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2019 Supreme(Guj) 669
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Patel Bhogilal Vithhalbhai – Appellant
Versus
State of Gujarat and Ors. – Respondents
R/Special Civil Application No. 7979 of 2013
Decided On : 16-10-2019
Advocate Appeared:
For the Appellant : Harnish V. Darji
For the Respondents: Swapneshwar Goutam, A.G.P.
Headnote:
Service Law – Prevention of Corruption of Act 1947 – Sections 5(1)(c) and 5(2) – Indian Penal Code, 1860 – Section 161 – Bombay Civil Service Rules, 1959 – Rule 152 – Regularization of the suspension – Higher pay scale – Government Resolution – Retirement benefits – Gratuity – petitioner was initially appointed as a Field Assistant in College and he has retired as Assistant Professor from Government Ladies School after attaining the age of superannuation – When the petitioner was serving at the office of District Education at that time an FIR came to be registered against him for offences punishable under Section 161 of IPC and Sections 5(1)(c) and 5(2) of Act 1947 – For the said offence, petitioner was tried before Special Judge in ACB Case and by way of judgment and order passed below Exh. 59, the petitioner was acquitted – Seeking directions to respondent authority to grant the gratuity and other retirement benefits to petitioner and also prayer to regularize suspension period and higher pay-scales in view of the Government Resolution – Held, On perusal of Government Resolution, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that employee is eligible to get promotion on basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination, otherwise the grant of higher grade scale is to be withdrawn – When the petitioner became eligible in the year 1987, no examination was held – From the affidavit, it appears that the examination was held from the year 1990 to 1994, however, the respondent authorities has not produced anything on record to show that the petitioner has been intimated about the examination – suspension the petitioner could not have been permitted for taking the departmental examination – Hence, the second higher pay scale cannot be granted at this stage, since the period in which the petitioner became eligible i.e. from 31.05.1988 to 07.07.1995 he was under suspension and hence, the same can only be granted after the decision of the criminal appeal pending before this Court – Petition is partly allowed. (Paras 10 to 14)
JUDGMENT :
A.S. Supehia, J.
1. The present writ petition has been filed by the petitioner for seeking directions to the respondent authority to grant the gratuity and other retirement benefits to the petitioner and also seeking a prayer to regularize the suspension period from 31.05.1988 to 07.07.1995. The petitioner has also prayed for higher pay-scales w.e.f. 01.06.1987 and 01.06.1996, in view of the Government Resolution dated 16.08.1994.
2. The petitioner was initially appointed as a Field Assistant in the Dabka P.T.C. College on 14.06.1969 and he has retired as Assistant Professor from the Government Ladies School after attaining the age of superannuation on 31.05.2006. When the petitioner was serving at the office of District Education office, Vadodara at that time an FIR came to be registered against him for the offences punishable under Section 161 of the Indian Penal Code, 1860 and Sections 5(1)(c) and 5(2) of the Prevention of Corruption of Act 1947. For the said offence, the petitioner was tried before the Special Judge, Vadodara in ACB Case No. 8/1992 and by way of judgment and order dated 30.11.2009 passed below Exh. 59, the petitioner was acquitted.
3. Thereafter, the State has filed Criminal Appeal No. 390/2010 against the acquittal and the same was admitted vide order dated 09.07.2010 and the same is pending before this Court. Since, the criminal appeal is pending, the petitioner was paid provisional pension as suspension period of 31.05.1988 to 07.07.1995 is not regularized. The petitioner is also not granted any higher pay-scale.
4. Learned advocate Mr. Darji for the petitioner has submitted that the petitioner is entitled to the final pension as well as the suspension period from 31.05.1988 to 07.07.1995 is required to be regularized. He has further submitted that during the pendency of the criminal case, the petitioner was reinstated in the service. It is further submitted that no departmental proceedings were initiated by the respondent authorities and on his acquittal, he is entitled to the benefits of the higher pay-scale arising during the suspension period. It is also submitted that the petitioner became eligible for the grant of the first higher pay-scale as on 01.06.1987, in view of the Government Resolution dated 16.08.1994 after completion of more than 9 years in one cadre from 13.10.1976 to 01.06.1987. He has further submitted that no departmental examinations was conducted and therefore, he cannot be denied the benefits of higher pay-scale on the ground that he has not passed the departmental examination.
5. Learned advocate Mr. Darji has further urged that the petitioner is eligible for the second higher pay-scale benefit on completion of 18 years of service in the same cadre i.e. from 01.06.1996, as per the Government Resolution dated 16.08.1994. He has further placed reliance on the judgment and order dated 09.12.2016 passed in LPA No. 1354/2016 in support of his submissions. No further submission is made as regards grant of the retirement benefits.
6. Per contra, learned Assistant Government Pleader Mr. Swapneshwar Goutam has submitted that as regards the prayer for granting regularization of the suspension period is concerned, the same cannot be granted since, the criminal appeal is pending. In support of his submission he has placed reliance on the judgment and order of the Division Bench of this Court in the case of D.M. Gohil Vs. State of Gujarat reported in 2000 (2) GLR 1574. As regards the claim of the higher pay-scale is concerned, it is submitted by the learned AGP that since the petitioner has not passed the departmental examination, he would not be entitled to the higher pay-scale under Clause 3(9) of Government Resolution dated 16.08.1994.
6.1. As regards the claim of the second higher pay scale is concerned, the learned AGP has submitted that the petitioner was suspended from 31.05.1988 and he was reinstated on 07.07.1995, hence, the petitioner is not entitled for the second higher pay-sc
