Gujarat High Court
Mahendrabhai Chimanbhai Valand vs State Of Gujarat on 26 August, 2025
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C/SCA/15151/2018 ORDER DATED: 26/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15151 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15152 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15153 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15155 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15156 of 2018
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MAHENDRABHAI CHIMANBHAI VALAND
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/08/2025
COMMON ORAL ORDER
1. These petitions are filed challenging the course of
action of the respondent authorities of not extending the
st
benefits of 1 HGS to petitioner from his due date on the
ground of non-passing of departmental examination, which
has not been conducted since 2007 though repeatedly
requested by petitioner to hold examination but the
respondent authorities have completely failed to fulfill their
statutory obligation to conduct the exam twice in a year,
which has further resulted into stalling of next promotions
alongwith their juniors.
2. In Special Civil Application Nos.15151 of 2018,
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15152 of 2018, 15153 of 2018, 15155 of 2018, the petitioners
were selected and appointed as Clerk in the Roads &
Building Department on 23.8.2001; that due to the
earthquake in the year 2001, the petitioners remained at
Bhuj from their date of joining till 31.7.2005 which has
delayed their pre-service training; the petitioners were sent
for pre-service training between 27.2.2006 to 26.4.2006; that
the post-training examination was scheduled in the 2006 but
the same was postponed for some administrative reason; the
post-training examination was then conducted after two years
i.e. in the year 2008, which the petitioners cleared in the
first attempt; for being eligible for promotion and higher pay
scale, departmental examination is required to be passed by
the employees and it is obligatory on the part of the State
to organize the same at regular interval i.e. twice in a year
as provided in the statutory rule; the training for lower
grade clerical employees was organized between 15.4.2010 to
14.6.2010, wherein the petitioners participated; the
departmental examination was to be scheduled immediately
after the training between 8.7.2010 and 9.7.2010, however,
the examination was also not conducted as per schedule and
was postponed stating reason that modification of rules for
departmental examination is under process; from 2010-2014,
several representations were made for organizing the
departmental examination because many employees were
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being deprived of promotion or higher pay scale; neither the
rules were modified nor examination was conducted as per
old rules, again, it was intimated to the respondent no.3 by
Superintending Engineer, Circle Office, Ahmedabad that
unless and until the State Government modifies the
departmental examination Rules, exam cannot be organized;
23.8.2013, the petitioners became eligible to receive Higher
Pay Scale, but same was not extended for want of passing
the departmental examination which was not organized by
the department; the petitioner of Special Civil Application
No.15155 of 2018 is 3.4.2013; on 31.3.2015, new rules came
to be published wherein also it is mandated conducting
departmental examination twice a year; in 2016 and 2018,
necessary forms for appearing in departmental examination
were filled up and fees was also paid but examination was
not conducted and therefore this petition is filed.
3. In Special Civil Application No.15156 of 2018, the
petitioner was appointed as English Typist after due process
of selection in the Roads & Building Department on
14.9.1984; as the said post did not have a pre-requisite
condition of participating in pre-service training, the petitioner
was not sent for pre-service training; for being eligible for
promotion and higher pay scale, departmental examination is
required to be passed by the employees and it is obligatory
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on the part of the State to organize the same at regular
interval i.e. twice in a year as provided in the statutory rule;
the departmental examination was to be scheduled on
8.7.2010 and 9.7.2010, wherein the petitioner had to appear,
however, that examination was also not conducted as per
schedule and was postponed stating reason that modification
of rules for departmental examination is under process. The
petitioner has become eligible to receive first Higher Pay
Scale in the year 1993 and second Higher Pay Scale in the
year 2002 but same was not extended for want of passing
the departmental examination which was not organized by
the department, inspite of several representations made by
the petitioner. New rules came to be published wherein also
it is mandated conducting departmental examination twice a
year; in 2016 and 2018, necessary forms for appearing in
departmental examination were filled up and fees was also
paid but examination was not conducted and therefore this
petition is filed.
4. Heard learned advocates for the parties.
4.1 Learned advocate for the petitioner Ms.Pandya has
submitted in all the petitions that the petitioners were
derived of higher pay scale/promotion for the reason of non-
passing of departmental examination which was not organized
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till the filing of the petition, though it is the statutory
obligation on the part of the State to organize such exam
twice in a year; that the State has violated its own circular
dated 24.11.2004 by not conducting the examination at
regular intervals and the Hon'ble Apex Court has taken note
of such circular in the judgment in the case of K.K.Gohil V/s
State of Gujarat and Ors., reported in 2015(9) SCC 652.
4.2 Learned advocate for the petitioner has submitted
that the issue involved in this petition are already dealt with
by this Court in Special Civil Application No.5262 of 2015,
wherein it is observed that "inaction on the part of the
government should not deprive an employee of his legitimate
claim of Higher pay scale or consideration for promotion." In
Special Civil Application No.6754 of 2017, dealing with the
same issue, this Court directed the authorities to grant
higher pay scale from their due date subject to passing the
examinations and also directed the Chief Secretary of
Government of Gujarat to constitute a committee to consider
such types of cases and also make recommendations to the
government to conduct the examination in time, however, the
State has completely failed to carry out such directions. In
Special Civil Application No.2146 of 2009, this Court again
addressed on the same issue.
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4.3 She submitted that had the departmental
examination been conducted during the eligibility period,
petitioners would have appeared and cleared the same but
the benefit is stalled by the State for their own inaction.
4.4 She submitted that in Special Civil Application
Nos.15151 of 2018, 15152 of 2018, 15153 of 2018 and 15155
of 2018, during the pendency of petition examination has
been organized and petitioners appeared and the petitioner of
Special Civil Application No.15151 of 2018 has passed the
departmental examination and promoted to the post of Senior
Clerk on 30.6.2025; petitioner of Special Civil Application
No.15152 of 2018 has passed the departmental examination
and promoted to the post of Senior Clerk on 30.6.2025;
petitioner of Special Civil Application No.15153 of 2018 has
failed in four attempts and later on retired in the year 2024;
petitioner of Special Civil Application No.15155 of 2018 has
attempted thrice and also appeared in the fourth attempt in
July, and the result is awaited.
4.5 She submitted that as far as Special Civil
Application No.15156 of 2018 is concerned, the petitioner
retired on 31.7.2020, during the pendency of this petition and
he was afforded only one opportunity to appear for the
examination in the year 2018; further more, the petitioner
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had attained the age of 45 years in the year 2007 and in
terms of the Government Resolution dated 1.1.1999, the
petitioner was entitled to an exemption from appearing in the
departmental examination.
4.6 She, therefore, submitted that in view of the
above, the petitioner is entitled for Higher Pay Scale from
the due date and consideration for deemed date of promotion.
5. Per contra, learned AGP Ms.Bhati has submitted
that the petitioners have not passed the departmental
examination and therefore they are not given the benefit of
higher pay scale. However, she could not defend the
contentions of the learned advocates for the petitioners that
the departmental examinations were not conducted till the
date of the petition and also the fact that the issue involved
in these petitions is already dealt with by this Court in
other petitions. She, therefore, prayed that appropriate order
may be passed.
6. I have heard the learned advocates for the parties,
also perused the material on record and the judgments
referred to and relied upon by learned advocate for the
petitioners. It is undisputed that the departmental
examination was not conducted till the year 2018; that there
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is a policy of the Government to give exemption from
appearing in such examination on attaining the age of 45
years; that the number of attempts for clearing the
departmental examination are 3 (4 for reserved candidates),
however, first chance was available in December, 2018 and
the second was in the year 2021, by which time some
petitioners have attain the age of 45 making them entitled to
avail exemption.
7. In the above factual background, a reference to
the judgment of the Hon'ble Apex Court in the case of
K.K.Gohil (supra), is fruitful, wherein it is held that
"......However, by the 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 22-6-
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....."
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8. The same view is taken by this Court in Special
Civil Application Nos.5262 of 2015, 6754 of 2017 ad 2146 of
2009, while considering the same issue of not conducting the
departmental examination by the authorities, has observed
that inaction on the part of the government should not
deprive an employee of his legitimate claim of Higher pay
scale or consideration for promotion.
9. In view of the above and considering the fact that
the issue is no more res integra and decided by the Hon'ble
Apex Court and also this Court in number of matters, as
referred hereinabove, without entering into the further aspects
of the matter, I pass the following order:
10. These petitions are partly allowed. The respondents
authorities are directed to grant the first higher pay scale to
the petitioner from their due date and pay the arrears
thereof with interest @ 6%, within a period of six weeks
from the date of receipt of this order. Rule is made absolute
to the aforesaid extent.
(SANDEEP N. BHATT,J)
SRILATHA
