Gujarat High Court
Praveen K. Gokhroo vs Union Of India on 21 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/10710/2021 ORDER DATED: 21/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10710 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10860 of 2021
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PRAVEEN K. GOKHROO
Versus
UNION OF INDIA
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Appearance:
MR VISHRUT BHANDARI(11297) for the Petitioner(s) No. 1
MR PRITHU PARIMAL(9025) for the Petitioner(s) No. 1
MR PRIYANK P LODHA(7852) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/03/2022
ORAL ORDER
1. Heard Mr. Prithu Parimal, learned advocate appearing for the petitioners and Mr. Priyank Lodha, learned advocate for the respondents.
2. In this petition, under Article 226 of the Constitution of India, the petitioners have prayed that they be granted Grade Pay of Rs.5400/-.
3. As far as Special Civil Application No. 10710 of 2021 is concerned, the prayer is that the petitioner be granted Grade Pay of Rs.5400/- from 15.10.2011 i.e. the date on which he completed four years of service on being granted ACP of Rs.4800/-. As far as Special Civil Application No. 10860 of 2021 is concerned, the prayer of the petitioner therein is to grant Grade Pay of Rs.5400/- with effect from 01.09.2012 he having completed 4 years of service on that grade.
4. At the outset, this court being of the opinion that the petitioners be Page 1 of 5 Downloaded on : Tue Mar 22 20:59:55 IST 2022 C/SCA/10710/2021 ORDER DATED: 21/03/2022 relegated to the Central Administrative Tribunal for adjudication of this dispute, learned advocate for the petitioners would draw the attention of the court to the decision rendered by this court in Special Civil Application No. 1892 of 2021 dated 15.06.2021. The court therein considering the fact that the petitioners of Special Civil Application No. 346 of 2018 were granted the benefit, a petition was entertained by the court without relegating the petitioners to the Tribunal. The decision reads as under:
"4. At the outset, we would like to observe that a petition which has been filed for issuance of writ of mandamus without approaching the Central Administrative Tribunal is being entertained only on the ground that the case of another employee, who was similarly situated and who had challenged the decision of the Tribunal by filing writ petition being Special Civil Application No.346 of 2018, was entertained by this Court. We are of the opinion that when the issue is covered and similar case is considered even by Honourable the Apex Court, it would be futile to ask the petitioner to avail alternative remedy since notice has been issued in this matter."
5. The Division Bench in the said judgement relied on the decision of the Division Bench of the Madras High Court in the case of M. Subramaniam vs. Union Of India dated 06.09.2010 which was confirmed by the Apex Court in Civil Appeal No. 8883 of 2011 and also the oral judgment of this Court dated 10.4.2018 passed in Special Civil Application No. 346 of 2018.
6. Mr. Lodha, learned advocate appearing for the Union of India would rely on a clarification dated 16.09.2009 particularly para 4 thereof.
7. Reading the decision of the Division Bench of this court and that of Page 2 of 5 Downloaded on : Tue Mar 22 20:59:55 IST 2022 C/SCA/10710/2021 ORDER DATED: 21/03/2022 the Division Bench of the Madras High Court in Writ Petition No. 13225 of 2010, the issue was considered by the Division Bench of the Madras High Court which held as under:
"5. The Tribunal, by relying upon the clarification, dated 29.8.2008 of the Government of India, held that the petitioner cannot be equated to the posts, viz., Income Tax Officer/Superintendents, Appraisers, etc, though he was drawing the pay scale attached to the said posts by virtue of grant of financial up gradation in ACP Scheme and therefore, he is not entitled to the grade pay of Rs. 5,400/- on the basis that he had completed four years of regular service in the pay scale of Rs. 7500-12000. According to the Tribunal, unless the petitioner is promoted, he is not entitled for grade pay of Rs. 5,400 and he cannot claim only by virtue of the benefits obtained under ACP Scheme.
6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/- in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs. 7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four year, he is entitled to the grade pay of Rs. 5400/0 with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre- revised pay-scale of 7500-12000 (corresponding to grade pay of Rs. 4800) by virtue of financial up gradation under ACP would not be entitled to the benefit of further non- financial up gradation the pre-revised pay-scale of Rs. 8,000- 13,500 (corresponding to grade pay of Rs. 5400) on Page 3 of 5 Downloaded on : Tue Mar 22 20:59:55 IST 2022 C/SCA/10710/2021 ORDER DATED: 21/03/2022 completion of 4 years in the Pre-revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre- revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non-functional up gradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional up gradation from such date on which he completes 4-year in the pay scale of Rs. 7,500-12000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000 as on 1.1.2008, he is entitled to grade pay of Rs.5400/-. In fact, the Government of India, having accepted the recommendations of the 6 th Pay Commission, issued a resolution dated 29.8.2008 granting grade pay of Rs.5400/- to the Group B Officers in pay Band 2 on non-functional basis after four years of regular service in the grade pay of Rs.4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal."
8. The issue therefore is no longer a matter of debate.
9. Accordingly, the petitions are allowed. The respondents are directed to grant Grade Pay of Rs.5400/- to the petitioner of Special Civil Application No. 10710 of 2021 from 15.10.2011 i.e. the date on which Page 4 of 5 Downloaded on : Tue Mar 22 20:59:55 IST 2022 C/SCA/10710/2021 ORDER DATED: 21/03/2022 he completed four years of service on being granted ACP of Rs.4800/- and to grant Grade Pay of Rs.5400/- to the petitioner of Special Civil Application No. 10860 of 2021 with effect from 01.09.2012 on he having completed 4 years of service on that grade. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 5 of 5 Downloaded on : Tue Mar 22 20:59:55 IST 2022