Ashokumar Dahayalal Chauhan vs Principal District Judge
2023 Latest Caselaw 652 Guj

     C/SCA/11571/2012                                      JUDGMENT DATED: 24/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 11571 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1     Whether Reporters of Local Papers may be allowed to see the No
      judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy of the judgment No
      ?

4     Whether this case involves a substantial question of law as to the No
      interpretation of the Constitution of India or any order made
      thereunder ?

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                        ASHOKUMAR DAHAYALAL CHAUHAN
                                     Versus
                           PRINCIPAL DISTRICT JUDGE
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Appearance:
MR BHAVYARAJ GOHIL FOR MR AJ YAGNIK(1372) for the Petitioner(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 24/01/2023

                                  ORAL JUDGMENT

1. Heard learned Advocate Mr. Bhavyaraj Gohil for learned Advocate Mr. A.J. Yagnik on behalf of the petitioner and learned Advocate Ms.Trusha Patel on behalf of the respondent.

C/SCA/11571/2012 JUDGMENT DATED: 24/01/2023

2. By way of this petition the petitioner challenges the action on part of the respondent of not granting the 2 nd Higher Grade Pay Scale to the petitioner from 01.03.2006 and to pay arrears for late payment with appropriate interest.

3. Briefly stated the facts leading to filing of this petition being that the petitioner was originally appointed as a Section Writer on 01.03.1982, and later on posted in equivalent pay scale as a Junior Clerk with effect from 01.07.1982. It appears that the petitioner had passed his lower standard examination on 25.09.1984 and higher standard examination on 22.07.2008. It also appears that in the interregnum the petitioner was promoted to the post of Superintendent on 05.03.2009. Furthermore consequent to passing of the higher standard examination, the petitioner was granted 1 st Higher Grade Pay Scale vide order dated 03.03.2009 with effect from 22.07.2008 i.e. from the date of passing of the higher standard examination. The petitioner had initially requested the respondents for grant of 1 st and 2nd Higher Grade Pay Scale vide his representation dated 11.03.2011 and the same came to be rejected vide an order dated 11.11.2011 and whereas being aggrieved by the same, the petitioner had preferred writ petition before this Court being Special Civil Application No. 4321 of 2012. It appears that learned Coordinate Bench of this Court vide order dated 04.05.2012 had been pleased to set aside the impugned order dated 11.11.2011 and whereas the case was remitted back to the competent authority to take necessary decision and pass appropriate orders within ten weeks from date of receipt of the order. It appears that consequent to such order being passed by this Court, the petitioner had again submitted a representation on 07.06.2012 and whereas ultimately vide impugned order dated 20.07.2012, the request

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of the petitioner for grant of 1st and 2nd Higher Grade Pay Scale, had been rejected.

4. Learned Advocate Mr. Gohil assails the decision on part of the respondent by submitting that the policy of the State Government, with regard to grant of Higher Grade Pay Scale, has been laid down in various resolutions starting from Government Resolution dated 20.02.1991 which had been explained by resolution dated 05.07.1991 and whereas a comprehensive policy had been set out by Government Resolution dated 16.08.1994. Learned Advocate would refer to various further resolutions and whereas learned Advocate would emphasize on Government Resolution dated 12.08.2009 which inter alia lays down the criteria for grant of 2nd Higher Grade Pay Scale more particularly after completing 24 years in service.

4.1 Learned Advocate would thereafter draw the attention of this Court to a Circular dated 03.12.2009 whereby Government Resolution 12.08.2009 had been amended inasmuch as according to the Circular, when an employee, completes 24 years of service then he becomes entitled to 2 nd Higher Grade Pay Sale and whereas such revision could be affected, even if the employee concerned has not passed the departmental examinations, more particularly such payment of Higher Grade Pay Scale. being made subject to the concerned employee passing of the examinations. Learned Advocate Mr; Gohil would submit that though the petitioner had passed the higher standard examination on 22.02.2007, since the petitioner completed 24 years on 01.03.2006, the 2nd Higher Grade Pay Scale should have been granted to the present petitioner with effect from the said date, more particularly holding that such grant would be subject to the petitioner

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passing of the higher standard examination. Making such submission learned Advocate Mr.Gohil would request this Court to quash and set aside impugned order dated 20.07.2012 passed by the competent authority being the learned Principal District Judge, Jamnagar,

5. This petition is vehemently opposed by learned Advocate Ms. Trusha Patel on behalf of the respondent. Learned Advocate Ms. Patel would take this Court through the affidavit- in- reply filed by respondents and whereas learned Advocate would also draw the attention of this Court to policy of the State Government as coming out in Government Resolution dated 05.07.1991 and 16.08.1994. It is required to be mentioned here that while resolution dated 05.07.1991 has not been placed on record, since learned Advocate for the petitioner had sought to rely upon the same a copy thereof had been provided to this Court.

5.1 Learned Advocate Ms. Patel would draw the attention of this Court Clause No. 9 of Resolution dated 05.07.1991 which is reiterated in Clause 3(5) and Clause 3(9) of Resolution dated 16.08.1994. Learned Advocate would submit that the said clauses, inter alia state that for grant of Higher Grade Pay Scale, the employee should have completed all the criteria which would be applicable for grant of promotion and whereas one of the criteria is passing of the prescribed examinations, then for grant of Higher Grade Pay Scale, the employee concerned is required to pass the examination. Learned Advocate would submit that in the instant case upon the petitioner passing the higher standard examination on 22.07.2008, the petitioner had been paid 1st Higher Grade Pay Scale with effect from the very date. Learned Advocate would thereafter draw the attention of this Court to Government Resolution dated 02.07.2007, whereby the State Government,

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instead of granting Higher Grade Pay Scale upon completion of 9 years, 18 years and 27 years had modified the same by granting Higher Grade Pay Scale upon completion of 12 years and 24 years. Learned Advocate would specifically draw the attention of this Court to Clause 2(3) of Resolution dated 02.07.2007 which states as to how 24 years i.e for grant of 2 nd Higher Grade Pay Scale is to be counted. According to said clause, the 2 nd Higher Grade Pay Scale which the employee would be entitled to upon completion of 24 years and whereas the period of completion of 24 years would be counted as 12 years from the date of grant of 1 st Higher Grade Pay Scale. Learned Advocate would submit that irrespective of the employee completing 24 years in service, the grant of 2 nd Higher Grade Pay Scale upon completion of 24 years, would be paid to the employee only upon the employee completing 12 years from the date of grant of 1 st Higher Grade Pay Scale. Learned Advocate would submit that the petitioner being eligible for grant of 1st Higher Grade Pay Scale upon passing of the requisite examination and whereas the actual payment had been made with effect from 22.07.2008, the petitioner even though who would complete 24 years of service in the year 2006, would not be eligible for grant of Higher Grade Pay Scale since the petitioner had not been paid the 1 st Higher Grade Pay Scale till the said date. Making such submissions, and more particularly relying upon the impugned order, learned Advocate would request this Court not to interfere with the petition.

6. Heard learned Advocates for the parties who have submitted anything else.

7. A short question which arises for consideration of this Court is whether the petitioner would be entitled to grant of 2 nd Higher Grade Pay

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Scale with effect from 01.03.2006 i.e. the date on which the petitioner completes 24 years in service as per the extant policy of the State Government. In the considered opinion of this Court,the answer to such a question would have to be an emphatic No.

7.1 Reading of the Government Resolutions dated 05.07.1991 and 16.08.1994, where the concept of Higher Grade Pay Scale, to be paid to the employee upon completion of a particular number of years in service, without any promotion, had been explained. Both the said resolutions, which govern the field as far as grant of Higher Grade Pay Scale is concerned, very clearly and elaborately lay down that the employee concerned would be eligible for grant of Higher Grade Pay Scale, if the employee concerned is otherwise eligible and fit for promotion. The eligibility for promotion, including passing of prescribed exterminations if any. The employee becomes eligible to be paid Higher Grade Pay Scale only upon the conditions which are required for the employee to be stated to be eligible for promotion are fulfilled. While the period of 9 years, 18 years and 27 years have been mentioned in the Government Resolutions as being the period upon the completion of which the employee concerned would be entitled/eligible for grant of Higher Grade Pay Scale yet, the grant of Higher Grade Pay Scale would be subject to the other conditions /criteria mentioned in the resolution. As noted hereinabove, passing of a departmental examination, if is a prescribed criteria for promotion then it would be only upon the employee concerned passing such examination that he would be eligible for promotion as well as for grant of Higher Grade Pay Scale.

The petitioner herein having passed his Higher Standard Examination

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on 22.07.2008, and having been granted 1 st Higher Grade Pay Scale with effect from the very same date, this Court does not find any infirmity in the action on part of the respondents on that count.

8. Furthermore it is also required to be noted that vide later resolution dated 02.07.2007, the State Government, amended its policy with regard to grant of Higher Grade Pay Scale, on completion of 9 years, 18 years and 27 years to grant of Higher Grade Pay Scale upon completion of 12 years and 24 years. The said resolution also specifies when the employee will be eligible for grant of Higher Grade Pay Scale. Considering Clause 2 (3) relied upon by learned Advocate Ms. Patel, it would appear that though the employee would be entitled to grant of 2 nd Higher Grade Pay Scale upon completion of 24 years yet, the said condition has been laid down, with a rider that the 2nd Higher Grade Pay Scale, would be paid to the employee only upon the employee completing 12 years after having been paid his 1 st Higher Grade Pay Scale. In the instant case, since the petitioner had been paid his 1st Higher Grade Pay Scale upon passing of the examination concerned on 22.07.2008, the petitioner, naturally could not have been paid the 2nd Higher Grade Pay Scale unless he completed 12 years of receiving benefits of 1st Higher Grade Pay Scale.

9. Though the Government Resolution dated 12.08.2008 as amended vide Circular dated 03.12.2009, inter alia states that upon completion of 24 years, a government employee could be paid 2 nd Higher Grade Pay Scale, subject to his passing of the examination and whereas in the considered opinion of this Court, the said clause could not be considered in isolation. The 24 years as mentioned in the said clause, would also take it into its ambit the requirement that the employee concerned should have completed

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12 years from the date of grant of 1 st Higher Grade Pay Scale to be eligible for grant of 2nd Higher Grade Pay Scale after completion of 24 years in service.

10. Having regard to the discussion, observations and conclusions as reached hereinabove, more particularly since it clearly appears that the petitioner had been paid his 1st Higher Grade Pay Scale salary on 03.03.2009 with effect from 22.07.2008, i.e upon his completion of Higher Standard Examination and furthermore since it appears that completion of 12 years after grant of 1st Higher Grade Pay Scale would be a pre-condition of grant of 2nd Higher Grade Pay Scale, and whereas the petitioner as noted hereinabove being granted 1st Higher Grade Pay Scale with effect from 22.07.2008, the petitioner not being entitled to be granted 2 nd Higher Grade Pay Scale merely upon completion of 24 years in service, this Court does not find any infirmity in the action taken by the respondent authority more particularly the action on part of the respondent authority clearly appearing to be in consonance with the Government Resolutions and Circulars noted hereinabove, in the considered opinion of this Court, the present petition being meritless. Hence the same is rejected. Rule is discharged.

sd/-

(NIKHIL S. KARIEL,J) NIRU