Heard Mr. Raval, learned advocate for the petitioner, and Mr. H.K.Patel, learned AGP for the respondent – State.
2. In present petition, after hearing the petitioner, the Court [Coram: Hon'ble Mr. Justice Anant S. Dave] passed order dated 18.10.2011 directing office to issue notice making it returnable on 21.11.2011. Since then and despite the order dated 26.3.2012, any reply affidavit resisting the petition has not been filed.
3. In present petition, the petitioner has prayed for below mentioned reliefs/directions:-
“(B) The Hon'ble Court may be pleased issue a writ of mandamus or an appropriate, writ order direction, directing to the Respondent No.1 and No.2 to comply the letter dated 22-12-2010 at Annexure-A.
(C) Your Lordships may be pleased to direct authorities to grant deemed date for the post of Sister from 30-7-1982 and all other consequential benefits like pay fixation, arrears, retirement benefits, etc.
(D) Direct respondent authorities to consider the case of the petitioner as per the direction of this Hon'ble Court in Spl. C.A.No.3246 of 1982 and S.C.A.No.2904 to 2907 of 2008 and grant all benefits of deemed date and consequential benefits.”
4. During hearing of present petition, Mr. Raval, learned advocate for the petitioner, has submitted that the petitioner is similarly situated as the concerned persons in Special Civil Application Nos.2904 to 2907 of 2008. He also submitted that the case of the petitioner is also similar to the persons concerned in Special Civil Application Nos.14759 to 14763 of 2011 with Special Civil Application Nos.14764 and 14765 of 2011.
5. On the other hand, Mr. Patel, learned AGP for the respondent – State, has submitted that so far as the persons concerned in Special Civil Application Nos.2904 to 2907 of 2008 are concerned, they had expressly mentioned in their application that juniors to the said persons were promoted. He also submitted that the Court passed the order dated 5.10.2009 in Special Civil Application Nos.2904 to 2907 of 2008 in light of the said facts; however, in present case, the petitioner has not made out such case. Mr. Patel, learned AGP, submitted that the only request which is made in present petition is that the petitioner may be granted relief of deemed date and other benefits, including benefit of pay fixation w.e.f. 30.7.1982, however, any case in support of the said order is not made.
6. I have considered the relevant submissions and the record available on file of present petition.
7. In present petition, besides mentioning other details, the petitioner has, inter alia, stated that :-
“8. Even long time ha been passed and she did not get her dues from the authority. It is submitted that deem date and other benefits to the senior employees like the petitioner is nothing but serious economical loss to the petitioner. The other sisters Smt. A.B.Balsari, Smt. A.V.Chritstian and Smt. S.A.Dave, VIDE Special C.A.No.2904 to 2907 of 2008. The Hon'ble High Court granted judgment in there favour and they got the benefits. The present Petitioner is legally entitled for all the benefits but it was not given to her. Which is totally unjust, improper, unreasonable and irrational and against the fundamental rights guaranteed under Constitution of India.”
7.1 It is also noticed from the record that on earlier occasion, while considering the case of the petitioners working in the same department as that of present petitioner, the Court passed order dated 5.10.2009 in Special Civil Application Nos.2904 to 2907 of 2008. In the said group of petitions, the learned Single Judge has taken into account certain details emerging from the record, which are mentioned in para-2 of the order, which read thus:-
“2. It appears and it is the case of the respective petitioners that as such there was already a decision in favour of the respective petitioners by this Court (Coram : Hon'ble Mr.Justice N.J. Pandya, as the then he was) dtd.16/3/1992 rendered in Special Civil Application No. 3246 of 1982 and as such the learned Single Judge while allowing the said Special Civil Application directed the respondent Nos.1 and 2 to consider to give promotions to the petitioners to the Post of Sister in order of seniority by 30/6/1992 and as a result of consideration, if the petitioners are promoted, they shall be given the consequential benefits by further period of two months.”
7.2 After mentioning the other relevant details, the Court, in the said order, made below mentioned observations and directions:-
“7. Still, the concerned respondents are required to be directed to consider the case of the respective petitioners for promotion / deemed date of promotion to the post of Sister as per the decisiion of this Court dtd.16/3/1992 rendered in Special Civil Application No. 3246 of 1982 and adjudicate and determine the benefits available to the respective petitioners and if the respective petitioners are granted any other benefits like higher pay scale etc. in lieu of promotion, in that case, benefits which are already paid to the respective petitioners are to be adjusted and the balance amount is to be given to the respective petitioners.
8. In view of the above, all the petitions are disposed of by directing the concerned respondents to consider the case of each of the petitioners for deemed date of promotion i.e. the date on which the juniors to the petitioners came to be promoted, to the post of Sister, more particularly considering the decision of this Court dtd.16/3/1992 rendered in Special Civil Application No. 3246 of 1982 and adjudicate and determine the consequential benefits available to the respective petitioners and benefits, if any, paid to the respective petitioners by way of higher pay scale etc. in lieu of promotion, are to be adjusted and balance amount is directed to be paid to the respective petitioners. The aforesaid exercise shall be completed by the concerned respondents within a period six weeks from today and communicate the outcome of the same to the petitioners and pay the balance amount to the respective petitioners within a period of two weeks thereafter. With these, all these petitions are disposed of.”
7.3 Subsequently, another petition being Special Civil Application No.1314 of 2009 was listed before the learned Single Judge wherein the Court, after considering the facts and submissions made by learned counsel for the contesting parties, made below mentioned observations and directions:-
“10. In view of the above, the action of the respondent Nos. 1 and
3 and more particularly, respondent No.3 i.e. office of the Local Fund raising the same/ similar objection again and again while considering the grant of benefit of higher grade pay scale is highly deprecated. As such it is not believable that the respondent No.3 was not aware of the decision of this Court. In fact, in the communication from the office of the respondent No.2 there is a reference to the decision of this court , therefore, the submission on behalf of the respondent No.3 that he was not aware of the decision of this Court cannot be accepted. However, in view of the unconditional apology tendered by the respondent No.3 and assurance to this Court that in future respondent No.3 and its Office shall take care and that it was not his intention to disregard and / or disrespect the orders passed by this Court, unconditional apology is accepted. Respondent Nos. 1 and 3, more particularly respondent No.3 and its Officers are warned that as and when not only in the case of grant of higher pay scale but in any other cases as and when it is brought to their knowledge the decision of the Hon'ble Supreme Court and / or this Court in other similar case they will apply their mind and grant the benefit without insisting for individual orders from the Court. All the authorities under the State are bound to consider the decisions of this Court as well as the Hon'ble Supreme Court even if the decisions are with respect to other similarly situated employees. The same would avoid the further litigation and decrease the burden of the Court and also similarly situated employee may not have to incur expenditure on the legal proceedings. If, in future it is found that the authority has insisted for the individual orders from the Court though covered by the decisions of the Court with respect to other similarly situated employees and the employee is driven to the litigation and the Courts it would be viewed very seriously. The Secretary Legal Department as well as Secretary General Administrative Department are hereby directed to issue necessary circular to all the departments accordingly not to insist for individual order when the controversy is concerned by the decision in other employees case.
11. Now, so far as the present petition is concerned, in view of the statement made by Ms. Calla, learned AGP appearing on behalf of the respondent Nos. 1 and 3 recorded herein above and that the respondent No.3 is now withdrawing the objection raised by him with respect to grant of benefit of higher grade pay scale to the respective petitioners, on return of case papers of the respective petitioners by the respondent No.2 to the respondent No.3, the respondent No.3 is directed to pass an appropriate order with respect to grant of the benefit of higher grade scale in accordance with the Government Resolution dated 16.8.1994 of the Finance Department considering the seniority/service of the respective petitioners from the date of their first appointment as an Assistant (Junior Clerk) i.e. inclusive of seniority/service prior to their request transfer within a period of 3 weeks from the date of the receipt of the case papers from the office of the respondent No.2 and pay the arrears within a period of 4 weeks thereafter without fail. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.”
7.4 Thereafter, group of other petitions being Special Civil Application No.14759 to 14763 of 2011 with Special Civil Application Nos.14764 and 14765 of 2011 was listed before the Hon'ble Court wherein the Court passed order dated 4.10.2011. The relevant observations and directions in the said order read thus:-
“2. The decision rendered in Special Civil Application No.3246 of 1982 was challenged by the Government and by some of the parties and the appeals came to be dismissed. However, similarly situated employees like the petitioners filed Special Civil Application Nos. 2904 to 2907 of 2008 for considering the case of the employees for granting deemed date of promotion and consequential benefits flowing from the judgment of this Court in Special Civil Application No.3246 of 1982 and the Court had directed the authorities to consider case of such employees for deemed date of promotion, if eligible and consequentially respondents have passed order granting such benefit, but the petitioners, who are similarly situated persons are denied the benefit, who are at par with the writ petitioners of Special Civil Application No.3246 of 1982. Operative portion of the order dated 01.10.2009 passed by this Court in Special Civil Application Nos.2904 of 2907 of 2008 reads as under:
“7. Still, the concerned respondents are required to be directed to consider the case of the respective petitioners for promotion / deemed date of promotion to the post of Sister as per the decision of this Court dtd.16/3/1992 rendered in Special Civil Application No. 3246 of 1982 and adjudicate and determine the benefits available to the respective petitioners and if the respective petitioners are granted any other benefits like higher pay scale etc. in lieu of promotion, in that case, benefits which are already paid to the respective petitioners are to be adjusted and the balance amount is to be given to the respective petitioners.
8. In view of the above, all the petitions are disposed of by directing the concerned respondents to consider the case of each of the petitioners for deemed date of promotion i.e. the date on which the juniors to the petitioners came to be promoted, to the post of Sister, more particularly considering the decision of this Court dtd.16/3/1992 rendered in Special Civil Application No. 3246 of 1982 and adjudicate and determine the consequential benefits available to the respective petitioners and benefits, if any, paid to the respective petitioners by way of higher pay scale etc. in lieu of promotion, are to be adjusted and balance amount is directed to be paid to the respective petitioners. The aforesaid exercise shall be completed by the concerned respondents within a period six weeks from today and communicate the outcome of the same to the petitioners and pay the balance amount to the respective petitioners within a period of two weeks thereafter. With these, all these petitions are disposed of.
3. Learned advocate for the petitioners submits that considering the above and prevailing service conditions of the petitioners, suitable directions be given.
4. Learned AGP for the respondent State authorities submits that if the petitioners are found eligible and at par with similarly situated petitioners and employees, decision in accordance with law will be taken by the authority.
5. Considering the overall facts and circumstances of the case, all these petitions are disposed of by directing the respondents to consider the case of each of the petitioner for deemed date of promotion i.e. the date on which juniors to the petitioners came to be promoted, in accordance with directions contained in the decision dated 16.03.1992 rendered in Special Civil Application No. 3246 of 1982 and if it is found that the petitioners are eligible for deemed date of promotion, they may be given the promotion with consequential benefits as early as possible and preferably within three months from today.”
8. Having regard to the above mentioned aspects and the orders passed in the above mentioned group of petitions, it appears that present petition can be disposed of with below mentioned directions:-
8.1 The respondent – competent authority shall take up for consideration petitioner's application / letter dated 22.12.2010.
8.2 The respondent – competent authority shall consider the said application in light of the orders passed by the Court, i.e. order dated 5.10.2009 in Special Civil Application Nos.2904 to 2907 of 2008, order dated 24.3.2009 in Special Civil Application No.1314 of 2009 and order dated 4.10.2011 in Special Civil Application No.14759 to 14763 of 2011 with Special Civil Application Nos.14764 and 14765 of 2011.
8.3 After taking into account the observations and directions passed by the Court in the above mentioned orders and keeping the same in focus, the respondent – competent authority shall take necessary and appropriate decision, on petitioner's application dated 22.12.2012, in accordance with the applicable rules and policy.
8.4 The respondent – competent authority shall take appropriate decision keeping in focus the aforesaid aspects as regards the petitioner's request for deem date of promotion, and, ultimately, if it is found that the petitioner is entitled/eligible for deem date of promotion, she may be given appropriate consequential benefits.
8.5 It is clarified that if any junior to the petitioner is not promoted and the petitioner is not able to establish that any junior to the petitioner is promoted, the respondent – competent authority will take independent and appropriate decision, having regard to the facts of the case of the petitioner, and pass appropriate and necessary order.
8.6 The appropriate order/decision required to be taken by the respondent – competent authority, shall be taken within 10 weeks from receipt of certified copy of present order.
With the aforesaid observations, clarification and direction, present petition stands disposed of. Notice is discharged.
Direct service is permitted.
(K.M.Thaker, J.) kdc