Itbarhusain Hasambhai Solanki vs State Of Gujarat
2022 Latest Caselaw 1040 Guj

      C/SCA/4281/2019                               JUDGMENT DATED: 01/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4281 of 2019


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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                        ITBARHUSAIN HASAMBHAI SOLANKI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1.1,2
MS SURABHI BHATI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 01/02/2022

                               ORAL JUDGMENT

1. Rule returnable forthwith. Ms. Surabhi Bhati, learned AGP waives service of notice of rule on behalf of respondent State.

2. In this petition, under Article 226 of the Constitution of India, the

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petitioners have challenged the order dated 24.12.2018 passed by the respondents denying the petitioners the benefit of the second higher pay scale on the ground that at the relevant time the petitioners had not passed their SSC examination which was required by virtue of notification dated 25.08.1981.

3. The petitioner no. 1 has died pending the petition and his legal heirs are on record. Facts in brief would indicate that the petitioners no. 1 and 2 were initially appointed as Forest Guards in the year 1974 and 1972 respectively. They were granted first higher pay scale with effect from 01.06.1987 which was subsequently modified and by orders dated 08.04.2009 the deceased petitioner no. 1 and petitioner no. 2 were granted first higher pay scale with effect from 11.11.1991 and 01.07.1990 respectively.

3.1 In an earlier round of litigation, the petitioners were constrained to approach this court by filing Special Civil Application No. 21621 of 2016 wherein the prayers were for a direction to grant the second higher pay scale with effect from 11.11.2006 as they had completed 15 years of service from their respective dates of the grant of first higher pay scale in accordance with condition 4(b) of the resolution dated 02.07.2007. This court by an order dated 29.01.2018 considered the case of the present petitioners and in para 16 observed as under:

"16. So far as two petitioners in Special Civil Application No.21621 of 2016 are concerned, they were also appointed in 1974 as Forest Guard. Since they were not promoted to the post of Forester, they also filed civil suit. The learned trial Court allowed the suit with direction to the respondents to promote petitioners (of Special Civil Application No.21621 of 2016) to the post of Forester w.e.f. November

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1992. In the said case also, the first appeal as well as the second appeal failed. The respondents granted benefit of promotion to the post of Forester and deemed date from 11.11.1991 and thereby complied the judgment. Petitioner No.1 in Special Civil Application No.21621 of 2016 retired from service on superannuation on 30.6.2010, whereas petitioner No.2 voluntarily retired from service on 30.4.2011."

3.2 Since there were two other petitions filed, this court considering the claim of the petitioners in denying the benefit of second higher pay scale observed as under:

"20. With the said claim and assertion, the petitioners have challenged the decision of the respondents denying the benefit of second higher pay scale. Below mentioned grounds have been raised where the petitioners support the relief prayed for:

"8) As per the Government Resolution dt.2.7.2007, the petitioner is entitled to 2nd higher pay scale after completion of 15 years of service of 1st higher scale pay scale. Hereto annexed and marked Annexure 'G' is a copy of the Government Resolution dt 2.7.2007. The petitioner was granted 1 st higher pay scale w.e.f 11.11.1991, therefore he is entitled to 2nd higher pay scale w.e.f 11.11.2006.

9) As per the Government Circular dt. 12.8.2008, the employees who did not pass the departmental examination are entitled to the 2nd higher pay scale. Hereto annexed and marked Annexure "H is a copy of the circular dt 12.8.2008. This circular has been amended vide circular dt.3.12.2009. Hereto annexed and marked Annexure 'I' is a copy of the Government Circular dt.3. 12.2009.

10) By the order dt.28.7.2010, the other similarly situated employees were granted 2nd higher pay scale as per the Government Resolution dt.2.7.2007 on the

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basis of the above circular dt 3.12.2009. Here annexed and marked Annexure "J" is copy of the letter dt.28.7.2010. It is inter alia stated in the condition no.4 of the above order that whose employees who did not pass the departmental examination are granted 2nd higher pays scale according to the provision of the above circular dt. 3.12.2009. The respondent authorities ought to have considered the case of the petitioner as per the Government Circular dt.3.12.2009. Thus, the action of the respondents is discriminatory and arbitrary and in violation of Arts. 14 and 16 of the Constitution of India.

l1) It is further submitted that the petitioner was retired on superannuation on 31.1.2010. The department did not conduct departmental examination prior to the retirement o the petitioner. The petitioner had not been informed about it. As per the law laid down by this Hon'ble Court in Spl.C.A No.2146/20o9, an employee cannot be deprived of the benefit of higher pay scale if the department has not conducted the examination. Hereto annexed and marked as Annexure 'K' is a copy of the judgment dt. 31.1.2009. Thus, the petitioner is entitled to 2 nd higher pay scale w.e.f. 11.11.2006."

21. The petitioners have placed heavy reliance on the government resolution dated 2.7.2007 and the circular dated 12.8.2008 as well as circular dated 3.12.2009. It is claimed that by the government resolution dated 2.7.2007, the respondents introduced policy of first higher pay scale and second higher pay scale and vide circular dated 12.8.2008 and the circular dated 3.12.2009, the respondents granted exemption from the general requirement / condition for eligibility for second higher pay scale, viz. that the employee should pass departmental examination for being eligible for second higher pay scale. It is claimed that the said benefit is available to the petitioners and that, therefore, the denial of second benefit of second higher pay scale on the ground that the deceased employee did not clear the departmental examination, is unjustified."

3.3 The stand of the respondents before the court was that the

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petitioners were not justified in claiming the exemption in passing the departmental examination and since they had not cleared the examination, they were not entitled to the benefit of the second higher pay scale. The affidavit-in-reply filed therein was considered by the court and the court then after considering the issue passed the following order:

"24. I have considered rival submissions and material on record.

25. At the outset, it is relevant to note that a case which involved almost similar facts, is considered and decided by Division Bench vide judgment dated 7.9.2017 in Letters Patent Appeal No.1443 of 2017.

26. For deciding the said case, the Division Bench considered below mentioned factual backdrop:

". . . ... ... the petitioner was appointed as Forest Beat Guard in the Forest Department on 17.03.1976. Thereafter, by an order dated 12.12.1995, he was granted first higher pay-scale w.e.f. 01.06.1987. Petitioner was, thereafter, promoted to the post of 'Forester' on 25.06.1998. However, the deemed date promotion to the post of Forester was granted to the petitioner by an order dated 10.10.2008 w.e.f. 11.11.1982. The petitioner thereafter attained the age of superannuation and retired from service on 31.01.2010. ..."

27. The Division Bench also considered the contentions by the employees that:

"... ... ... there was no occasion for the petitioner to appear in the departmental examination as the respondent authorities have granted revised first higher pay-scale of Range Forest Officer (RFO) to the petitioner by an order dated 09.09.2010 w.e.f. 11.11.1991. Thus, the petitioner got revised first higher pay-scale of RFO w.e.f. 11.11.1991 and therefore after completion of 15 years of service in the year 2006, he was eligible for second higher pay-scale of Assistant Conservator of Forest (ACF). However, the first higher pay-scale was granted by an order dated 09.09.2010 i.e. after retirement of petitioner. Therefore, it was not possible for petitioner to appear and clear departmental examination for second higher pay-scale. Learned advocate, therefore, requested that the present appeal be dismissed."

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28. It would be appropriate to examine the claim of the petitioners and the facts involved in present petitions, in light of the said decision dated 7.9.2017.

29.After considering above mentioned facts and submissions, the Division Bench observed and held vide judgment dated 7.9.2017 that:

"5. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the petitioner joined the service of the respondent department as Forest Beat Guard on 17.03.1976. Thereafter, the first higher pay-scale of Forester was granted to him by an order dated 12.12.1995 w.e.f. 01.06.1987. At this stage, it is relevant to note that the petitioner was thereafter actually promoted on the post of Forester by an order dated 25.06.1998. Subsequently the respondent by an order dated 10.10.2008 granted him deemed date promotion to the post of Forester w.e.f. 11.11.1982. Therefore the first higher pay- scale which was granted w.e.f. 01.06.1987 to the petitioner was recovered from him as he was in fact promoted to the post of Forester w.e.f. 11.11.1982.

6. At this stage, it is also required to be noted that the petitioner attained the age of superannuation and retired from service on 31.01.2010 and after the date of his retirement the petitioner was granted revised first higher pay-scale of RFO w.e.f. 11.11.1991. The first higher pay- scale of RFO was granted w.e.f. 11.11.1991 because the petitioner completed 9 years of service on the post of Forester from 11.11.1982. Thus, the first higher pay-scale of RFO was granted to the petitioner after the petitioner retired from service. Thus, when the respondent authority has passed the order granting first higher pay-scale of RFO to the petitioner w.e.f. 11.11.1991 by passing the order on 09.09.2010, there was no occasion for the petitioner to appear in the departmental examination for getting second higher pay-scale of ACF. As per the prevalent Rules, petitioner was eligible for second higher pay-scale w.e.f.

11.11.2006 and therefore petitioner raised the demand for second higher pay-scale which was denied to him. Thus, the respondent authorities is not right in contending that as the

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petitioner has not cleared the departmental examination, he is not eligible for second higher pay-scale.

7. In view of the aforesaid discussions and in view of the reasonings recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge while allowing the petition and therefore no interference is required in the present appeal. Accordingly, the appeal is dismissed."

30. So far as present petitions are concerned, it is relevant to note that the respondents have denied promotion to the petitioners the post of Forester and that, therefore, the petitioners / deceased employee had filed suit. The said proceedings ultimately culminated in the decision 23.12.2010 passed by High Court.

31.It is true that in the meanwhile, the respondents had passed order in November 1982 whereby the petitioners were granted promotion to the post of Forester, however, till 2010 the respondents were pursuing second appeal and until 2012, the benefit of first higher pay scale was not granted to the petitioners / deceased employee.

32.It is an undisputed fact that the benefit of the first higher pay scale came to be granted to the petitioners only after the decision in second appeal, i.e. judgment dated 23.12.2010.

33.In that view of the matter, it clearly emerges that so long as the petitioners were not granted benefit of first higher pay scale, they neither had any reason or justification nor entitlement to appear in departmental examination for second higher pay scale.

34.An employee would appear in the departmental examination to acquire eligibility for second higher pay scale, only if and only after benefit of first higher pay scale is granted. In case of present petitioners, the benefit of higher pay scale was granted to the petitioners / deceased employee only after the decision dated 23.12.2010 in second appeal. Whereas, the concerned employees retired from service (except the petitioner Mr.M.M. Joshi) in January 2010 and June 2010, i.e. before the rendition of the decision in second appeal.

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35.In light of above mentioned facts, it becomes clear that until the respondents granted the benefit of first higher pay scale to the employees, the employees had no reason or requirement to appear in departmental examination (so as to acquire eligibility for second higher pay scale). Under the circumstances, any fault cannot be found with the petitioners / deceased employee on the ground that they did not appear in the examination until they retired from service. Had the respondents granted the benefit of higher pay scale to the petitioners at appropriate time and in any case before they retired from service, then the employees would be aspired from second higher pay scale and they would appear in the examination to acquire the eligibility for second higher pay scale. However, since the said benefit of first higher pay scale was not granted until 2.12.2010, they did not have any reason or justification and even eligibility / entitlement to appear for departmental examination and to clear the said examination.

36.This aspect can be considered from other perspective as well. By virtue of the circular dated 12.8.2008 and circular dated 3.12.2009 when the condition to clear the departmental examination was relaxed and it was decide to grant second higher pay scale to the employees, upon completion of 15 years of service, on the condition that the employees should clear departmental examination, if the respondents had (having regard to the said circulars) granted the benefit of second higher pay scale to the petitioners / deceased employee (when they completed 15 years of service), then the petitioners would have been obliged to clear the examination, however, until they retired from service, the respondents neither granted benefit of first higher pay nor granted benefit of second higher pay scale, subject to the condition of passing the examination.

37.Therefore, the benefit of second higher pay scale cannot be denied to the petitioners / deceased employee on the ground that they did not clear departmental examination until they retired from service.

38.The observation and decision by the Division Bench in the decision dated 7.9.2017 in Letters Patent Appeal No.1443 of 2017 is applicable in case of the petitioners / deceased employee in captioned three petitions and in light of said observations they should also be considered eligible for second higher pay scale and

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the relief prayed for by the petitioners, therefore, is justified and deserve to be granted.

39.Therefore, the following order is passed:

The petitions are allowed. The respondents are directed to consider the case of the petitioners for benefit of second higher pay scale from the date when they became eligible for the said benefit in accordance with the policy. The respondents are free to examine the eligibility of the petitioners in light of the terms and conditions of the relevant circular / resolution / policy and determine the eligibility of the petitioners for the said benefit. It is, however, clarified that the case of the petitioners for the said benefit shall not be denied only on the ground that they did not clear the departmental examination. All other terms and conditions, which are applicable for examining / determining the claim of the petitioners, can be applied in accordance with relevant policy / resolution and their cases shall be accordingly considered and decided by the competent authority as expeditiously as possible and preferably within three months."

4. Therefore, what is evident while reading the aforesaid order is that the court directed the respondents to consider the case of the petitioners for extending the benefit of the second higher pay scale from the date they became eligible. The court however clarified that the benefit shall not be denied to the petitioners only on the ground that they did not clear departmental examination. Since the orders were not complied with, the petitioners were again constrained to move contempt petition wherein the reasoned order denying their benefit of second higher grade scale which is impugned in this petition was produced. Perusal of the order would indicate that an entirely new ground of the petitioners not having passed their SSC examination and therefore not being entitled to the higher grade pay which was a pre-requisite as per the notification in question has been advanced.

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5. Ms. Surabhi Bhati, learned AGP would take the court to the affidavit-in-reply and submit that since in accordance with the notification dated 25.08.1981 the petitioners had not cleared the SSC examination, the higher pay scale could not be granted to them. The other ground as submitted by her is that the examination was held 27 times but the petitioners had failed to appear.

6. So far as the second ground of the examination being held 27 times is concerned, that objection clearly flies in the face of the directions issued by this court in the orders referred to hereinabove and therefore is clearly misconceived. So far as the first ground is concerned, i.e. with regard to not passing SSC examination by virtue of the notification dated 25.08.1981, the fact that the petitioners were granted benefit of first higher pay scale from 11.11.1991 in the case of deceased petitioner no. 1 and with effect from 01.07.1990 in the case of petitioner no. 2 would lead the court to believe that the ground of the petitioners not having passed SSC examination is taken only with a view to deny the petitioners their higher pay scale by an ingenious reason which was otherwise not available to the respondents and the decision seems to have been taken only with a view to overcome the contempt proceedings which they otherwise were facing.

7. For the above reasons, petition is allowed. The petitioners are entitled to the benefits of the second higher pay scale. In view of the fact that the petitioner no. 1 has died, the benefits of the second higher grade scale on completion of 15 years of service shall be computed and arrears accordingly will be paid to the heirs of the deceased and the pension benefits shall also be revised accordingly. Similar exercise shall be

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carried out in case of petitioner no. 2 also. The entire exercise shall be completed within a period of eight weeks from the date of receipt of the writ of this order. Rule is made absolute.

(BIREN VAISHNAV, J) DIVYA