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2016 DIGILAW 456 (GUJ)

K. K. Zala v. State of Gujarat

2016-02-25

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition, petitioner has prayed that the order dated 01.09.2006 passed by the respondent authority be quashed and set aside. Petitioner has also prayed to declare that he is entitled to benefit of first higher pay scale in the cadre of Mamlatdar with effect from 11.11.1999 and thereby respondents be directed to make such entry in the service book of the petitioner and release all the consequential benefits considering the effective date as 11.11.1999. Petitioner has also prayed that the order of recovery of Rs. 61,130/- be declared as illegal and respondents be directed to refund the said amount with interest. 2. It is the case of the petitioner that he joined the services of the State Government on 10.10.1980 as a clerk. He thereafter passed the Gujarat Lower Revenue Qualifying Examination in June 1986, which is a pre-requisite for consideration of promotion to the post of Deputy Mamlatdar. Petitioner therefore was promoted on purely temporary and ad-hoc basis to the post of Deputy Mamlatdar on 27.07.1992. Thereafter, petitioner suffered a massive heart-attack and because of the said incident and illness, he was not able to attend his service and he was on leave during the period between 11.03.1993 to 06.08.1996 for a period of 880 days. The said leave was sanctioned as leave without pay. It is further the case of the petitioner that the Gujarat Higher Revenue Qualifying Examination is required to be passed by an employee for considering his case for promotion to the post of Mamlatdar alongwith employees' seniority on the post of Deputy Mamlatdar. Petitioner appeared in the said examination in February 2002 and he was declared successful. Result was declared on 20.12.2003. In the State Level Combined Provisional Seniority List of Deputy Mamlatdar published on 05.12.2001, the date of appointment of the petitioner as Deputy Mamlatdar was shown as 15.12.1998. Deemed date to the post of Deputy Mamlatdar was sanctioned by Additional Collector, Ahmedabad, by order dated 09.12.2004 to the petitioner from 24.03.1988. Thus, considering the deemed date of the promotion of the petitioner to the post of Deputy Mamlatdar as 24.03.1988, he was entitled to receive first higher pay scale after 9 years of service i.e. in the year 1997 as per the Government Resolution dated 16.08.1994. Thus, considering the deemed date of the promotion of the petitioner to the post of Deputy Mamlatdar as 24.03.1988, he was entitled to receive first higher pay scale after 9 years of service i.e. in the year 1997 as per the Government Resolution dated 16.08.1994. It is the case of the petitioner that even if period of leave without pay is excluded, even then the respondents ought to have granted first higher pay scale from 01.11.1999. However, such benefit was granted from 21.12.2003. 3. It is further the case of the petitioner that the Mamlatdar published the status of Class-III employee on 31.05.2006. In the said gradation list also there is discrepancy with regard to the entry made against the name of the petitioner. Hence, he lodged the objection. The impugned order came to be passed by the Revenue Department on 01.09.2006 granting the benefit of first higher pay scale with effect from 20.12.2003 on the ground that the petitioner passed the Higher Revenue Qualifying Examination ('HRQE' for short) on 20.12.2003 even after coming to conclusion that the petitioner had completed 9 years of service in the cadre of Deputy Mamlatdar on 11.11.1999. The petitioner had passed the HRQE held in February 2002 within stipulated chances and he is entitled to retain seniority and get benefit of higher pay scale from the date on which his co-employees and juniors are granted the same. Petitioner has therefore prayed that the impugned order be quashed and set aside. 4. Heard learned advocate Mr. A.S. Supehia for the petitioner and learned AGP Mr. Swapneshwar Gautam for the respondents. 5. Learned advocate for the petitioner mainly submitted that deemed date of promotion to the post of Deputy Mamlatdar was given to the petitioner as on 24.03.1988 and therefore even excluding the period of leave without pay, petitioner was entitled to get the higher pay scale on completion of 9 years service from 24.03.1988 i.e. from 10.11.1999. Such benefit was granted to co-employees and juniors viz. Shri S.G. Nayee, Shri H.K. Sanghvi and Shri B.F. Malek. It is further contended that petitioner appeared in the HRQE on 20.02.2002. However, result was declared only in December 2003 and therefore, the petitioner was not at fault. In fact, the petitioner has passed the aforesaid examination within prescribed chances. Learned advocate Mr. Shri S.G. Nayee, Shri H.K. Sanghvi and Shri B.F. Malek. It is further contended that petitioner appeared in the HRQE on 20.02.2002. However, result was declared only in December 2003 and therefore, the petitioner was not at fault. In fact, the petitioner has passed the aforesaid examination within prescribed chances. Learned advocate Mr. Supehia has referred to the document which is produced at page 76 of the compilation and submitted that as per the list produced at page 78, permission was given to the petitioner to appear in the HRQE for 3rd time. It is further contended that the examination was held in September 1991, wherein, the petitioner was declared failed. Second time, the examination was conducted in September 1993. However, because of his illness, petitioner could not appear in the said examination. Thereafter, the examination was conducted in February 2002. Petitioner appeared in the said examination and he was declared passed on 20.12.2003. Thus, in the 3rd attempt, petitioner has successfully cleared the examination as per the rules and therefore, he was entitled to get the higher grade scale from 11.11.1999 instead of 20.12.2003. 6. In support of the aforesaid contention, learned advocate Mr. Supehia has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of K.K. Gohil v. State of Gujarat, reported in, AIR 2015 SCW 4844 and submitted that if the examination was not conducted by the department during the eligibility period for getting higher pay scale then, in such case, higher pay scale benefit cannot be stalled on that ground. Learned advocate therefore submitted that impugned order be quashed and set aside and order of recovery be quashed and set aside. 7. On the other hand, learned AGP mainly contended that though the petitioner was eligible to get the higher pay scale on 11.11.1999, the said benefit was not granted to him from the said date because he has passed HRQE on 20.12.2003. As per Clause 3(9) of Government Resolution dated 16.08.1994, such benefit can be granted from the date of passing the examination. Thus, the respondent authority has not committed any illegality while passing the impugned order. It is further contended that HRQE was held in 1991, 1993, 1995, 1997, 1999 and 2002. As per Clause 3(9) of Government Resolution dated 16.08.1994, such benefit can be granted from the date of passing the examination. Thus, the respondent authority has not committed any illegality while passing the impugned order. It is further contended that HRQE was held in 1991, 1993, 1995, 1997, 1999 and 2002. Petitioner was on leave during the period between 1994 to 1996 and therefore, even if examination held in the year 1995 was not calculated, even then, petitioner has cleared the examination in the year 2002 and therefore he has cleared examination in 5th trial. Learned AGP has therefore requested that no illegality is committed by the respondent while passing the impugned order and therefore, present petition be dismissed. 8. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that deemed date promotion was granted to the petitioner on the post of Deputy Mamlatdar from 20.03.1988. Petitioner was on leave for a period of 880 days during period between year 1993 to 1996 and therefore, if the said period is excluded, even then he has completed 9 years of service on 11.11.1999. The request of the petitioner is to grant the higher grade sc le from the said date, a whereas, it is the case of the respondent that when the petitioner has passed the HRQ Examination on 20.12.2003, he is entitled to get the benefit from that date and not from 1999. Thus, for considering the aforesaid controversy, Clause 3(9) of Government Resolution dated 16.08.1994 is required to be considered. Clause 3(9) provides as under: Clause 3(9): "If an employee, for the purpose of promotion, passes the departmental examination after completion of 9 years in his cadre, then higher pay scale shall be sanctioned on the basis of eligibility from the date of passing of such examination." Thus, the benefit of higher grade scale shall be sanctioned on the basis of the eligibility from the date of passing the departmental examination. Therefore, the next question would be, if the departmental examination is not held during the qualifying period, whether the petitioner is entitled to get benefit of the same or not. If the facts of the present case are carefully examined, it is revealed that petitioner appeared in the aforesaid examination for the first time when it was held in September 1991. If the facts of the present case are carefully examined, it is revealed that petitioner appeared in the aforesaid examination for the first time when it was held in September 1991. However, he was declared failed. Another examination was held in September 1993. But, at that time, he had not remained present because of his illness. Thereafter, no intimation was given to the petitioner with regard to the examination which was held in the years 1997, 1999. The said fact is reflected from the document produced on record. Document at page 78 of the compilation clearly indicates that when the list was sent by the office of District Collector, Ahmedabad on 06.12.2001, giving permission to the employees for appearing in the HRQ Examination which was scheduled to be held on December 2001, against the name of the petitioner which is at Sr. No. 37 in column No. 7, it is mentioned that it was 3rd attempt of the petitioner. Thus, learned AGP is not right in making the submission that petitioner cleared the examination in the 5th attempt. When the examination was conducted in the year 2002, in the 3rd attempt i.e. within prescribed chances as per the Rules, petitioner cleared the said examination when the result was declared on 20.12.2003. 9. In case of K.K. Gohil (supra) the Hon'ble Supreme Court observed and held in paragraphs No. 4, 7, 8, 11, 12 and 13 as under: "4. The appellant was meeting with all the requirements to get the higher grade scale as provided under the said scheme except passing of the departmental examination, which the appellant had not been able to clear because such examination was not conducted at all by the department and this fact was taken into consideration by the Departmental Promotion Committee and considering the policy of the Government in this regard, the first higher grade scale of Rs. 4000-6000 was granted to the appellant. ... ... 7. The Commissioner of Tribal Development, Gujarat State issued a show cause notice to the appellant on 17.7.2009 calling upon the appellant to show cause as to why the order dated 14.2.2008 withdrawing the higher grade scale granted to him should not be confirmed as the appellant failed to pass the examination held in December, 2008. ... ... 7. The Commissioner of Tribal Development, Gujarat State issued a show cause notice to the appellant on 17.7.2009 calling upon the appellant to show cause as to why the order dated 14.2.2008 withdrawing the higher grade scale granted to him should not be confirmed as the appellant failed to pass the examination held in December, 2008. Pursuant to the said notice the appellant gave an oral as well as written representation on 27.7.2009 explaining in detail that during the period of eligibility to get the higher grade scale, no examination was conducted by the Department and the same was conducted only in the year 2009 after long span of 12 years. It was also pointed out to the authorities that still three more chances were available with the appellant to pass the examination and that higher grade scale cannot be denied only on the ground of non-passing of the departmental examination in view of the policy of the Government as also the settled position of law and based this, the appellant was rightly granted the first higher grade scale vide order dated 22.6.2007. 8. It has been pleaded on behalf of the appellant that the Commissioner of Tribal Development passed an order dated 26.8.2009 in view of the decision taken by the Government and cancelled the higher pay scale given to the appellant. ... ... 11. As per the Government Resolution dated 16.8.1994, upon completion of 9 years service the concerned government servant is entitled for the benefit of higher grade scale if he has not been promoted or that the requisite departmental examination for entitlement of higher post or for maintenance of the very post, are not cleared. The purpose of the policy was to see that no stagnancy was created in service on account of the fact that no higher posts are available. But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental examination. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. It was not by way of compromising the merit that the benefit was to be given, just because the requisite length of service was completed but also dependent upon the merit and acceptance of the promotion. 12. From perusal of the Government Resolution dated 16th August, 1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn. 13. 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." 10. 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." 10. If the facts of the present case are considered keeping in mind the aforesaid decision rendered by the Hon'ble Supreme Court, it is clear that if the department is not organizing the departmental examination 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. 11. Petitioner has cleared the examination in 3rd attempt as per the Rules and therefore, he was entitled to get the higher grade scale on completion of 9 years of service i.e. from 11.11.1999 and therefore, the respondents have committed an error while passing the impugned order on 01.09.2006. Petitioner is therefore entitled to get the said benefit from 11.11.1999. 12. Accordingly, the present petition is allowed. Impugned order dated 01.09.2006 is hereby quashed and set aside. Respondents are hereby directed to give the benefit of first higher pay scale to the petitioner in the cadre of Mamlatdar with effect from 11.11.1999. Necessary entry be corrected/made in the gradation list published on 31.07.2006. If any recovery is made on the basis of the order dated 01.09.2006 from the petitioner, such amount shall be refunded to the petitioner. The aforesaid exercise shall be carried out by the respondents within a period of eight weeks from the date of receipt of this order. Rule is made absolute. No order as to costs. 13. In view of the order passed in Special Civil Application No. 2899 of 2008, Civil Application No. 709 of 2016 does not survive. Accordingly, the same is disposed of.