Gujarat High Court
Devshi K Helaiya vs State Of Gujarat & on 15 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/27452/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 27452 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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DEVSHI K HELAIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/09/2016
ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of Page 1 of 13 HC-NIC Page 1 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT India, the writ applicant, a Medical Officer, Class II, serving with the State Government, has prayed for the following reliefs:
"12 (A) Your Lordship be pleased to admit and allow this petition;
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside communication dated 4.10.2007 (Annexure "O" hereto), and be further pleased to quash and st aside the illegal, illogical and arbitrary action of the concerned respondent authorities of not granting the benefit of higher pay scale to the petitioner considering his initial date of joining in service on 24.11.1987 on the basis of principle of 'continuous officiation' as well as relying upon the government resolution dated 21.7.1997, and the said benefit be ordered to be paid to the petitioner in cash with 18% interest;
(C) Be pleased to issue appropriate writ, direction and order, holding and declaring that petitioner is eligible and entitled to get benefit of higher pay scale from the initial date of joining in service and the said benefit be ordered to be disbursed immediately to the petitioner in cash with 18% interest;
(D) Be pleased to quash and set aside orders/communication dated 30.9.2006 and 4.10.2006 (Annexure "K" hereto), to the extent that benefit of higher pay scale has not been granted considering initial date of joining in service on 24.11.1987, and suitable directions be issued to the respondents to disburse/release at least the benefit of higher pay scale so granted vide the said orders / communications, without prejudice to the rights of the petitioner to get the said benefit from 24.11.1987;
(E) Be pleased to issue appropriate writ, direction or order, directing respondent No.1 to pass appropriate orders for holding enquiry against the erring officers for not discharging the public duty vested in the concerned officers, as the concerned respondent officers have denied the petitioner his rightful claim of benefit of higher pay scale considering the services rendered as adhoc Medical Officer, and suitable directions may be issued upon respondent No.1 to hold a detailed enquiry against erring officer for not discharging public duties and for not obeying various Rules, Regulations and Notifications.
(F) Be pleased to quash and set aside the arbitrary action of the concerned respondent authorities of not granting benefit of higher pay scale considering the services rendered by the petitioner during the period between 24.11.1987 to 22.11.1995 i.e. period prior to passing of GPSC examination, as per the directions issued by this Hon'ble Court (Coram :
Hon'ble Mr. Justice H.K. Rathod) in Special Civil Application No.1834 of Page 2 of 13 HC-NIC Page 2 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT 2007 on 19.1.2007;
(G) Be pleased to grant interim relief and be pleased to direct the concerned respondents to disburse / release at least the benefit of higher pay scale so granted vide orders / communications dated 30.9.2006 and 4.10.2006, without prejudice to the rights of the petitioner to get the said benefit from 24.11.1987, and to reconsider the case of the petitioner;
(H) May Your Lordship be pleased to grant any other further relief that may be deemed fit in the facts and circumstances of the case;"
2 The case of the writ applicant may be summarised as under:
2.1 The writ applicant came to be appointed as the Medical Officer, Class II, on 24th November 1987. He cleared the Gujarat Public Service Commission examination on 27th November 1995.
2.2 On 11th March 1996, an order was passed to continue the writ applicant on long term basis. On 26th March 2002, the case of the writ applicant was recommended for the first and second higher grade scale.
The writ applicant was informed vide communication dated 12th December 2003 that the benefit of the higher pay scales could not be granted to him. On 15th April 2006, the seniority list came to be published.
2.3 Taking into consideration the vociferous representation filed by the Medical Officers as regards the grant of the higher pay scale from the date of their initial appointment, the State Government issued a resolution dated 21st July 1997, which is at page - 62 of the paperbook, to sanction the higher pay scale in accordance with the Government Resolution dated 16th October 1994 from the date of adhoc appointment. It appears that a committee consisting of (i) the Member Secretary, Health and Family Planning Department, (ii) the Member and Joint Secretary, Health and Family Planning Department and (iii) the Chairman and Commissioner, Health and Family Planning Department Page 3 of 13 HC-NIC Page 3 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT looked into the case of the writ applicant and passed an order, which is at page - 114 (Annexure: "I" to this petition) recommending the grant of the first and second higher pay scale from the date of his initial appointment on adhoc basis.
2.4 It also appears that the writ applicant in the past had filed the Special Civil Application No.11634 of 2004, which came to be disposed of vide order dated 1st March 2005. The order reads as under:
"RULE. Mr.Hasurkar, learned AGP, waives service of notice of rule on behalf of the respondents.
In this petition, the petitioners, who are working as Medical Officers have prayed for being granted certain benefits resolved by the Government pursuant to the acceptance of the recommendations made by the Tiku Commission.
In response to the notice issued by this Court in Special Civil Application No.11634/2004, the Government has filed affidavitinreply. It is stated in the affidavitinreply that the case of the medical officers is under consideration of the Government and there has been some delay on account of time consuming process involved. It is further stated that the Government is expediting the efforts of finalization of granting benefits to the petitioners as per their entitlement.
In view of the above averments made in the affidavitinreply, it is clear that the Government is in process of finalization of entitlement of the petitioners for granting benefits as per the Tiku Commission recommendations. I, however, find the request made on behalf of the petitioners through their counsel, that process should be expedited, is reasonable. The issue is pending with the Government since long and, therefore, while disposing both these petitions, it is directed that the Government shall expedite the process of considering the entitlement of the petitioners to receive the benefits of higher pay scales in accordance with Government policy emanating from circulars issued from time to time. This exercise shall be completed as expeditiously as possible and preferably within a period of four months from the date of receipt of copy of this order. Pursuant to the conclusion of this exercise, the Government shall also take consequential steps to pay the actual benefits to the petitioners, who are found entitled to receive the same.
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With these observations both these petitions are disposed of. Rule made absolute to the above extent. No order as to costs.
Direct service is permitted."
2.5 It appears that thereafter, the writ applicant preferred the Special Civil Application No.1834 of 2007, which came to be disposed of vide order dated 19th January 2007. The reads as under:
"Heard the learned advocate Mr. NK Majmudar on behalf of the petitioner, learned AGP Mr. LB Dabhi appearing for respondent.
The grievance of the present petitioner is that benefit of higher pay scale as per the recommendation by the Tiku Pay Commission is not granted from the date of initial appointment but from the date of clearing the GPSC examination by the petitioner. Learned advocate Mr. Majmudar submitted that the case of the petitioner was recommended by the higher authority for higher pay scale as per minutes of regular meeting dated 15/5/2006 where the case of the petitioner was considered for first and second higher grade and recommended by the authority, Chairman and Commissioner, Health and Medical services and Medical Education of Health department, Gandhinagar. However, he submitted that the date of initial appointment, the benefit of higher grade has been denied to the petitioner.
He relied upon the decision of the Apex Court in support of his submission reported in AIR 90 (SC) page 1607 between the Direct Recruit Class ? II Engineering Officers' Association and others Vs. State of Maharashtra and others. He relied upon the head note (c) which is quoted as under :
"Constitution of India, Art. 311 ? Seniority ? Initial appointment not made according to rules ? Appointee, however, continuing uninterrupted until regularization of service ? Period of officiating service has to be counted.
Seniority ? Initial appointment not according to rules ? Officiating service is to be considered.
If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted."Page 5 of 13
HC-NIC Page 5 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT Learned advocate Mr. Majmudar also relied upon the order passed by this Court in SCA no. 8366 of 2006 with SCA 12778 of 2006 dated 10/10/2006 wherein the question has been considered by this Court.
In view of this fact, learned advocate Mr. Majmudar submitted that petitioner will make detailed representation to the respondent claiming benefit of higher pay scale as per Tiku Pay Commission to the respondent within period of one month from the date of receiving the copy of the said order.
As and when respondent receive the representation from the petitioner, it is directed to the respondent to examine the case of the petitioner for granting higher pay scale benefit as per recommendation made by Tiku Pay Commission from the date of initial appointment and also consider the decision of the Apex Court as referred above, and then pass appropriate reasoned order in accordance with policy of the State Government within the period of two months from the date of receiving the copy of such representation from the petitioner and communicate the decision to the petitioner.
It is further directed to the respondent, to consider the resolution dated 21/7/2006 which is not having retrospective effect in respect of earlier entitlement of such petitioner.
In view of the above observation and direction, present petition is disposed of without expressing any opinion on merits.
However, if ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law.
Direct service is permitted."
2.6 It also appears that thereafter, the writ applicant preferred the Special Civil Application No.11990 of 2007, which came to be disposed of vide order dated 19910 of 2007, which came to be disposed of vide order dated 13th August 2007. The order reads as under:
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1. Heard learned Advocate Mr. Nirav K. Majmudar for the petitioner and Mr. Amit Patel, learned AGP for the State Authority.
2. As per the case of the petitioner, petitioner is entitled for the benefit of higher pay scale as per GR dated 21.7.1997. He is entitled for the benefit of ad hoc service rendered by him prior to passing of the GPSC Examination but the same has not been given to the petitioner. Petitioner was appointed on 24.11.1987 and cleared GPSC Examination on 22.11.1995 page 19 serial no. 10. Learned Advocate Mr. Majmudar for the petitioner submits that the Resolution dated 21st July, 1997 is providing to give benefit of the Resolution dated 17.10.94 subject passing of GPSC Examination within three attempts in respect of ad hoc medical officers. He submits that the said resolution was subsequently cancelled on 21.6.2006 but that resolution is not having retrospective effect. As per page 85, minutes of meeting held on 15th May, 2006, decision has been taken considering the earlier resolution but as per subsequent minutes at page 90, it has been decided not to consider earlier resolution dated 21.7.1997 but in affidavit in reply page 84 in SCA NO. 11634 of 2004, they have not denied the right of consideration of ad hoc service.
3. Therefore, in view of the aforesaid facts, initially the petitioners had approached this court and then made representation on 19.1.2007 which has remained unattended and, therefore, this petition has been filed by the petitioner.
4. Therefore, petitioner is entitled for the benefit of the services rendered by him as ad hoc medical officer with effect from 24.11.87 as per GR dated 21.7.97 and the apex court decisions as referred to by the petitioner in the representation dated 19.1.07 and 15.2.07 and not on the basis of subsequent resolution dated 21.6.2006 which is not having retrospective effect and, therefore, respondents are directed to consider representation of the petitioner dated 19.1.07 and 15.2.07 as well as decisions of apex court as referred to therein as per Resolution dated 21.7.97 and then to pass appropriate reasoned orders in accordance with law within one month from the date of receipt of copy of this order and to communicate their decision to the petitioner immediately thereafter.
5. Considering the date of representation 19.1.2007 made by petitioner pursuant to orders of this court, more than six months have passed, but no action was taken by the respondents, therefore, respondents are directed to pass appropriate orders on the said representation within the period stipulated herein otherwise same will be viewed seriously by this court.
6. With these observations and directions, this petition is disposed of without expressing any opinion on merits of the matter.
7. Direct Service is permitted.
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2.7 Pursuant to the order passed by this Court dated 13th August
2007, the State Government passed an order, which has been impugned in this writ application dated 4th October 2007 (Annexure: "O", page - 147 to this petition) rejecting the claim on the ground that the Government Resolution dated 21st July 1997, on which the strong reliance has been placed, came to be cancelled vide the Government Resolution dated 21st July 2006. On such ground, the claim of the writ applicant for the grant of higher pay scale from the date of his initial appointment on adhoc appointment came to be rejected.
2.8 Being dissatisfied, the writ applicant has come up with this writ application.
3 Mr. Majmudar, the learned counsel appearing for the writ applicant submits that much before the Government Resolution of 2006 came into force, the claim of the writ applicant was already considered. For one or the other reason, the final order could not be passed. He invites my attention to the affidavitinreply filed in the Special Civil Application No.11634 of 2004, which would indicate that the case of the writ applicant was already under consideration. He has invited my attention to the averments made in paras 5 and 6 (Annexure: "G", page
- 109 to this petition). He submits that the Government Resolution of 2006 should not come in the way of his client, because his right had already accrued pursuant to the Government Resolution of 1997. He would submit that this aspect has been made abundantly clear while passing the order dated 13th August 2007 in the Special Civil Application No.19910 of 2007.
Page 8 of 13 HC-NIC Page 8 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT 4 In such circumstances referred to above, Mr. Majmudar prays that
the impugned communication dated 4th October 2007 deserves to be quashed and the reliefs as prayed for be granted.
5 On the other hand, this writ application has been vehemently opposed by Mr. Goutam, the learned Assistant Government Pleader appearing for the State. The learned A.G.P. assiduously submitted that before the actual order could be passed granting the benefit of the higher pay scales, the Government Resolution of 2006 came into force cancelling the Government Resolution of 1997, and therefore, the writ applicant had no legal right to claim the higher pay scale from the date of his initial appointment on the adhoc basis. The learned A.G.P. has placed reliance on the following averments made in the affidavitinreply filed on behalf of the State Government:
"5 I say and submit that by preferring the present petition, ultimately the petitioner is praying to direct the respondent authority to give higher pay scale from the initial appointment which was on the adhoc basis. I say and submit that the present petitioner had filed SCA No.19910 of 2007 before this Court this Hon. Court (Coram : Hon. Mr. Justice H.K. Rathod) directed the respondents vide order dated 13.8.2007 to consider the representation of the present petitioner and decide the issue as early as possible. Pursuant to that the authority had taken a decision on 0410 2007 which is annexed as Annexure O to the present petition (page 147) which is also challenged. I say and submit that the present petitioner is not entitled for any relief which has been sought for. The decision which has been rendered by the authority as per the Government Order dated 1806 1996 and resolution dated 21072006. As per the Government Order dated 18061996 it is very clear that for giving higher pay scale the ad hoc services rendered by the concerned delinquent can be considered only if he had passed the first G.P.S.C. examination held after his adhoc appointment in the first trial. The present petitioner has been given the higher pay scale from the date of passing the G.P.S.C. examination and not from the initial adhoc appointment. I submit that the present petitioner did not pass the first G.P.S.C. examination held after his adhoc appointment and in the first trial after the appointment on adhoc basis.
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6 I say and submit that the present petitioner was appointed as
Bonded candidate on 24111987 and thereafter the first advertisement for the same post has been advertised by the G.P.S.C. vide advertisement No.174 of 89/90. In the present petition, the petitioner did not apply in response to the said advertisement. Thereafter, GPSC published second advertisement in 1991 for special recruitment of S.T. Candidates. In the year 1995 the G.P.S.C. published third advertisement for recruitment for all categories vide advertisement No.36/9495 in which the present petitioner had appeared and was declared as passed which is a second trial of the present petitioner after his appointment. The present petitioner is therefore, not entitled for counting the adhoc service for giving the benefit of higher pay scale as per the Government Order dated 18.06.1996. It is very clear from the prayer of the present petitioner which has been made by him that the present petitioner is not challenging the Government Order dated 18.06.1996 and 21072006. Hence, it is very clear that the present petitioner is not entitled for counting the adhoc services which has been sought for and higher pay scale has been given to the present petitioner from the date of passing the GPSC examination and the order has been passed on 30092006.
7 As regards the averments made by the petitioner in para 2 of the petition, it is respectfully submitted that the petitioner was granted the higher scale in accordance with the G.R. dated 21.7.2006 which provided for consideration of service rendered as G.P.S.C. selected candidate for purpose of grant of higher scale to Medical Officers. The order was challenged by the present petitioner in SCA No.1834 of 2007 in which this Hon. Court directed the petitioner to submit a detailed representation to the respondents and the respondents were directed to consider the said representation in accordance with law and take a decision within two months from the date of receipt of such representation. Accordingly, as per the petitioner, he had made a representation dated 6.2.2007 and 15.2.2007. At that time several orders were given by this Hon. Court on the same issue in which the concerned petitioners were directed to make representations to the State Government and the State Government was directed to consider them in light of the law and take appropriate decision and to communicate it to the concerned petitioner within the stipulated time limit. All such representations were sent to the Commissioner of Health for scrutiny. Due to this reason, the petitioner could not be replied within the time limit stipulated by this Hon. Court in the said order dated 19.1.2007. The petitioner therefore, preferred another SCA No.19910 of 2007 in which this Hon. Court (Hon. Mr. Justice H.K. Rathod) directed the respondent No.1 vide order dated 13.8.2007 (AnnexureN to the petition) to consider the representation of the petitioner within one month from the date of receipt of the order. The office of the Commissioner of Health had forwarded the copy of the said representation of the petitioner Page 10 of 13 HC-NIC Page 10 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT together with the copy of the said order dated 13.8.2007 for necessary action as per the directions issued by this Hon. Court in the said order dated 13.8.2007. The averments made by the petitioner In the said representation were considered by the respondents in light of the provisions of the GR dated 21.7. 2006 and necessary reply was given to him vide letter dated 4.10.2007 (AnnexureO to the petition).
8 I offer no remarks on the averments made by the petitioner in para 3 and 3.1 to 3.5 of the petition.
9 As regards para 3.6 of the petition, it is respectfully submitted that the petitioner was initially appointed on adhoc basis and was required to appear and pass the first examination held by the GPSC imediately after his appointment on adhoc basis. As stated earlier, an advertisement was published in 1990 which was the first advertisement after appointment of the petitioner in which he did not apply. The petitioner had appeared in the second examination held for all categories in 1995 which was the second examination held by GPSC after his appointment on adhoc basis. Therefore, his attempt in 1995 cannot be said to be the first attempt.
10 As regards the averments made by the petitioner in para 3.7 and 3.8 of the petition, it is respectfully submitted that due to the requirement of certain information, the orders for grant of Tikku Commission to the petitioner could not be issued. Meanwhile, the State Government had vide GR dated 21.7.2006 cancelled the GR dated 21.7.1997 and decided to grant the benefit of Tikku Commission to such Medical Officers only from the date of their passing the GPSC examination in second or third or from the date of appointment as GPSC selected candidate. However, it was specified in the said GR dated 21.7.2006 that past cases shall not be reviewed. As stated above, till the issue of the said GR dated 21.7.2006, the orders for grant of Tikku Commission to the petitioner were not issued. Since, the GR dated 21.7.1997 was cancelled with effect from 21.7.2006, any order issued after 21.7.2006 was required to be issued in accordance with the provisions of the GR dated 21.7.2006. Accordingly, the petitioner was granted the benefit of Tikku Commission after taking into consideration the services from the date of passing the GPSC examination which is consonance with the GR dated 21.7.2006."
x x x "15 As regards the averments made by the petitioner in para 4 of the petition, it is respectfully submitted that in the orders dated 19.1.2007 and 13.8.2007, this Hon. Court had directed the respondents to consider the representation of the petitioner as per law and to take decision thereon. Accordingly, the representation of the petitioner has been Page 11 of 13 HC-NIC Page 11 of 13 Created On Fri Sep 16 03:26:51 IST 2016 C/SCA/27452/2007 JUDGMENT considered and decided in accordance with the GR dated 21.7.2006. There is or there was no intention either to harass or torture the petitioner as alleged. In fact, all orders sanctioning Tikkhu Commission issued after 21.7.2006 have been issued as per the said GR dated 21.7.2006 granting the benefit of Tikku Commission from the date of passing the GPSC examination without any exception.
16 As regards the averments made by the petitioner in para 7 of the petition, it is respected submitted that since the orders to grant the Tikku Commission to the petitioner on 30.9.2006, they are issued in accordance with the provisions of the said GR dated 21.7.2006.
17 As regards the averments made by the petitioner in para 8 of the petition, it is respectfully submitted that the petitioner had preferred SCA No.19910 of 2007 challenging the said order dated 30.9.2006 in which this Hon. Court had directed the petitioner to make a representation and the respondents were directed to take decision on the representation as per law within two months from receipt thereof. However, as explained in para 4 of this affidavit, the decision could not be taken within the time limit. The petitioner therefore, preferred SCA No.1834 of 2007 in which this Hon. Court had directed to take decision on the representation of the petitioner within a period of one month from the date of receipt of the order. Accordingly, the representation was examined in light of the provisions of GR dated 21.7.2006 and a reply to the petitioner was give vide communication dated 4.10.2007."
6 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the reliefs as prayed for in this writ application.
7 The three orders passed by this Court dated 1st March 2005, 19th January 2007 and 13th August 2007 respectively referred to above are selfexplanatory. The order dated 15th May 2006 or rather the report of the committee, which is at page - 114 (Annexure: "I" to this petition) is also selfexplanatory.
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8 In my view, the claim of the writ applicant could not have been
rejected relying on the Government Resolution dated 21st July 2006. The State Government committed an error in giving retrospective effect to such Government Resolution. The State Government itself has taken the decision much before the Government Resolution dated 21st July 2006 came into force to grant the higher pay scale. At the cost of repetition, this is evident from the report of the committee dated 15 th May 2006. The Government Resolution of 1997 made it very clear that the Medical Officers having cleared the Gujarat Public Service Commission within the stipulated chances would be entitled to the higher pay scale from the date of the adhoc appointment. In such circumstances, the first higher pay scale payable to the writ applicant should have been counted from 14th November 1987 and the second accordingly.
9 For the foregoing reasons, this writ application succeeds and is hereby allowed. The impugned communication dated 4th October 2007 is hereby quashed. It is declared that the writ applicant is entitled to the higher pay scale from the date of joining the service i.e. 24th November 1987 on the basis of the Government Resolution dated 21st July 1997, which was in force at the relevant point of time. All the consequential benefits shall be calculated accordingly and paid to the writ applicant within a period of three months from the date of receipt of this order. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 13 of 13 HC-NIC Page 13 of 13 Created On Fri Sep 16 03:26:51 IST 2016