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2023 Supreme(Guj) 81
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIKHIL S. KARIEL, J.
ANIRUDHSINH TEMUBHAI ZALA – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 12402 of 2013
Decided On : 19-01-2023
Advocate Appeared:
For the Petitioner: VYOM H. SHAH.
For the Respondent: ASHUTOSH DAVE.
Headnote:
Seniority - Cancelled orders of granting 1st and 2nd Higher Grade Pay Scale - Petitioner calls into question an order and consequential order whereby respondents have cancelled orders of granting 1st and 2nd Higher Grade Pay Scale – Held, A person who is posted in specialized sections, while he is entitled for promotion in same section on basis of his seniority which is counted from date of his entry in section, would also necessarily imply that said person could not be promoted outside said section except in case of any administrative exigency - It also needs to be mentioned here that neither order or affidavit-in-reply, make out a case for petitioner who was working in Motor Transport section to be posted outside section in cadre of State Reserve Police Force as Head Constable. No explanation forthcoming on said aspect, relying on affidavit-in-reply filed by respondents themselves, in considered opinion of this Court, promotion granted to petitioner outside Motor Transport section in core State Reserve Police Force was itself illegal and bad in law and whereas in considered opinion of this Court, petitioner having refused same, could not be visited with any adverse consequences thereupon - Impugned orders are quashed and set aside - Petition succeeds.
JUDGMENT :
NIKHIL S. KARIEL, J.
1. Heard learned Advocate Mr. Vyom Shah on behalf of the petitioner and learned Assistant Government Pleader Mr. Ashutosh Dave on behalf of the respondent-State.
2. By way of this petition, the petitioner calls into question an order dated 15.03.2012 and consequential order dated 01.06.2012 whereby the respondents have cancelled the orders of granting 1st and 2nd Higher Grade Pay Scale to the present petitioner and further the respondents have recovered the amount paid to the petitioner by way of grant of 1st and 2nd Higher Grade Pay Scale.
3. Brief facts leading to filing of this petition can be enumerated as herein-below:
3.1 The petitioner had been appointed in the State Reserve Police Force (for short ‘SRPF’) as a Constable on 11.02.1983 and whereas the petitioner after having passed the examination meant for being posted as a Driver Constable in the Motor Transport section of SRP Group No. 13 where he was working and after undergoing training as a driver, had been posed as a driver vide an order dated 22.11.1999.
3.2 It appears that the petitioner had passed the Departmental Promotion Examination on 23.12.1993 and thereupon he became eligible for grant of 1st Higher Grade Pay Scale in his tenure with the SRPF and whereas the petitioner was granted his 1st Higher Grade Pay Scale vide an order dated 15.07.1999.
3.3 It appears that the petitioner had been granted the 2nd Higher Grade Pay Scale on 02.07.2007 while he was working in the Motor Transport section. At this stage it would be relevant to mention that while the petitioner claims that he had been granted his 2nd Higher Grade Pay Scale, while he was working in the Motor Transport section as a driver, whereas it is the contention on part of the respondents that though the petitioner was working as a driver in the Motor Transport section, the 2nd Higher Grade Pay Scale, had been granted to the petitioner completing his date of entry in service in the SRPF and not counting his date of entry in the Motor Transport section. Be that as it may in the considered opinion of this Court, since the said fact may not be much relevant for deciding the issue on hand, this Court does not deem to enter upon and adjudicate upon the said controversy.
3.4 It appears that the petitioner while he was working as a Driver Constable in the Motor Transport section, had been granted promotion as Armed Head Constable vide an order dated 25.02.2009 and whereas since the same had not been accepted by the present petitioner, vide an order dated 01.06.2009, the said order had been cancelled insofar as the present petitioner was concerned. It further appears that the petitioner had once again been promoted as Armed Head Constable vide an order dated 31.12.2011 and whereas upon the petitioner not accepting the same, the said order had been cancelled insofar as the present petitioner as well as certain other similarly situated persons. It is upon the petitioner not accepting the promotion for the second time that the department had decided to take action against the present petitioner. At this stage, it would be further relevant to mention that as such, the department could have taken appropriate action against the petitioner as they had done after the petitioner had refused promotion in the year 2011, when the petitioner had originally refused promotion in the year 2009 and whereas it appears that at the relevant point of time the petitioner had not been visited with any consequences.
4. At this stage it would be relevant to observe that the State Government had formulated a policy of grant of Higher Grade Pay Scale vide Government Resolution dated 16.08.1994 and whereas the said policy inter-alia envisages that upon a government employee completing 9 years/18 years/27 years on a particular post then subject to the requirements as mentioned in the said Government Resolution, the employee would be entitled to grant of Higher Grade Pay Scale, as may be available to the concerned em
