Gujarat High Court

Rajeshkumar Ramabhai Kapadia vs State Of Gujarat on 6 October, 2022

Bench: Biren Vaishnav

     C/SCA/12790/2021                               JUDGMENT DATED: 06/10/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12790 of 2021
                                   with
              R/SPECIAL CIVIL APPLICATION NO. 12797 of 2021
                                   with
              R/SPECIAL CIVIL APPLICATION NO. 12805 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 RAMABHAI KAPADIA
                                   Versus
                              STATE OF GUJARAT
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Appearance:
MR S. P. MAJMUDAR(3456) for the Petitioner(s) No. 1
MR RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3,4,5,6,7
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       CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 06/10/2022

                           COMMON ORAL JUDGMENT

1. Leave to amend.

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

2. Rule returnable forthwith. Mr. Utkarsh Sharma, learned

Assistant Government Pleader waives service of notice of

Rule on behalf of respondents.

3. With consent of the learned advocates appearing for the

respective parties, all these matters are taken up for final

hearing today.

4. In all these petitions, the case of the petitioners is that they

are entitled to the first higher pay scale, the second higher

pay scale and the third higher pay scale from the

respective dates on which they were due. It is their case

that since they cleared the Land Records Qualifying

Examination in the year 2011, the first higher pay scale

was postponed and granted from the date of their passing

such examinations rather than their due dates of

entitlement. Consequentially, their second higher pay scale

was also postponed.

5. In Special Civil Application No.18493 of 2015, the

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

Coordinate Bench of this Court while considering the case

on identical facts as set out in Paragraph No.3.1 allowed

the petitions in light of the decision of the Hon'ble Supreme

Court in the case of K.K. Gohil Vs State of Gujarat

reported in (2015) 9 SCC 652, held has as under:

"Heard learned advocate Mr. S. P. Majmudar and learned Assistant Government Pleader Mr. Robin Mogera for the respondent.

2. By filing the present petition the petitioners who are 17 in numbers, have prayed "to grant the benefit of first higher pay-scale to the petitioners from the date on which it was due to the petitioners (as per the chart at Annexure A), and not from the date on which they had cleared Land Record Qualifying (LRQ) Examination".

3. Stated briefly, it is the case of the petitioners that they have recruited in the office of District Inspector of Land Revenue, Survey Mamlatdar, in the years 1991-1993 and they served in Ahmedabad as well as Rajkot Circle. They have rendered 20 years of services during which, they have neither given any promotion nor given the higher pay-scale. As per the various Resolutions of the State Government dated 16th August, 1994, 02nd July, 2007, 14th September, 2007, 12th August, 2008 and 03rd February, 2009, the requirement of passing of LRQ Examination is contemplated for grant of higher pay-scale.

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

3.1 It is the case of the petitioners which could not be disputed that the LRQ Examination was not taken after 2001, therefore the benefit of first higher pay-scale due at the stage of nine years of completion of service was not given to the petitioners. Under the Rules, the departmental examinations are required to be taken twice in a year, however no examination was held after 2001. The petitioners have given the tabular details about the date of higher pay- scale due, etc., of which the relevant is extracted hereinbelow. Sr No Name Joining date LRQ Exam passing year Due to first higher scale Higher scale grated pay upto 1 Harikrushna Shamalbhai Suthar 05/01/93 Aug, 2011 05/01/02 Aug, 2011 2 Lalbhai Keshabhai Meer 09/08/96 Oct, 2013 09/08/05 Oct, 2013 3 Asifmiya Aiyubmiya Malek 10/01/91 Aug, 2011 10/01/00 Aug, 2011 4 Sanjaykumar Chandulal Sankesara 06/01/93 Oct, 2013 06/01/02 Oct, 2013 5 Ashokbhai Ravishankar Dave 05/01/93 Aug, 2011 05/01/02 Aug, 2011 6 Asadullakhan Inayatullahkhan Pathan 04/01/93 Aug, 2011 04/01/02 Aug, 2011 7 Sukhdevbhai Narandas Soni 04/01/93 Aug, 2011 04/01/02 Aug, 2011 8 Kantibhai Revabhai Patel 18/01/93 Aug, 2011 18/01/02 Aug, 2011 9 Yasvantkumar Amrutlal Patel 07/01/93 Aug, 2011 07/01/02 nil 10 Abdul Kadar Ahemadbhai Meman 08/01/91 Jan, 2013 08/01/00 nil 11 Virendrasinh Ramsinh Zala 02/01/93 Oct, 2013 02/01/02 Oct, 2013 12 Prakashchandra Ramanlal Raval 07/01/93 Oct, 2013 07/01/02 nil 13 Mahyuddin GulamNabi Meman 05/01/93 Oct, 2013 05/01/02 nil 14 Arvindbhai Balabhai Rathod 05/01/93 Aug, 2011 05/01/02 Aug, 2011 15 Kantilal Narsinhbhai Bhimani 04/01/93 Aug, 2011 04/01/02 Aug, 2011 16 Vipul Vithhalbhai Thumar 04/01/93 Oct, 2013 04/01/02 nil 17 Prakashbhai Popatbhai Varan 05/01/93 Aug, 2011 05/01/02 Aug, 2011

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

18 Chhanabhai Kalidas Patel 15/01/91 Aug, 2011 15/01/00 Aug, 2011

3.2 As per the details in the above table, the different petitioners passed LRQ Examination in the years 2011 and 2013. Under the Government Resolution and in particular Resolution dated 16th August, 1994, the petitioners are entitled to be given to higher pay-scale on completion of 9, 18 and 27 years of service. The first higher grade pay-scale was however granted to the petitioners only after the date of passing of examination in the year 2011 and 2013.

4. The grievance of the petitioners is that they ought to have been given the benefit of pay-scale when they completed the requisite number of years in the service and not from the date of passing of examination because between 2001 and 2011, no examination was held and because of non-holding of the examination by the authorities, although they had became eligible to get the higher pay-scale, they were deprived of. It is the submission that for the fault and inaction on part of the authorities, they could not have been penalized.

5. The decision of the Supreme Court in K.K. Gohil Vs State of Gujarat [(2015) 9 SCC 652], laid down that in terms of Government Resolution dated 16th August, 1994, the higher grade scale granted to the employees who have completed nine years of service to be withdrawn in terms of the conditions of the Resolution only, where the employees fails to pass departmental examination. Referring to Circular dated 24th November, 2004 envisaging the conducting of departmental examination in time and further

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

taking note of the fact that in accordance with Government Order, the departmental examination was not organised during the eligibility period for getting higher pay scale, such benefit could not have been stalled or withheld on such ground. The appellant of the said case was held entitled to be paid the higher pay-scale even without passing the departmental examination which was not conducted.

5.1. Another decision of this Court in Snehlata V. Shah Vs State of Gujarat being Special Civil Application No.324 of 2010 and allied petitions decided on 18th February, 2010 could be successfully relied on. Paragraph 6 of the said judgment reflected the controversy which is similar to one involved in this case and in final paragraph 7, the petitioners of those cases were held entitled to the higher grade scaled with consequential benefits.

6. Given the aforesaid facts of the case of the petitioners and the position of law emerging by applying the aforesaid decisions, the petitioners could not have been denied the benefit of higher grade scale at the stage when it became due to them on the ground of non- passing of the LRQ Examination, which was undisputedly not taken during the eligibility period of petitioners. Therefore in terms of the ratio of the aforesaid decisions in K.K. Gohil (supra) and Snehlata V. Shah (supra), the petitioners become entitled to the benefits.

7. In view of above reasons, the petition succeeds. The respondents are directed to grant to the petitioners the benefit of first higher pay-scale from the date on which such

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

benefit became due to them, instead of the date on which they cleared the LRQ Examination. The benefits which may arise by virtue of this order shall be paid to the petitioners within three months from the date of receipt of the order. Direct service is permitted."

(Oral Order on 16.11.2016 on note for Speaking to Minutes of order dated 5.10.2016 in Special Civil Application No.18493 of 2015):

"The matter comes up upon a note for 'Speaking to Minutes' filed by learned advocate for the petitioners.

2. It was pointed out that in order dated 05.10.2016, in paragraph No.2, the group of words "petitioners who are 17 in numbers" is wrongly transcribed.

3. The note for 'Speaking to Minutes' is allowed. The group of words "petitioners who are 17 in numbers" appearing in paragraph No.2 in order dated 05.10.2016 is substituted by group of words "petitioners who are 19 in numbers"

4. The order shall stand corrected accordingly and read as corrected.

5. The note stands allowed and disposed of accordingly."

6. Accordingly, all these petitions are allowed. The

respondents are directed to grant the petitioners the

benefit of the first higher pay scale from the date on which

C/SCA/12790/2021 JUDGMENT DATED: 06/10/2022

such benefit became due to them, instead of the date on

which they cleared the LRQ examination. Consequentially,

the second higher pay scale shall also be granted to the

petitioners from their respective dates. The benefits which

may arise by virtue of this Common Oral Judgment shall be

paid to the petitioners within a period of three months from