The petitioner has taken out present petition seeking below mentioned relief/direction:- “17A That this Hon'ble Court be pleased to issue writ of mandamus or a writ in the nature of writ of mandamus or any other appropriate writ or direction to the Respondents to pay the amount of Gratuity, Leave Salary, difference of 6th pay commission, and other allowances and benefits together with interest @ 18% per annum from the date of retirement to the date of actual payment.”
2. So far as the relevant facts involved in and giving rise to present petition are concerned, it emerges from the petition that according to the claim of the petitioner, he was appointed as Typist by virtue of the order dated 17.12.1970 on probation basis for period of 1 year. The period of probation was extended and, ultimately, vide order dated 2.12.1972, the petitioner was confirmed on the post and was made permanent. It is also the claim of the petitioner that subsequently he was appointed as Office Superintendent in the setup of respondent No.4 on probation basis for 1 year. His appointment with respondent No.4 continued and subsequently he was permanently appointed on the said post with respondent No.4 vide order dated 9.1.1981 w.e.f. 1.5.1980. The petitioner has also claimed that he reached the age of superannuation on 31.10.2007 and consequently, he retired w.e.f. 31.10.2007.
2.1 The petitioner, in background of aforesaid details, has preferred present petition alleging that while he was in service, he was not paid salary on the basis of recommendations of 6th Pay Commission and after his retirement, the terminal benefits like leave salary and amount towards gratuity were not paid. The petitioner has claimed that he is entitled for the gratuity as well as leave salary according to the service conditions, however, the said amounts have not paid to him despite repeated requests and reminders. Since considerable time has passed and payment has not been made, the petitioner has also claimed for interest in respect of the unpaid amounts.
2.2 Mr. Dave, learned advocate has appeared for the petitioner, and has relied on the orders passed by this Court in Special Civil Application No.12327 of 2000, decision in case of Samuel Joseph Vamesha v. State of Gujarat & Anr. [1996 (1) GLH 518], the decision in Special Civil Application No.14636 of 2003 and the decision in Special Civil Application No.16121 of 2005 in support of petitioner's claim that he is entitled for leave salary, gratuity and interest on account of delay in payment.
3. The respondent authorities have filed common affidavit in support of Special Civil Application Nos.4780 of 2011 and 5600 of 2011.
4. So far as the claim for payment of difference of salary on the basis of recommendations of 6th Pay Commission is concerned, it is the case of the respondent authorities that any final decision of extending the said benefits to the establishment of respondent No.3 and/or respondent No.4 has not been taken.
4.1 It is also the case of the petitioner that said issue is pending for consideration before the Competent Authority and despite directions by this Court vide orders dated 18.12.2001 in Special Civil Application No.12327 of 2000 and in case of Samuel Joseph Vamesha v. State of Gujarat & Anr. [1996(1) GLH 518] and two other orders to take appropriate and necessary decision within specified period, any decision has not been taken until now.
4.2 So long as any decision is not taken by the Competent Authority of adopting the recommendations of 6th Pay Commission and to upgrade the scale and consequently salaries of the establishment at par with the recommendations of the 6th Pay Commission, the Court by its direction cannot apply the recommendations of the 6th Pay Commission. At the most, the Court would issue directions to the Competent Authority to take decision within reasonable time and that has already been done.
4.3 If the respondent authorities have yet not taken any decision on that count and the petitioner feels aggrieved by the delay then appropriate action for non-compliance of the direction by this Court can be taken by the Court in appropriate proceedings. However, in present petition, any other directions, except that the Competent Authority must comply with the directions already issued by the Court, cannot be passed.
5. In the reply affidavit dated 5.3.2012, the respondent authority has dealt with the said claim of the petitioner in para-11, which reads thus:-
“11. I say and submit that the petitioner has further prayed for payment of 6th Pay Commission to the present petitioner in response to aforesaid I respectfully submits that the answering respondent i.e. respondent no.3 had received the proposal for granting the benefit of 6th Pay Commission from the respondent no.4 vide its letter dated 14.05.2010. The respondent no.3 has written various letter to the respondent no.4 institution for getting details of pay scale of the employees of the institution and send the proposal after collecting all the details to the respondent no.1 i.e. Education Department vide its letter dated 09.01.2011 for considering the claim of the employees of the respondent no.4 institution. Therefore, also the prayer of the present petitioner does not survive in view of pendency of the said proposal before the appropriate authority. I further submit that the respondent no.4 has also submitted the additional details as called for by the respondent no.3 for taking necessary action with regard to grant of Six Pay Commission. A list of various communications written by answering respondents, letter dated 09.01.2012 and letter dated 03.03.2012 are annexed herewith and marked as Annexure R-III to this affidavit in reply.”
5.1 In this view of the matter, in absence of decision by respondent No.3 and/or respondent No.4 to adopt the recommendations of 6th Pay Commission, direction as requested for by the petitioner cannot be granted.
6. In this context, i.e. so far as unpaid leave salary is concerned, in view of the reply of the respondent contained in para-10 of the affidavit and since relevant rules of the respondent organization are not available on record and in view of the fact that the respondent No.4 organization had not clarified, by affidavit or otherwise, as to whether its rules permit the authority to entertain such claim or not, the only observation which the Court can, in present circumstances, make is that the competent authority of the respondent No.4 should consider and decide present petitioner's said request, i.e. for unutilized leave salary, in accordance with its rules, however, after taking into account the details mentioned in para-8 of the reply affidavit filed by the respondent No.3. The respondent No.3 shall act in accordance with the stipulation made in para-8 of its reply affidavit.
7. So far as petitioner's claim for gratuity is concerned, the respondent authority has averred in para-9 and 10 of its reply affidavit dated 5.3.2012 that:-
“9. I say and submit that the petitioner has prayed for gratuity, leave encashment and other benefits in the present petition and placed reliance upon the judgments rendered by this Hon'ble Court. In my respectfully submission the respondent authority has deposited the amount of gratuity Rs.3,50,161/- vide cheque No.900116, dated 23.02.2012 before the Registry of this Hon'ble Court as per the calculation given by respondent no.4, in view of oral order dated 31.01.2012 passed by this Hon'ble Court in present petition and the Hon'ble Court has further permitted the petitioner to withdraw the amount of gratuity i.e. Rs.1,40,766/- out of total amount of Rs.3,50,151/- deposited before the Registry. I further submit that in all the earlier judgments the Hon'ble Court has only dealt with issue of grant of gratuity and for question regarding the payment of leave salary has been left open for the state Government.
10. I say and submit that one of the employee of the respondent no.4 i.e. Ranchhodbhai Z. Patel has approached this Hon'ble Court for getting gratuity and leave salary being Special Civil Application No.12327 of 2000 and the Hon'ble Court was pleased to partly allowed the said writ petition vide its order dated 18.12.2001 qua the claim of gratuity and for payment of leave salary liberty was granted in favour of petitioner therein to make detail representation to the respondent authority. I further submit that in view of the aforesaid order the Sate Government has decided the representation of the petitioner for leave salary and issued resolution dated 9th September, 2002 rejecting the claim of the petitioner therein for leave salary on the ground that the employee of the respondent no.4 institution are not government employee and therefore the employees of the respondent no.4 institution are not entitled for the benefit extended to the government employee. Therefore, the case of the petitioner for granting payment of leave salary does not survives in view of G.R. dated 9th September, 2002. A copy of the G.R. dated 09.09.2002 is annexed herewith and marked as Annexure-R-II to this affidavit in reply.”
7.1 Learned AGP for the respondent authorities has submitted that a sum of Rs.2,09,385/- towards gratuity in respect of the petitioner in Special Civil Application No.4870 of 2011 was deposited and has been withdrawn by the concerned petitioner and with reference to the petitioner in case of Special Civil Application No.5600 of 2011, a sum of Rs.1,40,766/- was deposited and has been withdrawn by the petitioner. Thus, now, the only question which remains is about interest for the period of delay so far as gratuity amount is concerned.
7.2 Learned advocate for the petitioner has submitted that so far as the principal amount towards gratuity is concerned, the said amount has been withdrawn by the petitioner and accordingly, the petitioner is paid the principal amount towards gratuity and now, the claim remains only so far as non-payment of interest on account of delay in payment is concerned.
8. Before proceeding further, it is also relevant to note that in the affidavit dated 5.3.2012, the respondent authority has also averred that :-
“8. I say and submit that the petitioner has made an averment in petition that the respondent no.4 institution is receiving 100% grant from the respondent authority but in my respectfully submission the averment of the respondent is not true and correct. On the contrary, the respondent no.4 is grant in aid institution which receive financial assistance from the State Government. I further submit that the State Government has issued resolution dated 11.09.1986 wherein its mentioned that the respondent no.4 has to make payment to its own employee fromits own income sources and if any short fall arises than in that event the State Government will pay the grant for the remaining portion. A copy of the GR dated 11.09.1986 is annexed herewith and marked as Annexure R-I to this affidavit in reply.”
8.1 Learned advocate for the petitioner has stipulated and clarified that there is no claim or demand for pension and that therefore, any question of issuing any direction as regards pension are not called for. The replying respondent No.3 has in para-7 of its affidavit clarified that since the petitioner was covered under the Scheme of Contributory Provident Fund, he is not entitled for pension.
9. So far as petitioners' claim for unpaid leave salary is concerned, the replying respondent No.3 has stated in the affidavit that :-
“10. .....I further submit that in view of the aforesaid order the Sate Government has decided the representation of the petitioner for leave salary and issued resolution dated 9th September, 2002 rejecting the claim of the petitioner therein for leave salary on the ground that the employee of the respondent no.4 institution are not government employee and therefore the employees of the respondent no.4 institution are not entitled for the benefit extended to the government employee. Therefore, the case of the petitioner for granting payment of leave salary does not survives in view of G.R. dated 9th September, 2002.”
10. Having regard to the aforesaid aspects, it appears that present petition can be disposed of by issuing below mentioned directions:-
10.1 The respondent authority – Competent Authority shall calculate the interest payable to the petitioner on account of delay in payment of gratuity. The interest shall be calculated at the rate of 8.5% from the date on which the gratuity became payable until the date on which it was deposited. The payment as per the calculation shall be paid and such details of calculation (and the payable amount) shall be given to the petitioner within period of 6 weeks from receipt of certified copy of present order.
10.2 So far as the petitioner's claim for payment of difference in salary on the basis of recommendations of 6th Pay Commission is concerned, the Court has already issued directions to the Competent Authority to take necessary decision and that therefore, any fresh directions are not passed. So far as the inaction on the part of the respondent authority on this count is concerned, it would be open to the petitioner to take out appropriate proceedings including proceedings for necessary and appropriate order against the respondent – Competent Authority for non-compliance of and for flouting the orders of Court.
10.3 So far as leave salary is concerned, the respondents No.1, 2 and 4 are directed to decide the said claim in accordance with Rules applicable to the petitioner's employer organization.
With the aforesaid clarifications, observations and direction, present petition stands disposed of. Notice is discharged.
(K.M.Thaker, J.) kdc