Ajitbhai Natwarbhai Patel vs State Of Gujarat
2021 Latest Caselaw 18566 Guj

     C/SCA/14893/2020                                ORDER DATED: 20/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14893 of 2020

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                        AJITBHAI NATWARBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1,2,3,4,5
MS SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s)
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  CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 20/12/2021

                                    ORAL ORDER

Heard learned Advocate Mr. Rakesh R. Patel on behalf of the

petitioner and learned AGP Ms. Surbhi Bhati for the respondent state.

Issue Rule returnable forthwith. Learned AGP Ms. Bhati would

waive service of Rule for the respondents. With consent of the parties this

petition is taken up for final disposal.

By way of this petition the petitioners inter alia seek intervention of

this Court for setting aside a communication/ order dated 11.02.2020

issued by the respondent no. 2 whereby request of the petitioners to

confer benefit of higher pay scale to the present petitioners from the date

of their eligibility is rejected.

Learned Advocate Mr. Rakesh Patel on behalf of the petitioners

would draw the attention of this Court to a chart annexed at paragraph no.

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5 of the petition whereby it is submitted that the petitioners who have all

been appointed in the year 1998-99 as Junior Clerks were eligible for

grant of higher pay scale from the year 2007 and the year 2011

respectively. It is clarified at this stage that petitioners no. 1 to 4 were

appointed in the year 1998 and whereas the said petitioners became

eligible for grant of higher pay scale in the year 2007 whereas petitioner

no. 5 who was appointed in the year 1999 became eligible for higher pay

scale in the year 2011.

Learned Advocate Mr. Patel would submit that all the petitioners

had cleared the departmental examination within the specified number of

chances more particularly according to leaned Advocate Mr. Patel since

the Government Resolution dated 16.08.1994 and subsequent Resolution

dated 02.07.2007 whereby the employees are entitled to higher pay scale

after completion of 9 years or 12 years as the case may be, are required to

pass the departmental examination. Learned Advocate Mr. Patel would

submit that admittedly no departmental examinations were held from the

year 2007 till the year 2011 or the year 2012 as far as petitioner no. 5 is

concerned and whereas on account of the respondents not holding the

relevant departmental examinations, the petitioners are required to suffer

enormous loss.

Learned Advocate Mr. Patel would submit that the respondents

having fixed the date of entitlement for higher pay scale after the date

C/SCA/14893/2020 ORDER DATED: 20/12/2021

when the petitioners passed the examination, is an absolutely illegal and

arbitrary act more particularly since it was incumbent upon the

respondents to have held the examination and having not held the

examination within stipulated time, the respondents are making the

petitioners pay for the respondents inaction.

Learned Advocate would further submit that as such the issue

raised in the present petition is no more res integra. Learned Advocate

Mr. Patel would draw the attention of this Court to a judgment passed by

the Hon'ble Apex Court in case of K. K. Gohil Vs State of Gujarat

reported in 2015 (9) SCC Pg.No. 652. Learned Advocate would draw the

attention of this Court specifically to paragraph no. 12, 13 and 14 of the

said judgment. Learned Advocate Mr. Patel would submit that the law

laid down by the Hon'ble Apex Court, more particularly the finding

based upon policy of the State Government, being that where passing of

departmental examination is necessary for getting higher pay scale and

whereas if departmental examinations are not organized during the

eligibility period than in such case the benefit of higher pay scale could

not be stalled on such ground. Learned Advocate Mr. Patel would

therefore submit that having regard to the law laid down by the Hon'ble

Apex Court, the present petition may be allowed.

Learned AGP Ms. Surbhi Bhati has attempted to distinguish the

petition on facts but as such learned AGP Ms. Bhati could not submit

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anything to be contrary as per the law laid down by the Hon'ble Apex

court in the decision of K. K. Gohil (Supra).

Having regard to the submission made by learned Advocates for

the parties, this Court deems it appropriate to reproduce paragraph 12, 13

and 14 of the decision for better appreciation.

"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 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.

C/SCA/14893/2020 ORDER DATED: 20/12/2021

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.

In view of law laid down by the Hon'ble Apex Court more

particularly the Hon'ble Apex Court having held that higher pay scale

cannot be stalled on the ground of non passing of departmental

examination more particularly if the respondents have not held the

departmental examination during the eligibility period, The present

petition deserves consideration. It is held that the petitioners claim for

higher pay scale cannot be stalled on account of the non-holding of

departmental examinations. The petitioners are therefore entitled to be

paid the benefits from the date of their entitlement. The impugned

communication/ order dated 11.02.2020 passed by respondent no. 2 is

hereby quashed and set aside. The respondents are directed to make

appropriate calculation with regard to conferring benefit of higher pay

scale to the petitioners from the date of their entitlement irrespective of

the date on which the petitioners had passed the departmental

examination. The difference of amount from the date of entitlement to the

C/SCA/14893/2020 ORDER DATED: 20/12/2021

date of actual payment, after calculation by the respondents, shall be paid

to the present petitioners. The exercise required to be done by the

respondents shall be within a period of six weeks from the date of receipt

of this order.

At this stage, this Court deems it appropriate to direct the

respondents to pay the arrears to the present petitioners with interest at

the rate of 7% from the date of entitlement till the date of actual

disbursement. The reason for awarding the interest to the present

petitioners is the fact that the State Government had issued a Circular

dated 24.11.2004, this Circular being issued through the General

Administration Department. The Circular inter alia holds, following

decisions of this Court that in case where the grant of higher pay scale is

subject to passing of departmental examination and if departmental

examination is not conducted during the eligibility period than the

employee is entitled to the benefit of higher pay scale from the actual date

of entitlement. It is based upon the said Circular dated 24.11.2004 that the

Hon'ble Apex Court had passed the decision in case of K. K. Gohil

(Supra). Under such circumstances when based upon the decision of this

Court, the State Government has framed a policy and over and above the

policy, when there is a decision of the Hon'ble Apex Court squarely on

this aspect, it was incumbent upon the respondents to have conferred the

benefit that is difference of amount of higher pay scale from the date of

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entitlement to the date of payment to the petitioners and the respondents

not having done so within a reasonable time, in the considered opinion of

this Court, interest as mentioned here in above is deemed appropriate to

be awarded.

With these directions petition stands disposed of as allowed. Rule

made absolute to the aforesaid extent.

Direct service is permitted.

(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia