IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6798 of 2001 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- PURSHOTTAM N THAKKER Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6798 of 2001 MR SHALIN N MEHTA for Petitioner No. 1 MR SN SHELAT, ADVOCATE GENERAL with MS SHRUTI D TRIVEDI, AGP for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 16/12/2003 ORAL JUDGEMENT By way of the present petition, the petitioner has challenged the decision of respondent No.1, communicated by its Deputy Secretary vide his letter dated 8-3-2001, rejecting the petitioner's demand for promotion to the post of Secretary, Gujarat Legislature Secretariat, with effect from 29-12-1987, instead of 6-1-1989, as well as rejecting the demand of the petitioner in connection with the pay scale of Rs.5900-6700/-. 2) The facts of the case leading to the present controversy are as under : At the relevant time, the petitioner was serving as a Deputy Secretary in the Gujarat Legislature Secretariat. Since at the said time, one Mr.J.M.Parekh, who was appointed to the said post, was repatriated to his parent department, i.e. Judiciary, the petitioner was given the charge of the post of Secretary, Gujarat Legislature Secretariat, by Notification dated 17th December, 1987. As per the said notification, which is at page 31, the petitioner was also given charge allowance as per the Rules. Subsequently, by notification dated 6th January, 1989, the petitioner was substantively promoted and appointed as Secretary in the Gujarat State Legislature Secretariat, with effect from 29-12-1987. Though such appointment is made in view of the Notification dated 6th January, 1989, retrospective effect is given by which such benefit of promotion is given to the petitioner with effect from 29-12-1987. The said notification is finding its place at page 33, annexure-B in the compilation. It is also mentioned in the said notification that the Governor of Gujarat, after consultation with the Speaker, Gujarat Legislature Assembly and the Gujarat Public Service Commission, was pleased to direct that Mr.P.N.Thakkar, the present petitioner, working as Deputy Secretary is promoted and appointed as Secretary with effect from 29-12-1987. Subsequently, by another Notification dated 27th October, 1989, the petitioner was promoted/appointed as Secretary with effect from 6th January, 1989. Accordingly, retrospective benefit of promotion, which was given to the petitioner by earlier notification, was taken away by the subsequent notification and as per the latter notification, such promotion was given with effect from 6th January, 1989. 3) Being aggrieved by the aforesaid action of the respondents, the petitioner herein preferred Special Civil Application No.2648/1992. In the said Special Civil Application, the petitioner had also prayed that the Secretary, Legislature Secretariat, should be paid the pay-scale and all other benefits available to the Secretary of the State Civil Secretariat. A learned Single Judge of this Court (Coram:R.K.Abichandani, J.), by his order dated 28-2-2000, came to the conclusion that, while passing the order in question, by which alteration was effected in the earlier order by changing the petitioner's date of promotion, no hearing was given to the petitioner, he was required to be heard before altering the date of promotion. It has been observed by the learned Single Judge in para 4 of the judgement as under : "4. Apart from the fact whether there was a valid ground for altering the earlier order by changing the petitioner's date of promotion, it is clear that once the petitioner was promoted by the Notification dated 6-1-1989 with effect from 29-12-1987, being the date from which he was in-charge of the post in question, it was incumbent upon the authorities to have heard the petitioner before making any order which worked adversely against the petitioner by virtue of his date of promotion being changed from 29-12-1987 to 6-1-1989. Admittedly, the petitioner was never heard before the making of such an adverse order. In fact, there was already a mention in the Notification dated 6-1-1989 about the Governor having consulted the Speaker and the G.P.S.C. while promoting and appointing the petitioner as Secretary with effect from 29-12-1987. However, even if that Notification did not reflect the correct state of affairs, the petitioner was entitled to know and be given an opportunity of being heard before any adverse decision was taken against him by shifting his date of promotion to 6-1-1989. The impugned action of altering the earlier date of promotion of the petitioner from 29-12-1987 to 6-1-1989 under the Notification at Annexure-D to the petition cannot therefore be sustained. The concerned authorities of the respondent can take such a decision only after hearing the petitioner." The learned Single Judge has dealt with the question about parity in pay scale in para 5 of the order and relied on Resolution passed by the Government dated 17-2-1988, which is as under : "RESOLUTION : The pay scale of Rs.5300-6200 for the post of Secretary, Gujarat Legislature Secretariat is prescribed vide G.L.S. Notification No.E-2 (5)/18970 dated 27-11-1987. The pay-scale for the members of the corresponding grade i.e. Secretary (Non I.A.S.) in the Civil Secretariat of Government is Rs.5900-6700, which is higher than the pay-scale prescribed for the Secretary, Gujarat Legislature Secretariat. The functions and the responsibilities involved for the post of Secretary, Gujarat Legislature Secretariat is more or less equivalent to the functions and responsibilities of the members of corresponding grades in the Civil Secretariat of the Government. An element of anomaly in the pay-scale between two equivalent posts was under active consideration of the Governor for some time past. Now, the Governor of Gujarat, in consultation with the Speaker, Gujarat Legislative Assembly, is pleased to prescribe the pay-scale of Rs.5900-6700 (Pre-revised Scale) w.e.f. 01.08.1997 as personal pay-scale for the present Incumbent Shri K.M.Panchal till the Recruitment Rules for the post of Secretary, Gujarat Legislature Secretariat is amended. This issues with the concurrence of Finance Department vide its letter No.PGR-1389-1640-M dated 16.02.1998. xxxx xxxxx xxxxxxx " Relying upon the said resolution, the learned Single Judge has observed that the concerned authority found that the functions and responsibilities of the post of secretary, Gujarat Legislature Secretariat, were more or less equivalent to the functions and responsibilities of the members of corresponding grades in the Civil Secretariat of the Government and that the anomaly in the pay scales between two equivalent posts was under active consideration of the Governor, and the Governor, in consultation with the Speaker, prescribed the pay scale of Rs.5900-6700 (pre-revised Scale) with effect from 1-8-1997 as personal pay scale for the then incumbent Mr.K.M.Panchal till the Recruitment Rules were amended. The learned Single Judge, therefore, directed the respondent-authority to consider the case of the petitioner on the lines similar to the approach adopted in making the Resolution dated 17-2-1998. The learned Single Judge, therefore, directed the respondents to consider the question of alteration in the date of the petitioner's promotion, after giving him opportunity of being heard and as regard the pay-scale, the respondents were directed to take appropriate decision by taking into account, the resolution dated 17-2-1998, as was done in respect of Mr.K.M.Panchal. The learned Single Judge further directed the respondents to take appropriate decision in accordance with law and in the light of the observations made in the judgement. 4) On the basis of the aforesaid order of the learned Single Judge, the petitioner made a representation in writing to the authority and it is not in dispute that he was also heard personally in this behalf. The said representation of the petitioner dated 16-4-2001 is produced at page 59 of the compilation. The Deputy Secretary to the Government, by his communication dated March 8, 2001, informed the petitioner that the Government has decided that the request of the petitioner, in connection with the retrospective promotion to the post of Secretary, Gujarat Legislature Secretariat with effect from 29-12-1987, cannot be acceded to, and that the petitioner cannot be granted the pay scale equal to Secretary to Government in the State Civil Secretariat (pay scale of Rs.5900-6700/-). It is the aforesaid communication dated March 8, 2001, which is impugned at the instance of the petitioner in the present petition. 5) Learned advocate Mr.Shalin Mehta has attacked the aforesaid decision, which is communicated to the petitioner, on the following grounds : (i) That the decision of the Government is in violation of the direction given by this Court in Special Civil Application No.2648/1992. (ii) That the earlier notification, by which benefit of promotion was given to the petitioner from 29-12-1987, was correct and the date was not required to be altered subsequently, as the earlier notification was issued after consulting the G.P.S.C. (iii) That the impugned order, by which the representation of the petitioner is rejected, is a non-speaking order and the observations of the Honourable High Court are not taken into account at all. A N D (iv) The decision of denying the pay-scale, as prayed for, is arbitrary and contrary to the observations of this Honourable Court in Special Civil Application No.2648/1992. 6) Mr.S.N.Shelat, learned Advocate General, on the other hand, has submitted that, by the impugned communication, the petitioner is only communicated the decision taken by the State Government and the reasons are available only in the original file. It is submitted by the learned Advocate General that the Deputy Secretary has not taken the decision, he has only conveyed the decision taken by the Government to the petitioner. The learned Advocate General has further submitted that the first notification was issued on 6th January, 1989, by which the retrospective promotional benefit was given to the petitioner w.e.f. 29-12-1987, but at that time, G.P.S.C. was not consulted in connection with giving retrospective effect of such promotion. Therefore, subsequently, the said lacuna in the decision was rectified, by issuing a fresh notification dated 27th October, 1989, and the earlier mistake, of giving promotion with retrospective date to the petitioner, was rectified by altering the said date. Mr.Shelat, learned Advocate General, further submitted that the post in question falls within the purview of G.P.S.C. and since the G.P.S.C. was consulted only in connection with giving promotion and subsequently, when G.P.S.C. objected the giving of retrospective promotion to the petitioner, ultimately, fresh notification dated 27th October, 1989 is issued and the same cannot be said to be an incorrect decision. 7) Mr.Shelat, learned Advocate General, has submitted that so far as pay scale is concerned, the petitioner is not entitled to the revised pay scale as the petitioner has retired by taking voluntary retirement on 2-7-1992 and subsequently, in the year 1998, incumbent of the said post, vide a notification, was given pay scale of Rs.5900-6700. But after considering the facts and circumstances of the case, it has been decided by the Government that so far as the Secretary in the Legislature Secretariat is concerned, he cannot be given the same pay scale, which is given to other Secretaries in other departments of the State. On careful consideration, the demand of the petitioner, for getting the said scale at par with other Secretaries of the State Government, is rejected by the State Government. He submitted that such decision, in connection with revision of pay cannot be interfered with by this Court on the basis of "equal pay for equal work". He submitted that, even otherwise, the duty discharged by other Secretaries, who are in I.A.S. cadre, as compared to the duty discharged by the Secretary to the Gujarat Legislature Secretariat, and educational qualifications for both these posts, also differ. It is, ultimately, submitted by the learned Advocate General that the petitioner has no case either for getting retrospective date of promotion or for revised pay scale and, therefore, this petition is required to be dismissed. It is also submitted by the learned Advocate General that the observations of the Honourable High Court were taken into consideration at the time of taking the fresh decision, and, ultimately, the decision taken by the Government is communicated to the petitioner. Naturally, as it is a mere communication of the decision, no detailed reasons are given in the same. 8) I have heard both the sides at length. In my view, there is absolutely no substance in the present petition. It is required to be noted that the petitioner was given a status of In-charge Secretary. Simply because the petitioner has held charge of the said post, it cannot be said that he was substantively holding the said post, and, ultimately, by notification dated 6th January, 1989, he was substantively appointed as Secretary, Gujarat Legislature Secretariat. It is, no doubt, true that by notification dated 6th January, 1989, the petitioner was retrospectively promoted with effect from 29-12-1987. It is also equally true that, in the said notification, there is a reference about consultation with G.P.S.C. It is not in dispute that the post in question falls within the purview of G.P.S.C. and, therefore, without consulting G.P.S.C., the petitioner cannot be given promotion or appointment on the said post. By subsequent notification dated 27th October, 1989, the earlier notification was modified and the retrospective benefit, which was given to the petitioner, was taken away, by altering the date of promotion. It is pointed out in the affidavit-in-reply, as well as it is argued by the learned Advocate General that since G.P.S.C. was not consulted for giving promotion with retrospective effect and since, subsequently, G.P.S.C. objected to such retrospective promotion, a fresh notification was required to be issued. In para 14 of the reply, it is specifically averred that on receipt of the judgement of this Court dated 28-2-2000 delivered in Special Civil Application No.2648/1992, the State Government considered the whole matter carefully and conscious decision was taken at the level of His Excellency the Governor of Gujarat and the request/representation of the petitioner was not accepted and the petitioner was thereafter informed accordingly. Paragraph 22, which is the relevant paragraph of the affidavit-in-reply, is as under : "22. With respect to the contents of para 4 (e) of the petition, it would be pertinent to mention that in so far as the first point regarding grant of retrospective promotion with effect from 29-12-1987 as Secretary, GLS to the petitioner is concerned, the factual position is as mentioned below :- (i) The post of Secretary, GLS was vacant from 29-12-1987 due to repatriation of Shri J.M.Parekh to his parent cadre, i.e. Judicial Service. (ii) The petitioner, the then Dy.Secretary, GLS, was entrusted with the additional charge of the post of Secretary, GLS with effect from 29-12-1987. Since the petitioner was holding the additional charge of that post with effect from 29-12-1987, the petitioner was entitled to get the Charge Allowance as per normal rules in force for holding such additional charge. (iii) The proposal for filling up the vacancy of Secretary, GLS by way of promotion was sent by the then Hon.Speaker, vide his letter dated 4-5-1988. (iv) After elaborate discussion on feasibility and merits of the proposal, the then Governor of Gujarat passed orders on 6-12-1988 for promotion of the petitioner to the post of Secretary, GLS. (v) Thereafter, the Gujarat Public Service Commission was consulted which conveyed its concurrence to such promotion, vide its letter dated 28-12-1988. (vi) Thereafter, the decision regarding grant of promotion to the petitioner as Secretary, GLS was communicated to the GLS on 4-1-1989. (vii) Thereafter, the GLS issued a Notification promoting the petitioner as Secretary, GLS with effect from 29-12-1987 (i.e. with effect from the date on which the post fell vacant). The Government came to know about grant of such retrospective promotion only when it received the letter dated 25-1-1989 from the GPSC wherein the GPSC desired to know as to how the petitioner was granted such retrospective promotion to the petitioner. (viii) The matter was thereafter referred to H.E.the Governor of Gujarat - the appointing authority in case of the Secretary, GLS - who confirmed that the Governor had accorded approval for grant of promotion to the petitioner only with prospective effect (i.e. with effect from the date of issuance of promotion orders) and the then H.E. the Governor of Gujarat also ordered that the GLS should cancel the Notification dated 6-1-1989 according retrospective promotion to the petitioner and also to issue a fresh Notification for promotion to the petitioner as Secretary, GLS with effect from 6-1-1989 only. Accordingly, the Government informed the GLS about the then H.E. the Governor's decision on 20-3-1989. (ix) Instead of complying with the orders given by H.E. the then Governor of Gujarat, the GLS raised a few issues which were considered and submitted before the then Governor who after careful consideration of all the issues involved in the matter, reiterated his earlier decision. (x) The GLS was again informed by the Government on 20-10-1989 about reiteration of the orders of H.E. the then Governor. Ultimately, on 27-10-1989 the GLS cancelled its Notification dated 6-1-1989 and accorded promotion to the petitioner as Secretary, GLS with effect from 6-1-1989." 9) It is also averred in the affidavit-in-reply that in all the Government posts, such promotions are normally given with prospective effect and not from the date of occurrence of vacancy and the officers can get promotions only from the date of assumption of regular charge of the promotional post. The question, which requires consideration is, whether, initially, when the proposal was sent to the G.P.S.C the same was sent with a specific recommendation of giving such promotion with retrospective date of the year 1987. In this connection, learned Advocate General made available the original file, in order to point out as to in which manner the proposal was sent by the department. The proposal was sent by the General Administration Department to the Secretary of G.P.S.C. on 28th October, 1988. In the matter of promotion to the aforesaid post, the particulars of four officers of the department were sent. The Deputy Secretary of the General Administration Department recommended the case of the present petitioner for promotion to the aforesaid post, by the said letter. 10) After getting approval of the G.P.S.C., the General Administration Department, by its letter dated 4-1-1989, informed the Secretary of the Gujarat Legislature Secretariat, that the G.P.S.C. has given approval with certain observations. Ultimately, it is on the basis of the aforesaid communication of the General Administration Department, that the Gujarat Legislature Secretariat issued notification dated 6th January, 1989, by which the petitioner was given promotion with retrospective effect. The aforesaid correspondence is finding place in the file and the same is also shown to Mr.Shalin Mehta, learned advocate. Looking to the said correspondence, it is clear that, as such, it is now not in dispute that when the proposal was sent to the G.P.S.C., and subsequently when promotion was given to the petitioner on the said post, no proposal was sent to the G.P.S.C. for sanction of promotion to the petitioner with retrospective effect. In that view of the matter, the G.P.S.C. subsequently objected to such promotion given to the petitioner with retrospective effect. G.P.S.C had given consent for giving promotion to the petitioner but there was no question of giving any sanction to such promotion with retrospective effect, naturally, because there was no proposal sent by the Government to the G.P.S.C. in this behalf. Therefore, the first notification was issued either by way of mistake or contrary to the sanction granted by the G.P.S.C. for filling up the said post by way of promotion. Ultimately, when G.P.S.C. objected to such promotion the second notification was issued, which was challenged in the earlier petition, as pointed out earlier. Mr.Shalin Mehta has also clearly conceded, after going through the file, that no proposal was sent to the G.P.S.C. for giving promotion to the petitioner with retrospective effect from 29-12-1987. He, however, submitted that the Secretary of the Gujarat Legislature Secretariat had recommended the case of the petitioner for retrospective promotion and therefore, the department should have sent appropriate proposal, recommending to the G.P.S.C. to give promotion to the petitioner from the year 1987. However, even if that be so, the same should not carry the case of the petitioner any further, as, now, it is an admitted fact that no such proposal was ever sent to the G.P.S.C. On the contrary, it is clear that the proposal was given for considering the case of the petitioner for promotion and it was never mentioned in the proposal that the petitioner can be given promotion with back date. When the post in question is required to be filled in through G.P.S.C., the G.P.S.C. was justified in objecting to such promotion and therefore, the same was clarified by the second notification. The petitioner has not even joined G.P.S.C. as a party in the present proceedings. It was asked to Mr.Mehta whether he is willing to join G.P.S.C., to find out whether any such proposal, recommending the case of the petitioner with retrospective effect, was received by G.P.S.C., he submitted that it is not necessary to join G.P.S.C., in order to find out whether any such proposal was sent. Apart from that aspect, looking to the stand taken by the Government as well as considering the aforesaid factual aspect, when it is clear that, at no point of time, proposal was sent to the G.P.S.C. for giving retrospective promotion to the petitioner, in my view, it cannot be said that the Government has committed any error of law in altering the date given in the earlier notification, as, admittedly, the petitioner was not entitled to such benefit in view of the fact that no such consultation with G.P.S.C. was made before giving such promotion. The State Government, after the decision of this Court in the earlier matter, has already given hearing to the petitioner and ultimately, not acceded to the request of the petitioner to give benefit of promotion with retrospective effect. In my view, the said decision cannot be said to be illegal in any manner. As a matter of fact, the said decision is absolutely in consonance with the provisions of law and the said decision is taken in accordance with law. Even if, by mistake, the petitioner was given promotion with retrospective effect by the earlier notification, such mistake can always be corrected by altering the date, and after hearing the petitioner and after considering the said aspect, accordingly, the Government has corrected the mistake. 11) Mr.Mehta, however, argued that while taking such decision, the Government has not taken into account the observations of the learned Single Judge. It is, no doubt, true that the petitioner is communicated about rejection of representation and no reasons or findings are given, as to on what basis, the representation of the petitioner is rejected by the State Government. The learned Advocate General, however, submitted that the Deputy Secretary has merely communicated the said decision and the reasons for rejecting the representation are in the original file. The said file was also made available to the Court and was also shown to Mr.Shalin Mehta and as per the same, the Government has considered both the questions, regarding giving promotion with retrospective effect as well as demand of pay scale by the petitioner. There is also a reference about this Court's order delivered in Special Civil Application No.2648/1992. It has been mentioned that the Government came to know about such promotion with retrospective effect only when it received the letter dated 25-1-1989 from the G.P.S.C., wherein G.P.S.C. desired to know as to how the petitioner was promoted as Secretary, Gujarat Legislature Secretariat retrospectively, when there was no such proposal from His