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2005 DIGILAW 146 (GUJ)

RAMKUMAR KALLURAM YADAV v. STATE OF GUJARAT

2005-03-03

RAVI R.TRIPATHI

body2005
RAVI R. TRIPATHI, J. ( 1 ) INITIALLY, Special Civil Application No. 9538 of 2001 was filed for as many as thirty one petitioners together, alleging that the petitioners are entitled to First Higher Pay Scale Grade of P. S. I. in the scale of Rs. 1640-2900 (Revised ). ( 2 ) THE petitioners are First Grade Head Constable (ASI) under respondent no. 3 - Commandant, State Reserve Police ("srp"), Group-XII. The case of the petitioners is that they have been serving since they joined in SRP as `armed Constables between 1956 to 1969. It is also their case that they then received promotion in Second Grade Head Constable and thereafter, in First Grade Head Constable, which is also known as `asi. With a view to see that the details of every individual petitioner are on record, by Order dated 7th January, 2002, the petitioners were asked to file separate petitions for individual petitioner. Accordingly, Special Civil Application Nos. 214 of 243 of 2002 are filed. In all these petitions, `rule was issued on 21st February, 2002, returnable on 6th March, 2002, ( 3 ) THE question involved in all these petitions is common. Except the details like date of joining, date of promotion to the post of Second Grade Head Constable and First Grade Head Constable, date of birth and their completing 45 years of age, there is no other material factor on which these petitions differ from each other. ( 4 ) MR. V. M. DHOTRE, learned Advocate for the petitioners, submitted that by virtue of Government Resolution No. PGR-1194-44-M dated 16th August, 1994, the Government promulgated a scheme whereby the Government employees, who were having no promotional avenues or limited promotional avenues, were to be granted higher pay scale. ( 5 ) THE case of the petitioners is that the petitioners are entitled to the said benefit of higher pay scale under the aforesaid Resolution, but, the same is denied to the petitioners without there being any justifiable reason. ( 5 ) THE case of the petitioners is that the petitioners are entitled to the said benefit of higher pay scale under the aforesaid Resolution, but, the same is denied to the petitioners without there being any justifiable reason. The learned Advocate for the petitioners invited the attention of the Court to the relevant part of the said Government Resolution, particularly, Clause 3 (5), which provides that the authority, which is competent to appoint a person on the post, having higher pay scale, will be competent to grant benefit of higher pay scale, and while doing so, the overall performance, qualifications, passing of prescribed examination, whereever so prescribed, and eligibility to get promotion will be considered. It is further provided in the said clause that in case of an employee, who has become eligible for higher pay scale prior to 5th July, 1991, `past nine years confidential reports, and in case of one, who became eligible for higher pay scale after 5th July, 1991, `past five years confidential reports, will be taken into consideration. In this very clause, it is further provided that the persons, who have completed 45 years of age on or before 5th July, 1991, will be treated to be eligible for exemption from passing of the departmental examination. But then, it is also provided that the employees, who have completed 45 years of age after 5th July, 1991, will not be considered eligible for exemption from passing of the departmental examination. ( 6 ) THE learned Advocate for the petitioners submitted that it is on the ground of `non-passing of the departmental examination that the authorities have held that the petitioners are disqualified for grant of benefit of higher pay-scale grade. The learned Advocate for the petitioners invited the attention of the Court to the averments made in the affidavit filed on behalf of respondent no. 3. In paragraph-9, it is stated that,"at this juncture, it may be pertinent to refer to the provisions of clause 3 (5) of the Government Resolution dated 16. 8. 1994 which has been annexed as Annexure-B to the petition. Under the said clause, the authority who is authorised to make appointments to the post of the higher pay scale is competent to sanction the higher pay scale in the case of eligible employees. 8. 1994 which has been annexed as Annexure-B to the petition. Under the said clause, the authority who is authorised to make appointments to the post of the higher pay scale is competent to sanction the higher pay scale in the case of eligible employees. It is also stipulated that the employees should be eligible to be promoted on the basis of his overall performance, qualifications and should have passed the specified examinations within the specified chances. In the present case therefore, to be entitled to receive the First Higher Pay Scale Grade of PSI the petitioners are required to have Departmental Examination for being promoted to the post of PSI as per the provisions of the SRP Rules. " (emphasis supplied) the learned Advocate submitted that, thus, it is clear from the aforesaid that only on account of `non-passing of the examination, that the petitioners are denied the benefit of higher pay scale. The learned Advocate submitted that the case of the petitioners is that the petitioners, having completed 45 years of age, are entitled for exemption from passing of the departmental examination. He submitted that this question is dealt with by the deponent in paragraphs 10 and 11, which read as under:"10. IT is submitted that the departmental examinations for being eligible to promotion to the post of PSI were held in 1996, 1997 and 2001. However, some of the petitioners have not appeared in the same whereas some of them have appeared but failed in the said examinations. A statement showing the details regarding the examinations held and the performance of the petitioners in the same is annexed herewith and marked as ANNEXURE-R2. In the aforesaid circumstances, it is submitted that the petitioners are not entitled to the first higher grade pay scale for PSI. It is submitted that those employees who have passed the said examination have been given the benefit of higher pay scale. 11. IT is further submitted that as per the Government Resolution dated 16. 8. 1994 it is provided that those employees who have attained the age of 45 years on 5. 7. 1991 will be eligible for exemption from passing in the departmental examination. However, those who have not completed 45 years as on 5. 7. 1991 are not eligible for exemption. 8. 1994 it is provided that those employees who have attained the age of 45 years on 5. 7. 1991 will be eligible for exemption from passing in the departmental examination. However, those who have not completed 45 years as on 5. 7. 1991 are not eligible for exemption. A statement showing the date of birth of the petitioners as well as the date on which they have completed 45 years of age etc. is annexed herewith and marked as ANNEXURE-R3. A bare perusal of the aforesaid statement will show that none of the petitioners have completed 45 years of age on 5. 7. 1991. " (emphasis supplied) the learned Advocate for the petitioners submitted that while making the aforesaid submission and also the submission in paragraph-12, the deponent lost sight of Government Resolution dated 1st January, 1999, which was amended by another Resolution dated 4th January, 2000. He submitted that by Government Resolution dated 1st January, 1999, the Government decided, on a representation made by the Union of the Government State Employees (dated 27th October, 1998), that, in the cases where departmental examination is prescribed for promotion, but, not held on account of administrative reasons or for the reasons beyond the control, the employees are not at fault. In such cases where after the framing of rules for the departmental examination, on the date of holding the first examination or till such examination is held, if the employees have completed 45 years of age, then, they will be entitled to `exemption from passing of the departmental examination. The employees, who are found to be eligible for `exemption, as above, will also be eligible for the benefit of higher pay scale and promotion. ( 7 ) THE learned Advocate for the petitioners submitted that in this Resolution dated 1st January, 1999, certain conditions were prescribed as conditions precedent in paragraph-2, but then, those conditions were diluted by subsequent Resolution dated 4th January, 2000. The learned Advocate emphatically submitted that in view of the aforesaid facts and in view of the material, which is placed by the deponent along with his affidavit-in-reply, in a tabular statement at Annexures R2 and R3, all the petitioners are eligible for `exemption and consequently, for higher pay-scale. The learned Advocate submitted that from Annexure-R2, it is clear that examinations were held in the year 1996, 1997 and 2001. The learned Advocate submitted that from Annexure-R2, it is clear that examinations were held in the year 1996, 1997 and 2001. Whereas Column No. 7 of Annexure-R3 provides the date on which the petitioners completed 45 years of age between 1991 to 1996. He submitted that the petitioners, whose names appear at Serial Nos. 26 and 27 in Annexure-R3, have already retired from service in the years 2001 and 1998 respectively. The petitioner, whose name appears at Serial No. 31, had completed 45 years of age on 11th August, 1996. He submitted that qua this petitioner, the exact date of holding the examination will be material. He submitted that otherwise all other petitioners are eligible on the basis of the information placed before this Court by the aforesaid two Annexures. ( 8 ) MR. A. D. OZA, learned Government Pleader, appearing with Mr. Pradeep Bhate, learned AGP, submitted that the decision of the authorities holding that the petitioners are not entitled for the higher grade pay-scale is just and proper and they are rightly denied the benefit of higher grade pay scale as they did not fulfil the requirement prescribed under the Government Resolution dated 15th August, 1994. The learned Government Pleader could not substantiate the same and could not dislodge the submissions made by Mr. V. M. Dhotre, learned Advocate for the petitioners. ( 9 ) ON careful consideration of the matters and on careful consideration of the contents of Government Resolution dated 1st January, 1999, read with Government Resolution dated 4th January, 2000, this Court is of the opinion that the petitioners are eligible for Higher Grade Pay Scale. Hence, all these petitions are allowed. The respondents are directed to grant Higher Grade Pay Scale to the petitioners. It is directed that the respondents shall complete the exercise of calculating the amount payable on account of grant of Higher Grade Pay Scale as early as possible, but, not later than 15th May, 2005. After the calculation is over, the amount shall be paid within four weeks thereafter. Rule is made absolute. No order as to costs. .