Gujarat High Court
Principal District Judge vs Rajesh Pranjivan Gor on 6 July, 2021
Bench: J.B.Pardiwala
C/LPA/161/2017 JUDGMENT DATED: 06/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 161 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 11625 of 2014
With
R/LETTERS PATENT APPEAL NO. 165 of 2017
In
SPECIAL CIVIL APPLICATION NO. 11539 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRINCIPAL DISTRICT JUDGE
Versus
RAJESH PRANJIVAN GOR & 1 other(s)
==========================================================
Appearance:
LAW OFFICER BRANCH(420) for the Appellant(s) No. 1
MS TRUSHA K PATEL(2434) for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 2
MR VK JOSHI(2329) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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C/LPA/161/2017 JUDGMENT DATED: 06/07/2021
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. These appeals under Clause 15 of the Letters Patent are
at the instance of the original respondent No.2 and are
directed against the order dated 11.1.2016 passed by the
learned Single Judge of this Court in the Special Civil
Applications Nos.11539 and 11625 of 2014 respectively by
which the learned Single Judge allowed both the writ-
applications.
2. The facts giving rise to these appeals may be summarized
as under :-
2.1 The present opponent No.2 of the Special Civil
Application No.11539 of 2014 was appointed on the post of
the Gujarati Stenographer, Grade-II on 12.4.1983 on the
establishment of District and Sessions Court, Kutch-Bhuj. He
continued on the said post for the period of 32 years. On
completion of 09 years of service he was given the first higher
grade pay-scale by order dated 9.12.2009 with effect from
1.9.1993. At the time of filing of the writ-application the writ-
applicant was senior most in the entire State and he became
entitled to second higher grade pay-scale with effect from
1.9.2008. By order dated 5.1.2013 passed by the appellant
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herein the said benefit of second higher grade pay-scale of
Rs.9300-34800 in the grade pay of Rs.5400 came to be
rejected. The writ-applicant therefore approached this Court
by filing the Special Civil Application No.11539 of 2014
seeking direction against the respondent No.2 to grant the
second higher pay-scale of Rs.9300-34800 in the grade pay of
Rs.5400 with effect from 1.9.2008.
2.2 The present opponent No.1 of the Special Civil
Application No.11625 of 2014 was appointed on the post of
the Gujarati Stenographer, Grade-II on 13.10.1999 on the
establishment of District Court, Kutch-Bhuj. Though the
opponent No.1 had completed more than 20 years of service,
he was not granted the benefit of first higher grade pay-scale.
By order dated passed by the appellant herein the said benefit
of second higher grade pay-scale of Rs.9300-34800 came to be
rejected. The writ-applicant therefore approached this Court by
filing the Special Civil Application No.11625 of 2014 seeking
direction against the respondent No.2 to grant the first higher
pay-scale of Rs.9300-34800 with effect from 14.10.2011.
2.3 The appellants herein opposed the writ-applications by
submitting that the High Court of Gujarat had framed a
criteria for promotion to the post of Stenographer Grade-I and
II in the subordinate Courts of the State and also directed to
keep in mind the instructions issued by the High Court vide
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the letter dated 4.10.2002. Further the recruitment rules were
revised for the appointment of English/Gujarati Stenographer
Grade-I and Grade-II, where it was directed to follow the
educational qualification for the said posts and the minimum
qualification prescribed was graduation from any faculty or
other degree recognized as equivalent to it by the Government.
It was further argued that the writ-applicants are not graduate
and, therefore they did not qualify for the grant of higher
grade pay-scale.
3. As the learned Single Judge allowed both the writ-
applications by way of common judgment and order dated
11.1.2016 passed in the Special Civil Application No.11539 of
2014 and the Special Civil Application No.11625 of 2014
respectively, both the appeals are being decided together by
this common judgment.
4. The learned Single Judge allowed both the writ-
applications and held that the writ-applicants were entitled to
the higher grade pay-scale of Rs.9300-34800.
5. The appellant (original respondent No.2) being aggrieved
and dissatisfied with the judgment and order dated 11.1.2016
passed by the learned Single Judge allowing the Special Civil
Applications Nos.11539 and 11625 of the 2014 has filed the
present appeals.
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6. We have heard Ms. Trusha K. Patel, the learned counsel
appearing for the appellants (original respondent No.2
respectively) and Mr. V. K. Joshi, the learned counsel
appearing for the respondent No.1 ( original writ-applicants).
7. Learned counsel for the appellants has filed written
submissions and the same are taken on record.
8. Submissions on behalf of the appellants ((original
respondent No.2) :-
8.1 Ms. Trusha K. Patel, the learned counsel appearing for
the appellants (original respondents Nos.2 and 3) has submitted
that the object of the scheme dated 16.8.1994 duly revised on
2.7.2007 is to give higher grade pay-scale so as to extend the
benefit of the next promotional post to the employees, who
may be otherwise eligible for promotion but may not get
promotion due to the limited promotional avenues.
8.2 It is submitted that when the employees are given the
financial benefit to the next promotional post, they are
required to be eligible for being promoted to the said post. It
is submitted that the policy of the State Government dated
2.7.2007 states that not only the actual promotion, but even
for higher grade pay-scale, the employee requires to be a
graduate. It is further submitted that by letter dated 4.10.2002
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the High Court of Gujarat has provided that for enlistment of
the candidates for the post of Stenographer Grade I and II, the
candidates must be a graduate.
8.3 Relying on the aforesaid Government Resolution dated
16.8.1994 and the High Court's letter dated 4.10.2002 the
State Government revised its scheme dated 2.7.2007. It is
submitted that the respondents are seeking higher grade pay-
scale equivalent to the salary for the post of Stenographer
Grade-I. They are not eligible for the promotion to the said
post, in view of the fact that they are not graduate and the
above resolution clearly states that they are required to be
graduate for being eligible for the benefit of higher grade pay-
scale.
9. Submissions on behalf of the respondents (original writ-
applicants) :-
9.1 Mr. V. K. Joshi, the learned counsel appearing for the
respondent No.1 (original writ-applicants) has submitted that
the respondents herein were required to be given the benefit of
higher grade pay-scale being Rs.9300-34800 in the grade pay
of Rs.5400 and Rs.9300-34800 respectively. The communication
received from the respondent authority specified that the
minimum qualification of the education would apply only to
those who were appointed on the post of Gujarati/English
Stenographer Grade-I and II by way of recruitment. According
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to Mr. Joshi, there were many other similarly placed
employees who have been given the benefit of the higher
grade pay-scale although they have only passed the S.S.C.
examination.
9.2 He further submitted that it would be discriminatory not
to grant the second higher grade pay-scale to the respondents
by interpreting the circulars and the Government resolutions
when the said Government resolutions dated 16.8.1994 and
2.7.2007.
9.3 He further submitted that freshly appointed
Gujarati/English Stenographer Grade-I and II were required to
be graduated as their educational qualification as per
communication by the Gujarat High Court dated 4.10.2002.
The communication dated 24.3.2006 by the High Court was in
respect of the employees who were already working as Junior
Clerk (Assistant) and who were to be permitted as
Stenographer Grade-I or II on completing five years subject to
their eligibility criteria. Fifty percent of all such posts were to
be filled by way of promotion. To apply the above criteria in
case of respondents who undisputedly at the time of their
appointment were possessing requisite eligibility including
education qualification would result in stagnating them
permanently.
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10. The learned Single Judge while allowing the writ-
applications made following observations in paragraphs 24 to
30 and 34 to 38 :-
"24. In light of the discussion held hereinabove, the question
that would arise is as to whether petitioner No.1, who after
being in service continuously for 9 years has been given only
first higher grade pay-scale with effect from 1993 (on
completing 9 years), would be entitled to the second higher
grade pay-scale after 24 years of service. And, whether
petitioner No.2 would be entitled to the higher grade pay-
scale as nothing has been granted to him after his service of
12 years.
25. As noted hereinabove, both of them have been denied
respectively the second and the first higher grade pay-scale,
although they continued in the same cadre without any
promotion and without being availed of any benefit of higher
grade pay-scale. On 2.7.2007 the petitioner No.1 since had
already completed 9 years of service and had also received
first higher grade pay-scale with effect from the year 1993.
Therefore, in his case, he would be entitled to the benefits of
second higher grade pay-scale on completion of 24 years of
service, as per Government Resolution dated 2.7.2007.
However, those employees who have already received their
first higher grade pay-scale before such Government
Resolution came into effect, his next entitlement would be
after 15 years from the grant of first higher grade pay-scale
which in case of petitioner No.1 would be in the year 2008.
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No promotion admittedly has been given to the petitioner in
the interregnum, his entitlement to get second higher grade
pay scale as per the said Government Resolution is challenged
by the respondent authority on the ground of his not having
possessed the requisite educational qualification of graduation.
26. In case of petitioner No.2, he has been appointed on the
post of Gujarati Stenographer Grade-II on 13.10.1999 in the
pay-scale of Rs.1640-2900 and in the revised pay-scale of
Rs.5520-9000. As per Government Resolution dated 2.7.2007,
the petitioner would be entitled to get the higher grade pay-
scale with effect from 14.10.2011, as he has continued for all
the 12 years in the same cadre without being given any
promotion and other benefits. He too is denied the same for
want of graduation as his qualification.
27. Both of them thus have been denied the benefit of higher
grade pay-scale despite the Government Resolutions dated
16.08.1994 and 02.07.2007 on the sole ground that the
subsequent communication of respondent No.3 insisted
graduation as minimum educational qualification for
Stenographer Grade-II.
28. It is rightly pointed out by the learned advocate
Mr.V.K.Joshi that as per communication date October,4, 2002
only freshly appointed English/Gujarati Stenographers Grade-I
and Grade-II need graduation as educational qualification.
Even for that matter, the communication dated 24.3.2006 is
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in respect of the employees who are already working as
Junior Clerks (Assistant) and who are to be promoted as
Stenographer Grade-II or Stenographer Grade-I on completion
of 5 years subject to the eligibility criteria. 50% of all such
posts are to be filled in by way of promotion. To employ the
said criteria in case of the petitioners, who admittedly at the
time of their appointment were possessing requisite eligibility
including educational qualification would amount to stagnating
them for the entire life.
29. It is to be noted that even if an employee is desirous of
pursuing further studies, it is eventually the discretion of the
employer to permit or not to permit the same with certain
conditions. This issue may not be further dilated as neither
the petitioners have sought for any such permission nor has
there arisen any cause for the respondents to grant or reject
the same.
30. Denial of higher pay-scale only on the ground that the
educational qualification required for being appointed as
Gujarati Stenographer Grade-II has changed subsequently
would surely result into stagnating the employee for the entire
life time although there is nothing adverse against them nor is
their performance dissatisfactory. Assuming that it is
prerogative of every establishment to set out better criteria
and performance for grant of promotion, communication
sought to be relied upon is neither in the form of rules nor
regulations. Even if it is meant to govern the field till rules
C/LPA/161/2017 JUDGMENT DATED: 06/07/2021
on the subject are framed, guidelines are acting as prejudicial
to the interest of petitioners and is discriminatory as some of
the employees similarly situated have been already granted
such benefits. The same being prejudicial to their interest also
deserves indulgence."
The learned Single Judge has further held in paragraphs
34 to 38 as under :-
34. Be that as it may, the fact remains that the petitioners
herein are claiming the higher grade payscale for want of any
promotion for all these years. In the opinion of this Court, to
insist on their possessing. Graduation as the minimum
qualification although at the time of their appointment,
minimum qualification prescribed under the rules was
Secondary School Board Certificate, deserves to be interfered
with.
35. Petitioner No.1, as mentioned hereinabove, was already
granted the first higher grade pay-scale in the year 1999 after
the Government Resolution dated 16.8.1994. It was given with
effect from 1993 as he had completed 9 years of service by
then, whereas in the case of the petitioner No.2 he did not
complete 9 years before the resolution of 16.8.1994 and his
appointment has been made after 1994 and the guidelines
were issued on 4.10.2002. In such view of the matter, both
the petitioners are right in contending that they cannot be
denied the higher pay-scale.
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36. It is also argued by the learned advocate for the
petitioner that there are instances in the High Court also
where some of the employees occupying the post of PPS have
not obtained the degree of graduation and yet, they have
been given not only the higher grade pay-scale but the
promotion to the higher post. In any case, it has also pointed
out that in the High Court also after Rules were amended in
the year 1998, the requisite education qualification for
Stenographer Grade-II had been graduation and those of them
who had been already appointed earlier continued to enjoy
the benefit of higher grade pay-scale and promotion both.
This issue, according to this Court is uncomparable as the
rules which are governing staff and officers of the High Court
are framed under Article 229 of the Constitution of India and
the employees and staff members of the District Courts are
governed by different rules.
37. In wake of the discussion hereinabove, the petitioners
have succeeded in establishing their respective case and are
held entitled to the higher pay-scale. It is being clarified at
this stage that had there been any other issue raised by the
respondent authority with regard to capability and efficiency
of the petitioners, this Court would have directed the
concerned Principal District Judge to consider their respective
cases applying other yardsticks. As there is no whisper with
regard to the same, respondents are directed resultantly to
grant the second higher grade pay-scale with effect from 2008
to the petitioner No.1 and petitioner No.2 shall be granted
the first higher grade pay-scale from 14.7.2011. Both the
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petitioners shall be also awarded the interest at the rate of
9%, if not released within three weeks from the date of
receipt of the copy of this order.
38. Petitions are allowed in above terms. Rule is made
absolute accordingly."
Analysis :-
11. The Scheme of Higher Grade Scale dated 5.7.1991 came
to be substituted by the Scheme of higher grade pay-scale
dated 16.8.1994 to deal with the demand of the Government
employees i.e. release of dearness allowance, interim relief,
absence and restricted chances of promotions to the
government employees. Clause 3(5) of the Scheme reads as
under:-
"3(5) The appointing authority for the post of
Higher Grade Scale shall be considered competent to grant
Higher Grade Scale to eligible employees. Provided that
the employee is eligible to get promotion on the basis of
his overall performance, qualifications and passing the
examinations, if prescribed. At the time of granting Higher
Grade Scale the existing screening mechanism/selection
procedures shall apply. If Higher Grade Scale is admissible
before 5-7-1991, the confidential reports of last 9 years
and if becomes eligible thereafter, C. R. of last five years
shall be taken into consideration.
No Higher Grade Scale shall be granted to the
employee who is under suspension on date of eligibility
or who is given chargesheet under Rule-9 or 10 of
Disciplines and Appeal Rules. When the employee is
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exonerated in the departmental inquiry against him and
reinstated on duty. The Higher Grade Scale shall be
granted on the basis of eligibility. If the increment is
stopped with or without future effect, Higher Grade Scale
may be granted on the basis of eligibility on completion
of 9 increments.
The employee who has completed the age of 45
years on or before 5-7-91 shall be considered exempted
from passing the departmental examination from that
date, and the first Higher Grade Scale shall be admissible
to him when he completed 9 years on or before 1-6-1987.
However, if the employee wants to get actual promotion
on higher post he shall have to pass the prescribed
departmental examination. The employee who might have
completed the age of 45 years after 5-7-1991 shall not be
considered eligible for exemption from passing the
departmental examination."
12. The State Government revised its policy and vide
Resolution dated 02.07.2007, the Higher Pay Scale is to be
granted on completion of 12 and 24 years respectively for and
in place of the 16.8.1994 higher grade pay-scale Scheme
9:18:27 In the said Scheme also, Clause 12(a) provides that the
competent authority is required to consider the qualification
and whether the incumbent is eligible for promotion and his
record of five years.
13. The object of the Scheme is that if the employee
completes specified years of service, he is entitled to get pay-
scale to next higher post of which he would get promotion
subject to fulfilling other conditions so that he may not suffer
heartburning and stagnation.
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14. The requirement as laid in the 1994 Resolution and
2007 Resolution for grant of Higher Pay Scale is the same i.e.
the employee is required duly qualified to be promoted.
15. The paragraph 15 of the judgment of the learned Single
Judge indicating the qualifications prescribed for the English
and Gujarati Stenographers Grade-I, II and III as referred to by
the learned Single Judge, reads as under:-
"15. It would be apt to reproduce the qualifications
prescribed for English and Gujarati Stenographers Grade-I,
II and III.
"QUALIFICATON FOR ENLISTMENT OF THE
CANDIDATES FOR THE POST OF STENOGRAPHERS
(GRADE-I AND II):-
ENGLISH STENOGRAPHERS:
(i) He must have passed the S.S.C.
Examination or an examination recognised by
Government as equivalent to it, and
(ii) He must possess a speed in Short-hand of
not less than 120 words per minute (for
appointment to Grade-I post) and not less than 100
words per minute (for appointment to Grade-II post)
and he must possess a speed of 40 words per
minute in English Type-Writing.
GUJARAT STENOGRAPHERS:
(i) He must have appeared at the S.S.C.
Examination or an examination recognized by
Government is equivalent to it, and may or may not
have passed that examination.
(ii) He must possess a speed in Short-hand of
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not less than 100 words per minute (for
appointment to Grade-I post) and not less than 80
words per minute (for appointment to Grade-II post)
and he must possess a speed of 25 words per
minute in Gujarati Type-writing.
QUALIFICATIONS FOR ENLISTMENT OF THE
CANDIDATES FOR THE POST OF STENOGRAPHER
GRADEIII:-
ENGLISH STENOGRAPHERS:-
(a) He must have passed the S.S.C. Examination
or an examination recognized by Government as
equivalent to it, and
(b) He must possess a speed of not less than 80
words per minute in Short-hand and 40 words per
minute in Type-writing.
GUJARATI STENOGRAPHERS:-
(a) He must have appeared at the S.S.C
Examination or an examination recognized by
Government as equivalent to it even though he may
or may not have passed that examination,
and
(b) He must possess a speed of not less than 60
words per minute in Short-hand in Gujarati and 25
words per minute in Type-writing in Gujarati. ".
16. The respondent of the Special Civil Application No.11625
of 2014 was appointed on 13.1.1999 and was governed by the
2.7.2007 resolution. The respondent of the Special Civil
Application No. 11539 of 2014 was appointed on 12.4.1983
and was granted higher pay-scale in the year 1999 and was
governed by the Government Resolution dated 16.4.1994. The
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case of the respondents also are identically placed with the
Special Civil Application No.14260 of 2005 decided on
21.9.2006 where the petitioner was denied the second higher
grade pay-scale on the post of clerk and this Court relying on
the decision rendered in the Special Civil Application No.19691
of 2006 (dated 15.9.2006) in the case of State of Gujarat and
another vs. Haribhai Sankarlal Raval and others had allowed
the petition.
17. It appears that on 04.10.2002, a communication was
addressed by the High Court that the appointment to the post
of Stenographer English and Gujarati Grade I and II shall be
given to those persons who are graduate of any faculty. In
view thereof, both the petitioners were denied the Higher Pay
Scale since they were not graduate to be qualified for
promotion and consequently seek Higher Pay Scale.
18. The learned Judge has taken the view very rightly
that the respondents were stagnating since several years from
1983 and 1999 respectively, interpreting the communication of
High Court of 2002 being only communication and in absence
of rules, both the petitioners have been denied the Higher Pay
Scale solely on the ground of communication dated 4.10.2002
seeking minimum qualification of graduation or equivalent
thereto. The learned Single Judge has considered all the
relevant aspects of the matter.
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19. We are at one with the decision arrived at by the learned
Single Judge in view of the fact that the learned Single Judge
has rightly held that denial of higher pay-scale only on the
ground that the educational qualification required for being
appointed as Gujarati Stenographer Grade-II has been changed
subsequently would surely result into stagnating the employee
for the entire life time although there is nothing adverse
against them nor is their performance dissatisfactory. Even
assuming that it is prerogative of every establishment to set
out better criteria and performance for grant of promotion,
communication sought to be relied upon is neither in the form
of rules nor regulations. Even if it is meant to govern the field
till rules on the subject are framed, guidelines are acting as
prejudicial to the interest of petitioners and therefore
discriminatory as some of the employees similarly situated
have been already granted such benefits. The same being
prejudicial to their interest also deserves indulgence. Further it
also weighed with the learned Single Judge that the rules
governing the staff and officers of the High Court are framed
under Article 229 of the Constitution of India and the
employees and staff members of the District Courts are
governed by different rules. In the wake of above, they are
entitled to higher grade pay-scale.
20. While dealing with the present appeal, one has to bear
in mind that a intra Court appeal is really not a statutory
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appeal preferred against the judgment and order of an inferior
to the superior Court. The appeal inter se in a High Court
from one Court to another is really an appeal from one
coordinate Bench to another Coordinate Bench and it is for this
reason that a writ cannot be issued by one Bench of the High
Court to another Bench of the High Court nor can even the
Supreme Court issue writ to a High Court. Thus, unlike an
appeal, in general, an intra Court appeal is an appeal on
principle and that is why, unlike an appeal, in an ordinary
sense, such as a criminal appeal, where the whole evidence on
record is examined afresh by the appellate Court, what is
really examined, in an intra Court appeal, is the legality and
validity of the Judgment and/or Order of the Single Judge and
it can be set aside or should be set aside only when there is a
patent error on the face of the record or the judgment is
against the established or settled principle of law. If two views
are possible and a view, which is reasonable and logical, has
been adopted by a Single Judge, the other view, howsoever
appealing such a view may be to the Division Bench, it is the
view adopted by the Single Judge, which should, normally, be
allowed to prevail. Hence, the impugned judgment of the
learned Single Judge should not be completely ignored and this
Court has to consider the judgment and order in its proper
perspective and if this Bench, sitting as an appellate Bench, is
of the view that the decision has been arrived at by the
learned Single Judge without any material error of fact or law,
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then, the judgment, in question, should be allowed to prevail.
21. In the result, both these appeals fail and are hereby
dismissed.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
