Gujarat High Court
Patel Kalpeshkumar Somabhai & 58 vs State Of Gujarat & 5 on 10 October, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12242/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12242 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL KALPESHKUMAR SOMABHAI & 58....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR.DIPAK B PATEL, ADVOCATE for the Petitioner(s) No. 1 - 59
MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1-2, 6
MR RAJESH CHAUHAN FOR MR HS MUNSHAW, ADVOCATE for the
Respondent(s) No. 3-5
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 10/10/2016
ORAL JUDGMENT
1. This petition under Article 226 of the Page 1 of 7 HC-NIC Page 1 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT Constitution of India, has been preferred with the following prayers:
"[A] The Honourable Court be pleased to issue writ of Mandamus or any other appropriate writ order or direction directing the respondent authorities to pay the HRA @ 20% and CLA as per basic salary of the petitioners by holding that the petitioners are serving at a place covered under the Greater Ahmedabad Urban Agglomeration which includes the extended limit of Ahmedabad Urban Development Authority as per the definition of Urban Agglomeration in the interest of justice;
[B] Pending hearing and final disposal of the present petition, the Honourable Court be pleased to direct the respondent authorities to pay HRA @ 20% and CLA as per the basic salary of the petitioners from the date of their appointment and as per the resolution of 2009 of the Finance Department State of Gujarat accepting the norms of the Sixth Pay Commission), w.e.f. 01/04/2009, in the interest of justice;
[C] Pending hearing and final disposal of the present petition, the Honourable Court be pleased to direct the respondents to release the arrears, which is payable to the petitioners as per the recommendation of the sixth pay commission in the Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT interest of justice.
[D] The Honourable Court be pleased to grant prayer in terms of Prayer [B] on such condition which the Honourable Court may deem fit in the interest of justice.
[E] Any other and further order that this Honourable Court may deem fit be passed in the interest of justice."
2. Mr.Dipak B. Patel, learned counsel for the petitioners, has submitted that petitions involving similar facts and identical issues and prayers have been decided by a common judgment dated 05.07.2016, passed by this Court (Coram: J.B. Pardiwala, J.) in Nitinkumar C. Patel v. State of Gujarat Special Civil Applications No.1791 of 2007 and connected matters. It is submitted that the issues arising in the present petition are squarely covered by the said judgment, which would apply to the case of the petitioners, as well.
3. Learned counsel for the petitioners has further submitted that following the judgment in the case of Nitinkumar C. Patel v. State of Gujarat (supra), this Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT Court (Coram: N.V.Anjaria, J.) has passed an order dated 25.07.2016, in Special Civil Application No.12201 of 2016 on similar lines. Interim relief has also been granted to the petitioners. Similar directions, therefore, may be issued in this case as well.
4. Mr.Niraj Ashar, learned Assistant Government Pleader appearing for respondents Nos.1, 2 and 6, submits that the matter is covered by the above referred judgments, which would be applicable in the present case. Mr.Rajesh Chauhan for Mr.H.S. Munshaw, learned advocate for respondents Nos.3 to 5, has also submitted that the present case is similar to the cases of the petitioners which are covered by the judgment referred to hereinabove.
5. Having heard the learned counsel for the respective parties, it may be mentioned that in the judgment dated 05.07.2016, passed by this Court in the case of Nitinkumar C. Patel v. State of Gujarat (supra), the following directions have been issued: Page 4 of 7
HC-NIC Page 4 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT "38 In view of the above, I pass the following order:
(I) The State Government will constitute a committee, as noted above, at the earliest, and the committee shall make all possible endevours to see that an appropriate decision is taken within a period of six months from the date of the constitution of the committee.
(II) The representatives of the writ applicants shall appear before the committee and make their submissions.
(III) The committee shall hear those representatives on behalf of the writ applicants.
(IV) It shall be open for the representatives to file their written submissions with the necessary materials in that regard.
(V) The adinterim relief, which is operating in favour of each of the writ applicants, shall continue till an appropriate decision is taken by the committee, and the report is filed before the State Government. The adinterim relief shall also continue thereafter i.e. after the report of the committee for a further period of two months.
(VI) The undertakings given earlier by the writ applicants shall continue to operate till the decision is taken by the committee.Page 5 of 7
HC-NIC Page 5 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT (VII) The committee shall give detailed reasons in support of its conclusion.
39 With the above observation and directions, all these writ applications are disposed of in the above terms. It is clarified that if ultimately the writ applicants are dissatisfied, in any manner, with the decision of the State Government, which may be taken, on the basis of the report of the committee, then it shall be open for the writ applicants to once again avail of an appropriate legal remedy before the appropriate forum in accordance with law. I clarify that I have otherwise not gone into the merit of the matter.
40 In view of the order passed in the main matters, the connected Civil Applications are also disposed of.
6. As the issues involved in the present petition are similar to the issues involved in petitions decided by the abovequoted judgment, the above directions would be applicable to the present petitioners as well.
7. Accordingly, it is directed that while the final rights of the petitioners shall be governed by the judgment dated 05.07.2016 passed in the case of Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Oct 11 00:07:08 IST 2016 C/SCA/12242/2015 JUDGMENT Nitinkumar C. Patel v. State of Gujarat (supra), the operative part of which has been reproduced hereinabove, however, it is directed that the petitioners shall be paid HRA at the rate of 20% and CLA as per their basic salary as per the Resolution of 2009 of the State Government, subject to the condition that the petitioners shall file an Undertaking to the effect that in the event that they lose, they shall refund the amount with 9% interest.
8. The petition is, therefore, disposed of, on the basis of the above observations and directions.
9. It is, however, made clear that if the petitioners are dissatisfied with the decision taken by the State Government on the basis of the report of the Committee, it would be open for them to avail of the appropriate legal remedy before the appropriate legal forum, in accordance with law. The Court may further clarify that while passing this order, it has not gone into the merits of the matter.
(SMT. ABHILASHA KUMARI, J.) piyush Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Oct 11 00:07:08 IST 2016