C/SCA/2543/2017 ORDER DATED: 16/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 2543 of 2017 ========================================================== DILIPKUMAR KALIDAS PAREKH & ANR. Versus STATE OF GUJARAT & ORS. ========================================================== Appearance: DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for the Petitioner(s) No. 1 MR PH PATHAK(665) for the Petitioner(s) No. 1.1 MS RV ACHARYA(1124) for the Respondent(s) No. 2,3 RULE SERVED for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 16/07/2025 ORAL ORDER 1. The petitioner is the widow of late Dilipkumar Kalidas Parekh, who was employed as a clerk in 1980 under the Physically Handicapped Quota and had completed more than 11 years of service. However, his services were terminated on the ground that he did not pass the requisite examination within the number of chances that were allowed. This order of termination was passed on 21.05.1992. 2. The petitioner’s late husband approached this Court in SCA No. 3554/1992 challenging the order of termination raising various grounds for not clearing the examination. This Court after having heard the petitioner’s late husband and the respondent proceeded to pass an order in following terms: C/SCA/2543/2017 ORDER DATED: 16/07/2025 “18. In view of the above, the impugned order of termination passed against the petitioner would not stand scrutiny of law. 19. Learned advocate for the petitioner, however, pointed out that by virtue of interim order granted by this Court, the petitioner has continued in service and retired on reaching the age of superannuation. Therefore, the petitioner could be now made entitled to pension and other retiral benefits. The petitioner, however, has additionally prayed not to adjust 90 days of his leave against the payment of backwages. Such prayer at this stage is not required to be considered as the petitioner has already reached to the age of superannuation. However, once the order of termination is required to be quashed, the petitioner shall be required to be treated in continuous service for all purposes. 20. For the reasons stated above, the petition is partly allowed. The impugned order of termination of service of the petitioner dated 21.05.1992 at Annexure:H passed by District Development Officer, District Panchayat, Ahmedabad, is quashed and set aside. The petitioner is held to be in continuous service for the purpose of pension and other retiral benefits to be conferred upon the petitioner. The respondents are directed to pay pension and other retiral benefits to the petitioner treating the petitioner in continuous service all throughout his service career within a period of 3 months from the date of receipt in this order.” 3. As could be seen from the said order, the order of termination was quashed. Admittedly, the termination was on the basis that C/SCA/2543/2017 ORDER DATED: 16/07/2025 the petitioner’s late husband had not cleared the requisite examination. Once, this order of termination was quashed, the question of the respondents contending that the requisite examination had not been cleared by the petitioner’s late husband would not stand to scrutiny. 4. It may also be noticed here that this Court has allowed the Special Civil Application on the consideration that the petitioner’s late husband had attained the age of superannuation during the pendency of the writ petition and therefore, he was entitled to be considered to be in continuous service for the purpose of pension and other retiral benefits. It is the case of the petitioner that since her husband was held to be in continuous service, the consequential benefits of being in continuous service i.e. the extension of 1st, 2nd and 3rd higher pay grades on the completion of 9, 18 and 27 years would automatically follow, at least for the sake of computing the pensionary entitlement and other retiral benefits. 5. The petitioner’s late husband, in fact had filed a contempt petition before this Court in SCA No. 3554/1992 but the said contempt petition was dismissed reserving liberty to the petitioner’s late husband to agitate his claim for extension of higher pay scale. As a consequence, the petitioner before this Court seeking for conferment of the benefit of the higher pay scales under the GR dated 16.08.1994. 6. It is not in dispute that the GR dated 16.08.1994 fundamentally extends the higher pay scale to an employee on the completion of 9, 18 and 27 years of service. The petitioner, by virtue of the C/SCA/2543/2017 ORDER DATED: 16/07/2025 order passed in SCA No. 3554/1992, is deemed to be in continuous service and as a consequence, as per the order passed in the said Special Civil Application, the higher pay scales i.e. the 1st, 2nd and 3rd on completion of 9, 18 and 27 years will have to be extended only in so far as it relates a determination of pension and other retiral benefits. 7. The argument of the respondents that since the petitioner’s husband has not cleared the pre-service training examinations, he would not be entitled for higher pay grade, cannot be accepted. In the facts of this case, it is not in dispute that the order of termination which was based on non-passing of the pre-service training examination has been quashed. The legal effect of the order passed in SCA/3554/1992 is that the reason of non-passing of pre-service training examination cannot be held against the petitioner’s late husband at least for the entitlement of pension and other retiral benefits fundamentally because this Court has declared that the petitioner’s late husband is deemed to be in continuous service. 8. As already observed above, if the petitioner’s late husband is deemed to be in continuous service, the extension of higher pay grades will have to be extended to him. 9. It may be noticed here that appointment to service or post in subordinate services or inferior services is initially for a contractual period and on completion of the contractual period satisfactorily, the candidate passing pre-service training examination will be confirmed as per Rule 9A of the Gujarat Civil Services Classification and Recruitment (General) Rules, C/SCA/2543/2017 ORDER DATED: 16/07/2025 1967. It is, therefore, clear that the objective of passing the pre- service training examination, is only to ensure that the employee is able to effectively discharge his duties on being appointed to the civil services. 10. However, in this particular case, it may be pertinent to notice that the petitioner’s husband was not only appointed but has in fact completed his entire tenure of service. This, therefore, indicates that even without passing the pre-service training examination, the petitioner’s husband had discharged his duties effectively. It is also to be noticed here that it is not the case of the respondents that there was any deficiency in discharge of his service during his tenure of service and the only deficiency was non-passing of the pre-service training examination. Taking into consideration that the petitioner’s husband has in fact discharged his services effectively during the entire tenure, the deficiency of not passing the pre-service training examination should not be held against the petitioner’s husband. In the peculiar factual position of the petitioner’s husband having completed his tenure, in my view, the ground of non-passing of certain examinations, which is a requisite for confirmation of appointment, should not be held against the petitioner’s husband. 11. As a consequence, the writ petition is allowed and the respondents are directed to extend the 1st, 2nd and 3rd higher pay grades to the petitioner for the purpose of calculating her pension and other retiral benefits. This benefit shall be computed and made out with the petitioner within a period of 8 weeks. Rule is made absolute. Page 5 of 6 C/SCA/2543/2017 ORDER DATED: 16/07/2025 12. It is however, made clear that the petitioner will not be entitled for arrears of salary on the basis of this extension of the higher pay scale to her husband and this benefit is only for the purpose of redetermination of her pension and other retiral benefits. (NSSG,J) Mehul Desai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 18/07/2025 13:04:44