{"id":9767,"date":"2011-07-20T00:00:00","date_gmt":"2011-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-keshubhai-on-20-july-2011"},"modified":"2018-10-15T16:55:19","modified_gmt":"2018-10-15T11:25:19","slug":"state-vs-keshubhai-on-20-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-keshubhai-on-20-july-2011","title":{"rendered":"State vs Keshubhai on 20 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Keshubhai on 20 July, 2011<\/div>\n
Author: V. M. G.B.Shah,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nLPA\/2978\/2010\t 18\/ 18\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 2978 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4381 of 2010\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 15789 of 2010\n \n\nIn\nLETTERS PATENT APPEAL No. 2978 of 2010\n \n\n \nFor\nApproval and Signature: \n\n \n\n\nHONOURABLE\nMR.JUSTICE V. M. SAHAI\n              Sd\/-\n \n\n\nHONOURABLE\nMR.JUSTICE G. B.  SHAH\n               Sd\/-<\/a>\n \n\n\n=========================================\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?   \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\n Yes\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?  \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nYes\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                                                             \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ? \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\n \n\n \n=================================================\n \n\nSTATE\nOF GUJARAT & 2 - Appellant(s)\n \n\nVersus\n \n\nKESHUBHAI\nB RAVAL & 10 - Respondent(s)\n \n\n================================================= \nAppearance\n: \nMr N J Shah, Asstt.Government\nPleader for Appellant(s) : 1 - 3. \nMR TH SOMPURA for Respondent(s)\n: 1 - 11. \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE V. M. SAHAI\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE G.B.SHAH\n\t\t\n\t\n\n \n\n\t\t\t\t\n  Date<\/a> : 20\/07\/2011 \n\n \n\nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE G.B.SHAH)<\/p>\n
1.\t\tThis
\nintra court Letters Patent Appeal has been preferred by the
\nappellant, State of Gujarat challenging the order dated 11.5.2010
\npassed by the learned Single Judge in Special Civil Application
\nNo.4381 of 2010.\n<\/p>\n
2.\t\tHeard
\nMr N.J. Shah, learned AGP for the appellant and Mr T H Sompura,
\nlearned counsel for the respondents.  The facts of the case in brief
\nare as under:\n<\/p>\n
\t\tThe respondents – original
\npetitioners have joined the services as daily wagers with the
\nrespondent No.2. They have passed SSC Examination.  Different
\nAssociations and Unions of Daily Wager workmen raised several demands
\nbefore the Government pursuant to which a one man Committee under the
\nChairmanship of Shri Dolatbhai Parmar, the then Minister of Roads and
\nBuildings Department came to be appointed by the State Government.
\nIn the year 1988, pursuant to the report submitted by the aforesaid
\nCommittee a bi-partite agreement came to be entered into between the
\nGovernment and the various associations. By Resolution dated
\n17.10.1988 of the Government, a scheme for regularization of the
\ndaily wagers according to their service came to be framed by the
\nGovernment and the daily wagers
\nwere granted benefit of the said  and were placed in the minimum pay
\nscale of Rs.750-940.  Moreover, one of the demands of the daily
\nwagers and their Associations was to give pay scale of Class III
\nposts to those daily wagers who have passed SSC examination and were
\nworking for a considerable long time.  By another Resolution dated
\n1.5.1991, the Government reiterated that on completion of seven years
\nof service by the daily wagers who have passed SSC Examination, they
\nshould be given clerical work on class III posts in the pay scale of
\nRs.950-1500. By communications dated 7.1.1994 and 27.6.1994 it was
\nmade clear that those who have completed seven years of service after
\n1.5.1991 and have passed SSC Examination should be paid pay scale of
\nRs.950-1500. On 5.2.2001 representations were made by the respondents
\nwith regard to fixations of their salary. Thereafter the respondents
\nfiled Special Civil Application No.8302 of 2007 with 8303 of 2007 to
\n8314 of 2007 before the learned Single Judge.  The learned Single
\nJudge, by order dated 29.3.2007 directed the appellant to consider
\nthe case of the respondents as per Government Resolutions dated
\n1.5.1991, 7.1.1994 and 27.6.1994. It was also made clear by the
\nlearned Single Judge that if the respondents were entitled to the
\nbenefit as per the Government Resolutions, pay scale of Rs.950-1500
\nmay be extended to them. It was also made clear in the order that
\ncase of the similarly
\nsituated 5000 permanent daily wagers where benefits were extended as
\nthey had completed more than 7 years and had passed SSC also should
\nbe considered. The appellants accepted and complied with the order of
\nthe learned Single Judge and fixed the pay scale of the respondents
\nin the pay scale of Rs.950-1500 which is of class III employees as
\nper Government Order No.AHS\/1107\/SCA-8\/p2 dated 24.8.2009 and
\ncalculated the same from the date of the order i.e. 29.3.2007 without
\npaying arrears. The respondents  being dissatisfied with the action
\nof the Government,
\napproached this court with a prayer to fix the respondents in the pay
\nscale of Rs.950-1500 corresponding pay scale of Rs.3050-4590 as per
\n5th Pay Commission and Rs.5200-20200 as per 6th Pay Commission
\nRecommendation to the respondents from the date of completion of
\nseven years of their service as daily wagers and to pay all
\nconsequential benefits including arrears.  The learned Single Judge
\nagain directed the appellants to fix the pay scale of the
\nrespondents-original petitioners in pay scale of Rs.950-1500
\ncorresponding to pay scale of the 5th and 6th Pay Commission from the
\ndate of completion of seven years of their service as per the
\nletters\/instructions dated 7.1.1994 and 27.6.1994 and to pay all
\nconsequential benefits including arrears within a period of two
\nmonths.  The said order of the learned Single Judge is challenged in
\nthis Letters Patent Appeal.\n<\/p>\n
3.\t\tLearned
\nA.G.P, Mr N J Shah has submitted that the Government Resolution dated
\n1.5.1991 has been issued by the Roads and Buildings department for
\ntheir employees and it is not clear from the said Government
\nResolution dated 1.5.1991 that whether it is applicable or not
\napplicable to the Agriculture and Cooperative Department.  In fact,
\nno scheme has been framed by the department in connection with the
\nsaid Government Resolution.  Likewise, the letters dated 7.1.1994 and
\n27.6.1994 are not instructions but it was written by the Roads and
\nBuilding department
\nwhich are internal correspondence and it is nothing but an opinion
\nonly.  He has then submitted that after the order dated 29.3.2007
\npassed by the learned Single Judge in Special Civil Application
\nNo.8302 of 2007 with 8303 to 8314 of 2007 and in compliance of the
\nsame, a Government Order No. AHS\/1107\/SCA-8\/P2 dated 24.8.2009 was
\npassed and the department had followed the same and passed an order
\nNo. Prasa\/Rojamdar\/2007\/1(21)\/14859-88\/2009 dated 19.9.2009. On
\nperusal of Government Resolution dated 1.5.1991, it is clear that the
\ndaily wagers are entitled to the pay scale from the date of allotment
\nof the work of Class III cadre and as the work has been allotted to
\nthe respondents from the date of the order of payment thereof,
\nprior to the appointment is contrary to the Resolution dated 1.5.1991
\nitself and as such the respondents are not entitled to the pay scale
\nfor which they have not worked at all.  He has finally submitted that
\nthe appellants have complied with the earlier directions given by the
\nlearned Single Judge and fixed the respondents in the pay scale of
\nRs.950-1500 and calculated the same with effect from 29.3.2007 which
\nis the date of order and hence the question of paying the arrears for
\nthe period the respondents have not worked does not arise and
\naccordingly this appeal deserves to be allowed.\n<\/p>\n
3.1.\t\tThe relevant portion
\nof order dated 29.3.2007 passed by the learned Single Judge in
\nSpecial Civil Applications No. 8302 of 2007 with 8303 of 2007 to 8314
\nof 2007 reads as under:\n<\/p>\n
“In
\nview of the aforesaid facts, it is directed to the respondent to
\nconsider the case of the petitioners whether they are entitled for
\nthe benefit of Government Resolution dated 1\/5\/1991 as clarified on
\n7\/1\/1994 and 27\/6\/1994 or not, and whether similar situated other
\nemployees those who are working as Daily wager completed more then 7
\nyears and SCC pass where extend the benefit of pay scale of Rs. 950 –
\n1500 or not and then to examine the grievance of the petitioners
\naccordingly and pass appropriate reasoned order in accordance with
\nlaw within a period of three months from the date of receiving the
\ncopy of this order and communicate
\nthe decision immediately to the petitioners.\n<\/p>\n
\tHowever, it
\nis made cleared that if the grievance of the petitioners found to be
\ngenuine and according to the respondent, petitioners are entitled for
\nthe benefit of pay scale of Rs. 950 – 1500, then same may be
\nextended in their favour.\n<\/p>\n
\tHowever, it
\nis  also made cleared that in case if respondent State Government has
\nfound on record that similarly situated other 5000 Daily wager, where
\nbenefits were extended by the respondent, those who are working as
\nDaily wager and completed more than 7 years and SCC pass then the
\ncase of the petitioners to be considered and found to be genuine then
\nState Government may extended the benefit accordingly in their
\nfavour.\n<\/p>\n
\tIn view of
\nthe above observations and directions, present petitions are disposed
\nof without expressing any opinion on merits.\n<\/p>\n
\tHowever, in
\ncase if ultimate decision is adverse to the petitioners, it is open
\nfor the petitioners to challenge the same before appropriate forum in
\naccordance with law.”\n<\/p>\n
4.\t\tLearned counsel Mr T H
\nSompura appearing for the respondents submitted that as per
\nGovernment Resolution dated 17.10.1988
\nthe scheme for regularization of the daily wagers according to their
\nperiod of service came to be framed and the respondents were placed
\nin the pay scale of Rs.750-940. As per the Government Resolution
\ndated 1.5.1991 and the subsequent communications dated 7.1.1994 and
\n27.6.1994, on completion of seven years the daily wagers who have
\npassed SSC examination were entitled to clerical work on post of
\nclass III and should be given pay scale of Rs.950-1500. He has
\nsubmitted that it is amply clear from the said Government Resolutions
\nthat the Government has categorically decided to grant the pay scale
\nof Rs.950-1500 to those permanent daily wagers who have passed SSC
\nexamination irrespective of whether they are given appointment on
\nClass III posts or not and accordingly more than 5000 daily wagers of
\nthe above category
\nare entitled to the said pay scale. The learned counsel has further
\nsubmitted that the Government accepted the order of the learned
\nSingle Judge by fixing pay scales of the respondents with effect from
\n29.3.2007 which is the date of the order without paying arrears.  As
\narrears have not been paid by the department from the date on which
\nthe daily wagers have completed seven years of their service, they
\nhave again approached the learned Single Judge and the learned Single
\nJudge has specifically given direction that the respondents have to
\nbe paid all consequential and incidental benefits including arrears
\nwithin a period of two months from the date of receiving copy of the
\norder. He has vehemently argued that the order passed by the learned
\nSingle Judge has not been complied with by the appellants in its true
\nspirit and that the respondents are entitled to arrears from the date
\nthey completed seven years of service  as daily wagers.\n<\/p>\n
5.\t\tThe
\nGovernment had issued Government Resolution dated 17.10.1988 wherein
\nthe claim for regularization of the daily wagers according to their
\nperiod of service came to be framed.  As per the say of the
\nrespondents, they were granted benefit of Government Resolution dated
\n17.10.1988 and were placed in the minimum pay scale of Rs. 750-990.
\nAt that point of time it was also the demand of the daily wagers and
\ntheir Associations to give pay scale of Class III posts to those
\ndaily wagers who have passed SSC Examination and were working for
\nconsiderably a long time. The said demand was also accepted by the
\nGovernment.  The learned counsel for the respondents has submitted
\nthat merely by placing reliance on the Government Resolution dated
\n17.10.1988 and the scheme for regularization of the daily wagers
\naccording to their period of service referred to above this Appeal
\ncan be straightaway dismissed as nothing further is required to be
\nconsidered.\n<\/p>\n
6.\t\tLearned
\nAGP has drawn our attention to para 19 (A) and (B) of Special Civil
\nApplication No.4381 of 2010 and submitted that no prayer has  been
\nmade by the respondents\/original petitioners to the said effect. The
\nsaid prayer made in para 19 (A) and (B) reads as under:\n<\/p>\n
“19.\t…(A) Be
\npleased to issue a writ of mandamus or a writ in the nature of
\nmandamus or any other appropriate writ, order or direction, directing
\nthe respondents to fix the pay scale of Rs.950-1500 (corresponding
\npay scale of Rs.3050-4590 in 5th Pay Commission and Rs.5200-20200 in
\n6th Pay Commission) to the petitioners from the date of completion of
\nseven years of their service and to pay all the consequential and
\nincidental benefits flowing therefrom including the arrears,
\nforthwith.\n<\/p>\n
(B)  Pending hearing,
\nadmission and final disposal of this petition, be pleased to direct
\nthe respondents to fix the pay scale of Rs.950-1500 (corresponding
\npay scale of Rs.3050-4590 in 5th Pay Commission and Rs.5200-20200 in
\nthe 6th Pay Commission) to the petitioners from the date of
\ncompletion of seven years of their service.”\n<\/p>\n
7.\t\tOn the above issue,
\nlearned counsel for the respondents has drawn our attention to a
\ndecision of the Full Bench in Roshanara Begum  v. Union of
\nIndia and Others (AIR 1996 Delhi 206) in
\nwhich the Full Bench had followed the ratio
\nlaid down in Ram Chand v. Union of India (1993 AIR SCW
\n3479) which reads as under:\n<\/p>\n
“…The Supreme
\nCourt itself has in the case of Ram Chand (1993 AIR SCW 3479) laid
\ndown that instead of quashing the acquisition proceedings which have
\nbeen pending since long on the ground of inordinate delay which has
\nnot been explained, the relief could be moulded by taking resort to
\nArticle 32 of the Constitution and the Supreme Court also laid down
\nthat High Court has the power under Article 226 of the Constitution
\nalso to mould the relief in the similar manner. Thus, there is no
\nlegal bar in this Court also moulding the relief in the similar
\nmanner by taking resort to Article 226 of the Constitution as has
\nbeen done by the Supreme Court by taking resort to Article 32 of the
\nConstitution.”\n<\/p>\n
Learned counsel for the
\nrespondents has also relied upon a decision in U.P. State
\nBrassware Corporation Ltd. and Anr.  v. Udai Narain Pandey AIR<\/a> 2006
\nSC 586 (1) wherein it is held that moulding of relief is a
\ndiscretionary jurisdiction and it need not be conferred always by a
\nstatute.\n<\/p>\n
8.\t\tWe have gone through the
\nabove referred decisions and we find ourselves in complete agreement
\nwith the ratio laid down in it as referred above.  We find that the
\nsame is not applicable to the case on hand because in the Special
\nCivil Application, though averments relating to  to the scheme has
\nbeen made, no submission has been made by the learned counsel for the
\nrespondents\/original petitioners on that issue before the learned
\nSingle Judge who had passed order dated 11.5.2010 in Special Civil
\nApplication No. 4381 of 2010 as well as Special Civil Application
\nNo.8302 of 2007 with 8303 of 2007 to 8314 of 2007 and accordingly the
\nlearned Single has not touched that aspect.  Moreover, it is
\nsubmitted by the learned AGP that no relief to that effect has been
\nsought for.  Thus since the learned Single Judge has not touched that
\nissue, the question of moulding relief in this  appeal, at this
\nstage, does not arise at all. He also submitted that the learned
\ncounsel for the respondents has relied on Government Resolution dated
\n1.5.1991 and two communications dated 7.1.1994 and 27.6.1994 before
\nthe learned Single Judge and accordingly the learned Single Judge has
\nconsidered the same.  Hence we find no substance in the submissions
\nmade by the learned counsel for the respondents that on placing
\nreliance only on the Government Resolution dated 17.10.1988 and the
\nscheme for regularization of the daily wagers according to their
\nservice , straightaway  this appeal should be dismissed.\n<\/p>\n
9.\t\tThe respondents\/original
\npetitioners have approached this Court by way of Special Civil
\nApplications No.8302 of 2007 with Special Civil Application No.8303
\nto 8314 of 2007.  The learned Single Judge, after hearing the
\npetitions, passed judgement dated 29.3.2007 and directed the
\nappellant\/original respondents to consider the respondents’ case as
\nper Government Resolutions dated 1.5.1991 as clarified vide
\ncommunications dated 07.1.1994 and 27.6.1994 within three months from
\nthe date of the said order.  As such, the Government Resolution dated
\n1.5.1991 had been issued by the Roads and Building Department for
\ntheir employees and on referring the same, it is clear that the same
\nis not applicable to any other department as well as the Agriculture
\nand Cooperative Department.  In compliance of the order dated
\n29.3.2007 passed by the learned Single Judge in the above referred
\nSpecial Civil Applications Nos.8302 of 2007 with 8303 of 2007 to 8314
\nof 2007, the appellants had issued a Government Order No.
\nAHS\/1107\/SCA-8\/P2 dated 24.8.2009 and the department had followed the
\nsame and had passed an order No.Prasa\/Rojamdar\/2007\/1(21)\/14859-88\/09
\ndated 19.9.2009.  The English translation of para 2 of the above
\nreferred order dated 24.8.2009 which is in vernacular is as under:\n<\/p>\n
“(2)  As the above
\nmentioned orders are required to be passed pursuant to the judgment
\ndated 29.3.2007 of the Hon’ble High Court, its benefit shall be
\nadmissible from the date of the judgment meaning thereby,  orders
\nshall be issued to assign the duty to these 13 daily wagers from the
\nsaid date. No amount of arrears shall be required to be paid to them
\ntowards this.”\n<\/p>\n
9.1.\t\tThe above referred
\nGovernment Order had been followed by the Department vide order dated
\n19.9.2009. The relevant portion of the said order which is also in
\nVernacular, the English  translation of the same reads as under:\n<\/p>\n
 “Pursuant to the
\norder of the Hon’ble Gujarat High Court, Ahmedabad of Preamble-I and
\nin connection with the letters as referred at sr.nos. 3 and 5 of the
\nPreamble of the Agriculture and Cooperation Department, Sachivalaya,
\nGandhinagar, it has been stated that orders are required to be issued
\nto take the work of Clerks by granting pay scale of Rs.950-1500 to
\ntotal 13 permanent daily wagers who approached the Hon’ble Gujarat
\nHigh Court and who have passed SSC Examination and completed seven
\nyears of service as per the Government Resolution No.
\nDRE-2191\/12491\/(43)\/G (2) dated 1.5.1991 of the Roads and Building
\nDepartment, Sachivalaya, Gandhinagar. Therefore, the following total
\n12 permanent daily wagers of this department who have passed SSC
\nExamination and completed seven years of service, may be given the
\npay scale of Rs.950-1500 with the effect from the judgment dated
\n29.3.2007 of the Hon’ble Gujarat High Court and they are assigned the
\nadministrative work of clerical cadre of Class III. They shall also
\nhave to perform the work as may be assigned by the Head of Office.
\nNo amount of arrears shall be paid to them towards this.”\n<\/p>\n
10.\t\tThus it is clear that
\nwhile passing order, the appellants had mainly considered the order
\ndated 29.3.2007 passed by the learned Single Judge in Special Civil
\nApplications No.8302 of 2007 with 8303 of 2007 to 8314 of 2007 and as
\nper the said directions, the appellants had considered the Government
\nResolution dated 1.5.1991.  As per the Government Resolution dated
\n1.5.1991, benefit of the pay scale of Rs.950-1500 was to be granted
\nto the daily wagers who have completed seven years of service under
\nsection 25-B of the Industrial Disputes Act and who have passed SSC
\nexamination.  Moreover, out of the said two criteria referred above,
\nthe third criterion was entitlement of pay scale from the date on
\nwhich the daily wagers fulfilling the said two criteria are assigned
\nadministrative work of Class III post.  The type of administrative
\nwork is narrated in the first para of the said Resolution dated
\n1.5.1991.\n<\/p>\n
10.1.\t\tIt is submitted by
\nthe  learned AGP that if the respondents are expecting and claiming
\nthe benefits falling from the Government Resolution dated 1.5.1991,
\nthen it is applicable to the respondents in its entirety.  In the
\ncase on hand, as the work has been allotted to the
\nrespondents\/original petitioners from the date of the order, payment
\nthereof prior to that appointment is contrary to the Government
\nResolution itself and as such the respondents are not entitled to the
\npay scale and any other benefits for which they have not worked at
\nall.  The learned AGP has further submitted that in fact as per the
\nGovernment Resolution dated 1.5.1991, the respondents are entitled to
\nthe benefit of pay scale from the date on which they are assigned the
\nadministrative work as narrated in the Resolution. As discussed
\nabove,  it is clear that showing full respect to the order passed by
\nthe High Court, benefit of the pay scale has been extended to the
\nrespondents\/original petitioners from 29.3.2007 which is the date of
\nthe order which is just and proper.\n<\/p>\n
11.\t\tLearned counsel for the
\nrespondents has vehemently argued that there are more than 5000 daily
\nwagers who have passed SSC examination who have been granted pay
\nscale of Rs.950-1500 by different departments of the Government and
\nthat aspect also should be considered as has been considered by the
\nlearned Single Judge.  It is important to note that though the
\nrespondents have stated that more than 5000 daily wagers who have
\npassed SSC examination are there in the department, not a single
\ncomparable incident is cited.  Even if we presume that the said
\naverments are correct then also we are not inclined to consider the
\nsame in light of the ratio laid down by the Apex Court in Fuljit
\nKaur v State of Punjab (2010) 11 SCC 455 in para 11 which
\nreads as under:\n<\/p>\n
“11. The
\nrespondent cannot claim parity with D.S. Laungia in
\nview of  the settled legal proposition that Article 14
\nof the Constitution of India does not envisage negative
\nequality. Article 14 is not meant to perpetuate illegality or fraud.
\nArticle 14 of the Constitution has a positive concept.  Equality is a
\ntrite, which cannot be claimed in illegality and therefore, cannot be
\nenforced by a citizen or court in a negative manner. If an illegality
\nand irregularity has been committed in favour of an individual or a
\ngroup of individuals or a wrong order has been passed by a judicial
\nforum, others cannot invoke the jurisdiction of the higher or
\nsuperior court for repeating or multiplying the same irregularity or
\nillegality or for passing a wrong order. A wrong order\/decision in
\nfavour of any particular party does not entitle any other party to
\nclaim the benefits on the basis of the wrong decision. Even otherwise
\nArticle 14 cannot be stretched too far otherwise it would make
\nfunction of the administration impossible. (Vide
\nCoromandel Fertilizers Ltd. v. Union of India, Panchi Dev V. State of
\nRajasthan and Shanti Sports Club<\/a> v. Union of India.)”\n<\/p>\n
In view of the ratio laid
\ndown by the Apex Court in the above decision, in our view, there is
\nno substance in the above submissions made by the learned counsel for
\nthe respondents\/original petitioners.\n<\/p>\n
12. \t\tNow the question to be
\ndealt with is whether the two communications at Annexure “D”
\nand “E” respectively dated 7.1.1994 at page No.27 and
\ncommunication dated 27.6.1994 at page 28 are Government Resolutions
\nor instructions as described and considered by the learned Single
\nJudge.  Inviting our attention to the above mentioned two
\ncommunications, learned AGP has submitted that those communications
\nhad been written by the officials of the Roads & Building
\ndepartment clarifying the Government Resolution dated 1.5.1991 and it
\nis an internal correspondence which is nothing but an opinion and it
\ncannot be construed as part of Resolution or instructions.  We find
\nforce and substance in the submission of the learned AGP.  It is well
\nsettled legal position that subsequent instructions or communications
\ncannot override the effect of the Government Resolutions. Thus, in
\nour view, the above referred two letters at Annexure “D”
\nand “E” dated 1.7.1994 and 27.6.1994 are simply internal
\ncommunications in the form of opinion only and it cannot be said to
\nbe a Government Resolution or instructions in general.\n<\/p>\n
13.\t\tSo
\nfar as the directions given by the learned Single Judge is concerned,
\nexcept the direction with regard to payment of arrears, the remaining
\ndirections were already complied with  and accordingly as per order
\ndated 19.9.2009 at
\npage Nos. 42 to 44 has been passed and in our view, the same is just
\nand proper.\n<\/p>\n
Perusal of order dated 19.9.2009 issued by the appellant department
\nshows that they have complied with the directions of the court and
\nthe pay scale was given with effect from the date of order of the
\nlearned Single Judge i.e. 29.3.2007.  In our view, the appellant has
\nacted strictly in accordance with the Government Resolution
\ndated  1.5.1991. The Government Resolution clearly states that the
\ndaily wagers who
\nhave completed seven years of service and who have passed SSC
\nexamination are entitled to pay scale of Rs.950-1500. It further
\nstates that apart from the above two criteria, the entitlement of
\nthis pay scale will be from the date on which they are assigned the
\nadministrative work i.e. of Class III post.  Once the directions
\ngiven by the learned Single Judge is complied with by the appellant
\ndepartment and  the same is as per the Government Resolution dated
\n1.5.1991, the respondents are not entitled to any arrears for the
\nperiod they were not assigned with any work of Class III post. In our
\nconsidered opinion, considering the peculiar facts of this case, the
\nappellant department is justified in taking the decision to implement
\nthe pay scale to the respondents from the date on which they are
\ngiven the class III post.\n<\/p>\n
14.\t\tIn
\nthe result, this Appeal is allowed.   The order dated 11.5.2010
\npassed by the learned Single Judge in Special Civil Application
\nNo.4381 of 2010 is set aside with no order as to costs.\n<\/p>\n
 CIVIL
\nAPPLICATION NO. 15789 OF 2010<\/p>\n
\t\tIn
\nview of the order passed in the Appeal, Civil Application No. 15789
\nof 2010 stands disposed of.  Rule is discharged.\n<\/p>\n
\t\t\t\t\t\t\t\t[V
\n M SAHAI, J.]<\/p>\n
\t\t\t\t\t\t\t\t[G
\nB  SHAH, J.]<\/p>\n
msp<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Keshubhai on 20 July, 2011 Author: V. M. G.B.Shah, Gujarat High Court Case Information System Print LPA\/2978\/2010 18\/ 18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2978 of 2010 In SPECIAL CIVIL APPLICATION No. 4381 of 2010 With CIVIL APPLICATION No. 15789 of 2010 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-9767","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Keshubhai on 20 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-keshubhai-on-20-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Keshubhai on 20 July, 2011 - 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