Gujarat High Court
Gujarat Maritime Board vs Vijyaben Babubhai Lodhari Wd/O ... on 13 October, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/CA/2196/2022 ORDER DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2196 of 2022
In R/LETTERS PATENT APPEAL NO. 1339 of 2022
With
R/LETTERS PATENT APPEAL NO. 1339 of 2022
In SPECIAL CIVIL APPLICATION NO. 11767 of 2020
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GUJARAT MARITIME BOARD
Versus
VIJYABEN BABUBHAI LODHARI WD/O BABUBHAI N LODHARI
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS REETA
CHANDARANA(3023) for the Applicant(s) No. 1,2
MS HARSHAL PANDYA for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/10/2022
COMMON ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) ORDER IN CIVIL APPLICATION NO.2196 OF 2022 :
1. There is a delay of 39 days in filing the appeal.
Ms.Harshal Pandya, learned advocate who had appeared before the learned Single Judge on behalf of the writ applicant is present before this Court and she takes notice for sole respondent and waives notice for the said respondent. She would submit that she has no objection for allowing the application for condonation of delay. Hence, Civil Application No.2196 of 2022 is allowed by condoning delay of 39 days in filing the appeal. Page 1 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022
C/CA/2196/2022 ORDER DATED: 13/10/2022 ORDER IN LETTERS PATENT APPEAL NO.1339 OF 2022 :
2. This intra-court appeal lays a challenge to the order of the learned Single Judge rendered in Special Civil Application No.11767 of 2020 dated 14.06.2022, whereunder the application filed by the respondent for grant of revision of the pay sought for came to be granted.
3. We have heard the arguments of Mr.Shalin Mehta, learned Senior Counsel appearing for the appellant and Ms.Harshal Pandya, learned counsel appearing for the writ applicant and perused the records.
4. The writ applicant had approached the learned Single Judge seeking for a direction for revision of the pay-scale of her husband who had joined the respondent Board as a daily-wager on 01.07.1989. The benefit of the resolution dated 17.10.1988 was extended to the deceased on completion of 5 and 10 years respectively by order dated 01.05.1995 and 02.02.2000 and placed on Page 2 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 regular pay-scale of Rs.2550-3200 (5th Pay Commission).
This pay band was sought for being revised to Rs.4440- 7440 (GP of 1300) as per 6th Pay Commission and consequential revision as per 7th Pay Commission. It was contended that revision of pay-scale was to be extended from 01.07.1989, the date of initial appointment of the deceased employee. On attaining the age of superannuation, the deceased employee retired from service on 28.02.2010. The pension of the deceased was finalized and the then existing pay-scale of Rs.2550-3200 was construed as the pay-scale of the employee for computing the benefit of pension. In other words, Board took into consideration 10 years of service as pensionable service by excluding the date of initial appointment for the purposes of computing the pension.
5. The learned Single Judge having regard to the earlier judgment in the case of Executive Engineer Panchayat (MAA & M.) Department and another vs. Samudabhai Jyotibhai Bhedi, reported in 2017 (4) Page 3 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 GLR 2952, State of Gujarat vs. Ranabhai Ajmalbhai Harijan, rendered in Letters Patent Appeal No.1518 of 2017 on 10.04.2018 and the judgment in case of Kanojia Dharmendra Jaysukhlal vs. Gujarat Maritime Board rendered in Special Civil Application No.3756 of 2018 dated 26.10.2018, extended the relief. Having regard to the law laid down by the coordinate Benches as well as the Division Bench of this Court, the learned Single Judge took note of the fact that date of appointment of the petitioner's husband was undisputedly 01.07.1989 and the deceased was extended the benefit of the resolution dated 17.10.1988 and as such turned down the stand of the State which placed reliance on the Government Resolution dated 24.03.2006 as being misconceived. Taking note of the fact that in the connected matter, which has been disposed of and affirmed in the Letters Patent Appeal, the learned Single Judge had taken note of the fact that entire period of service rendered by the employee has to be considered for the purposes of extending pensionary benefits, has Page 4 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 allowed the petition and directed the pensionary benefits to be extended to the deceased husband of the petitioner by considering his initial date of appointment as 01.07.1989 and recomputing the same on the basis of revised pay-scale, it came to be held that the deceased employee was entitled to the pay-scale of Rs.2550-3200 in 6th Pay Commission as well as 7th Pay Commission respectively and directed benefits including the family pension to be recomputed.
6. It is the contention of Mr.Shalin Mehta, learned Senior Counsel appearing for the appellant that in the cases which has been relied upon by the learned Single Judge either the legal heirs or the deceased employee themselves had approached this Court immediately without brooking any delay, whereas in the instant case, during the lifetime of deceased employee, he did not urge for revision of pay-scale or canvassed that his initial date of appointment is to be construed from any particular date for the purposes of revision of pension and after Page 5 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 lapse of 10 years from the date of attaining the age of superannuation, the legal heir namely wife of the deceased has approached the Court and as such, petition ought to have been dismissed on the ground of delay and latches. He prays for appeal being allowed.
7. Per contra, Ms.Harshal Pandya, learned counsel would support the order of the learned Single Judge. She has also contended that issue of delay was never urged or canvassed before the learned Single Judge and as such, same has not been dealt with and even otherwise, on merits she would contend that when the persons who are similarly placed with that of deceased employee having been extended the benefit, there is no justifiable ground for the respondents to discriminate petitioner from being entitled to claim revision of pension by considering the date of his initial appointment. Hence, she prays for appeal being dismissed.
8. Having heard the learned advocates appearing for the parties and on perusal of the records, we notice Page 6 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 that as rightly contended by Ms.Harshal Pandya, learned advocate, the issue of delay was never urged before the learned Single Judge. Even otherwise, consent does not confer jurisdiction inasmuch as delay defeats equity. However, the issue regarding delay not having been urged before the learned Single Judge, it is too late for the appellant in the Letters Patent Appeal to urge the said contention. That apart, we notice that only ground which was alleged before the learned Single Judge by the writ applicant was with regard to discrimination in construing the date of appointment for the purposes of extending the pensionary benefits. Undisputedly, employees similarly placed as that of the husband of the petitioner having been extended the benefit of the Government Resolution dated 17.10.1988 and while granting the pensionary benefit, it is the date of initial appointment which has been taken into consideration, petitioner cannot be singled out and as such, on the ground of such acts of appellant would be hit by Article 14 of the Constitution, the writ applicant was held to be Page 7 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022 C/CA/2196/2022 ORDER DATED: 13/10/2022 entitled to the relief sought for. We also notice that in order to balance equity, the learned Single Judge has rightly refused to grant the interest though sought for in the Special Civil Application.
9. In that view of the matter, we do not find any illegality having been committed by the learned Single Judge, which would call for interference at our hands. Hence, the appeal stands dismissed.
(ARAVIND KUMAR, CJ) (ASHUTOSH J. SHASTRI, J) GAURAV J THAKER Page 8 of 8 Downloaded on : Sun Dec 25 03:54:21 IST 2022