duly affirmed by the Administrator Officer, Medical Education and Research, Gandhinagar :
"6. I respectfully say and submit that, the petitioners were appointed as Lab Assistants during 1983 to 1987. Thereafter, on completion of 9 years during 1992 to 1996, the petitioners were given the benefit of higher pay-scale for the next promotional post of Lab Technician. Thereafter, in the year during 1997 to 1998, the petitioners were given actual promotion to the post of Lab Technician which came to refused by the petitioners. By virtue of the refusal in accepting the promotion, higher pay-scale which was given earlier to the petitioners came to withdrawn, in light of the Government Resolution dated 16.08.1994 specifically clause-3(20). The copy of the Government Resolution dated 16.08.1994 is annexed herewith and marked as ANNEXURE-R-I.
7. I say that in the year 2001, the petitioners were given a promotion of Lab Technician and they join their service on different dates. The details of the each petitioner is attach in tabular format as Annexure R-II.
8. I say that on completion of 12 years, the petitioners again prayed for grant of higher pay-scale according to the Government Resolution dated 16.08.1994; thereafter, the said request of the petitioners were considered and come to be turned down; such decision was communicated to the petitioners. Thereafter, the petitioners being displeased with the decision petitioners approach this Hon'ble High Court by filing Special Civil Application No.14598 of 2014 to 14600 of 2014. Whereby, the petitioners have challenged that, the petitioners have not been granted the benefit of higher pay-scale as per the Government Resolution dated 02.07.2007 and the respondents authorities has refused the grant of benefit of higher pay- scale based on the communication dated 01.01.2014 by relying upon the clause-3(20) of the Government Resolution dated 16.08.1994. The copies of the orders passed by this Hon'ble Court in aforesaid petitions are annexed along with the memorandum of the respective petition.
9. I say that as per the direction of this Hon'ble Court, the representation Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER made by the petitioners on 07.11.2014, the said representation was considered by the authorities after providing opportunity of hearing, eventually after considering the said case of the petitioners on 04.02.2015 the request of the petitioner came to be turned out by passing a reason order. The copies of the same is annexed to the memorandum of the respective petition.
10. I respectfully say and submit that, by way of this petitions, the petitioners had contended that, on completion of 12 years of service and accepting the promotion, they are entitled for the benefit of higher pay- scale and the respondent authority could not have denied the petitioner for the benefit of first higher pay-scale by invoking the Government Resolution dated 16.08.1994. And thus, it has been contended by the petitioner that, the orders passed by the respondent authority dated 03.12.2013, 04.02.2015 deserves to quash and set aside. The answering respondent respectfully submits that contention taken by the petitioners is categorically denied.
11. I say that earlier the petitioners had refused to accept the promotion during the year 1997 to 1998. Therefore, in light of the Government Resolution dated 16.08.1994 clear provision stipulated therein under clause- 3(20) which emphatically delineates that once the promotion has been refused by any reason, the employee cannot be granted the benefit of higher pay-scale. Thus, the clear preposition lay down by the policy of the State Government; the petitioner had relinquished their earlier promotion. Thus, petitioners are not entitled for the benefit of higher pay-scale.
12. By way of this petition, the petitioners have taken a stand that, an identical situated person had been extended the benefit of higher pay-scale. And therefore, they should also be extended; specifically reference had been made to the case of Smt. Chhayaben Vaidya in page no.7 at paragraph no.4.2 of the memorandum of the petitions. The answering respondent respectfully submits that, the case of the petitioners is totally distinct, in case of Smt.Chhayaben Vaidya never extended the benefit of higher pay- scale earlier which in present case was given. Thus, in the instant case, the factual matrix is converse to the factual details of Smt.Chhayaben Vaidya. It is submitted that, in case of Smt.Chhayaben Vaidya, the benefit of higher pay-scale was never ever earlier extended and she was given promotion earlier before completion of 9 years. Thus, the same case of Smt.Chhayaben Vaidya does not stand on equal putting; hence, the same will not be applicable.
13. In light of the above discussion and the clear policy of the State Government as delineated and defined under the Government Resolution Clause-3(20) as well as on merits, the petitions deserves to be dismissed."
Thus, it appears from the stance of the State Government that reliance is placed on clause 3(20) of the Government Resolution of the year 1994.
Page 4 of 9HC-NIC Page 4 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER Let me look into the Government Resolution of 1994, more particularly, clause 3(20). Clause 3(20) reads as under :
"3(20) Every employee availing the benefit of the Higher Grade Scale under this scheme shall have to give undertaking in writing as per Schedule-
2 annexed to this resolution to the effect that as and when he will be eligible promotion he will not refuse it. This is because the intention of this scheme is to give benefit to those who are stagnating in the pay scale and the benefit of this scheme cannot be extended to those who have relinquished promotion for reasons whatsoever. If he declined the promotion for any reason when it become due, he shall have to forsake the benefit under this scheme, and he shall be reverted to his original lower grade and shall draw the pay which would have drawn in the original lower trade had he not availed the benefit of Higher Grade Scale under this scheme.
However, due to reversion in the original grade, the recovery for the period for which pay and allowances in Higher Grade are drawn by employee shall not be made.
If any employee has refused the promotion granted to him for reasons whatsoever before 5.7.91, but other conditions of this revised resolution are fulfilled, he may be given the benefit of the higher grade scale. If he has relinquished the promotion for whatever reasons, it may be due to personal reasons, due to illness, administrative reasons (i.e. it may be a promotion for a short duration) or for any reasons whatsoever, he cannot be granted the benefit of Higher Grade Scale.
Employee who has relinquished the promotion as stated above, the benefit of granting revised H.G.S. shall be subject to the following conditions :
(1) Thus, in cases where benefit of this revised Higher Grade Scale scheme is granted as per the provision of this revised resolution to the employee who has relinquished the promotion before 5.7.91 and the pay of that employee fixed in revised Higher Grade Scale is less than that of his junior employee who has accepted promotion, he cannot claim the pay-
scale/stepping up of the junior employee or other pay and allowances drawn the junior employee. For example, employees at Sr.Nos.1 to 10 of the seniority list are given promotion on 1-1-1986 and the employees at Sr.Nos.3 to 6 have not accepted the promotion, now if the employees at Sr.3 to 6 are granted Higher Grade Scale due to these orders they shall not be entitled to stepping up and even though their pay is fixed less than that of their junior employees who have been promoted earlier.
(2) When the benefit of revised Higher Grade Scale is thus granted to the employee who has relinquished the promotion before 5.7.91, the employee availing the benefit shall furnish to the competent officer, the undertaking as prescribed in Schedule-6 annexed to tins resolution. The competent officer granting revised Higher Grade Scale shall grant revised higher grade scale only after the receipt of such undertaking."
The petitioner accepted the promotion in the year 2000-01 i.e. after initially refusing to accept the same since he would have been Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER transferred to any other place. With a view to see that he was not transferred he thought fit to decline the promotion. It is possible that the second chance would come after a long period and if I accept the contention canvassed on behalf of the petitioner, it would frustrate the very object of clause 3(20) of the Government Resolution.
The Schedule-2 of the Government Resolution dated 16th August 1994 provides for the form of undertaking vide para 3(20) of the scheme. The undertaking reads as under :
"I am working as ______ in the office of ______ at ______ have gone through the provisions of Government Resolution, Finance Department No.PAY- 1194/44/11, dtd. 16.8.94 and hereby agree to the terms and conditions as stated therein. I further hereby give an undertaking to the effect that I shall not refuse the regular promotion as and when it becomes due to me. If for any reason I decline the regular promotion when it becomes due to me I shall forfeit the benefit admissible under "revised higher grade scale scheme" and shall revert back in the original lower grade scale and shall draw the pay in original lower grade which I would have drawn had I not been given the benefit of the "Higher Grade Scale Scheme".
I inquired with the learned AGP, whether the Government has issued any clarificatory Resolution in this regard. The reason I am saying so is that ordinarily even if the promotion has not been accepted, but once an employee completes the requisite period i.e. 9 years, then the case for higher pay-scale should be considered. However, if clause 3(20) is still the policy subsisting and there is no other clarificatory Government Resolution, then it is difficult to say that the authorities committed an error in rejecting the representations of the respective petitioners.
The Government Resolution referred to above dated 16.8.1994 in its clause-3(20) clearly stipulates that every employee will have to give an undertaking in writing as per schedule-2 to the extent that as and when he would be eligible for promotion, he would not refuse such promotion. The whole intent of the scheme is to overcome the Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER stagnancy in the pay scale and such special benefits should not be extended to those who have relinquished promotion for whatsoever reasons. If any such individual declines promotion for any reasons when it becomes due, he shall have to forsake the benefits under this scheme and would be reverted to the lower grade as originally drawn. The whole objective of the clause-3(20) appears to be that on one hand employee may not suffer because of lack of promotional avenues and on the other such benefit is not misused in any manner by the employees who are extended the said benefit.
In taking the aforesaid view, I am fortified with the decision of this Court rendered by a learned Single Judge of this Court in the case of Commissioner v. Raginaben K.Pijkar, Special Civil Application No.568 of 1997 decided on 3rd March 2005. In the said case, the State of Gujarat challenged the order of the Civil Services Tribunal, Gandhinagar, on the ground that the Tribunal could not have directed the Government to give the benefit of higher pay-scale to the respondent inspite of the fact that she had refused the promotion which was offered to her at the relevant point of time. I may quote the contentions which are recorded by the learned Judge in para 10 as under :
"Shri A.Y.Kogje, learned AGP, appearing for the State has contended that the Civil Services Tribuanl while passing the order dated 7.8.1995 has committed material irregularity in not taking into consideration the provision of Government Resolution of Finance Department dated 16.8.1994 which clearly prohibits grant of benefit of higher pay scale to an employee, who refuses to accept the promotion on any ground and if such refusal to accept the promotion by an employee on any ground is communicated to the authority, the benefit of higher pay scale also cannot be given. In support of his contention Mr.Kogje, learned AGP, relied on Clause-3 Sub Clause-20 of Government Resolution dated 16.8.1994 which provides that any employee who refuses to accept the promotion on any ground even if personal or due to heart ailment or administrative on or after 5.7.1991, such employee is not to be given benefit of higher pay scale. According to Shri Kogje, when the claim of the respondent (Original appellant) for promotion is refused by the Tribunal on the same reasoning and ground, the benefit of higher pay scale could not have been given. The interpretation of communication addressed by the appellant to the respondent initially on 5.4.1993 and to other representations subsequently on 1.6.1993 and Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER onwards clearly states that the appellant had refused to accept the promotion and only after the respondent authority had cancelled the order of promotion of about 37 staff nurses by an order dated 27.8.1993, the appellant had expressed her willingness to accept the promotion and to resume the duty at Patan as head nurse. Therefore, according to Shri Kogje, learned AGP, order of the Tribunal is contrary to the provisions of Government Resolution dated 16.8.1994 and appreciation of the evidence on the basis of facts available on the record is also not proper."
I may also quote para 11, which reads thus :
"Shri Kogje, learned AGP, has also invited the attention of this Court to para- 13 on the finding of the Tribunal while rejecting the claim of the appellant for promotion and has submitted that the benefit of higher pay scale is only available when the employee is fulfilling the provision of Government Resolution dated 16.8.1994 and even the Tribunal has referred Government Resolution dated 16.8.1994 and no reasonings have been assigned for grant of higher pay scale that as to how the benefit of such Government Resolution can be given to the appellant even though clear embargo is put in Clause-3 of Sub Clause-20 in Government Resolution in case of employee who refuses to accept the promotion on or after 5.7.199. He further submitted that cancellation of promotion of the appellant pursuant to the fact that she refused to accept the order of promotion and it was duly communicated to the authority, according to Shri Kogje, the appellant had accepted finding and verdict of the Tribunal qua her claim to promotion, and therefore the same is not the subject matter of this appeal and once the appellant has accepted the said verdict, no benefit of higher pay scale can be given and, therefore, the order of Civil Service Tribunal suffers from vice of non application of mind and contrary to the finding of facts and law as held and requires to be interfered in exercise of jurisdiction under Article 226 and 227 of the Constitution of India."
In para 14, the learned Judge concluded as under :
"Having heard the learned advocate for the parties this Court is inclined to accept the submissions made by learned AGP Shri Kogje that the Tribunal has erred in granting benefit of higher pay scale to the respondent herein (original appellant). It is true that the claim of the respondent herein in Appeal No.345/1994 which was filed before the Civil Services Tribunal for grant of promotion was declined on the ground that the respondent herein had refused to accept the promotion and did not resume the duty at the place of transfer as a head nurse on ad hoc promotion within specified time limit on or before 15.4.1993. It may be a case of real hardship of the respondent herein and certain family circumstances for which the respondent herein may have requested the authority to consider her case at some nearby place to Ahmedabad where he was residing with her family. At the same time, employee of the State authority is duty bound to comply with the order of promotion or transfer as the case may be and for any grievance with regard to a place of transfer or any other hardship including family circumstances or any other administrative difficulty can be agitated before the authority only after resuming the duty and in such circumstances the authority can very well consider such case in accordance with law and simply because the representations submitted by the respondent herein were not answered, same cannot be made a ground of getting benefit of Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue May 03 00:20:47 IST 2016 C/SCA/6655/2015 ORDER Clause-3 of Sub Clause-20 of the Government Resolution dated 16.8.1993. In the present case it is borne out from the record that by letter dated 5.4.1990 the respondent herein has clearly shown her unwillingness to accept the offer of the promotion and also denied to join as a head nurse on promotional post at Patan General Hospital and, therefore, there could not have been a different conclusion other than the fact that she never wanted to join at the place of transfer as stated and discussed in earlier paragraph, the difficulties could have been represented before the authority only after joining at the place of transfer and on that ground she could not have refused to accept the offer of promotion. It is only when the State authority has cancelled the order of promotion by order dated 27.8.1993 of about 37 staff nurses which included respondent herein that she had shown her willingness on 9.9.1993 to accept the offer of promotion and to join the duties as head nurse at General Hospital, Patan. This very attempt could have been made immediately after the order of promotion dated 3.3.1993, which was received by the respondent. So far as the findings of the Tribunal is concerned with regard to the fact that the respondent herein have never refused to accept the promotion but a representation was made to consider her case on line which other such cases and also considering the hardship of the petitioner as one more ground to grant the benefit to the respondent herein is not the real approach in the facts of this case to which the Tribunal could have addressed. When there was clear statement of non acceptance of promotion in a letter dt.5.4.1993 by the respondent herein rejecting or refusing to accept the promotion, while deciding the claim of the the respondent, the appellant in Appeal No.345/1994 there could not have been other finding for grant of benefit of higher pay scale by treating the letter of refusal of promotion as a representation to consider the case of respondent herein for alternative places. It is also true that Tribunal has failed to discuss the relevant provision of Government Resolution dated 16.8.1994 by which it can be said that the respondent is entitled to get the benefit of such provision. On the contrary Clause-3 of Sub Clause-20 clearly bars benefit of higher pay scale to an employee who refuses to accept the promotion on or after 5.7.1991."
In view of the above, no case is made out. Rejected.
(J.B.PARDIWALA, J.) MOIN Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue May 03 00:20:47 IST 2016