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SCA/12088/1994 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12088 of 1994
=========================================================
KASHMIRABEN
I BHATT - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
BIPIN P JASANI for Petitioner(s) : 1,
MR JK SHAH AGP for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 15/04/2010
ORAL
ORDER
1. By
way of this petition, the petitioner has prayed for the following
reliefs :-
‘[A]
That the Hon’ble Court be pleased to issue a writ of mandamus or any
other writ, order or direction, directing to the Respondents to give
the benefit of Scheme of Higher Grade Scale to the petitioner on
completion of her 9 years of service 3-1-90 which is long pending.
[B]
That the Hon’ble Court be pleased to issue a writ of mandamus or any
other writ, order or directions, directing the Respondents to
consider the case of the petitioner for promotion tot he post of
Deputy Mamlatdar from the date when her juniors were promoted to the
post of Deputy Mamlatdar.
[C]
That the Hon’ble Court be pleased to hold that the petitioner has
become entitled for being promoted to the post of Deputy Mamlatdar on
passing her Lower Revenue Qualification Examination in August, 1992.
[D]
That the Honourable Court be pleased to direct the Respondents to
refix seniority of the petitioner on the basis of her joining duty as
on 3-1-81 and place at a proper place.
[E]
Pending admission and till final disposal of this Special C.A., the
Honourable Court be pleased to direct the respondents to consider
the case of the petitioner for being promoted to the post of Deputy
Mamlatdar when the next promotion is given to the other employees in
the department and be further pleased to give the benefit of Higher
Grade Scale to the petitioner which is pending since long.
[F]
& [G] ………
2. When
the matter was taken up for hearing, the learned counsel for the
petitioner states that the issue involved in this petition is
squarely covered by the decision of this Court rendered in the case
of State of Gujarat & Ors. v. Mulchandbhai Lavjibhai Patel &
Ors. reported in 2004(1) GLR pg. 536. The said order
reads as under ;-
Admit.
Mr. I.S. Supheia, learned Advocate, waives notice of admission on
behalf of the respondents.
The sole question, which has emerged for our consideration and adjudication in this Letters Patent Appeal under Clause 15 of the Letters Patent is, as to whether the requisite period of service in the same Grade / Scale for the purpose of earning benefit of Higher Grade / Scale is to be considered in the same district or the period of service in more than one district in the same cadre in the same scale is to be counted and clubbed in terms of the provisions of para 3 (2) of the Resolution of the Government dated 16-08-1994, to which our unambiguous and explicit answer is that the requisite period to be counted is not only of particular district in the same cadre and scale, but also the period spent in a district on transfer and even at the request of the employee.
2. The appellants in this Letters Patent Appeal have assailed the judgment of the learned Single Judge rendered in Special Civil Application No.10469 of 1999 whereby the respondents-original petitioners, who are the employees of the Home Department and working as Police Constables, were granted the benefit of the Scheme of Higher Grade – Scale on completion of the requisite period of service of 9 years despite the fact the said period was not in one district in the same cadre, but in different districts on transfer upon request. Thus, the learned Single Judge has held that in order to earn the entitlement for the benefit of Higher Grade formula pursuant to the Government Resolution dated 16-08-1995, the period spent in more than one district could also be clubbed. Such a request was turned down by the appellants-authorities on the ground that respondents-original petitioners had not completed requisite period of 9 years of service in the same cadre in the same district.
3. The original petitioners were working as Police Constables in Sabarkantha District at the relevant time. Their request to the appellant authorities to give them benefit of Higher Grade Scale as they had completed 9 years of service in the same cadre, though not in the same district was rejected. The interpretation made by the Authorities of the said resolution of the Government was challenged in a Writ Petition being Special Civil Application No.10469 of 1999, which came to be decided in favour of the respondents-original petitioners on 12-09-2002 by the learned Single Judge, which is directly under challenge in this Letters Patent Appeal before us.
4. The original-petitioners were workings as Police Constables in Sabarkantha District. Initially, they were appointed in other districts. Later on, they came to be transferred in the same cadre to another district, namely, Sabarkantha District on request. On completion of total period of 9 years in service including the period served in more than one district like that pre and post transfer, they moved concerned Department of the Government for the purpose of Higher Grade Scale relying on the provisions of para 3(2) of the Government Resolution, dated 16-08-1994. The said resolution provides that the Higher Grade Scale would be granted on the basis of seniority and completion of 9 years in the same cadre at the first stage. The request of the original-petitioners made to the original-respondent Authorities, for Higher Grade Scale, at the first stage, in the same cadre is available on completion of 9 years, provided the employee has not earned two promotions during the period and the same requisite period of 9 years is completed after regular appointment and the same is considered for the purpose of seniority in the same cadre in the same scale, was turned down on these grounds.
5. Again, it was the stand of the Department that the transfers were effected on a personal request from one district to another district though in the same cadre and, therefore, the requisite period of 9 years for claiming the benefit of Higher Grade Scale has to be counted in the same district and the services rendered in different districts cannot be clubbed. However, the learned Single Judge allowed the petition and directed the appellant Authorities to grant the benefit of Higher Grade / Scale to the original petitioners, respondents in this Letters Patent Appeal, by taking into account and consideration of the period of services rendered in other districts for the purpose of computing the requisite spell of 9 years of service from the due date and, also granted consequential benefits. It was, therefore, the view of the learned Single Judge that the total length of service in the same cadre is to be considered by clubbing together the tenure of the pre-transfer and post-transfer services in two or more districts, as the case may be, even if such transfers were on their own requests.
5. After having taken into consideration the rival submissions advanced before us and the text and context of the impugned judgment of the learned Single Judge and the design and desideratum of the Resolution of the Government in Finance Department of State of Gujarat dated 16-08-1994, we are of the clear opinion that the view perceived by the learned Single Judge and the ultimate conclusion recorded in directing to grant the benefit of the said resolution is quite justified.
7. It is found from the record that para-3 in the State Government Resolution is the outcome of several representations of the employees and anomalous situational realities in pay and perks of the Government employees and the recommendations made by the Finance Minister. The main design and desideratum of the provision incorporated in para 3 relatable to the ground for the benefit of Higher Grade Scale on completion of requisite period of 9, 18 and 27 years in the same cadre, has been, to see that the employee, who has not been able to earn a promotion for requisite period, does not become a victim of frustration and, also, to see that some incentive is enthused to one who has not been able to earn the promotion more than once in the same grade and cadre and is stuck up. Such provision appears to be to encourage the efficiency in the administration and discourage the frustration.
8. The interpretation of the appellant-authorities that the employees shall not have entitlement even on completion of the requisite period of 9 years, 18 years or 27 years, (which is later on revised) as the case may be, unless the employee has completed continuously the period of 9 years in the same cadre in the same district, is neither legal nor logical. It is, also, not compatible with the object of the said Resolution of the Government. It is not the place where the employee has served that counts. It is the total period, that may be in more than one districts even on his request transfer, that has to be taken into consideration. In our opinion therefore, the employees are entitled to the benefit of Higher Grade Scale on completion of the requisite period of 9 years at the first stage, even by clubbing the period in the same grade, not seniority in the same district, even in case of transfer on request.
9. The view, which we are inclined to take, is also very much reinforced and supported by the observations made in the decision of the Apex Court in Scientific Advisory to Raksha Mantri and another V. V.M. Joseph, 1998 AIR SCW 2226. Therein, it has been held that on transfer on compassionate ground on request of employee, the employee is placed at the bottom of Seniority List at transferred place. However, thereby, the period of service rendered by the employee at earlier places cannot be excluded from consideration in determining his eligibility for promotion, as eligibility and promotion are two distinct and different factors. The proposition and law on this score is very well expounded by the Hon’ble Apex Court in S.C. Mandakki and Others Vs. Director of Health and Family Welfare Service and Others, (1996) 8 SCC 11. The material observations are made in para-5 of the said judgment which are very relevant, which we have considered. It has been succinctly expounded by the Hon’ble Apex Court in Dwijen Chandra Sarkar and another Vs. Union of India and another, AIR 1999 SC 598 that the past services of the employees is to be counted for the limited purpose for eligibility for computing the number of years of qualifying service to enable them to claim Higher Grade Scale under the Scheme of Time Bound Promotions. The rational and philosophy of Time Bound Promotion is also very well highlighted in this decision.
10. In the net result, we find no substance in this Letters Patent Appeal. Therefore, the appeal shall stand dismissed. There shall be no orders in Civil Application.
3. In view of the aforesaid order, this petition is also disposed of on the same lines. Rule is made absolute to the aforesaid extent. No order as to costs. It is however, observed that all the consequential dues shall be paid to the petitioner within a period of four months.
[K.S. JHAVERI, J.]
/phalguni/
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