Dursingbhai Pataliyabhai Rathva vs State Of Gujarat
2023 Latest Caselaw 6740 Guj

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      C/SCA/10325/2023                                ORDER DATED: 13/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10325 of 2023

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                         DURSINGBHAI PATALIYABHAI RATHVA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1,2
MR. MANAN MEHTA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                                 Date : 13/09/2023

                                  ORAL ORDER

In the facts and circumstances of the case and having regard to the compass of the controversy noticed in course of the hearing, the petition was taken up for final consideration.

1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr. Manan Mehta waives service of Rule on behalf of respondent No.1, whereas learned advocate Mr. H. S. Munshaw waives service of Rule on behalf of respondent No.2-Gujarat State Road Transport Corporation.

2. Heard learned advocate Ms. Harshal Pandya for the petitioners, as also learned Assistant Government Pleader and learned advocate for the respective respondents.

3. By filling the present petition under Article 226 of the Constitution, the following prayers are made,

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C/SCA/10325/2023 ORDER DATED: 13/09/2023

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"(i) direct and hold that the action of respondent authorities of not extending benefit of first higher grade scale of Rs. 5200-20200 GP 2800 of the cadre of Field Supervisor on the ground of non-passing of departmental examination though Rules do not provide so, is illegal, arbitrary, discriminatory and shows complete non- application of mind;

(ii) direct the respondent authorities to extend the benefit of first higher pay scale of Field Supervisor Rs. 5200-20200, grade pay Rs. 2800 to the petitioners from their respective due dates forthwith in light of judgment dated 30.03.2022 rendered in SCA 15597 of 2019 with all consequential benefits and pay arrears thereof with 9% interest"

3.1 The petitioners, two in numbers, have pleaded that they joined services under respondent No.2 Corporation with effect from 18.5.1999 and 23.12.1999 respectively as Field Assistant in the pay scale of Rs. 3050-4590. They were initially on probation, subsequently confirmed and their pay was revised to Rs. 5200-20200 with Grade Pay of Rs. 1900 as per 6th Pay Commission. It was stated that the petitioners underwent training of Soil Conservation and also post-training examination to clear it successfully. The next promotional post for the Field Assistant is the Field Supervisor and the eligibility to get the promotional post is completion of 7 years of experience in that cadre.

3.2 It is the undisputed case of the petitioner that petitioners completed 7 years of service, however, no promotion was granted to them. It is the grievance that despite fulfilling criteria for getting the benefit of first higher grade scale, which was available to them, the same was not extended to them.

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      C/SCA/10325/2023                               ORDER DATED: 13/09/2023

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3.3     For those, who are stagnate in a particular cadre and stand deprived

of the promotion, the scheme to grant higher pay scale is evolved as per the conditions laid down in the government Resolution dated 16.8.1994. It is under this policy that the petitioners have been claiming the benefit of first higher grade scale.

4. It was submitted by learned advocate for the petitioner that first higher grade scale has been denied to the petitioners only on the ground that the petitioners have not passed the departmental examination. It was submitted that similarly situated Field Supervisors had filed Special Civil Application No. 15597 of 2019 with similar grievance and identical prayer seeking benefit of first higher grade scale of the cadre of Field Supvervisor-the promotional post. The defence was raised by the respondents-Gujarat State Road Transport Corporation in the said proceedings that since the petitioners had not passed the departmental examination, they were not liable to be considered for grant of the first higher grade scale.

4.1 At the same time, it was pointed out that in paragraph No.5 of the affidavit filed in the said petition, it was stated that the departmental examination was not conducted by the Corporation. It was, however, stated that in view of the Resolution dated 16.8.1994 and 2.7.2007, for availing the benefit of first higher grade scale, it was mandatory to pass the departmental examination.

4.2 It is conspicuous to notice in the controversy, as it surfaces out of the above facts, that the benefit of first higher grade scale is denied to the petitioner on the purported ground of non-passing of departmental examination.

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      C/SCA/10325/2023                              ORDER DATED: 13/09/2023

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5. The rules called "Recruitment Rules for the post under the Gujarat State Land Development Corporation Ltd, 1982", under which the petitioners have been appointed, do not provide for conducting of departmental examination. Appendix to the said rule indicate that for the purpose of posting on the post of Field Supervisor, the only requirement is completion of seven years in the cadre of Field Assistant. It was sought to be pointed out that there is no requirement of passing of departmental examination. Be that it may.

5.1 What becomes decisive is that the departmental examination, non- passing of which is made a ground not to avail the benefit of first higher grade scale to the petitioners, has not been conducted at all. The petitioners were appointed in the year 1999. The first higher grade scale would become due for the petitioners under the Resolution dated 16.8.1994 and the subsequent Resolutions on the subject upon completion of 12 years. Therefore, the petitioners became entitled to receive the first higher grade scale in the year 2011.

5.2 From the averments made in paragraph 5 in the affidavit of respondent No.2 filed in aforementioned Special Civil Application No. 15597 of 2019, it clearly turns out that the departmental examination was not conducted. The said affidavit was filed on 10.06.2020. In another words, the ground of non-passing of departmental examination is with reference to the examination which is not at all conducted until the petitioners became entitled to receive first higher grade scale in 2011.

5.3 In K.K.Gohil vs. State of Gujarat and Others [(2015) 9 SCC 652], the Supreme Court addressed more or less the similar controversy to observe thus,

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C/SCA/10325/2023 ORDER DATED: 13/09/2023

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"However, by 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 organised in time. Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law." (para 13)

6. For all the aforesaid reasons, the case of the petitioners deserves to be accepted. The petition is allowed by directing that the benefit of first higher grade scale for the petitioners shall not be withheld only on the ground that the petitioners have not passed the departmental examination, provided the petitioners are otherwise eligible to get the first higher grade scale benefit within the scheme for the purpose. It is also directed that if the petitioners are found entitled to get the benefit of first higher grade scale as claimed, necessary orders shall be passed within six weeks from the date of receipt of this order.

7. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(N.V.ANJARIA, J) C.M. JOSHI