SCA/8463/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8463 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= HARINBHAI DAYARAM JOSHI - Petitioner(s) Versus DIRECTOR OF AGRICULTURE & 1 - Respondent(s) ========================================= Appearance : MR NIRAV C THAKKAR for Petitioner(s) : 1, MS ASMITA PATEL, AGP for Respondent(s) : 1 - 2. ========================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 27/08/2008 ORAL JUDGMENT 1. RULE. Learned AGP Ms.Asmita Patel waives service of Rule on behalf of the respondents. 2. Present petition has been filed by the petitioner for the prayer that the writ of mandamus or any other writ or direction to grant the benefit of higher pay scale Rs.5500-175-9000 may be granted to the petitioner with effect from 20-5-1998. It is also prayed that by appropriate writ or direction impugned order dated SCA/8463/2008 2/3 JUDGMENT 15-7-2004 issued by GAD at Annexure-B may be quashed and set aside. 3. The facts of the case, briefly summarized, are that the present petition is filed by the petitioner challenging the action of the respondents in not granting higher pay scale on completion of nine years on the basis of policy of the Government. It is contended that the petitioner was appointed as Artist and Photographer 20-5- 1989 and was working sincerely. Next promotion is to the Post of Movie Cameraman and the benefit is granted of 9-18-27. However, it is contended that as per the Government Resolution dtd. 15-7- 2004, employees who were undergone inter district transfer at their own request, are not considered for the purpose of higher pay scale on completion of nine years of service. It is on the basis of this Government Resolution that the benefit of higher pay scale is denied to the petitioner which is challenged. 4. Heard learned advocate Mr. Thakker for the petitioner and learned AGP Ms. Asmita Patel. Though this resolution, at annexure-B, is passed, the point is finally concluded as the Division Bench of this High Court in LPA No.187/03 dtd.20-3-2004 dismissed the appeal filed by the State granting the benefit in the case of similarly situated employees. Further in the light of recent judgment of Hon'ble Apex Court reported in 2008 AIR SCW 937 in the case of State of Maharashtra & Ors. v. Uttam Vishnu Pawar, the issue has been finally concluded. Hon'ble Apex Court has SCA/8463/2008 3/3 JUDGMENT specifically referring to this aspect observed that:- “Therefore, in view of the consistent approach of this Court, it is no more res integra that the incumbent on transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay scale as per the scheme of the government.“ 5. Therefore, in the light of these clear observations, the petitioner may not claim seniority after his inter district transfer at his own request but for the purpose of higher pay scale, the length of service is required to be considered. Therefore, as discussed in para-9 of the said judgment, present petition deserves to be allowed. 6. Present petition accordingly stands allowed. Prayer in terms of para-7(C) is granted. The impugned decision, Annexure-B, Government Resolution, on the basis of which the benefit of higher pay scale is denied, is hereby quashed and set aside. The respondents are directed to consider the case of the petitioner in light of the observations made by Hon'ble Apex Court within a period of four weeks from to-day. Rule is made absolute accordingly. No costs. (Rajesh H. Shukla, J.) vijay*