Rajeshkumar Gautamprasad ... vs Registrar General
2022 Latest Caselaw 3904 Guj

    C/SCA/13443/2021                               JUDGMENT DATED: 01/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13443 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                   RAJESHKUMAR GAUTAMPRASAD TRIVEDI
                                Versus
                          REGISTRAR GENERAL
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Appearance:
NIMIT Y SHUKLA(8338) for the Petitioner(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1,2
MR HEMANG M SHAH(5399) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 01/04/2022

                             ORAL JUDGMENT

1 Leave to join the State of Gujarat as party respondent No.3.

2 Rule returnable forthwith. Ms.Surbhi Bhati, learned Assistant

Government Pleader, waives service of rule on behalf of respondent

No.3.

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3 Heard Mr.Nimit Shukla, learned advocate for the petitioner,

Ms.Surbhi Bhati, learned AGP for respondent No.3 and Mr.Hemang

Shah, learned advocate for respondent Nos. 3 and 4.

4 By way of this petition, the petitioner has prayed for a writ or a

direction to grant the first higher grade payscale of Rs.9,300-34,800/-

with grade pay of Rs.4,600/- with effect from 31.07.2015.

5 Mr.Nimit Shukla, learned advocate for the petitioner, would rely

on a decision of this Court rendered in Special Civil Application No.8894

of 2019 dated 23.03.2022, the relevant paras of which reads as under:

"4 Mr.V.K.Joshi, learned counsel for the petitioner would submit that the petitioner is entitled to the first higher grade pay- scale in the pay-scale of Rs.9,300-34,800/- +4,200 Rs. Grade pay. 5 Ms.Trusha Patel, learned counsel appearing for the respondent No.2, would draw the attention of the Court to the affidavit-in-reply filed by the District Registrar of the District Court, Kachchh. Para 9 of the affidavit in Ms.Trusha Patel's submission would indicate that the qualification for enlistment of the candidates for the posts of Stenographers Grade-I and Grade- II must be a graduate in any faculty. Since the petitioner did not possess the qualification of graduation, he would not be entitled to the benefit of the first higher grade pay-scale. 5.1 Reliance was also placed on Clause 3 (5) and Clause 3(9) of the Government Resolution dated 16.08.1994. In para 14 of the reply, affirmed on 30.08.2019, a reference is made to the pendency of Letters Patent Appeal No.161 of 2017 in Special Civil Application No.11625 of 2014, where similar issue raised was pending before the Division Bench for consideration, which has now been decided on 06.07.2021. The stand of the present respondent is similar to the one of the appellant in the appeal, where the denial of the first higher grade scale was only on the ground that the respondent therein was not entitled to the benefit as he did not possess the qualification of graduation. After considering the decision of the Co-ordinate Bench and on an analysis, the Division Bench of the Court held as under:

C/SCA/13443/2021 JUDGMENT DATED: 01/04/2022

"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 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

C/SCA/13443/2021 JUDGMENT DATED: 01/04/2022

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 payscale to next higher post of which he would get promotion subject to fulfilling other conditions so that he may not suffer heartburning and stagnation.

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

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Government is equivalent to it, and may or may not have passed that examination.

(ii) He must possess a speed in Short-hand of 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 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

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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.

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

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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 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, then, the judgment, in question, should be allowed to prevail."

5.3 The Division Bench categorically held that the denial of higher pay-scale only on the ground that the educational qualification required for being appointed as Gujarati Stenographer has been changed subsequently would seriously result in stagnating the employee. The Division Bench, therefore, dismissed the appeal.

6 In view of the position of law enunciated by the Division

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Bench as referred to hereinabove, the petition is allowed. The respondents are directed to extend the benefit of the first higher grade pay-scale to the petitioner in the pay-scale of Rs.9,300- 34,800 with grade pay of Rs.4,200/--with effect from 21.06.2013. Revision of pay and pay fixation thereof together with arrears arising from such fixation with consequential revision shall be paid to the petitioner within a period of 12 weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted."

6 Accordingly, the petition is allowed. The respondents are directed

to extend the benefit of the first higher grade pay-scale to the petitioner in

the pay-scale of Rs.9,300-34,800 with grade pay of Rs.4,600/--with effect

from 31.07.2015. Revision of pay and pay fixation thereof together with

arrears arising from such fixation with consequential revision shall be

paid to the petitioner within a period of 12 weeks from the date of receipt

of copy of this order. Rule is made absolute to the aforesaid extent. Direct

service is permitted."

(BIREN VAISHNAV, J) Bimal