Kalpanaben Gulabrai Bhatt vs Commissioner

Biren Vaishnav, J

1 Rule returnable forthwith. Mr.Soaham Joshi, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondent – State.

2 On 25.07.2022, this Court passed the following common order:

“ So far as Special Civil Application No. 9679 of 2019 is concerned, Ms. G.R. Vijayalakshmi, learned advocate for the petitioner states that by the order dated 12.04.2018 passed in Special Civil Application No. 2784 of 2015, the petitioner was ordered to be reinstated in service. Para 5 of the order reads as under:

“1. The petitioner, by way of the present petition under Article 226 of the Constitution of India, has prayed for issuance of an appropriate writ/order to quash and set aside the order of termination dated 04.10.2013 issued by respondent no.3.

Heard learned advocate for the petitioner as well as learned AGP for the respondent-State.

It appears that the petitioner was appointed as Junior Clerk and he was allotted to the Office of Civil Surgeon, Bhavnagar by respondent no.3 vide Office Order dated 11.05.1982. The petitioner is a physically handicapped person and after joining the services with the Office of Civil Surgeon, Bhavnagar, the petitioner was required to pass the Pre-Service Qualification Examination as per the Rules. The petitioner appeared in Pre-Service Qualification Examination, but she could not clear the said examination. It is undisputed fact that thereafter, she was posted as Case Writer in the OPD Division of Sar Takhtsinhji General Hospital, Bhavnagar. It further appears that the Medical Superintendent, Bhavnagar wrote a letter dated 20.03.2013 to the Additional Director, Medical Education and Research, wherein it is stated that the petitioner being a Case Writer is not required to pass Pre -Service Training Examination under the Rules. Despite such stand taken by the Medical Superintendent of Sar Takhtsinhji General Hospital, Bhavnagar, the services of the petitioner came to be terminated upon instructions issued by the State. The petitioner has put in about more than 31 years of services and only on the ground of not clearing the PreService Examination, her services were terminated.

As discussed hereinabove, the petitioner was transferred to the post of Case Writer for which examination is not mandatory under the Rules.

In that view of the matter, the order dated 4. 10.2013 passed by respondent no.3 based on instructions issued by respondent no.1 is required to be quashed and set aside. Ordered accordingly. Since the petitioner has retired from the services, the question of reinstatement does not arise, however, arrears of salary till retirement be paid to the applicant. The respondents-authorities are directed to release the pensionary benefits accordingly, within a period of six weeks from the date of receipt of this judgment. The present petition deserves to be allowed and accordingly, the same is allowed. Rule is made absolute accordingly. Direct Service is permitted.”

Ms. Vijayalakshmi, learned advocate would submit that as far as the prayers concerning two increments and benefit of encashment of Privileged Leave is concerned, the grievance has been settled. The only issue that needs to be considered is grant of benefits of second and third higher pay scale which have not been paid to the petitioner.

So far as Special Civil Application No. 9680 of 2019 is concerned, it is the submission of Ms. Vijayalakshmi, learned advocate that interest on delayed payment of benefits pursuant to the order in question have not been paid for a period of eight months.

Stand over to 17.08.2022.”

3 As reflected in the order, the prayer concerned with regard to two increments and benefit of encashment, the grievance is settled. The only issue that survives is with regard to grant of benefits of the second and the third higher pay-scale. By virtue of the termination being set aside by this Court in Special Civil Application No. 2784 of 2015 and the Letters Patent Appeal having been dismissed, the respondents are directed to extend the benefits of the higher pay-scale, namely, second and the third higher pay-scale taking the fact that the petitioners termination has been set aside and she is otherwise found eligible. The exercise shall be completed within a period of eight weeks from the date of receipt of copy of this order.

On the benefits of second and third higher pay-scale if granted, the petitioner shall be entitled to revision of pay. The petition is allowed, accordingly with the aforesaid directions.

As far as prayer in Special Civil Application No. 9680 of 2019 is concerned, liberty is reserved in favour of the petitioner to apply after compliance of the order in Special Civil Application No. 9679 of 2019. Rule is made absolute to the aforesaid extent. Direct service is permitted.