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2024 DIGILAW 1219 (GUJ)

Thakor Lilaji Ajmalji v. State Of Gujarat

2024-06-11

VAIBHAVI D.NANAVATI

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ORDER Vaibhavi D. Nanavati, J. 1. Heard Mr. S. P. Majmudar, the learned advocate appearing for the petitioners and Mr. Manraj Barot, the learned AGP appearing for the respondent No.1 – State. 2. The petitioners herein have approached this Court by invoking Article 226 of the Constitution of India being aggrieved by the impugned communication dated 4.1.2020 addressed by the respondent No.6 whereby the petitioners herein are denied the benefit of higher pay-scale from the date of which the petitioners became eligible for the said benefit on the ground that the petitioners are not party to the Special Civil Application No.18493 of 2015, hence the benefit of order dated 10.8.2016 cannot be extended to the petitioners herein. 3. The petitioner No.1 herein came to be appointed on 5.1.1993 and petitioner No.2 came to be appointed on 8.1.1993 by the office of the DILR, City Survey Superintendent on the post of Surveyor and served in Ahmedabad as well as Rajkot. The petitioners herein rendered services of more than 30 years, however the petitioners herein have been denied promotion or higher pay-scale. As per the Government Resolutions dated 16.8.1994, 2.7.2007, 14.9.2007, 12.8.2008 and 3.12.2009 the petitioners herein are required to pass LRQ Examination i.e. Land Revenue Qualifying Examination for grant of higher pay-scale. It is undisputed that the petitioners herein are eligible to appear in the LRQ Examination from the year 2001. 4. It is the case of the petitioners that the LRQ Examination was not held until 2011 and in view thereof though the petitioners were qualified for the first higher pay-scale, the petitioners were deprived of the benefit of first higher pay- scale due at the stage of 09 years of completion of service. The petitioners are erroneously granted the benefit of first higher pay-scale with effect from 29.10.2013 i.e. the date from which the petitioners herein passed LRQ Examination and not from the date on which the petitioners were eligible for the first higher pay-scale. By order dated 15.5.2017 the petitioners were granted the benefit of first higher pay-scale with effect from 29.10.2013 by order dated 9.10.2017 passed by the respondent No.7. Similarly the respondent No.7 passed the order dated 15.5.2017 whereby the petitioner No.2 was granted the benefit of first higher pay-scale. 5. By order dated 15.5.2017 the petitioners were granted the benefit of first higher pay-scale with effect from 29.10.2013 by order dated 9.10.2017 passed by the respondent No.7. Similarly the respondent No.7 passed the order dated 15.5.2017 whereby the petitioner No.2 was granted the benefit of first higher pay-scale. 5. The tabular details of the petitioners herein with respect to the date of joining, passing year of LRQ Examination due to first higher pay-scale and higher pay-scale granted which is duly produced at Annexure-A (page-28) which is as under :- Sr.No. Name of Employee Date of joining Retirement date LRQ passing year Due for first higher pay-scale Granted first higher pay-scale Due for second higher pay- scale Granted second higher pay- scale 1 Thakor Lilaji Ajmalji 05.01.1993 (As Surveyor) Currently serving as Senior Surveyor 29.10.2013 05.01.2002 29.10.2013 05.01.2017 Not yet granted 2 Dilchand Ganeshbhai Ahujani 08.01.1993 (As Surveyor) Currently serving as Senior Surveyor 04.01.2013 08.01.2002 15.05.2017 08.01.2017 Not yet granted 6. Placing reliance on the aforesaid facts, as referred above, Mr. S. P. Majmudar, the learned advocate appearing for the petitioners placed reliance on the ratio as laid down by the Hon’ble Supreme Court in the case of K. K. Gohil vs. State of Gujarat, reported in (2015) 9 SCC 652 , which has been followed in the Special Civil Application No.18493 of 2015, wherein in the said petition, identically placed petitioners have been granted the benefit of first higher pay-scale from the date on which such benefit became due to them instead of the date on which they cleared the LRQ Examination. 6.1 Placing reliance on the same Mr. Majmudar, the learned advocate submitted that the petitioners are identically placed and be extended the same benefit of first higher pay-scale on completion of 09 years of service. 7. Mr. Manraj Barot, the learned AGP appearing for the respondent No.1 – State placed reliance on the affidavit-in- reply duly produced at page-82 to the petition and submitted that the services on the post of Surveyor are regulated by the Sub Service Departmental Examination (SSD) Rules which is duly produced at Annexure-R1. The petitioners herein were required to pass the SSD Examination. Reliance is placed on Notification dated 8.10.1970 of the said SSD Examination Rules. The petitioners herein were required to pass the SSD Examination. Reliance is placed on Notification dated 8.10.1970 of the said SSD Examination Rules. 7.1 Placing reliance on the same, it was submitted that the petitioners joined the services in the year 1993 and were eligible to appear in the examination and were required to clear the same within three attempts which the petitioners herein have not cleared. It is also submitted that the petitioners herein cleared the said examination in the year 2000-2001 respectively. 7.2 It is submitted that the petitioners accordingly became entitled to appear in the LRQ Examination from the year 2001. The LRQ Examination was conducted in March, 2011, June 2012, wherein the petitioners appeared and cleared LRQ Examination only on 4.1.2013. 7.3 It is submitted that the petitioners after clearing the said examination do not possess prescribed requirement of clearing CCC Examination. The exemption under the GAD Government Resolution dated 20.6.2015 is not available to the petitioners. Upon attending the age of 50 years the employee would stand exempted. 7.4 Placing reliance on the aforesaid, it is submitted that the petitioners do not possess the requisite eligibility for being promoted as Senior Surveyor since the same lack CCC qualification which is mandatory. It is submitted that the ratio as laid down in the Special Civil Application No.18493 of 2015 of the settled position of law as accepted to be applicable to the facts of the Special Civil Application No.18493 of 2015 by order dated 5.10.2016 is not applicable to the facts of the present case and the present petition be dismissed accordingly. 8. Mr. Majmudar, the learned advocate appearing for the petitioners in rejoinder submitted that the ratio as laid down in the Special Civil Application No.18493 of 2015 squarely applies to the facts of the present case. 8.1 It is submitted that even while declining the benefit of higher pay-scale by the impugned communication dated 4.1.2020 the same is declined on the ground that the name of the petitioners were not included in the list of petitioners of the Special Civil Application No.18493 of 2015 order dated 5.10.2016. In view thereof, merely because the petitioners were not party to the said petition the benefit of the first higher pay-scale to which the petitioners are duly entitled to having been identically placed with the petitioners of the Special Civil Application No.18493 of 2015, are denied. 9. In view thereof, merely because the petitioners were not party to the said petition the benefit of the first higher pay-scale to which the petitioners are duly entitled to having been identically placed with the petitioners of the Special Civil Application No.18493 of 2015, are denied. 9. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioners herein came to be appointed to the post of Surveyor in the office of the District Inspector of Land Revenue Survey Mamlatdar in the year 1993. Having rendered 20 years of service the petitioners herein became due for benefit of first higher pay-scale after completion of 09 years. The petitioners herein cleared the SSD Examination in the year 2000 and became eligible to appear in LRQ Examination from 2001. The said examination was conducted in March, 2011 and the petitioners herein cleared the examination in the year 2013. The petitioners herein are granted the first higher pay-scale from date of passing of the said examination. 9.1 The learned AGP is not in position to dispute the aforesaid factual position. 10. In light of the aforesaid undisputed facts, it is apposite to refer to the order dated 5.10.2016 passed in the Special Civil Application No.18493 of 2015 relying upon the ratio laid down by the Hon’ble Supreme Court in the case of K. K. Gohil vs. State of Gujarat, reported in (2015) 9 SCC 652 , paragraphs 2 to 7 read thus :- “2. By filing the present petition the petitioners who are 17 in numbers, have prayed “to grant the benefit of first higher pay- scale to the petitioners from the date on which it was due to the petitioners (as per the chart at Annexure A), and not from the date on which they had cleared Land Record Qualifying (LRQ) Examination”. 3. Stated briefly, it is the case of the petitioners that they have recruited in the office of District Inspector of Land Revenue, Survey Mamlatdar, in the years 1991-1993 and they served in Ahmedabad as well as Rajkot Circle. They have rendered 20 years of services during which, they have neither given any promotion nor given the higher pay-scale. 3. Stated briefly, it is the case of the petitioners that they have recruited in the office of District Inspector of Land Revenue, Survey Mamlatdar, in the years 1991-1993 and they served in Ahmedabad as well as Rajkot Circle. They have rendered 20 years of services during which, they have neither given any promotion nor given the higher pay-scale. As per the various Resolutions of the State Government dated 16th August, 1994, 02nd July, 2007, 14th September, 2007, 12th August, 2008 and 03rd February, 2009, the requirement of passing of LRQ Examination is contemplated for grant of higher pay-scale. 3.1 It is the case of the petitioners which could not be disputed that the LRQ Examination was not taken after 2001, therefore the benefit of first higher pay-scale due at the stage of nine years of completion of service was not given to the petitioners. Under the Rules, the departmental examinations are required to be taken twice in a year, however no examination was held after 2001. The petitioners have given the tabular details about the date of higher pay-scale due, etc., of which the relevant is extracted hereinbelow. Sr.No Name Joining Date LRQ Exam passing year Due to first higher scale Higher scale grated pay upto 1 Harikrushna Shamalbhai Suthar 05.01.93 Aug. 2011 05.01.02 Aug. 2011 2 Lalbhai Keshabhai Meer 09.08.96 Oct, 2013 09.08.05 Oct. 2013 3 Asifmiya Aiyubmiya Malek 10.01.91 Aug. 2011 10.01.00 Aug. 2011 4 Sanjaykumar Chandulal Sankesara 06.01.93 Oct, 2013 06.01.02 Oct, 2013 5 Ashokbhai Ravishankar 05.01.93 Aug. 2011 05.01.02 Aug. 2011 6 Asadhullakhan Inayatullahkhan Pathan 04.01.93 Aug. 2011 04.01.02 Aug. 2011 7 Sukhdevbhai Narandas Soni 04.01.93 Aug. 2011 04.01.02 Aug. 2011 8 Kantibhai Revabhai Patel 18.01.93 Aug. 2011 18.01.93 Aug. 2011 9 Yasvantkumar Amrutlal Patel 07.01.93 Aug. 2011 07.01.02 nil 10 Abdul Kadar Ahemadbhai Meman 08.01.91 Jan, 2013 08.01.00 nil 11 Virendrasinh Ramsinh Zala 02.01.93 Oct, 2011 02.01.02 Oct, 2013 12 Prakashchandra Ramanlal Raval 07.01.93 Oct, 2013 07.01.02 nil 13 Mahyuddin GulamNabi Meman 05.01.93 Oct, 2013 05.01.02 nil 14 Arvindbhai Balabhai Rathod 05.01.93 Aug. 2011 05.01.02 Aug. 2011 15 Kantilal Narsinhbhai Bhimani 04.01.93 Aug. 2011 04.01.02 Aug. 2011 16 Vipul Vithhalbhai Thumar 04.01.93 Oct, 2013 04.01.02 nil 17 Prakashbhai Popatbhai Varan 05.01.93 Aug. 2011 05.01.02 Aug. 2011 18 Chhanabhai Kalidas Patel 15.01.91 Aug. 2011 15.01.00 Aug. 2011 05.01.02 Aug. 2011 15 Kantilal Narsinhbhai Bhimani 04.01.93 Aug. 2011 04.01.02 Aug. 2011 16 Vipul Vithhalbhai Thumar 04.01.93 Oct, 2013 04.01.02 nil 17 Prakashbhai Popatbhai Varan 05.01.93 Aug. 2011 05.01.02 Aug. 2011 18 Chhanabhai Kalidas Patel 15.01.91 Aug. 2011 15.01.00 Aug. 2011 3.2 As per the details in the above table, the different petitioners passed LRQ Examination in the years 2011 and 2013. Under the Government Resolution and in particular Resolution dated 16th August, 1994, the petitioners are entitled to be given to higher pay-scale on completion of 9, 18 and 27 years of service. The first higher grade pay-scale was however granted to the petitioners only after the date of passing of examination in the year 2011 and 2013. 4. The grievance of the petitioners is that they ought to have been given the benefit of pay-scale when they completed the requisite number of years in the service and not from the date of passing of examination because between 2001 and 2011, no examination was held and because of non-holding of the examination by the authorities, although they had became eligible to get the higher pay-scale, they were deprived of. It is the submission that for the fault and inaction on part of the authorities, they could not have been penalised. 5. The decision of the Supreme Court in K.K.Gohil Vs State of Gujarat [ (2015) 9 SCC 652 ], laid down that in terms of Government Resolution dated 16th August, 1994, the higher grade scale granted to the employees who have completed nine years of service to be withdrawn in terms of the conditions of the Resolution only, where the employees fails to pass departmental examination. Referring to Circular dated 24th November, 2004 envisaging the conducting of departmental examination in time and further taking note of the fact that in accordance with Government Order, the departmental examination was not organised during the eligibility period for getting higher payscale, such benefit could not have been stalled or withheld on such ground. The appellant of the said case was held entitled to be paid the higher pay-scale even without passing the departmental examination which was not conducted. 5.1 Another decision of this Court in Snehlata V. Shah Vs State of Gujarat being Special Civil Application No.324 of 2010 and allied petitions decided on 18th February, 2010 could be successfully relied on. The appellant of the said case was held entitled to be paid the higher pay-scale even without passing the departmental examination which was not conducted. 5.1 Another decision of this Court in Snehlata V. Shah Vs State of Gujarat being Special Civil Application No.324 of 2010 and allied petitions decided on 18th February, 2010 could be successfully relied on. Paragraph 6 of the said judgment reflected the controversy which is similar to one involved in this case and in final paragraph 7, the petitioners of those cases were held entitled to the higher grade scaled with consequential benefits. 6. Given the aforesaid facts of the case of the petitioners and the position of law emerging by applying the aforesaid decisions, the petitioners could not have been denied the benefit of higher grade scale at the stage when it became due to them on the ground of non-passing of the LRQ Examination, which was undisputedly not taken during the eligibility period of petitioners. Therefore in terms of the ratio of the aforesaid decisions in K.K. Gohil (supra) and Snehlata V. Shah (supra), the petitioners become entitled to the benefits. 7. In view of above reasons, the petition succeeds. The respondents are directed to grant to the petitioners the benefit of first higher pay-scale from the date on which such benefit became due to them, instead of the date on which they cleared the LRQ Examination. The benefits which may arise by virtue of this order shall be paid to the petitioners within three months from the date of receipt of the order.” 11. This Court has perused the impugned order duly produced at Annexure-N to the petition wherein the petitioners are denied the benefit of first higher pay-scale from the date on which the petitioners became eligible for the benefit of same on the sole ground that the petitioners were not party to the Special Civil Application No.18493 of 2015 and hence the benefit of the order dated 10.8.2016 cannot be extended to the petitioners herein. Considering the facts of the present case the order passed in the Special Civil Application No.18493 of 2015, it emerges that the petitioners herein are identically placed to the petitioners of the Special Civil Application No.18493 of 2015 and are entitled to the benefit of the first higher pay-scale from the date of which such benefit became due and payable to the petitioners instead of the date on which the petitioners cleared the LRQ Examination. 12. The respondent authority to comply with the aforesaid direction within a period of three months from the date of receipt of this order. 13. The present petition stands allowed accordingly.