BHARATKUMAR SHANTILAL THAKKAR Vs STATE OF GUJARAT
Bench: R.M. LODHA,SHIVA KIRTI SINGH
Case number: W.P.(C) No.-000019-000019 / 2012
Diary number: 39088 / 2011
Advocates: ANITHA SHENOY Vs
T. MAHIPAL
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 19 OF 2012
BHARATKUMAR SHANTILAL THAKKAR ... PETITIONER(s) Versus
STATE OF GUJARAT & ANOTHER ... RESPONDENT(s)
J U D G M E N T
R.M. LODHA,J.
The petitioner – Bharatkumar Shantilal
Thakkar joined judicial service in the State of
Gujarat in 1995. Prior to his joining judicial
service, the petitioner had done post-graduation
in law. By this writ petition filed under Article
32 of the Constitution of India, inter alia, he
has prayed that direction be issued to the
respondents to implement para 8.48 of the
recommendations of the Ist National Judicial Pay
Commission (for short “Commission”) which has
been approved by this Court.
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2. It appears that during the pendency of the
writ petition, by Resolution dated 14.6.2012,
additional benefit of three advance increments
has been given to the Judicial Officers of the
subordinate judiciary in the State of Gujarat
pursuant to the recommendations made in the Ist
Pay Commission particularly para 8.48 thereof.
In that Resolution, however, the sanction of the
benefit of three advance increments is
conditional upon fulfillment of condition set-out
in para 2 or para 4, as the case may be. The
relevant part of Resolution dated 14.06.2012
reads:
1 .........
2. The advance increments to be given to candidates who possessed higher qualifications in Law at the time of joining service on or after 1.11.1999. But, such increment shall be released upon successful completion of probation period.
3. .........
4. The Judicial Officers joined
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the services after 1.11.1999 and are having such higher qualifications at the time of selection, they shall be entitled to get such three advance increments......
3. Mr. Sanjay Parikh, learned counsel for the
petitioner submits that the above Resolution does
not address the grievance of the petitioner as
additional benefit of three advance increments
has been made available to those who possessed
higher qualification in law on or after
1.11.1999. He further submits that the cut-off
date prescribed in the Resolution is wholly
arbitrary and that has no nexus with the object
sought to be achieved.
4. In para 8.48, the Commission made the
following recommendation:
If selected candidates are having a higher qualification like Post- Graduation in Law, we recommend that three advance increments be given as it is allowed by the Delhi Administration. It is an acknowledged fact that Post Graduation in Law is a difficult course and it is better to reward appropriately such candidates.
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5. In All India Judges Association & Others
vs. Union of India and others1, this Court
accepted all the recommendations of the
Commission except those which were modified in
the judgment itself. This is apparent from para
37 of the judgment which reads as under:
“Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted.”
6. Having regard to the above, the Registrar
General of the Gujarat High Court by his
communication dated 2.4.2008 sent to the
Secretary to the Government of Gujarat, Legal
Department advised him to move the Government
for insertion of Rule 7-A in the Gujarat State
Judicial Services Rules, 2005 (for short “2005
Rules”). Rule 7-A of 2005 Rules, proposed by the
High Court, reads as under:
1 (2002)4 SCC 247
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A candidate selected for the post of Civil Judge who possesses higher qualification in law, such as LL.M., M.Phil in Law, Ph.D. in Law shall be entitled to get three additional increments, but such increments shall be released upon successful completion of the probation period.
7. Pertinently, in the proposed Rule 7-A,
there is no cut-off date with regard to
acquisition of higher qualification in law such
as LL.M. in law, M.Phil in Law, Ph.D. in Law.
8. By subsequent communication dated
27.7.2009, the Registrar General advised the
Secretary to the Government of Gujarat, Legal
Department that insertion of Rule 7-A in 2005
Rules may not be necessary if the
recommendation of granting three advance
increments to the candidates having higher
qualification in law w.e.f. 1.11.1999 is
incorporated as an addendum to the Government
Resolution No. Pay/102003/1233/D dated 16.3.2007
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and given effect from 1.11.1999.
9. It appears that the sentence “if the
present recommendation of granting three advance
increments to the candidates having higher
qualification in law w.e.f. 1.11.1999” in the
letter dated 27.7.2009 has really created
confusion which led to cut-off date (1.11.1999)
being provided in the Resolution dated 14.6.2012.
The date 1.11.1999 in the above sentence is
referable to implementation date for three
advance increments and not as the cut-off date
for acquiring the higher qualification in law.
This is also clear from the sentence preceding
the controversial sentence which reads “...the
Government in the Legal Department have issued
Resolution No. Pay/102003/1233/D dated 16/03/2007
and given effect to the same from 01/11/1999.
(emphasis supplied). It is not in dispute that
while recommending insertion of Rule 7-A in 2005
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Rules, no cut-off date has been given. As a
matter of fact, Mr. Jayesh Gaurav, learned
counsel for the respondent No. 2 – High Court of
Gujarat submits that by letter dated 27.7.2009,
it was neither intended nor meant that three
advance increments shall be available only to
those judicial officers who have acquired higher
qualification in law w.e.f. 1.11.1999. As it is
we do not find any rational in providing that
those candidates who possessed higher
qualification in law on or after 1.11.1999 would
be given advance increments. The criteria
provided in para 2 is irrational.
10 We, accordingly, hold that the expression
“on or after 1.11.1999” in para 2 of the
Resolution dated 14.6.2012 shall be read as “on
or before 1.11.1999”.
11. Writ Petition is allowed as above with no
order as to costs. All financial benefits as per
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this order shall be paid to the petitioner as
early as possible and in no case later than two
months from the date of receipt of copy of this
order. This order shall also be applicable to
all Judicial Officers who have been denied
benefit of three advance increments on the basis
that they acquired higher educational
qualification in law before 1.11.1999.
............................J. (R.M. LODHA)
............................J. (SHIVA KIRTI SINGH)
NEW DELHI; APRIL 1, 2014.