C/LPA/152/2023 ORDER DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 152 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4437 of 2020
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 152 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 152 of 2023
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STATE OF GUJARAT
Versus
RAJESHBHAI DHARSIBHAI JAMOD
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Appearance:
MR. MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 09/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned Assistant Government Pleader Mr. Manan Mehta for the appellants-State and learned advocate Ms. Harshal Pandya for the respondent-original petitioner.
2. This Letters Patent Appeal by the State is directed against common judgment dated 7.3.2022 passed in group of petitions including Special Civil Application No. 4437 of 2020 to which the present Letters Patent Appeals pertains.
2.1 Since there was delay in preferring the appeal, Civil Application Page 1 of 6 Downloaded on : Mon Feb 13 20:54:27 IST 2023 C/LPA/152/2023 ORDER DATED: 09/02/2023
for condonation of delay was filed, which was listed on board on 8.2.2023. The following order was passed on 8.2.2023 in the Civil Application for condonation, "In view of order dated 3 rd January 2023 passed in Civil Application No.1 of 2022 in F/Letters Patent Appeal No.38906 of 2022, to which present Civil Application and R/Letters Patent Appeal No.152 of 2023 belong to, the Registry is directed to list the present Civil Application along with R/Letters Patent Appeal No.152 of 2023 on 9 th February 2023."
3. Today, the Letters Patent Appeal is listed with pakka number alongwith the Civil Applications. As stated above, the appeal is in respect of common judgment and order learned single Judge. In one of such Special Civil Application No. 2064 of 2022 alongwith other cognate Special Civil Applications, were dealt with by learned single Judge by the very common judgment and order.
4. The following order was passed by the court on 3.1.2023, whereby the Civil Applications and the Letters Patent Appeals preferred therein were treated simultaneously.
"In view of fair submissions and statement made by all the learned AGPs who appeared for the applicants-appellants in the Appeals concerned, the court took up the delay condonation applications filed in the respective Letters Patent Appeals as well as the appeals themselves simultaneously.
2. By filing the Civil Applications, delay of 231 days in each case is prayed to be condoned by the applicant State. The delay has occurred in preferring each Letters Patent Appeals. All the Letters Patent Appeals arise from common judgment dated 07.03.2022 of learned Single Judge disposing of Special Civil Applications concerned.
2.1 As it could not be disputed that the issue involved in the appeals has remained no longer res integra and stands covered by the decision of the Division Bench of this court and other decisions, the Court thought it Page 2 of 6 Downloaded on : Mon Feb 13 20:54:27 IST 2023 C/LPA/152/2023 ORDER DATED: 09/02/2023 fit to deal with the Civil Applications and Letters Patent Appeals together.
2.2 The prayers by the respective petitioners in their Special Civil Applications were for granting the benefit of higher pay-scale of Senior Clerk on completion of 12 years, which post the petitioners had been holding from their date of appointment.
3. The petitioners were originally Junior Clerks in the respondent Commissioner of Technical Education and were appointed on different dates mentioned in paragraph 4 of the judgment of the learned Single Judge. They were required to pass pre-service training examination in view of the condition in the appointment orders as per the Gujarat Technical Education Department(Conditions of Service Relating to Clerk's Examination) Rules, 1976. Passing of CCC examination was to be the pre-condition for becoming eligible for promotion to the post of Senior Clerk and for earning the benefit of higher pay-scale. Rules 7 & 8 of the Rules inter alia provided that the employee concerned would be required to pass the examination within the specified time to get promotion.
3.1 The petitioners were admittedly eligible to appear and seek promotion subject to fulfilment of the passing of the examination. As per the condition and the rules, the examinations were to be conducted to be offered to the petitioners at periodical intervals by the authorities. There is no gainsaying that the examination was not conducted by the authorities at regular intervals.
3.2 The communication dated 30.12.2016 of the Technical Examination Board referred to by the learned Single Judge indicated that though the department was bound to hold the examination in accordance with the Rules for the purpose of promotion to the post of Senior Clerk, such examination was never held after the year 2005. The petitioner could pass the said examination only in the year 2016, when such examination was offered and held by the authorities. However, the petitioners were denied the benefit of promotion and higher pay-scale on the ground that they failed to pass the examination within the specified time.
3.3 It is true that the appellant State has referred to certain circulars which required passing of the departmental examination by the employee concerned within stipulated time, but when the examination itself was not held for long time, it was not the fault of the petitioners, nor any conduct was attributable on their part to deny them the benefit Page 3 of 6 Downloaded on : Mon Feb 13 20:54:27 IST 2023 C/LPA/152/2023 ORDER DATED: 09/02/2023 of the promotion and higher pay-scale pursuant to their passing of necessary examination when offered to them.
4. Similar issue was addressed by coordinate Bench of this Court in State of Gujarat vs. Ajitbhai Natwarbhai Patel in LPA No. 1172 of 2022, disposed of by order dated 16.09.2022. The decision of the Supreme Court in K.K. Gohil vs. State of Gujarat[(2015) 9 SCC 652] was relied on by the Division Bench. The decision in K.K. Gohil (supra) of the Supreme Court takes the same view that when the departmental examination was not held and not offered for a long time to the petitioners, the employees concerned could not be subjected to injustice to be boxed by denying them the benefit on the ground of non- holding of examination.
4.1 The Division Bench in Ajit Natwarbhai Patel (supra) relied on K.K. Gohil (supra) to observe and hold in paragraph 6 as under, "6. It is not in dispute that the respondents herein - original petitioners, who were appointed as Junior Clerk in the year 1998-99, are entitled for higher pay scale on completion of nine years of their services. The departmental examination was not conducted by the Department during 2002 to 2010 and therefore, there was no occasion for the respondents herein - original petitioners to appear and clear the examination for establishing themselves that they are fit for getting the benefits as per the policy of the State. On 15.10.2011, the departmental examination was held, in which, the respondents herein - original petitioners appeared and they cleared the same. If we consider the facts of the present case and the facts of the case decided by the Hon'ble Supreme Court in case of K. K. Gohil (Supra), the same squarely covers the facts of present case. Paragraph No. 12, 13 and 14 of the above referred decision of Hon'ble Supreme Court read as under:
"12. From perusal of the Government Resolution dated 16th August, 1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn.
13. However, by circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court's order and directed that in cases where for getting higher Page 4 of 6 Downloaded on : Mon Feb 13 20:54:27 IST 2023 C/LPA/152/2023 ORDER DATED: 09/02/2023 pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organised in time. Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law.
14. Considering the entire facts of the case, vis-a-vis the Government Resolution time to time issued relating to the condition for giving benefit of promotion, we are of the view that the reasons assigned by the learned Single Judge and the Division Bench of the High Court cannot be sustained in law. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. Consequently, it is held that the appellant is entitled to the higher pay scale on completion of nine years of service."
4.2 Learned Single Judge while delivering the impugned common judgment, has rested his order for allowing the petition on the very law laid down in K.K. Gohil (supra).
4.3 With regard to the decision of Ajitbhai Natwarbhai Patel (supra), it was pointed out by learned AGP that in the decision of the learned Single Judge, which was subject matter of challenge before the Division Bench in Ajitbhai Natwarbhai Patel (supra), 7% interest was granted by the learned Single Judge, which was set aside by the Division Bench. It was however pointed out that in the common judgment impugned in the present appeals, interest has not been granted by the learned Single Judge. In that view, this aspect is not required to be adverted to.
5. In view of the decision of the Supreme Court in K.K. Gohil (supra) and considering the reasons supplied by learned Single Judge in the impugned order, the issue stands covered against the State Authorities-appellant hererin. The challenge in the Letters Patent Appeals is therefore devoid of merit.
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6. When judgment of the learned Single Judge is just, proper and legal, the Letters Patents themselves are not entertainable, evidently liable to be dismissed and when the Court does not see any reason to undertake the exercise of going into and considering the applications for condonation of delay.
7. The applications for condonation of delay as well as the appeals are appeals are dismissed for the reasons recorded hereinabove. Connected Civil Applications for stay also stand disposed of accordingly."
5. Since the present Civil Application and the Letters Patent Appeal arise from the same judgment and order of learned single Judge, the above quoted order will govern the present Civil Application and Letters Patent Appeal.
6. The reasons recorded in the said order dated 3.1.2023 forms part of the present order.
7. Accordingly, the Civil Applications and the Letters Patent Appeal are dismissed for the very reasons recorded in the aforesaid order dated 3.1.2023.
(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) C.M. JOSHI Page 6 of 6 Downloaded on : Mon Feb 13 20:54:27 IST 2023