MAGANLAL HARISHANKER JANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed by a retired Judicial Officer of this State who retired as Civil Judge, Senior Division on May 6, 1962 on reaching the annuation age of 58 years, whereby he has prayed that the State Government may be directed to pay him arrears salary for the period from 1-5-1960 till the date of his actual promotion as Civil Judge, Senior Division in the month of March 1965. The petitioner was appointed as a Judicial Officer in the erstwhile State of Saurashtra and then on the formation of the bigger bilingual State in the year 1956, he was absorbed as Civil Judge, Junior Division-cum-Judicial Magistrate, First Class. The petitioner was then promoted as Civil Judge, Senior Division, by an order dated March 19, 1965. The petitioner's grievance was that he should have been promoted as Civil Judge, Senior Division with effect from 1-5-60 in the State of Gujarat as he was entitled to be promoted as such looking to his seniority in the cadre of Civil Judges, Junior Division. The petitioner after having made representation to the High Court ultimately succeeded in getting his right of promotion with effect from 1-5-1960 decided. The High Court moved the Government for creating supernumerary post so as to enable promotion of Mr. Jani to the post of Civil Judge, Senior Division with effect from 1-5-1960. The Government of Gujarat wrote a letter to the Registrar of this Court which is at Annexure 'A' on 11-9-1986 in reply to a letter dated 1-8-1986 from the High Court, stating therein that the High Court may issue a Certificate about the deemed date of promotion, i.e. 1-5-1960 to the present petitioner and two other Judicial Officers, but the question of creation of supernumerary posts did not survive as no arrears of pay and allowances were payable in view of the Government of Bombay Circular No. SR-INT-1059-VI, dated 10th March, 1960. The Government of Gujarat also wrote a letter, Annexure 'B', dated 2240-1986 in reply to the letter dated 10-104986 super from the High Court that back wages were given, to M/s. P. M. Desai, J. S. Bhatt and R. J. Lala in view of the decision of the Court by relaxing the conditions laid down in the Government Circular, but it was not possible to give that benefit to the petitioner and the two other Judicial Officers mentioned in the letter, Annexure 'A'. It is on account of this attitude adopted by the State of Gujarat that the present petition is filed by the petitioner.

(2.) It is an admitted position that the present petitioner and M/s. P. M. Desai, J. S. Bhatt and R. J. Lala were similarly situated so far as their seniority in the cadre of Civil Judges, Junior Division, is concerned and that the present petitioner was entitled to be promoted as Civil Judge, Senior Division with effect from 1-5-1960 and the said benefit has been granted to the petitioner by the High Court with the concurrence of the Government, as stated earlier. The petitioner is thus given a deemed date of promotion as Civil Judge, Senior Division with effect from 1-5-1960. The question is whether the petitioner is entitled to arrear and allowances for the period from 1-5-1960 to the date of his actual promotion and taking over as Civil Judge, Senior Division in pursuance of the order passed by the High Court on March 19, 1965. The State of Gujarat as per their affidavit filed today appears to seek shelter under the Circular issued by the Government of Bombay dated 10-3-1960. If the petitioner was entitled to be promoted with effect from 1-5-60, then there is no reason why the petitioner should not be paid the arrears of pay and allowances from that day. There was no fault on the part of the petitioner that he could not get the promotion as Civil Judge, Senior Division with effect from 1-5-1960, even though he was entitled to get that promotion. It is true that in Special Civil Application No. 199 of 1966 the petitioner was not a party, but when the petitioner and those persons who were petitioners in Special Civil Application No. 199 of 1966 were similarly situated, the benefit which was given to those petitioners of Special Civil Application No. 199 of 1966 is required to be given to the present petitioner also.