Gujarat High Court
Janakbhai B Thakkar vs State Of Gujarat & 3 on 25 January, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/1864/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1864 of 2004
[On note for speaking to minutes of order dated 29/11/2016 in
C/SCA/1864/2004 ]
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JANAKBHAI B THAKKAR....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1
MR UT MISHRA, ADVOCATE for the Petitioner(s) No. 1
MS RITU GURU, AGP for the Respondent(s) No. 1 - 3
NOTICE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 25/01/2017
ORAL ORDER
1. Heard the learned advocate for the petitioner and learned AGP for the respondent-State.
2. It appears that there is some typographical error in Paragraph-7 of the order dated 29.11.2016 passed in Special Civil Application No.1864/2004 with respect to effective date of Government Resolution. The correct date as per the Government Resolution is 01.06.1987, whereas the date was wrongly mentioned as 01.06.1984. Therefore, it is directed that in Paragraph-7 of the order dated 29.11.2016 passed in Special Civil Application No.1864/2004, the correct date be read as "01.06.1987"
instead of "01.06.1984".
3. Accordingly, the said order dated 29.11.2016 is modified to the above extent. Fresh writ be issued. The Note for Speaking to Minutes is disposed of accordingly.
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HONOURABLE MR.JUSTICE P.P.BHATT ========================================================== 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 ?
========================================================== JANAKBHAI B THAKKAR....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1 MR UT MISHRA, ADVOCATE for the Petitioner(s) No. 1 MR ROBIN MOGHERA, AGP for the Respondent(s) No. 1 - 3 NOTICE SERVED for the Respondent(s) No. 1 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE P.P.BHATT Date : 29/11/2016 ORAL JUDGMENT
1. Learned counsel for the petitioner seeks permission to add the Director of Pension and Provident Fund as party respondent no.4.
2. Permission, as sought for, is hereby granted. The necessary Page 1 of 6 HC-NIC Page 3 of 8 Created On Sat Jan 28 02:07:56 IST 2017 3 of 8 C/SCA/1864/2004 JUDGMENT amendment be carried out forthwith.
3. The petitioner, by way of the present petition, has prayed for issuance of appropriate writ/order directing the respondents to release immediately the terminal benefits like gratuity, provident fund, arrears of pension, wages of non-availed leave and unpaid wages from November- 2000 with 18% interest thereon forthwith on the basis of undisputed pay- scale. It is also prayed that the necessary direction may be given to the respondents to grant the benefit of higher grade on completion of 9 years and 18 years of service i.e. 1974 and 1983 and further be pleased to issue direction to the respondents to revise the salary of the petitioner and accordingly revise the pensionary benefit.
4. The brief facts giving rise to the present petition are as under:
4.1 The petitioner was appointed as Tracer in the office of the Industries Commissioner i.e. respondent no.2 herein in the year 1965. Thereafter, he was redesigned at Junior Clerk by order dated 21.04.1981 and on completion of 58 years, he was superannuated in the year 2002. The petitioner filed representation for getting higher pay-scale in view of the Government Resolution for extending the benefit of higher grade on completion of 9 years, 18 years and 27 years of service, but since there Page 2 of 6 HC-NIC Page 4 of 8 Created On Sat Jan 28 02:07:56 IST 2017 4 of 8 C/SCA/1864/2004 JUDGMENT was no response, the petitioner filed Special Civil Application No.10100/2002. The Coordinate Bench of this Court vide its order dated 18.07.2003 directed the respondents-authorities to consider the representation within two months from the date of receipt of the order and accordingly, the said petition was ordered to be disposed of. Thereafter, respondent no.2-Office of the Industries Commissioner passed an order dated 28.08.2003 inter alia stating that in view of the Government Resolution passed by the Finance Department of the Government dated 16.08.1994, the higher grade on completion of 9 years of service can be provided to an employee, who has completed 9 years service in a particular cadre. Moreover, the said policy came into force from 01.06.1987 and the petitioner was absorbed as Junior Clerk under the Office of respondent no.2 with effect from 19.05.1987 and the said appointment was treated as fresh appointment under respondent no.2 and therefore, on completion of 9 years, the petitioner is eligible to get the benefit of higher grade. Being aggrieved by the said decision, the petitioner has preferred the present petition on the ground that respondent no.2 passed an order to give benefit of continuous service with effect from 08.02.1965 to 19.05.1987 and in view of the Government Resolution dated 24.11.1967, the petitioner was ordered to be given benefit of continuous service for the purpose of leave, salary and pensionary benefit.
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5. Learned counsel appearing for the petitioner submits that in view of the said office order, the petitioner is eligible and entitled to get the benefit of higher grade with effect from 08.02.1965 on completion of 9 years, 18 years and 27 years of service, respectively.
6. Learned AGP appearing for the State submits that the policy of the higher grade was introduced by the Government vide its Government Resolution dated 16.08.1994, but the cut off date prescribed for giving higher grade in the said resolution was fixed as 01.06.1987. Since the petitioner was absorbed as Junior Clerk under the Office of Industries Commissioner-respondent no.2 on 19.05.1987 keeping in mind the order dated 20.04.1991, he can be extended benefit with effect from 01.06.1987. The petitioner is not entitled to claim benefit of higher grade with effect from 08.02.1965 in view of the said Government Resolution. It is further submitted that the petitioner is retired from the services in the year 2002, and therefore, the benefit of second higher grade may not be available to him. However, his pension can be revised on the basis of higher grade which is due and payable to him on completion of 9 years of service after 01.06.1987.
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C/SCA/1864/2004 JUDGMENT
7. Regard being had to the above submissions, it appears that the petitioner was initially recruited as Draftsman with the respondents, but the said post was abolished subsequently and thereafter, the petitioner was absorbed as Junior Clerk under respondent no.2 with effect from 19.05.1987 and since then, he continued under respondent no.2 till his superannuation. It also appears that vide Office Order dated 20.04.1991, the service of the petitioner was treated as continuous service for the purpose of leave, salary and pensionary benefit with effect from 08.02.1965 till he was absorbed under respondent no.2 as Junior Clerk i.e. 19.05.1987. The scheme of providing higher grade came into in existence vide Government Resolution dated 16.08.1994. The said scheme was made effective with effect from 01.06.1984. Thus, in the case of the petitioner keeping in mind the order dated 20.04.1991, the benefit of higher grade is required to be extended from 01.06.1987 on completion of 9 years. Since the said benefit is not extended by the respondents till date, necessary direction is required to be issued upon the respondents to forthwith extend the benefit of higher grade on completion of 9 years with effect from 01.06.1987 and consequently, pension be also revised. Accordingly, respondent no.4 is directed to revise the pensionary benefit. Respondent no.2 shall undertake the exercise within a period of two months from the date of receipt of the order and upon receipt of the proposal by the office of respondent no.2, respondent no.4 shall complete Page 5 of 6 HC-NIC Page 7 of 8 Created On Sat Jan 28 02:07:56 IST 2017 7 of 8 C/SCA/1864/2004 JUDGMENT the exercise to revise the pension within a period of two months thereafter.
8. Under the circumstances, the present petition stands disposed of. Rule is made absolute accordingly.
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