Gujarat High Court
Rajnish Ratilal Patel & 473 vs State Of Gujarat & on 3 February, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/CA/2401/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 2401 of 2016
In SPECIAL CIVIL APPLICATION NO. 21160 of 2015
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RAJNISH RATILAL PATEL & 473....Applicant(s)
Versus
STATE OF GUJARAT & 10....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 474
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 11
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 03/02/2017
ORAL ORDER
1. Al l the appl i cants are the or ig i na l pet i t i oners who a serv ing as Medica l Teachers in Government Medical Col leges . They have been paid rev i sed pay and emoluments on the basis of the recommendations made by the6th Pay Commission i.e. on the basis of the Gujarat Civil services (Revision of Pay)Rules, 2009 with effect from 01.01.2006. As Non Private Practicing Allowance (NPPA) also came to be revised, they have been paid the said allowance with effect from 01.01.2006 onwards. Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER
2. Two Resolutions came to be published by the State Government dated 25.06.2010 and 01.09.2010 as well as two Circulars, dated 11th March 2014 and 28th September 2015 have been issued whereby the decision was taken to the effect that the revised NPPA on the basis of the 6th Pay Revision of Pay Rules would be paid with effect from 01.04.2009. For the period between 01.01.2006 to 31.03.2009, the amount shall be paid notionally, which would be calculated on the basis of pre-revised rates of NPPA i.e. 5th Pay Revision of Pay Rules. Recovery was effected from those who were actually paid the amount for the notional period.
3. The applicants therefore, preferred the petitions wherein this Court granted interim relief to restrain the recovery of NPPA paid to the applicants for the period between 01.01.2006 to 31.03.2009.
4. It is the say of the petitioners that vide Resolution dated Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER 12.04.2012, they have become eligible and entitled to get the benefit of Higher Pay Scale/Career Advance under the Career Advancement scheme issued by the University Grant Commission. The arrears of such Career Advance was required to be paid within a stipulated time as per Clause 10 of Government Resolution dated 12.04.2012. The Government Authorities insisted on petition to furnish undertaking to the effect that by the Government Authority is permitted to hold back the amount of NPPA to be recovered for the period between 01.01.2006 to 31.03.2009 from the payment to be made of career advancement. This instance to furnish the undertaking and not to claim the NPPA on the basis of 6th Pay Revision is under challenge in this application with the following prayer:
"10. i) grant this application;
ii) pass appropriate order and be pleased to direct the Government Authorities to release the arrears under Career Advancement Scheme forthwith on the basis of Resolution dated 12/4/2012 and the same may be ordered to be released on the basis of Non Private Practicing Allowance which may be ordered to be Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER worked-out/calculated on the basis of Gujarat Civil Services (Revision of Pay) Rules, 2009 w.e.f. 1/1/2016 with 12% interest from the date the arrears became due.
iii) pass such orders as thought fit in the interest of justice."
5. This Court heard as learned Advocate for the applicants Mr.N.K. Majmudar, who urged that the Court has granted the stay against the recovery after hearing both the sides and the petitions are pending for adjudication, the authority could not have insisted for furnishing undertaking without challenging the order of stay before the Appellate forum.
6. He urged that it is necessary to consider at this stage the undertaking which has been insisted for by the respondent authority. It is urged that without any challenge to the orders of the Court granting stay, this could not have been insisted upon.
7. Learned Assistant Government Pleader Ms. Asmita Patel has submitted that although 12th April 2012 Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER Government Resolution, the NPPA amount as per the revised pay was to be paid from 01.04.2009, for the period between 01.01.2006 to 31.03.2009, the payment made was notional and the actual payment is already made and therefore the authority is within its powers to insist. 7.1. She admitted that there is no challenge made to the order of stay by the authority. She has also urged that pleadings are over and the matter be fixed for early hearing.
8. Petitioners are challenging the Government Resolution dated 1st September 2010 on the ground that it is violative of the Gujarat Civil services (Revision of Pay)Rules, 2009 and they are also seeking to quash the order/circular dated 11.03.2014 and 28.09.2015, which are clarificatory in nature.
8.1. Noticing that the petitioners have been paid NPPA actually for a period between 01.01.2006 to 31.03.2009 Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER relying on the decision of the Apex Court rendered in case of State of Punjab & Ors. versus Rafiq Masih [White Washer] & Ors.,. It has been insisted by the petitioner that no such recovery can be permitted. This Court on considering the issue raised in this petition, permitted by way of ad interim relief not to effect the recovery till the final disposal.
9. It is not in dispute that the said order protecting the petitioner has not been challenged before any Court and no request for expeditious hearing of the main petition is also made except the one that has been made by the learned Assistant Government Pleader today at the time of hearing this Civil Application. In that view of the matter,to insist on the petitioners giving an undertaking and permit the amount to be recovered from the arrears to be paid to the petitioner under the Career Advancement Scheme, is surely an act deserves deprecation and also needs interference. This act is an attempt to circumvent the order of the Court which has given direction not to effect recovery of the amount till final hearing stage by way of Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER interim relief Respondent-authority would have the right to approach the higher forum this Court and ask for either hearing or some clarification, instead of the insisting on undertaking of the recovery of the entire amount of arrears before the payment under the Career Advancement Scheme. It is something which is completely unacceptable and improper.
10. It is under the order of this Court that recovery of the amount paid by way of NPA allowance is stopped till the final hearing. For a cause completely unconnected, the respondent could not have insisted on undertaking, thereby recovering the amount paid actually between 01.01.2006 to 31.03.2009. Entitlement of petitioners under the career advancement is independent. Moreover, they are all employees of the State and shall have a long career. Recovery of the NPA amount actually paid for the stipulated period, can be recovered or adjusted, eventually if this Court hold against the petitioners but to do that without challenging order of stay is an impermissible action.
Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER 10.1.For ready reference, sample of undertaking is reproduced herein below :-
"I hereby give undertaking in writing that in Special C.A. No. 21160/2016 of the Hon'ble High Court, a stay has been granted till final Judgment against the recovery from the difference of the UGC Pay and Allowances paid, by doing Notional Calculation of the N.P.P.A. from 1/1/2006 to 31/3/2009 in accordance with the Resolution dated 27/2/2009 of the Finance Department. In my case, as I have not received difference of the UGC Pay and Allowances, I would not have any objection, if I am paid difference of the UGC Pay and Allowances after recovering it from the amount of the recovery after doing Notional Calculation of the N.P.P.A. from 1/1/2006 to 31/3/2009."
11. This application, in wake of the discussion above, is allowed the respondent authority shall pay the arrears to the petitioner under the Career Advancement Scheme issued by the University Grant Commission within 8 weeks to all the petitioners without insisting on undertaking.
12. It is being clarified at this stage that even if any the Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Aug 13 09:02:04 IST 2017 C/CA/2401/2016 ORDER applicants attains the age of superannuation pending the adjudication of the main matters, in absence of any written undertaking also the recovery if needs to be effected, the same shall be subject to the outcome of the main petition. Petitioner shall not be permitted to raise any dispute of absence of undertaking at the final stage. Civil application is disposed of.
(MS SONIA GOKANI, J.) Alok Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 09:02:04 IST 2017