JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking 1st and 2nd higher pay-scales from the year 1997 and 2012 respectively. 2. At the outset, learned advocate Mr. Manan Bhatt appearing for the petitioners has submitted that the issue is squarely covered by various judgments of this Court. He has placed reliance on the judgment dated 23.06.2021 passed in Special Civil Application No. 9959 of 2017, the judgment dated 09.10.2015 passed in Special Civil Application No. 13785 of 2013 and allied matters, which has been confirmed by the Division Bench vide order dated 22.03.2016 passed in Letters Patent Appeal No. 40 of 2016 and allied appeals. He has submitted that all the judgments are pertaining to the respondent-Gujarat Water Supply and Sewerage Board. 3. The brief facts of the case are as under:- 3.1. The petitioners were appointed as Work Charge Clerks by Office Order No. 270 of 1983 dated 10.10.1983. In the year 1991, the appointment of the petitioners was declared to be irregular and as a result thereof, the petitioners were not allowed to take PWD training and examination. 3.2. In the year 1991, when the seniority list of the clerks was published, in the Remarks Column of the seniority list, it was stated that the original appointments of the petitioners were made after crossing the stipulated age limit. The petitioners thereafter started raising grievance that the decision of respondent nos. 2 and 3 declaring their appointment to be irregular was a mistake and the petitioners ought to be placed at appropriate serial numbers in the seniority list. Thereafter, the concerned authority vide letter dated 08.08.2012 requested the respondent no. 2 to remove the names of the present petitioners from the list of the irregular employees. 3.3. In the year 2013, by a letter dated 29.10.2013, the Superintendent Engineer recommended the case of the petitioners for giving the deemed date for extending the benefit. By a letter dated 09.12.2013 the Deputy Manager of respondent No. 2 sought an explanation from the Superintendent Engineer about the Officers whose negligence and mistake had caused financial loss to the petitioners. By a letter dated 18.01.2014 the Executive Engineer gave an explanation and stated that the responsible officers had retired and also requested that the petitioners may be given the benefit of being regular from the inception. 4. Learned advocate Mr. By a letter dated 18.01.2014 the Executive Engineer gave an explanation and stated that the responsible officers had retired and also requested that the petitioners may be given the benefit of being regular from the inception. 4. Learned advocate Mr. Manan Bhatt for the petitioners has submitted that the petitioners have retired from the service without getting any benefits of 1st and 2nd higher pay-scales. It is also submitted that since the similarly situated employees, who had approached this Court are conferred the aforesaid benefits; the same benefits may be given to the present petitioners from their due dates. It is submitted that the case of the petitioners would stand on better footing since the respondent nos. 2 and 3 have corrected their mistake and treated all the petitioners to be regular in 1988 by giving retrospective effect and in wake of the aforesaid facts, the petitioners are entitled to both the higher pay-scales. 5. In response to the aforesaid submissions, learned advocate Mr. A.R. Thacker appearing for the respondent nos. 2 and 3, while placing reliance on the affidavit-in-reply, has submitted that the petitioners cannot be granted the higher pay-scales because their initial appointment was not legal and they were irregularly appointed. It is submitted that the petitioners are not fulfilling the condition of the Government Resolution dated 16.08.1994 and since they had not passed the department examination as prescribed in the aforesaid resolution, the petitioners are not entitled for the higher pay-scale. 6. This Court has perused the aforementioned judgments passed by this Court. It appears that similarly situated petitioners, who were denied the higher pay-scale on the identical ground had approached this Court claiming the higher pay-scales. The same objection was taken by the respondent-Board before this Court and this Court, while considering earlier judgment dated 23.06.2021 passed in Special Civil Application No. 9959 of 2017 has held thus:- "8. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioner nos. 1 and 2 are appointed in the year 1983 whereas petitioner no. 3 is appointed in the year 1985 and they are continuously discharging their services with respondent nos. 2 and 3-Gujarat Water Supply & Sewerage Board. 1 and 2 are appointed in the year 1983 whereas petitioner no. 3 is appointed in the year 1985 and they are continuously discharging their services with respondent nos. 2 and 3-Gujarat Water Supply & Sewerage Board. Similarly, situated persons had preferred Special Civil Application No. 13785/2013 as the benefits of first and second higher grade pay scale was not granted by Gujarat Water Supply & Sewerage Board. This Court (Coram: Hon'ble Ms. Justice Sonia Gokani) allowed the petition holding that the services of the petitioners are required to be regularised as one time measure relying upon paragraph no. 53 of the decision of Apex Court in case of Secretary, State of Karnataka & ors. v. Umadevi (3) & ors. reported in (2006) 4 SCC 1 and also further to grant first and second higher grade pay scale in accordance with their services. 9. The Division Bench while confirming the order passed in Special Civil Application No. 13785/2013 and other allied matters held as under: "7. In view of the aforesaid facts and submissions canvassed by the learned advocates appearing for the parties, the sole question which is required to be decided in the present group of appeals is as to whether the present appellant-Board is justified in not granting the second higher grade scale or first and second higher grade scale to the concerned petitioners by relying upon the resolution dated 28.03.2013? 8. On perusal of the material placed on record, it has emerged that the original petitioners were appointed by the State Government somewhere in the year 1979 as temporary Mistry or Karkoon or Chokidar. Thereafter, their services were transferred to the appellant-Board after the creation of the appellant-Board. The original petitioners were absorbed as Jr. Clerks somewhere in the year 1985. They have also passed preservice training examination. The original petitioners were working on the concerned post since then. A copy of the service-book of each of the petitioners is placed on record by the learned advocate of the appellant as per the direction given by this Court. From the perusal of the service-book, it is revealed that the concerned petitioners were appointed as Mistry or Chokidar or Karkoon, as the case may be, on temporary basis and thereafter they were absorbed as Jr. Clerk in the pay-scale of Rs. 260-400 when they transferred to the appellant-Board. From the perusal of the service-book, it is revealed that the concerned petitioners were appointed as Mistry or Chokidar or Karkoon, as the case may be, on temporary basis and thereafter they were absorbed as Jr. Clerk in the pay-scale of Rs. 260-400 when they transferred to the appellant-Board. It is also revealed from the service-book that preservice training was also cleared by the concerned petitioners. In some of the cases, the petitioners passed lower grade clerk examination also. In some of the cases, the appellant has also granted the benefit of first higher grade scale as per the resolution passed by the Government. The appellant Board has never raised any objection that the petitioners were not appointed after following due procedure and their appointments were irregular. Most of the petitioners have worked since 1979-1981 till the date of their retirement. Some of the petitioners had retired before filing of the petition and some had retired before the judgment is delivered by the learned Single Judge. Thus, from the record, it is clear that the objection raised by the appellant Board is nothing but an eyewash and such contention is taken only with a view to deny the benefit of higher grade scale to the original petitioners. When the appellant Board has given the benefit of first higher grade scale to some of the petitioners, at that juncture, such contention was not raised and at the time of granting the second higher grade scale such type of contention is raised. This Court in the case of Mr. S.K. Rajgor, co-employee of the petitioners, had already directed the Board to give the benefit of higher grade scale to the said employee. The said direction is already implemented by the Board. 9. We have also gone through the reasoning given by the learned Single Judge while allowing the petitions. In the facts and circumstances of the present case, we are of the opinion that the learned Single Judge has not committed any error while giving direction to the appellant Board to grant the benefit of higher grade scale to the concerned petitioners. Hence, no interference is required by this Court. The present appeals being devoid of merits are dismissed." 10. The aforesaid decision of the Division Bench is also not interfered by the Apex Court by dismissing the SLP preferred by respondent nos. 2 and 3 vide order dated 22.8.2016. 11. Hence, no interference is required by this Court. The present appeals being devoid of merits are dismissed." 10. The aforesaid decision of the Division Bench is also not interfered by the Apex Court by dismissing the SLP preferred by respondent nos. 2 and 3 vide order dated 22.8.2016. 11. In view of above facts and circumstances, the petitioners are similarly situated persons as that of the petitioners of Special Civil Application No. 13785/2013 and allied matters and as such, the petitioners are entitled to the benefits of regularisation as well as higher grade pay scale as they are discharging their services since 1983/1985 respectively and further are also entitled to first and second higher grade pay scales as per the tenure of services of the respective petitioner." The Coordinate Bench has placed reliance on the judgment dated 09.10.2015 passed in Special Civil Application No. 13785 of 2013 and allied matters, which is confirmed by the Division Bench in the order dated 22.03.2016 passed in Letters Patent Appeal No. 40 of 2016 and allied appeals. 7. This Court in the aforementioned judgments have taken a view that "the appellant Board has never raised any objection that the petitioners were not appointed after following due procedure and their appointments were irregular. Most of the petitioners have worked since 1979-1981 till the date of their retirement. Some of the petitioners had retired before filing of the petition and some had retired before the judgment is delivered by the learned Single Judge. Thus, from the record, it is clear that the objection raised by the appellant Board is nothing but an eyewash and such contention is taken only with a view to deny the benefit of higher grade scale to the original petitioners." It is also held that such employees are also required to be regularized, and accordingly, the benefit of higher pay-scale is required to be conferred. It is also held that during all these years, the respondent-Board did not take any objection to the appointments of the petitioners that they were not appointed as per the procedure and hence, while denying the benefit of higher pay-scales such objections cannot be raised. The petitioners are also similarly situated to the petitioners of the aforementioned petitions. The service of the petitioners are treated as regular vide order dated 08.08.2012. The petitioners are also similarly situated to the petitioners of the aforementioned petitions. The service of the petitioners are treated as regular vide order dated 08.08.2012. Thus, once their service is regularized, the benefit of the higher pay-scale cannot be denied to them. 8. The petitioner no. 1 has passed requisite examinations and he has been conferred the benefit of first higher pay-scale. However, both the petitioners no. 2 and 3 were not allowed to take the examinations on the ground that they were not appointed irregularly. 9. Thus, the petitioners cannot be made to suffer because of the illegal action of the respondent authorities. It is not in dispute that only the petitioner no. 1 had an opportunity to pass the examination, however, no examination was taken after 2012 till the petitioner nos. 2 and 3 have retired from service. The petitioner nos. 2 and 3 were denied the higher pay-scale for want of clearing the departmental examinations since no opportunity was available for them to clear the same. The departmental examinations were not held since the respondents treated them as irregular and when the petitioner nos. 2 and 3 became eligible after having regularized in the year 2012, no departmental examination in their case was held. The petitioners have retired from service and hence, their departmental examinations cannot be conducted. 10. The Supreme Court in the case of K.K. Gohil v. State of Gujarat, (2015) 9 SCC 652 has held that if the examinations are not held by the State Government in time, the higher pay-scale flowing from the resolution dated 16.08.1994 cannot be denied. The Supreme Court has held thus:- "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. 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. 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." 11. 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." 11. In view of the above, the present petition is allowed. The respondents are directed to confer the benefit of 2nd higher pay-scale to the petitioner no. 1, whereas the petitioner nos. 2 and 3 shall be conferred the benefit of 1st and 2nd higher pay-scales from their respective dates. Appropriate orders shall be passed within a period of two months from the date of receipt of the writ of this judgment. Rule is made absolute.