Ravindrakumar Thakorlal Garasiya vs State Of Gujarat

J. C. Doshi, J

The unsuccessful petitioner of Special Civil Application No.20089 of 2016 is in intra Court appeal under clause 15 of the Letters Patent.

Stated briefly, the unsuccessful petitioner was appointed as Medical Officer, Class II on ad hoc basis w.e.f. 20.2.1982. He appeared in GPSC examination undertaken in the year 1991 successfully, which resulted into giving appointment on regular basis vide order dated 25.7.1991. The petitioner was appointed on probation, which was to be completed after two years of service and on completion of six years of service i.e. on 19.2.1998, he was granted first higher grade pay scale w.e.f. 14.11.1991. As per Rules, second higher grade pay scale, which was due, had been granted to the petitioner w.e.f. 20.2.1995. The petitioner has opted for retirement under the Voluntary Retirement Scheme and retired from the service on 19.11.2007. The petitioner claimed that upon completion of 19 years of service, he was entitled for the third higher grade pay scale in the year 2001. However, it was not granted to the petitioner.

The petitioner also put forth his case that in the seniority list of Medical Officer, Class II, he was standing at Sr No.1031 on 1. 1.2007. The other Medical Officer, Class II, who was standing at Sr No.1378 has been given benefit of the third higher grade pay scale, but the petitioner has been denied and as such, the petitioner was discriminated. Since the benefit of third higher grade pay scale was not given to the petitioner, he had made a detailed representation to the Health Department on 24.1.2013, but of no avail. The petitioner therefore, submitted his claim for third higher grade pay scale based on the recommendation made by the Tiku Pay Commission and filed Special Civil Application praying for the following relief:-

“B) Be pleased to issue appropriate writ, order or direction or any other writ in the nature of mandamus directing the respondent-authorities to release the benefit of 3 rd higher pay scale as per recommendations of Tiku Pay Commission on completion of 19 years of service w.e.f. 2001, as also to release the consequential difference of salary and to re-fix the pension and pensionary benefits and to pay the same with interest at the rate of 12%.;

C) Be pleased to grant interim relief and by way of interim order, be pleased to pass appropriate directions upon the respondent authorities to release the benefit of 3 rd higher pay scale as per recommendations of Tiku Pay Commission on completion of 19 years of service w.e.f. 2001, as also to release the consequential difference of salary and to re-fix the pension and pensionary benefits and to pay the same with interest at the rate of 12%.;”

The learned Single Judge, having referred to various Government Resolutions operating in the field and considering the fact that the petitioner had been given all the retiral benefits at the relevant time of taking voluntary retirement and as the petitioner has filed the petition almost after eight years, the petitioner is not entitled to the relief prayed in the captioned Special Civil Application and as such rejected the petition.

Being aggrieved, the petitioner has preferred this Letters Patent Appeal inter alia on the ground mentioned in the appeal.

Assailing the impugned judgment and order, the learned advocate Mr. NK Majmudar appearing for the appellant/ petitioner would submit that the learned Single Judge ought to have considered that the fact of the Special Civil Application No.12033 of 2014 is similar to the facts of the present case, whereupon, the petitioner was granted relief of benefit of third higher grade pay scale. The learned Single Judge on technical consideration, distinguished the judgment and order of the Special Civil Application No.12033 of 2014 and as such, erred. Learned advocate Mr. NK Majmudar would also submit that since the petitioner has completed 19 years of the service, he was entitled for the third higher grade pay scale in view of recommendation made in the Tiku Pay Commission, but the learned Single Judge, having misread the GR dated 11.5.2001, had erroneously denied the benefit of third higher grade pay scale to the petitioner. Learned advocate Mr. NK Majmudar, having referred to judgment and order passed in Union of India Vs. Laxmanbhai Kalabhai Chavda rendered in Special Civil Application No.10751 of 2020, would argue that the Division Bench of this Court held that merely, the petitioner approached belatedly for making the representation, would not be a ground for the Court to reject the prayer, which is otherwise, admissible in view of settled policy.

6.1 Learned Advocate Mr. NK Majmudar would further submit that the learned Single Judge, instead of reading all the Government Resolutions operating in the field, harmoniously, has pinpointed only GR dated 11.5.2001 to negate the prayer of the petitioner and as such has erred. Learned advocate Mr. NK Majmudar would further submit that as per the affidavit-in-reply filed by Mr. Gulammustufa Hamidhusain Khan, Chief Personnel Officer, Commissionerate of Health, Medical Services and Medical Education (Health), Gandhinagar in captioned Special Civil Application, as on date, Medical Officer, Class II who stood at Sr No.1378 in seniority list has been given the benefit of third higher grade pay scale. The unsuccessful petitioner’s serial number in the seniority list is at Sr No.1031 and therefore, the petitioner was entitled for the benefit of the third higher grade pay scale, but the learned Single Judge has failed to give effect of the statement made in said affidavit-in-reply and as such, has committed serious error.

6.2 Upon above submission, learned advocate Mr. NK Majmudar submits to allow this Letters Patent Appeal and to grant the relief, as prayed for.

Disputing the submission canvassed by learned advocate Mr. Majmudar, while supporting the reasons assigned by the learned Single Judge in the impugned judgment and order and to negate the relief prayed for by the unsuccessful petitioner, learned AGP Mr. Aditya Pathak submits that when the petitioner had taken the benefit of voluntary retirement scheme, the benefit of third higher grade pay scale was not even given to the Medical Officer, Class II in seniority list at Sr. No.875 and the petitioner’s seniority was numbered at Sr. No.1031 and in that facts and circumstances, the learned Single Judge has rightly arrived to the conclusion that the petitioner was not entitled for the benefit of the third higher grade pay scale. He would further submit that the person, who has given resignation or has given up service by opting voluntary retirement could not be extended the benefit of third higher grade pay scale in view of GR dated 11.5.2001, which has rightly been interpreted by the learned Single Judge. He would further submit that no irregularity is seen. In that fact, the impugned judgment and order is full of reason and does not require interference. He would further submit that judgment passed in Special Civil Application No.12033 of 2014 is on different facts, which has been noticed by the learned Single Judge in the impugned judgment and order and such judgment was not applicable to the facts of the present case.

7.1 Learned AGP would further submit that the benefit of third higher grade pay scale can be extended to 15% of the sanctioned post. The petitioner, who took the voluntary retirement, was not falling into said 15% and therefore, the petitioner was not given third higher grade pay scale. This fact has rightly been noticed by the learned Single Judge. Lastly, it is submitted that the petitioner, who retired on 19.11.2007, first time approached concerned authority on 24.1.2013 i.e. almost after eight years from his retirement and such delay, which remained unexplained, caused fatal to the prayer, the learned Single Judge has rightly acceded the aspect of delay to deny the relief.

7.2 On above submission, learned AGP submits to dismiss this Letters Patent Appeal.

No other and further arguments are canvassed by learned advocates of both the sides.

Heard learned advocate Mr. NK Majmudar for the petitioner and learned AGP Mr. Aditya Pathak for the respondent No.1.

While negating the prayer of the petitioner, the learned Single Judge in para 9 to 11 and 13, observed and held following:-

“9. The GR dated 17.10.1994 provides for extending the benefit of third higher pay scale to the 15% of the sanctioned post and considering the date of appointment of petitioner and the criteria is fixed under GR dated 17.10.1994, the petitioner who was at Sr. No.1031 in the seniority list and was lower in seniority as compared to the other Doctors who are at seniority number 875 and 1030, who are yet to receive the benefit of third higher pay scale. In the meantime, the petitioner had taken voluntary retirement, which was given effect from 19.11.2007. The petitioner has received all the retiral benefits at the relevant time.

At this stage, it would be appropriate to refer to the relevant provision in the GR dated 11.05.2001 as under:-

“It has been clearly held that, this benefit shall not be granted to the Officers who have left the service either by giving Resignation or by Voluntary Retirement. In the same manner, it has been clearly resolved that this benefit shall also not be granted to the Officer who have denied the Promotion during this time period or till the date of dispatch of these Orders or even thereafter. Moreover, if such benefit is already been granted, then it shall be withdrawn from the date from which the Higher Pay Scale is entitled to be payable.”

Learned Advocate for the petitioner has attempted to overcome the issue of VRS by citing the the decision of this Court in Special Civil Application No.12033 of 2014. But, as rightly pointed out by learned AGP that the decision in the aforesaid case was on account of the relevant fact that the petitioner therein had suffered a stroke of paralysis resulting in 75% permanent disability which compelled him to take a voluntary retirement.

xxxxxxxxx

The court finds that relevant aspect of the matter is a belated claim made by the petitioner. From the chronology of events, it is evident that the petitioner has retired on 19.11.2007, has received all the retiral benefits and has settled down for a retired life, when almost after eight years in the year 2013, for the first time, the petitioner makes a claim for third higher pay scale. What inspired the petitioner to make a claim all of a sudden after 8 years is not clear. However, one thing evident is that the petitioner set on the so called right to claim the third higher pay scale for a period of 8 years, allowed the so called benefits to accumulate accumulate to attain a proportion of bounty and thereafter made his claim. It is for this reason the Court does not find sufficient cause to interfere in excise of Jurisdiction under article 226 of the Constitution of India.”

It is undisputed that the recommendation of the Tiku Pay Commission had been accepted vide GR dated 17.10.1994, which provides to pay first, second and third higher grade pay scale to the Medical Officer, Class II on completion of service of 6 years, 13 years and 19 years respectively. It is noticed that GR dated 15.7.1997 spells that effect of GR dated 17.10.1994 be given from 14.11.1991. It is undisputed that the petitioner has been given benefit of first higher grade pay scale on 14.11.1991 and the second higher grade pay scale w.e.f. 20.2.1995.

GR dated 17.10.1994 also spells that the benefit of third higher grade pay scale is to be given to 15% of the sanctioned post. Equally, it is undisputed that the petitioner stood at Sr No.1031 in seniority list. It is equally undisputed that when the petitioner has taken voluntary retirement in the year 2007 precisely on 19.11.2007, the Medical Officer, Class II at Sr No.875 was in queue to receive the benefit of third higher grade pay scale. It is noticed that when the petitioner was retired on 19.11.2007, he has received all the retiral benefits at the relevant time without any grievance raised by the petitioner. The GR dated 11.5.2001 clearly indicates that if the employee has given resignation or has taken voluntary retirement would not be entitled to get any benefit of the higher grade pay scale. Learned advocate for the appellant - petitioner could not point out that how he can come out from the operation of GR dated 11.5.2001. The learned Single Judge has also noted vividly the effect of this GR in para 10, which is reproduced herein above.

Another noticeable aspect emerging from the record that the petitioner, who had taken the voluntary retirement on 19.11.2007 had obtained all the retiral benefits without raising any grievance that he has not been given the benefit of third higher grade pay scale. He suddenly wake up from slumber in the year 2013 after eight years to claim the benefit of the third higher grade pay scale. The delay, which took due to the slumber, has not been explained by the petitioner in the petition.

The facet of delay in making such action of the claim has been dealt by the Hon’ble Apex Court in case of Maharashtra SRTC Vs. Balwant Regular Motor Service reported in AIR 1969 SC 329, whereby the Hon’ble Apex Court referred to earlier judgment in case of Lindsay Petroleum Co. Vs. Hurd reported in (1874) LR 5 PC 221. Relevant para is 11, which reads as under:-

“11...Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

In State of M.P. Vs. Nandlal Jaiswal reported in 1986 (4) SCC 566, the Hon’ble Apex Court in para 24 observed the following:-

“24...it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.”

It has been further stated therein that:-

24...if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction.”

Recently, in case of Chennai Metropolitan Water Supply and Sewarage Board and others Vs. TT Murali Babu reported in (2014) 4 SCC 108, the Hon’ble Apex Court after observing earlier judgments, in para 16, observed the following:-

“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

As noted earlier, the petitioner did not explain his slumber of eight years. He has not made a whisper of word that why he has not raised his claim within time, but raised after eight years i.e. belatedly. In absence of any satisfactory explanation for delay, exercise of judicial discretion under the writ jurisdiction under Article 226 of the Constitution of India cannot be exercised and the learned Single Judge has rightly done so in the facts and circumstances of the case.

Learned advocate Mr. NK Majmudar pressed into service the judgment of Special Civil Application No.10751 of 2020 to contend that the delay in making the submission would not be ground for rejection in every case. It is settled principle on the precedent that circumstantial flexibility or factual differences makes a law of world of disparity between conclusion in two cases. The reason in one case cannot be blindly followed until the facts of other case is similarly situated and matched. In deciding the cases, which largely depends upon facts, one should avoid the temptation to decide case by matching the colour of one case against the colour of another. The issue before the Division Bench in Special Civil Application No.10751 of 2020 was with regard to increment, which fell due on 1st July as per the amendment of Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008. The original petitioner was not granted yearly increment as he was retired prior to the increment fell due. In background of this fact, since deny to grant increment has effected over the pension, the Division Bench has held that belated approach on the part of the original petitioner for making the representation cannot be a ground to reject the petition. The present case, as stated herein above, is altogether and quite different. Hence, this judgment does not render help to the petitioner.

In wake of above, we see no reason to interfere with the impugned judgment and order. Accordingly, the Letters Patent Appeal stands disallowed. Notice discharged.