Gujarat High Court

Prakashbhai S/O Jivanbhai ... vs State Of Gujarat on 4 October, 2022

Bench: Biren Vaishnav

     C/SCA/20254/2021                             JUDGMENT DATED: 04/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20254 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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                   PRAKASHBHAI S/O JIVANBHAI KHAMBHALA
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MS KAJAL L KALWANI(6623) for the Petitioner(s) No. 1
MS MUSKAN A GOGIA(6624) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 04/10/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned

Assistant Government Pleader waives service of notice of

rule on behalf of respondents.

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

2. With consent of the learned advocates appearing for the

respective parties, the matter is taken up for final hearing

today.

3. By way of this petition, under Article 226 of the

Constitution of India, the petitioner has challenged the

order of reversion dated 17.12.2021 by which the

petitioner has been reverted from the post of

Superintendent to the post of Junior Clerk.

4. Prima facie, it appears that the order of reversion has been

passed on account of the fact that the petitioner failed to

pass his CCC examination before 31.12.2013. As reflected

in the order while issuing notice on 4.1.2022, the issue is

covered by a decision rendered by this Court. The first

decision in point of time was one in Special Civil Application

No.10885 of 2015 which was subsequently followed in

Special Civil Application No.11198 of 2015 and in Special

Civil Application No.3300 of 2016.

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

5. Mr. Kurven Desai, learned Assistant Government Pleader

for the respondent-State would vehemently oppose the

petition on the ground that the contents in the affidavit in

reply which indicate that the petitioner was appointed as

Junior Clerk cum Typist vide Office Order dated 24.05.2002.

He was given conditional promotion as Senior Clerk on

14.10.2009 with a clear condition that he has to pass his

CCC examination by 31.12.2009. The date was extended

vide Circular dated 22.07.2013. Subsequently, the

petitioner was promoted as Head Clerk and, thereafter to

the post of Office Superintendent.

6. As is evident from the reply filed by the respondents, the

failure to pass the examination would change the seniority

position and, therefore, the promotion to the post of Office

Superintendent was by a mistake, without taking into

account the fact that the petitioner had not passed his CCC

examination.

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

7. The decision dated 26.02.2016 of Special Civil Application

No.3300 of 2016 in the case of Nanjibhai Kumpaji Patel

v. State of Gujarat and others referring to the earlier

decision reads as under:

"1 By this writ application under Article 226 of the Constitution of India, the petitioners serving as the primary Teachers under the respondents Nos.1 and 2 have prayed for the following reliefs:

"14. The petitioners, therefore, pray that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction:

A) Directing the respondents to consider the case of the petitioners for higher pay scales in light of the order dt. 19.1.2016 passed in Special Civil Application No.11198 of 2015 and if found eligible grant the same after completion of nine years service.

B) During the pendency and final disposal of the petition the respondents may be directed to consider the case of the petitioners for grant first pay scale after completion of nine years of service.

C) To grant such and further relief as may be deemed fit and proper"

2 The petitioners seek to challenge the action of the respondents in not sanctioning the higher pay scales in accordance with the Government Resolution dated 16th August

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

1994. The only reason perhaps is that the petitioners have not cleared the CCC (Course on Computer Concept) examination on the date of their completion of nine years of service. According to the petitioners, they have cleared the CCC examination and the benefits of the higher pay scale would be granted to them from the date of passing of the CCC examination and not from the date of their actual right accrued in terms of the Government Resolution of 1994.

3 According to the learned counsel appearing for the petitioners, the issue raised in this application is squarely covered by the judgment and order of this Court dated 19th January, 2016 passed in the Special Civil Application No.11198 of 2015 and allied matters. This Court disposed of the Special Civil Application No.11198 of 2015 and allied matters asunder:

1. The questions involved in both these petitions being identical, they are heard together and being disposed of by this common order.

2. The petitioners are serving as primary teachers under the respondent Nos.1 and 2. It is not in dispute that they all have become eligible for higher payscale on their completion of nine years of service.

3. The petitioners have preferred present petitions seeking the benefit of the Government Resolution dated August 16, 1994 and the respondentauthority also does not dispute their entitlement. The only hitch is of their not having cleared the Course on Computer Concepts (hereinafter referred to as 'the CCC') examination on the date of their completion of period of nine years of service. For the sake of

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

brevity and convenience, the reliefs as sought for in Special Civil Application No.11623 of 2015, are reproduced as under :

16(A) Directing the Respondents to grant higher pay scale to the petitioners as per Resolution dt.16.8.1994 after completion of 9 years of service from the dates they are placed in regular pay scale respectively.

(B) Directing the Respondents not to insist for passing of C.C.C. examination for the purpose of grant of higher pay scale from the petitioners. C. During the pendency and final disposal of the petition the Respondent no.4 may be restrained from taking objection pertaining to date of passing of examination while fixing the pay scale.

D. During the pendency and final disposal of the petition the Respondents may be directed to grant first higher pay scale to the petitioner.

(E) To grant such and further relief as may be deemed fit and proper.

4. Shri A.S. Supehia, learned counsel appearing for the petitioners, has urged that this Court in Special Civil Application No.10885 of 2015 and allied matters vide order dated January 08, 2016, has decided the identical issue in the case of similarly situated employees. Along the line the fate of the petitioners also needs to be decided.

5. Ms.Shruti Pathak, learned Assistant Government Pleader appearing for the respondentState, has urged that the entitlement of the petitioners to avail higher payscale is not in dispute. However, if they had not applied well

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

within time for appearing in the CCC examination, they will not be entitled to such higher payscale from the date on which they have become entitled. Therefore, it is necessary for the petitioners to establish that they had applied for appearing in the CCC examination prior to the date of their entitlement.

6. Ms.Ashlesha Patel, learned counsel appearing on behalf of the learned counsel Shri H.S. Munshaw for the respondent No.3, has adopted the submissions made by Ms.Shruti Pathak, learned Assistant Government Pleader and prayed for rejection of the petitions.

7. Having thus heard both the sides and having also taken a note of the petition earlier decided by this Court being Special Civil Application No.10885 of 2015, no independent reasons would be necessary in these cases.

8. This Court adjudicated the very issue in the following manner :

9. As submitted to this Court, all the petitioners meet with the requirements for the Higher Grade Pay Scale and the only issue that remains is whether they can be given such benefit from the date of their passing the Departmental Examination or from the date of their completing nine years. It is the case of the petitioners that such examination since was not conducted by the concerned authority before which they had applied, they were unable to clear the same within the stipulated time period. This was the circumstance beyond their control for which they cannot be deprived of their entitlement. It is not in dispute at all that all the petitioners at present are possessing CCC

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

certificate.

10.It would be relevant to refer to the decision of the Apex Court at this Stage wherein also this very issue had been raised by the respondent - authority when the appellant raised grievance of nongrant of Higher Grade Pay Scale from their actual date of entitlement. The Apex Court noted the facts that grant of higher grade scale to the eligible employees who have completed nine years of service is permissible as per GR dated 16th August, 1994 provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing of 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.

10.a The Apex Court also noted that 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 organized in time. The Court did not sustain the order of High Court which had taken into account the subsequent Circular of 2004 and therefore, the order of withdrawing the benefit was quashed.

10.b Thus, the scenario emerges that if Departmental Examination is prescribed before the higher pay scale was granted. In the Departmental Examination requirement of clearing CCC examination and it needs to pass

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

such examination but if no such examination is conducted, the authority cannot lie with the employee. If the Departmental Examination was not conducted during eligibility period for getting higher pay scales then in such cases the benefit cannot be stalled on such ground.

11.The petitioners since have cleared the CCC Examination. They shall have to place CCC certificate coupled with the date on which they applied for appearing for CCC Examination, as their entitlement of the first higher grade pay scale is on completion of nine years' period. Non- availability of the opportunity to applying for examination and for want of conducting of the examination during their eligibility period will not come in the way of the petitioners.

11.a. In other words, if the person had already applied for CCC examination and due to nonavailability of seats, he could not appear in the same and thus, delay of clearing the examination is not attributable to the employees, his right to get the first higher pay scale cannot be denied. This Court is conscious that this also would give rise to multiple issues like whether the employee concerned in fact had applied well in advance before completing nine years or that almost on the last day of his completing nine years he had applied for the same and therefore could not clear the same. Corollary to this is whether the examination schedule of such examination is fixed well in advance by the concerned Institute and made known to one and all and whether they have sufficient number of seats available for accommodating one and all who desire to clear the same.

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

12.As argued before this Court and not controverted, employees are waiting in large number for their turn to arrive in the said examination. Realizing that number of recognized institutes being limited and their difficulty in managing this huge task, various Universities have now been recognized for the purpose. Therefore, rather than addressing this large issue in this petition, it would suffice to hold that those of them who already applied for the said CCC Examination and for want of availability of seats are deprived of chance to clear the same before their completion of 9 years' period, benefit should be given to them by the State.

13.Resultantly, all the petitions are allowed. The respondent No.3 authority shall grant first higher grade pay scale to all the petitioners on their producing CCC certificate before the concerned authority and their date of application to appear for such examination at the earliest but not later than two weeks on receipt of copy of this order. On due verification in light of directions and observations above, respondent authority shall avail the benefits of first higher pay scale to all the petitioners within four weeks thereafter. Rule is made absolute to the aforesaid extent. All the petitions stand disposed of in the above terms. Direct service is permitted.

9. For the foregoing reasons and in view of observations and findings recorded by this Court in the aforementioned decision, the present petitions are allowed. The respondent No.3authority is directed to grant the first higher payscale to the petitioners on their furnishing CCC certificate to the concerned authority along with their date of applications for appearing in the examination at the earliest, but not later

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

than four weeks from the date of receipt of a copy of this order.

10. On due verification of the documents, the respondentauthority shall avail the benefits of the first higher payscale to the petitioners bearing in mind the directions and observations made by this Court in the above cited decision of this Court. The same shall be done at the earliest not later than four weeks from the date of receipt of a copy of this order. Both the petitions stand disposed of accordingly. In view of disposal of the main petitions, the connected Civil Application also stands disposed of. There shall be, however, no order as to costs. Direct Service is permitted.

4 Mr. Supehia, the learned counsel appearing for the applicants submitted that the ends of justice would be met if the respondents are directed to consider the case of the petitioners for grant of the higher pay scales in terms of the judgment referred to above.

5 In such circumstances referred to above, the respondents Nos.2, 3 and 4 are directed to consider the case of the applicants so far as the grant of higher pay scales is concerned keeping in mind the judgment of this Court dated 19th January 2016 at Annexure: 'D' to this petition (page 30) and take an appropriate decision in that regard within a period of four weeks from the date of receipt of the writ of this order. I may only say having gone through the judgment of the Coordinate Bench dated 19th January 2016 that when the issue is squarely covered, the respondents have to just pass appropriate orders for the grant of the higher pay scale.

C/SCA/20254/2021 JUDGMENT DATED: 04/10/2022

6 In the result, this application is accordingly disposed of. I expect the authorities to ensure that there is no second round of litigation."

8. Evident from the contents is that no examinations were

held at the relevant point of time and when the

examinations were first held in the year 2015, the

petitioner passed such examination. Obviously therefore no

fault can be found so as to hold the petitioner responsible

for not having passed his CCC examination.

9. In light of the decision in SCA No.3300 of 2016 and allied

matters, the petition is allowed. The order of reversion

dated 17.12.2021 is quashed and set aside. Consequential

benefits on quashing of the order shall be made available