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2020 DIGILAW 47 (GUJ)

State of Gujarat v. R. R. Sevak

2020-01-10

A.P.THAKER, S.R.BRAHMBHATT

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order dated 29.02.2016 passed by the learned Single Judge in Special Civil Applications No.10442 of 2003 whereby the learned Single Judge has allowed the petition and directed the appellants herein and the department to give the benefits of Higher Grade Pay Scale on completion of 9 years to the respondents herein, the appellants have filed the present Letters Patent Appeal under Clause 15 of the Letters Patent Appeal. 2. Brief facts of the present case is that the respondents herein – original petitioners were appointed as Junior Clerks under the Centralized Recruitment Scheme by the Government and have completed 9 yeas of service in the cadre. It is the case of the original petitioners that the State Government has issued resolution for granting of Higher Grades on completion of 9 years of service. It is further the case of the original petitioners that though they have completed 9 years of service, they have not been granted Higher Pay Scale after completion of 9 years and department has insisted for passing of Lower Revenue Qualifying Examination (LRQ) for Higher Grade benefits. It is alleged by the original petitioners that the various persons have been promoted without qualifications even on ad-hoc basis. According to the original petitioners, they have not been granted the Higher Pay Scale on the ground that they have not cleared the examination in LRQ examination. It is further the case of the original petitioners that as per the rule of Revenue Department, especially, amended Rule 7 of 1972, such examination has to be conducted at least twice in a year. According to the petitioners, the respondent – authorities have taken only five examinations within a period of 12 years. According to them, as the departmental examination was not conducted in time, they got no opportunity to appear in the examination and, therefore, non-granting of Higher Pay Scale from the date of completion of 9 years of service, the petitioners individually is not legal and valid. According to the original petitioners, granting of 9 years Higher Grade benefits has been delayed in favour of the petitioners. As the respondent – authorities did not grant Higher Pay Scale, the petitioners have filed the aforesaid petition with the following prayers. According to the original petitioners, granting of 9 years Higher Grade benefits has been delayed in favour of the petitioners. As the respondent – authorities did not grant Higher Pay Scale, the petitioners have filed the aforesaid petition with the following prayers. A. Your Lordship may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction directing the respondent authorities to offer the benefit of higher grade on completion of nine years services to the petitioners without imposing any condition. B. During the pendency of hearing, admission and final disposal of this petition Your Lordship may be pleased to direct the respondents authorities’ to decide the representation made by the petitioners on merits and report the decision to this Hon’ble Court and further be pleased to direct the respondents to give the benefits of higher grade on completion of nine years service to the petitioners without any condition. C. Your Lordship may be pleased to pass, such other and further order/s in the facts and circumstances of the case, in the interest of justice. 3. Heard Ms. Krina Calla, learned Assistant Government Pleader for the appellants – original respondents and Mr. J.J. Yajnik, learned counsel for the respondents – original petitioners. Perused the impugned judgment and order and the materials placed on record. 4. Ms. Krina Calla, learned Assistant Government Pleader for the appellants has submitted that the learned Single Judge has committed serious error of facts and law in allowing the petition of the respondents herein. According to the learned AGP, the State Government has conducted the departmental examination for 10 times and there is no right accrued to the respondents – original petitioners to get the Higher Pay Scale as the respondents have not cleared the departmental examination within the attempt permitted by the Rules. It is submitted that as per the averments of the original petitioners that the insistence by the respondents that they ought to have been granted Higher Pay Scale as soon as they completed 9 years of services is devoid of merits as they could not fulfill the condition of passing the departmental examination for getting Higher Pay Scale after 9 years of service. She has submitted that as per the Government Policy and Rules, the incumbent as to clear the departmental examination within time fixed by the Government for being eligible to get the Higher Pay Scale. She has submitted that as per the Government Policy and Rules, the incumbent as to clear the departmental examination within time fixed by the Government for being eligible to get the Higher Pay Scale. She has submitted that in the present case, none of the respondents have cleared the departmental examination within the attempt prescribed by the Government policy and when they could not qualify for getting Higher Pay Scale, after completion of 9 years of services, they cannot be granted any Higher Pay Scale. According to the learned AGP, the attempt made by the petitioners is nothing but an attempt to bye-pass their appearance in examination and straight away to get the benefits of Higher Pay Scale. She has submitted that the original petitioners ought to have cleared the examination after 9 years of service and, accordingly, as soon as they have passed the examination, they came to be granted Higher Pay Scale and there is no fault on the part of the State in conducting the examination. She has submitted that the State has conducted the examination for ten times and there is no fault on the part of the State in not granting the Higher Pay Scale. She has submitted that the learned Single Judge has not properly appreciated the facts and the circulars issued by the State and, therefore, the impugned judgment and order of the learned Single Judge may be quashed and set aside. 5. Per contra, Mr. J.J. Yajnik, learned counsel for the respondents has submitted that in many cases, the State Government has granted Higher Pay Scale subject to passing of departmental examination. While referring to the Gujarat Lower Revenue Qualifying Examination Rules, 1978 (for short “the Rules”), learned counsel for the respondents has submitted that according to the Rules, the authority has to conduct departmental examination twice in a year. It is further submitted that admittedly, in this case, the department has conducted departmental examination only for 10 times, whereas, it ought to have been conducted for at least 22 times. According to him, due to non-conducting of departmental examination, the individual respondents has lost chance to appear in examination and to clear the same within specified period. It is further submitted that admittedly, in this case, the department has conducted departmental examination only for 10 times, whereas, it ought to have been conducted for at least 22 times. According to him, due to non-conducting of departmental examination, the individual respondents has lost chance to appear in examination and to clear the same within specified period. He has submitted that the learned Single Judge has considered all these aspects and has correctly allowed the petition of the original petitioners and has properly directed the Government to grant Higher Pay Scale to the respondents herein from the date on which they have completed 9 years of service with all consequential benefits. He has submitted that the learned Single Judge has followed the decision of the Apex Court in the case of K.K. Gohil Vs. State of Gujarat and others, (2015) 9 SCC 652 and on that basis, the benefit of Higher Pay Scale has been ordered to be granted to the respective petitioners. He has urged to dismiss the present appeal by confirming the impugned judgment and order of the learned Single Judge. 6. Having considered the contentions of both the sides and perusing the impugned judgment and order and materials placed on record, it emerges that there is no dispute regarding the following facts:- (i) The original petitioners have completed 9 years of services on different dates. (ii) The departmental examinations were not conducted regularly as per the provisions contained in Clause 2 of the Rules. 7. It appears from the record that, in the main petition, the stand taken by the State Government is that there is no Rule to conduct departmental examination compulsorily twice in a year. It is also the stand of the appellants herein that the provisions of conducting the departmental examination twice in a year is not a mandatory and due to certain facts in past year, departmental examination could not be conducted. It is also one of the ground of the State Government that the original petitioners have not cleared Sub-Service Departmental Examination (SSD Examination) and, therefore, they cannot claim that they have cleared the departmental examination. It is also one of the ground of the State Government that the original petitioners have not cleared Sub-Service Departmental Examination (SSD Examination) and, therefore, they cannot claim that they have cleared the departmental examination. This stand of the appellants has been clearly denied by the original petitioners by filing affidavit-in-rejoinder wherein they have clearly averred that they all have appeared in examination at their first trial on the first available opportunity and after passing SSD examination, only they become eligible to appear in LRQ examination. It is also averred by the respondents herein – original petitioners in their affidavit-in-rejoinder that all the petitioners have cleared LRQ examination within specified period. 8. At this juncture, it is worthwhile to refer to the observations of the Apex Court in the case of K.K. Gohil (supra) in paras-11 and 14 which has been reproduced by the learned Single Judge, which reads as under:- “11. As per the Government Resolution dated 16-8-1994, upon completion of 9 years’ service the government servant concerned is entitled for the benefit of higher grade scale if he has not been promoted or that the requisite departmental examination for the 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. 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. 14. 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. 14. Considering the entire facts of the case vis-a-vis the Government Resolution time to time issued relating to the condition for giving benefit of promotion, we are of the view that the reasons assigned by the learned Single Judge and the Division Bench of the High Court cannot be sustained in law. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. Consequently, it is held that the appellant is entitled to the higher pay scale on completion of nine years of service.” 9. Now, admittedly, the department has to conduct the examination twice in a year as per Rule 10 of the Rules. However, as stated in the affidavit-in-reply in original petition the stand of the State Government is that they have conducted 10 times departmental examination during the period. It clearly shows that the LRQ examinations were not held as per the Rules and due to that the original petitioners could not appear in the departmental examination. Thus, when the department has failed to conduct the Higher Departmental Examination as provided in the Rules on regular basis, no fault could be found with the original petitioners – respondents herein. By non-holding of departmental examination regularly, twice in a year, the right of the original petitioners – respondents herein has been adversely affected. The respondents have been prevented from appearing in the said examination. Under these circumstances, the respondents herein cannot be denied the benefits of the Higher Pay Scale from the date on which they have completed 9 years of their services. 10. On perusal of the impugned judgment and order, it is crystal clear that the learned Single Judge has not committed any error of facts and law in allowing the petition. The impugned judgment and order of the learned Single Judge is sustainable in the eyes of law and the same does not warrant any interference. 11. In view of the above, the present Letters Patent Appeal is liable to be dismissed and accordingly, it is dismissed. No order as to costs. 12. Since the appeal is dismissed, the Civil Application shall not survive and hence, it is disposed of, accordingly. 11. In view of the above, the present Letters Patent Appeal is liable to be dismissed and accordingly, it is dismissed. No order as to costs. 12. Since the appeal is dismissed, the Civil Application shall not survive and hence, it is disposed of, accordingly. Rule is discharged. Interim relief, if any, granted earlier stands vacated forthwith.