Gujarat High Court
Mangalbhai Virchandbhai Patel vs State Of Gujarat on 1 September, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17480 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 ?
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MANGALBHAI VIRCHANDBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH,AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 01/09/2021
ORAL JUDGMENT
1. Heard learned Advocate Ms. Mamta R. Vyas appearing for the petitioner and learned AGP Mr. Jayneel Parikh appearing for the Respondent- State.
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2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"18) ...
A) Directing the respondents to grant
the Second Higher grade scale to the petitioner with effect from 1.6.2002 and to revise his retirement benefits accordingly and pay the arrears with 10% interest.
B) Quashing and setting aside
Resolution dt. 31.3.2005 and letter dt.
24.10.2011.
C) During the pendency and final
disposal of this petition the respondent no.2 may be directed to reconsider the case of the petitioner for 2nd higher grade scale ignoring the Resolution dt.31.3.2005.
D) ..."
3. The brief facts of the case are that the petitioner was serving as Sales Tax Officer, Class-II, under the State Government and he retired on superannuation on 30.06.2006.
3.1 The petitioner was granted the first higher grade scale from 01.06.1987 and the petitioner became eligible for the second higher grade scale with effect from 01.06.2002. By proforma application dated 7.1.2008, the petitioner informed the Respondent no. 2-Commissioner of Page 2 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 Commercial Tax, Ahmedabad, that the petitioner is eligible for higher grade scale with effect from 01.06.2002. The Additional Commissioner of Commercial Tax by the letter dated 7.10.2008, informed the petitioner that since he is eligible for grant of second higher grade scale of Rs.2000-3500, he is required to furnish necessary details. Accordingly the petitioner furnished the details and completed all the formalities. Thereafter by the order dated 12.01.2010, Respondent No.1-State of Gujarat granted higher grade scale to 94 Sales Tax Officers from the due date except the petitioner.
3.2 The petitioner therefore filed an application under the Right to Information Act, 2005, on 05.4.2011 seeking information for the denial of second higher grade scale. The petitioner was informed by the letter dated 21.04.2011 that he is not granted the higher grade scale in view of Paragraph 4(b) of the Government Resolution dated 31.3.2005. The petitioner therefore preferred Special Civil Application No. 7164 of 2011 for direction to Respondent No.2 to grant the second higher grade scale and also challenging Government Resolution dated 31.3.2005, which was disposed of by this Court vide order dated 02.08.2011 by directing the Respondents to reconsider the case of the petitioner for grant of second higher grade scale. Thereafter by order dated 24.10.2011, Respondent No.1 rejected the Page 3 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 claim of the petitioner on the ground that as the petiitoner was imposed the penalty of monthly pension cut of Rs.100/- for one year vide order dated 30.04.2007, the petitioner was not entitled to second higher grade scale in view of the Government Resolution dated 31.03.2005.
4. Learned Advocate Ms. Mamta Vyas appearing for the petitioner submitted that the petitioner was granted first higher grade scale with effect from 01.06.1987 and accordingly, he became eligible for the second higher grade scale with effect from 01.06.2002 and therefore the petitioner could not have been denied the second higher grade scale in view of the Government Resolutions dated 16.08.1994 and 02.07.2007.
4.1 It was submitted that the Government Resolution dated 31.03.2005 whereby the procedure has been prescribed in cases where the grant of higher grade scale was decided later on, i.e. after the due date by the State Government due to administrative or other reasons, and therefore this Resolution, which prescribes that the subsequent events which have taken place with regard to the departmental inquiry or suspension or dismissal from service can be considered while deciding the grant of higher grade scale is contrary to the Government Resolutions dated 16.08.1994 and 02.07.2007. It was therefore submitted that the Government Resolution dated Page 4 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 31.03.2005 deserves to be quashed and set aside.
4.2 Learned Advocate Ms. Vyas further submitted that as on 01.06.2002, the petitioner was neither under suspension nor any departmental inquiry was initiated against him nor any adverse remarks were made against the petitioner in his Service Book and therefore the Respondents ought to have granted the second higher grade scale with effect from 01.06.2002.
4.3 Learned Advocate Ms. Vyas referred to the Paragraph-3(5) of the Government Resolution dated 16.08.1994 and submitted that Respondent- authority was required to consider over all work experience, qualification and passing of departmental examination for an employee for holding him eligible for grant of higher grade scale. The grant of higher grade scale as per the said Circular in lieu of promotion to the petitioner and the right to consider the case of the petitioner for promotion or grant of higher grade scale to the petitioner is his fundamental right and therefore the Respondent-authority ought to have considered the case of the petitioner as it existed on 01.06.2002.
4.4 Learned Advocate Ms. Vyas also relied on Paragraph-2(13) of the Government Resolution dated 02.07.2007 which provides that an employee who is under suspension on the date he becomes Page 5 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 eligible for grant of higher grade scale or he is issued charge-sheet, he will not be granted higher grade scale. But in the facts of this case no charge-sheet was issued to the petitioner as on 01.06.2002 nor was he placed under suspension on 01.06.2002. The petitioner was issued charge- sheet on 22.06.2006, i.e. just eight days prior to his date of superannuation, and therefore on that ground the respondents could not have denied the grant of second higher grade scale to the petitioner and the same is required to be granted as there was no chance of the petitioner to be promoted on the higher post. Reliance is placed on the following decision of the Supreme Court in support of this submission:
(1) 'UNION OF INDIA & OTHERS VS. SANGRAM KESHRI NAYAK', (2007) 6 SCC 704;
(2) 'DELHI JAL BOARD VS. MAHINDER SINGH', AIR 2000 SC 2767;
(3) 'BANK OF INDIA & ANOTHER VS. DEGALAL SURYANARAYANA', AIR 1999 SC 2407;
(4) 'COAL INDIA LTD. & OTHERS VS. SAROJ KUMAR MISHRA', AIR 2007 SC 1706;
4.4.1 Relying upon the aforesaid decisions of the Supreme Court, it was submitted that the Page 6 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 promotion of an employee can not be withheld if no departmental proceedings are pending on the date when an employee becomes eligible for promotion. It was also submitted that in the facts of this case there was no departmental inquiry initiated against the petitioner on 01.06.2002 and therefore the Respondent-authority could not have denied the grant of second higher grade scale to the petitioner with effect from 01.06.2002.
4.5 Learned Advocate Ms. Vyas further submitted that Paragraph-4(b) of the Government Resolution dated 31.03.2005 is misunderstood by the Respondent-authority though the said paragraph would not apply in the facts of the present case and Paragraph-4(b) is to be read in consonace with Paragraph-4 of the Government Resolution dated 31.03.2005, which refers to the 'Sealed Cover' procedure to be followed in case of the employee is facing the departmental inquiry. It was submitted that in the present case, the departmental inquiry was over on 30.04.2007 and the case of the petitioner was never kept in the sealed cover nor the sealed cover procedure was followed, as the petitioner had become eligible for the second higher grade scale on 01.06.2002.
4.6 Learned Advocate Ms. Vyas submitted that the Government Resolution dated 31.03.2005 is clarificatory in nature, as it provides the Page 7 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 procedure to be followed for implementation of the Government Resolution dated 16.08.1994 and therefore such a resolution being contrary to the Government Resolution dated 16.08.1994, it is required to be quashed and set aside as such resolution is inconsistent with the Government Resolutions dated 16.08.1994 and 02.07.2007.
4.7 It was further submitted that by Government Resolution dated 31.03.2005, the State Government has prescribed the procedure by which the Departmental Promotion Comittee ('DPC' in brief) can consider the case of an employee facing the departmental inquiry, irrespective of suspension or dismissal from service, which has taken place after the date on which an employee became eligible for promotion but before the date of consideration for grant of higher grade scale. It was submitted that the vested right under Government Resolution dated 16.08.1994 is thus taken away from the present petitioner retrospectively which is not permissible under the law. In support of her submission learned Advocate Ms. Vyas placed reliance on the decision of the Supreme Court in 'STATE OF MADHYA PRADESH VS. YOGENDRA SHRIVASTAVA', 2009 (7) Supreme 163.
4.8 Learned Advocate Ms. Vyas submitted that the Circular dated 31.03.2005 is also not tenable in law as it does not prescribe any action against superior officers due to whose fault higher grade Page 8 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 scale was not gratned in time and therefore there was no fault of the petitioner for not getting the higher grade scale in the year 2002. It was submitted that if the case of the petitioner was taken-up for consideration and for grant of the higher grade scale in the year 2002, the Respondent-authority would have granted higher grade scale to the petition and only because the case of the petitioner was taken-up for consideration in the year 2009, the petitioner was denied the benefit of the higher grade scale though he was entitled for the same in the year 2002. It was therefore submitted that the impugned Government Resolution dated 31.03.2005 is arbitrary and unreasonable and is liable to be struck down.
4.9 Learned advocate Ms. Vyas relied upon the Government Resolution dated 15.09.2015 to submit that the Government Resolution dated 31.03.2005 is cancelled and by Government Resolution dated 15.09.2015, procedure is prescribed to consider the case of the employee for granting higher grade pay scale by the DPC. It was therefore, submitted that as per the Government Resolution dated 15.9.2015, the requirement of considering the pending departmental inquiry when DPC takes decision to grant higher grade pay scale is now not in existence. Referring to the Government Resolution dated 15.09.2015, it was submitted that only the Page 9 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 departmental inquiry pending prior to the date of eligibility for higher grade pay scale is required to be considered. It was therefore, submitted that in such circumstances, reliance placed by the respondents on the Government Resolution dated 31.03.2005 is not tenable and as such the petition is required to be allowed.
5. On the other hand learned AGP Mr. Jayneel Parikh appearing for the Respondents submitted that the petitioner is rightly denied the benefit of higher grade scale as the petition was imposed the penalty of monthly pension cut of Rs.100/- for one year as per the order dated 30.04.2007 passed by the Respondent-authority which is prior to the date of consideration of the case of the petitioner by the DPC in the year 2009.
5.1 Learned AGP Mr. Parikh submitted that in the Government Resolution dated 31.03.2005 also the procedure is prescribed by the State Government in case of an employee where the DPC considers his case to grant higher grade scale after the date on which such employees became eligible due to administrative reasons. It was submitted that as per the Government Resolution dated 31.03.2005 when the DPC considered the case of the petitioner as per the prescribed procedure on that date the DPC has to take into consideration the decision in the departmental inquiry and subsequent suspension or dismissal from service Page 10 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 of such an employee on the date of such consideration. It was submitted that the DPC in the facts of this case was held in the year 2009 to consider as to whether the petitioner can be granted the second higher grade scale with effect from 01.06.2002 or not and as on that day the penalty was imposed upon the petitioner vide order dated 30.04.2007, as per Paragraph-4(b) of the Government Resolution dated 31.03.2005, the petitioner was not entitled to the second higher grade scale. It was further submitted that Paragraph-4 of the Government Resolution dated 31.03.2005 is required to be considered as a whole, as it refers to the 'Sealed Cover' procedure in earlier Paragraph Nos. 2 and 3. The reliance is placed on Paragraph-1 of the Government Resolution dated 31.03.2005 which provides that when the departmental proceedings are pending the decision for grant of higher grade scale cannot be taken till the final out come of the departmental proceedings.
5.2 Learned AGP Mr. Parikh further submitted that Paragraphs- 2 to 4 of the Government Resolution dated 31.03.2005 provides for eventualities when the departmental proceedings are pending against an employee, after he becomes eligibile for grant of higher grade scale and as per Paragraph-4(b) if there is a major penalty imposed at the end of the departmental proceedings, the higher grade scale cannot be granted to such an employee.
Page 11 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 5.3 Learned AGP Mr. Parikh in support of his submissions relied on the averments made in the affidavit-in-reply filed by the Under Secretary, Finance Department, State of Gujarat, which reads as under:
"7. It is submitted that in view of para 4(b) of the G.R. Dt. 31.03.2005, in the case of imposition of a Major Penalty, Higher Grade Scale cannot be granted. In the said G.R. it is clearly mentioned in Para-1 that though the employee is eligible for Higher Grade Scale on a particular date, but because of administrative reasons, if no order could be passed, during the said period, if anything is found against the said employee resulting into holding of a Departmental Inquiry and before the D.P.C is convened if major penalty is imposed than in such cases the case of the employee cannot be considered for the grant of Higher Grade Scale.
8. It is submitted that vide order Dt. 12.01.2010 the Government sanctioned Higher Grade Scale to all Commercial Tax Officers on due recommendation by the D.P.C which met on 05.10.2009. It is pertinent to note that upon a careful consideration by the D.P.C so held, the petitioner was not recommended for a Higher Grade Scale and thus, denied the benefit of the 2.4 Higher GradeScale. A Copy of the relevant Extract of the D.P.C is annexed hereto and marked as "Annexure- R/2".
9. It is submitted that the petitioner Page 12 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 under the aegis of The Right to Information Act vide letter Dt. 21.04.2011 was informed as to why he was not granted the 24 Higher Grade Scale and was also supplied with a copy of the Minutes of D.P.C..
10. It is submitted that in view of the order passed by this Hon'ble Court Dt. 02.08.2011, the Govt. considered the case of the petitioner and after careful consideration, the petitioner's request for the Higher Grade Scale was rejected and it was communicated to the petitioner vide letter dated 24/10/11.
11. It is submitted that the Higher Grade Scale is granted in lieu of promotion. The criterion for both is the same.
Departmental Inquiry is a time consuming process and therefore, on administrative count, order of Higher Grade Scale cannot be passed on the particular date when it is due. In the instant case, the D.P.C was apprised of the major punishment order passed against the petitioner when it was held on 05.10.2009, due to which the D.P.C. did not recommend the petitioner's name for the grant ofHigher Grade Scale.
12. It is submitted that as per para 4(b) of the G.R. Dt. 31.03.2005, the petitioner was not granted the Higher Grade Scale. It is pertinent to note that the question of sealed cover does not exist because on the said Date i.e. 01.06.2002, when petitioner became eligible for the grant of Higher Grade Scale, primary inquiry was going on against the petitioner. Moreover, charge- sheet is not issued when such primary inquiry is pending. It is on the count of Page 13 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 completion of the primary inquiry that chargesheet is issued if the employee is found responsible for charges levied against him; which exactly happened in case of the petitioner. the said charge- sheet was issued on 22.06.2006 and the petitioner was held responsible in the departmental inquiry and was issued a major penalty of pension cut. The D.P.C met on 05.10.2009 Le. after the punishment order and therefore, the procedure of sealed cover is not supposed to be followed in the instant case.
13. It is submitted that the as per Finance Department's G.R. Dt. 16.08.1994, 31.03.2005 and 02.07.2007 it is provided that if major penalty is imposed, then in that case benefit of granting Higher Grade Scale cannot be considered.However, the G.R. Dt. 31.03.2005 is not specific about the retrospective effect."
5.3.1 Relying on the aforesaid averments it was submitted that the petitioner has been rightly denied the benefit of grant of the second higher grade scale by the Respondent-authority in view of the Government Resolution dated 31.03.2005.
5.4 Learned AGP Mr. Parikh thereafter submitted that the Government Resolution dated 31.03.2005 is a policy decision which prescribes the procedure and therefore also the same cannot be quashed and set aside as it provides the eventualities and the circumstances under which the DPC is required to take a decision for grant Page 14 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 of higher grade scale. It was also submitted that in the present case the petitioner was granted the first higher grade scale after his retirement with effect from the year 1987 in the year 2008 and therefore it was submitted that the DPC which was held on 05.10.2009 rejected the claim of the petitioner on the ground of penalty order dated 30.04.2007. It was submitted that the relevant date for consideration to grant the higher grade scale is the date when the DPC met to consider the case of the petitioner. It was submitted that the granting of higher grade scale is equivalent to granting promotion and the promtion is always granted when the DPC decides to grant the same. Therefore it cannot be said that the DPC met after the considerable long time and therefore the petitioner is entitled to get the higher grade scale. Though, it is the fundamental right of the petitioner to be considered for promotion, it was submitted that it is not his fundamental right to get the promotion or the higher grade scale.
5.5 Learned Assistant Government Pleader Mr. Parikh submitted that Government Resolution dated 15.09.2015 cannot be applied in facts of the case as the DPC decided not to grant higher grade pay scale to the petitioner in the year 2009. It was further submitted that Government Resolution dated 15.09.2015 cannot be applied retrospectively only because the same has come Page 15 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 into effect during the pendency of the petition.
6. Having considered the rival submissions and having perused the material on record, it appears that it is not in dispute that the case of the petitioner for grant of higer grade scale was under consideration before the DPC on 05.01.2009 as the petitioner had become eligible to get second higher grade pay as per the Government Resolutions dated 16.08.1994 and 02.07.2007. The case of the petitioner was considered as per the Government Resolution dated 31.03.2005 which prescribed the procedure for consideration of the case for grant of higer grade scale.
6.1 In view of Government Resolution dated 15.09.2015, question with regard to the legality and validity of the Government Resolution dated 31.03.2005 is not required to be decided as the Government Resolution dated 31.03.2005 now stands cancelled by Government Resolution dated 15.09.2015.
6.2 With regard to the contention raised on behalf of the respondents that Government Resolution dated 15.09.2015 was not available when the DPC decided not to grant higher grade pay scale to the petitioner in the year 2009 is concerned, as of now, the Government Resolution dated 15.09.2015 is very much in existence whereby Government Resolution dated 31.03.2005 is Page 16 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 cancelled and therefore, the decision which was taken by DPC based upon the Government Resolution dated 31.03.2005 cannot be sustained as the said Government Resolution stands cancelled for all intents and purposes by subsequent Government Resolution dated dated 15.09.2015. As the petition is pending since 2011 and during the pendency of the petition, Government Resolution dated 31.03.2005 is cancelled by the State Government by issuing Government Resolution dated 15.09.2015, the decision of the DPC relying upon such cancelled Government Resolution is also required to be quashed and set aside.
6.3 In view of the fact that the Government Resolution dated 31.03.2005 stands cancelled, the prayer made by the petitioner to quash the said Government Resolution is not required to be granted. As there was no departmental inquiry pending in the year 2002 when the petitioner was eligible for second higher grade pay scale, the respondents are required to grant the second higher grade pay scale to the petitioner with effect from 1.06.2002 and to revise his retirement benefits accordingly and pay the arrears.
6.4 In view of the foregoing reasons, the petition is allowed. The respondents are directed to grant benefit of second higher grade pay scale to the petitioner with effect from 1.06.2002 and Page 17 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022 C/SCA/17480/2011 JUDGMENT DATED: 01/09/2021 revise his pay and retirement benefits and accordingly, pay the arrears within 8 weeks from the date of receipt of the Court order, failing which, the respondents shall be liable to pay interest at the rate of 9% per annum on completion of 8 weeks.
Rule is made absolute to the aforesaid extent. No order as to costs (BHARGAV D. KARIA, J) Umesh/RAGHUNATH R NAIR Page 18 of 18 Downloaded on : Sun Jan 16 11:32:10 IST 2022