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2020 Supreme(Guj) 671
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, J.B. PARDIWALA, JJ.
State of Gujarat – Appellant
Versus
Patel Bhogilal Vithhalbhai – Respondent
Letters Patent Appeal No. 496 of 2020, Special Civil Application No. 7979 of 2013, Civil Application (For Stay) No. 1 of 2020
Decided On : 04-09-2020
Advocate Appeared:
For the Appellant : Mr. Dharmesh Devnani.
For the Respondent: Mr. Vaibhav A. Vyas.
Headnote:
Prevention of Corruption Act, 1947 - Section 5(1)(c), 5(2) - Indian Penal Code, 1908 - Section 161 - Provisional pension – Pendency of criminal case – Acquittal under - Suspension of Service - admittedly the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier Circular of 1994. The High Court has not considered the subsequent Circular of 2004 and based on the Circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law
Facts of the case:
Respondent herein came to be appointed as a Field Assistant on 14th June 1969 in the Dabka PTC College. He ultimately retired as the Assistant Professor from the Government Ladies School upon attaining the age of superannuation, on 31st May 2006 -When the respondent herein was serving in the office of the District Education Officer, Vadodara, an FIR came to be lodged against him for the offences punishable under Section 161 of the IPC and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947. The respondent was put on trial in the court of the Special Judge, Vadodara, in the ACB Case No. 8 of 1992.This Appeal under clause 15 of the Letters Patent is at the instance of the State of Gujarat and others, being the unsuccessful respondents in a writ-application, and is directed against the judgment and order passed by a learned Single Judge of this Court dated 16th October 2019 in the Special Civil Application No. 7979 of 2013, by which the learned Single Judge partly allowed the writ-application filed by the respondent herein.
Finding of the court:
writ-applicant remained under suspension from 31st May 1988 to 7th July 1995. The learned Single Judge, in paragraph 10.1 of his judgment, has observed that the examination was held between 1990 and 1994, but the writ-applicant could not appear as he was not intimated about the examination. We have already made ourselves clear with regard to individual intimation. However, we would not like to disturb the order passed by the learned Single Judge as regards the grant of the first higher pay-scale in view of the fact that during the period between 1990 and 1994 when the departmental examinations were conducted, the writ-applicant was under suspension - regularization of the suspension period and also the second higher pay-scale, the learned Single Judge has rightly observed that the same may be considered by the respondents after the Criminal Acquittal Appeal No. 390 of 2010 is disposed of.
Result: Appeal disposed of.
JUDGMENT :
J.B. PARDIWALA, J.
1. This Appeal under clause 15 of the Letters Patent is at the instance of the State of Gujarat and others, being the unsuccessful respondents in a writ-application, and is directed against the judgment and order passed by a learned Single Judge of this Court dated 16th October 2019 in the Special Civil Application No. 7979 of 2013, by which the learned Single Judge partly allowed the writ-application filed by the respondent herein.
2. The facts giving rise to this Appeal may be summarised as under.
3. The respondent herein came to be appointed as a Field Assistant on 14th June 1969 in the Dabka PTC College. He ultimately retired as the Assistant Professor from the Government Ladies School upon attaining the age of superannuation, on 31st May 2006.
4. When the respondent herein was serving in the office of the District Education Officer, Vadodara, an FIR came to be lodged against him for the offences punishable under Section 161 of the IPC and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947. The respondent was put on trial in the court of the Special Judge, Vadodara, in the ACB Case No. 8 of 1992. The Special Court, vide its judgment and order dated 30th November 2009, acquitted the respondent.
5. The State, being dissatisfied with the judgment and order of acquittal passed by the Special Court, has filed the Criminal Appeal No. 390 of 2010 before this High Court and the same is pending for final hearing.
6. In view of the fact that the Government Appeal against acquittal filed by the State is pending before this Court, the respondent is being paid provisional pension as the suspension period between 31st May 1988 and 7th July 1995 was not regularized.
7. In the aforesaid factual background, the respondent (original writ-applicant) came before this Court by filing the Special Civil Application No. 7979 of 2013, praying for the following reliefs:
“(A) Admit and allow this Special Civil Application.
(B) Allow this Special Civil Application and be pleased to issue writ of mandamus or any order or direction in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent authority to pay immediately the benefit as order vide letter no. DPPF/PR-5/04/2006/212738 dated 12.04.2012 issued by the Office of the Director of Pension and Provident Fund, Gujarat State, and further be pleased to direct respondent authority to grant gratuity amount and final pension and to pay all retiral dues i.e. gratuity and leave encashment and to direct the respondent authority to regularize suspension period of petitioner from 31.05.1988 to 07.07.1995 and grant all benefits accrued during that period all other benefit of service of petitioner to pay arrears of the same immediately to petitioner in the interest of justice.
(C) Pending admission, hearing and till final disposal of this petition, be pleased to direct respondent authority to pay benefit as order vide letter no. DPPF/PR-5/04/2006/212738 dated 12.04.2012 issued by the Office of the Director of Pension and Provident Fund, Gujarat State.
(D) Pending admission, hearing and till final disposal of this petition, be pleased to direct respondent authority to pay other benefits of service of petitioner and further be pleased to direct respondent authority to grant regularization of suspension period from 31.05.1988 to 07.07.1995 and all benefits accrued during that period and to pay arrears of the same to petitioner.
(E) Be pleased to award the cost of this petition.
(F) Grant such other and further relief as deemed fit and just in the interest of justice.”
8. The respondent herein prayed for three things before the learned Single Judge:
(1) That he is entitled to the final pension.
(2) The suspension period between 31st May 1988 and 7th July 1995 be regularized.
(3) He is entitled to the benefits of the higher pay-scale.
9. It was argued before the learned Single Judge that the writ-applicant became eligibl
