IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 16468 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- R K CHHAYA Versus JUNAGADH KRUSHI UNIVERSITY -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 16468 of 2004 MR IS SUPEHIA for Petitioner No. 1 MR SA DESAI for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 02/03/2005 ORAL JUDGEMENT Rule. Learned advocate Shri Desai waives service of notice of rule on behalf of the respondent. At the joint request of the learned advocates appearing for the parties, the petition is taken up for final disposal today. 2. In the present petition, the petitioner has challenged the order dated 21.3.97 and a subsequent communication dated 14.9.04 by which the representation of the petitioner came to be rejected. 3. The facts leading to the present petition are that the petitioner who was working as a Junior Clerk at Sardar Krushinagar, Datiwada sought and was given transfer to Junagadh Zone which was outside of his cadre. This transfer was on the condition that the petitioner would be placed at the bottom of seniority in his cadre at Junagadh. The case of the petitioner was considered for grant of higher grade and he was actually granted higher grade with effect from 12.3.91 by the order dated 9th September 1992. Subsequently, the respondent found that the petitioner was transfered at his request with loss of seniority and that therefore his past service at Datiwada could not have been taken into account for considering his case for higher pay-scale. On account of this thinking, the higher grade granted to the petitioner came to be withdrawn by an order dated 21st March 1997. Simultaneously, considering his seniority only after his transfer to Junagadh Zone, his case for higher grade was considered and granted with effect from 21.8.96. 4. It is the case of the petitioner that though he had requested for transfer and his request was accepted on the condition of surrendering his seniority, for the purpose of considering higher pay scale, the past service rendered by the petitioner could not have been ignored. It is contended that though the petitioner may be placed at the bottom of seniority at Junagadh upon his transfer, for the purpose of time bound promotion and considering for higher grade, past service ought to have been taken into account and correctly taken into account by the respondents on the earlier occasion. In support of his contention, learned advocate for the petitioner has placed reliance on a Division Bench Decision of this Court in the case of State v. Mulchandbhai L. Patel reported in 2004 (1) GLR 536. 5. On behalf of the respondents, learned advocate Shri Desai supports the decision. He also submits that the petitioner has filed the present petition in the year 2004 whereas the impugned order was passed by the respondent University in the year 1997. He, therefore, submits that in any case, the petitioner cannot get full arrears even if the petition were to be allowed. 6. Considering the above submissions, it is clear that in view of the Division Bench decision in the case of State v. Mulchandbhai L. Patel (supra), the past service rendered by the petitioner at Datiwada ought to have been considered for grant of higher grade scale despite his surrendering his seniority in the Junagadh Zone. This is well settled by a series of decisions of the Hon'ble Supreme Court which have been referred to in the said decision of the Division Bench. In view of the above settled legal position, I have no hesitation in coming to the conclusion that the respondent erred in withdrawing the benefit of higher grade scale granted to the petitioner solely on the ground that his past service at Datiwada cannot be taken into account for granting such benefits. The impugned orders dated 21.3.97 and 14.9.04 are, therefore, quashed and set aside. The respondent shall restore the higher pay-scale in favour of the petitioner as per the order dated 9.9.92. The question of arrears, however, remains. Against the order passed in the year 1997, the petitioner made his first representation in the year 2001 which came to be decided by the respondent in the year 2004, after which the petitioner has filed the present petition. Considering the fact that the petitioner is also guilty of some delay in approaching this Court, in the facts of the present case, ends of justice would be met if the petitioner is held entitled to 50 per cent of arrears of higher grade scale pursuant to this order and the respondent shall pay the same accordingly. Rule is made absolute to the above extent with no order as to costs. Direct service. (Akil Kureshi, J.) (vjn)