JUDGMENT :

Maulik J. Shelat, J.

1. Heard Mr. G. M. Joshi, learned Senior Counsel with Mr. Mehul Sharma, learned Advocate for Mr. Vyom H. Shah, learned Advocate for the petitioner, Ms. Forum Shah, learned Assistant Government Pleader for respondent No.1-State and Mr. H. S. Munshaw, learned Advocate for respondent No.2.

2. The present petition is filed under Articles 14, 16 and 226 of the Constitution of India, seeking the following reliefs:

“A) Quashing and setting aside the order dt.2.11.2010 and restore the order dt.5.5.2009 and further direct the respondents to grant the 1st higher grade scale to the petitioner from 3.6.2002 ignoring the penalty imposed vide order dt. 2.5.2009 with all the consequential benefits.

B) In the alternative quash and set aside para 1 and 2 of the Resolution dt.31.3.2005.

C) During the pendency and final disposal of this petition the respondents may be directed not to affect any recovery pursuant to the orders dt.2.11.2010.

D) To grant such and further relief as may be deemed fit and proper.”

SHORT FACTS:

3.1. The short controversy arising for consideration before this Court is whether the withdrawal of the first higher pay scale granted to the petitioner by the respondent, vide order dated 22.04.2010, is justified in law.

3.2. It is not in dispute between the parties that the petitioner was entitled to receive the first higher pay scale w.e.f. 03.06.2002, and the same was granted by the respondent vide its order dated 05.05.2009, albeit w.e.f. 03.06.2002. It is also not in dispute that prior to passing of the aforesaid order of granting the first higher pay scale, the petitioner was subjected to departmental inquiry, wherein, he was found guilty and subjected to major penalty vide order dated 28.11.2008, i.e., reduction in present pay scale by one stage with reduction of one increment for a period of five years without future effect, which was later on substituted by the Appellate Authority vide order dated 01.05.2009 for a period of one year w.e.f. 01.12.2008.

3.3. The respondent having come to know about said penalty order, it has decided to withdraw the benefit of the first higher pay scale already granted to petitioner. As per the order dated 22.04.2010, the respondent has withdrawn such benefit. It appears that petitioner challenged the said order before this Court by way of Special Civil Application No. 6996 of 2010, which came to be partly allowed on 02.08.2010. This Court opined that as on the date of entitlement of the petitioner to receive benefit of the first higher pay scale, there was no chargesheet issued and as such, no departmental inquiry was pending against him. Considering such aspect, the matter was remanded back to the respondent authority to take an appropriate decision in accordance with law.

3.4. It appears that after remand of the matter to the respondent, it has again reiterated what has been stated in the order dated 22.04.2010. While passing the impugned order dated 02.11.2010, reliance was placed upon Government Resolution dated 31.03.2005 issued by the Finance Department of the State, whereby, it has been decided that in a case where a government employee is entitled to receive benefit of higher pay scale, but for any administrative reasons, it was not granted to him and before passing any order in regards to granting him such benefit, such employee would face any departmental proceeding or criminal proceeding and or is suspended, then in such situation, he should not be granted the benefit of higher pay scale until such inquiry gets over.

3.5. Thus, in view of the aforesaid facts and circumstances and feeling aggrieved and dissatisfied with the impugned order dated 02.11.2010 passed by the respondent, the petitioner has approached this Court.

SUBMISSIONS OF THE PETITIONER:

4.1. Mr. Joshi, learned Senior Counsel, would submit that the respondent has committed gross illegality in withdrawing the benefit of the first higher pay scale which was already approved and granted to him. It i