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2024 DIGILAW 1857 (GUJ)

KANUBHAI SALAMSINH DABHI v. STATE OF GUJARAT

2024-10-04

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. Heard Mr. N.K. Majmudar, learned advocate for the petitioners and Ms. Nidhi Vyas, learned A.G.P. for the respondent nos. 1 to 5. 2. By way of the present petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: “15..... (i) admit this petition. (ii) issue appropriate writ, order or direction and be pleased to quash and set aside the illegal, illogical, discriminatory, arbitrary action of the respondent authorities of taking decision and of subjecting the petitioners to appear in the departmental examination on the basis of Gujarat Civil Services [Conditions of service relating to departmental examination] (General), Rules, 2015 which have been published on the basis of the Notification dated 31/3/2015 and be pleased to hold that the Rules published through Notification dated 31/3/2015 would not apply retrospectively to the petitioners and, therefore, the action of the respondent authorities of subjecting and treating the petitioners as eligible only on passing of the examination prescribed under New Rules i.e. under Notification dated 31/3/2015 may be declared as illegal, illogical, violative of Article 14 of the Constitution of India and, therefore, the said action and decision of the respondent authorities be quashed and set aside. (iii) issue appropriate writ, order or direction and be pleased to hold that on passing of lower level examination as per the Rules which have remained in force at the time of appointment of the petitioners, all the petitioners would be eligible to get the higher pay scale from the dates on which they have passed the departmental examination i.e. lower level examination as per the rules which have remained in force prior to the publication of Notification dated 31/3/2015 and the respondent authorities may be directed to pass appropriate order for granting higher pay scale with all consequential benefits. (iv) issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pass appropriate order granting exemption to the petitioners from passing the departmental examination prescribed under Rules-2015 published through Notification dated 31/3/2015. (v) grant interim relief and by way of interim order, be pleased to direct the respondent authorities to grant exemption to the petitioners from passing the departmental examination under 2015 Rules published through Notification dated 31/3/2015, pending hearing and final disposal of this petition. 15..... (v) grant interim relief and by way of interim order, be pleased to direct the respondent authorities to grant exemption to the petitioners from passing the departmental examination under 2015 Rules published through Notification dated 31/3/2015, pending hearing and final disposal of this petition. 15..... (vii) Be pleased to issue appropriate writ, order or direction, and be pleased to quash and set aside the action and decision of the respondent authorities of undertaking examination on the basis of the communication dated 20.11.2018 for a period between 17.12.2018 and 22.12.2018 i.e. on the basis of the new rules as per the notification dated 31.03.2015, that too without granting exemption to the petitioners from appearing in the said examination, and therefore, the action of the respondent authorities of conducting examination as per the new Rules may kindly be quashed and set aside, as the same is illegal, illogical, discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India and respondent authorities may kindly be restrained from undertaking the examination in the nature of lower level examination as per the notification dated 31.03.2015 for a period between 17.12.2018 and 22.12.2018, in the interest of justice. 15..... (viii) Be pleased to grant interim relief and be pleased to restrain the respondent authorities from undertaking examination in the nature of lower level examination on the basis of the notification dated 31.03.2015 that too on the basis of the communication dated 20.11.2018 and the entire examination procedure which is proposed to be scheduled between 17.12.2018 and 22.12.2018 may kindly be stayed, pending admission, hearing and final disposal of this petition. 15..... (ix) Be pleased to grant further interim relief and be pleased to direct the respondent authorities to pass appropriate orders of exempting the petitioners from appearing in the proposed examination scheduled between 17.12.2018 and 22.12.2018 as per the communication dated 20.11.2018 (on the basis of the notification dated 31.03.2015), in the interest of justice. 15..... 15..... (ix) Be pleased to grant further interim relief and be pleased to direct the respondent authorities to pass appropriate orders of exempting the petitioners from appearing in the proposed examination scheduled between 17.12.2018 and 22.12.2018 as per the communication dated 20.11.2018 (on the basis of the notification dated 31.03.2015), in the interest of justice. 15..... (x) Be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the action and decision of the concerned respondent authorities of not treating the petitioners as deemed to be eligible for being considered for the Higher Pay Scales and Promotion to the promotional post of Senior Clerks and be pleased to hold that as the petitioners deemed to have passed/petitioners were exempted from passing the respective subjects, as per the Appendix-A - Lower Level Examination as well as Appendix-B Higher Level Examination, as per the Notification dated 04.12.2010 (Annexure-1), the Hon’ble Court may kindly issue appropriate writ, order and/or directions and may kindly hold that in view of the Notifications dated 30.04.2011 (Annexure-2) and 30.07.2016 (Annexuer-4) and considering Rule-3(3) of the Notification dated 31.03.2015 (Annexure-3), petitioners deemed to have passed all the examinations as per the Rules of 2010, and therefore, petitioners become eligible and entitled to be considered for higher pay scales on completion of prescribed period of services, as per the various government resolutions and the Hon’ble Court may kindly issue appropriate writ, order and/or directions, directing the respondent authorities to pass appropriate order for granting 1st, 2nd and/or 3rd Higher Pay Scales to the petitioners from the respective dates, on which the petitioners had completed prescribed period of services as per the government resolution dated 16.08.1994 and 02.07.2007 and the Higher Pay Scales may kindly be ordered to be granted to the petitioners and difference of salary, difference of consequential benefits may kindly be ordered to be paid with 12% interest to the petitioners and the respondent authorities may kindly be directed to carry out the procedure of pay fixation of the petitioners and all consequential benefits may kindly be ordered to be paid to the petitioners and revised wages as per the Gujarat Civil Services (Revision of Pay) Rules, 2017 may also kindly be ordered to be revised accordingly and difference of the same may kindly be ordered to be paid with 12% interest to the petitioners, in the interest of justice. 15..... 15..... (xi) Be pleased to issue appropriate writ, order or directions and be pleased to direct the concerned respondent authorities to pass appropriate order for granting deemed dates of promotion to the petitioners in the cadre of Senior Clerks from the respective dates, i.e. on or around 19.03.2015 (Annexure-6) and the respondent authorities may kindly be directed to pass appropriate orders for granting deemed dates of promotions to the petitioners and the same may kindly ordered to be granted to the petitioners treating the petitioners as deemed to have been promoted in or around 19.03.2015 in the cadre of Senior Clerks and deemed date of promotions may kindly be ordered to be granted with all consequential benefits, difference of salary and all other consequential benefits may kindly be ordered to be paid with 12% interest to the petitioners and the respondent authorities may kindly be directed to include the names of the petitioners in the respective seniority list on the post of Senior Clerks from the respective dates, on which the petitioners came to be superseded for promotion in the year 2015, and therefore, appropriate writ, order or directions may kindly be issued for inclusion of the names of the petitioners in the seniority list of Senior Clerks, in the interest of justice.” (vi) pass such orders as thought fit in the interest of justice.” 3. The petitioners herein seek exemption from appearing in the departmental examination for promotion from junior clerk to senior clerk. 4. Brief facts leading to filing of the present petition read thus: 4.1. The petitioners herein came to be appointed on various dates ranging from the year 1987 to 2005, on the post of junior clerks with the respondent department. As per the Junior Clerk and Senior Clerk Examination Rules, 1972 and provisions of the Gujarat Police Manual, the petitioners passed the pre-service examination and accordingly, came to be appointed. As per their appointment order, which is duly produced at Page-29, the petitioners were required to pass the departmental examination as and when conducted and also complete the training. The aforesaid is provided in condition nos.1 and 3 of the conditions of appointment order. As per their appointment order, which is duly produced at Page-29, the petitioners were required to pass the departmental examination as and when conducted and also complete the training. The aforesaid is provided in condition nos.1 and 3 of the conditions of appointment order. The petitioners herein appeared in the departmental examination which was conducted for the promotion from junior clerk to senior clerk wherein, the petitioners passed the lower level examination which was for increment however, the petitioners failed to pass the higher level examination. 4.2. It is the case of the petitioners that the decision of the respondent-authorities to apply the notification dated 31.03.2015 to the petitioners, though the petitioners were appointed prior to the said Rules coming into force and the petitioners were subjected to departmental examination in the past on the basis of the relevant departmental rules, which were in force, is erroneous and the same would not be applicable to the petitioners and the petitioners would never be governed by the new Rules of 2015 and their rights, which came to be accrued for seeking higher pay scale of the promotional post or for seeking promotion on the basis of the relevant rules, which have remained in force at the time of the initial appointments of the petitioners, considering the proposition of law to the effect that the Rules which have remained in force at the time of appointment would apply in case of such appointees and any subsequent enactment of new Rules would never apply retrospectively. It is the case of the petitioners that the action of the respondent authorities of subjecting the petitioners to the aforesaid examination, which is prescribed the basis of notification dated 31.03.2015 and taking the decision to the effect that unless and until the petitioners pass the examination under the new rules, they would not be eligible for increment or higher scale or promotion and, therefore, the said decision deserves to be quashed and set aside. 4.3. 4.3. It is the case of the petitioners that even the instructions vide communication dated 09.09.2016 came to be published in the aforesaid regard wherein, the concerned respondent authorities informed the petitioners that they must fill-up the examination form and appear in the examination, which is going to be conducted under the Rules of 2015, failing which, the petitioners would not be entitled to higher pay scale nor be considered for the promotional post. The aforesaid decision is erroneous. The petitioners relied upon the communication dated 08.08.2016 along with one resolution dated 30.07.2016 which are duly produced at Annexure-G collectively wherein, the resolution dated 30.07.2016 makes it clear as to in which of the two papers, exemption has been granted to the candidates, who had already passed the junior level examination as per the old Rules, the subjects are not at all mentioned and except using the word ‘exemption’ in the particular subject, the nomenclature of the subjects is also not mentioned. It is the case of the petitioners that the said resolution is unclear because the petitioners have already passed the lower level examination and have cleared all the subjects so, the said resolution does not specify as to with respect of which subject, the respondent - authorities have intended to give exemption to the petitioners of concerned junior clerks from passing the departmental examination as per the new rules. According to the petitioners, the petitioners are not required to pass any examination much less, the examination which is prescribed under the Rules of 2015 and, therefore, the petitioners preferred representations. Such representations are also not considered by the respondent-authorities. Pending the present petition, the petitioners appeared in the examination, which was scheduled and conducted from 17.12.2018 to 22.12.2018. It is the case of the petitioners that the action of the respondent authorities of conducting the examination on the basis of the new rules qua the petitioners, be quashed and set aside. 5. Mr. N.K. Majmudar, learned advocate for the petitioners submitted that the resolution dated 17.02.2006, duly produced at Annexure-D, page-35/A and 35/B (relevant Clause 5) provides for undertaking departmental examination for promotions at-least twice in a calendar year. However, the same was never undertaken in the calendar year and the said GR was never followed as the examinations were not taken twice in a year but were taken after 2 or 3 years’ interval. 5.1. However, the same was never undertaken in the calendar year and the said GR was never followed as the examinations were not taken twice in a year but were taken after 2 or 3 years’ interval. 5.1. It is submitted that the relevant rules came to be published on 04.12.2010, duly produced at Annexure-I wherein, Rule 3(2)(a) provides that on passing of the examination, the junior clerks would be eligible to receive increments and Rule-4 provides that upon passing of higher level examination, the concerned employees would be eligible for promotion to the promotional post of senior clerk. Rule - 10 provides that the standard of passing of examination shall be fifty percent of the total assigned marks for each paper. Rule 10(4) provides that unsuccessful candidate would be exempted from passing the examination of particular subject in the previous examination, if such incumbent has secured 60% or more marks in a particular paper. 5.2. Placing reliance on the aforesaid, it is submitted that when any incumbent appears in examination papers as per example in 4 papers and is declared failed in 3 papers and is declared passed in one paper, then the candidate must get 60 or more marks out of 100 marks. It is submitted that the aforesaid rules published through the notification dated 23.12.2010. 5.3. Upon passing of Appendix-A examination at lower level, the junior clerk would become eligible for increment and on passing 4 papers of higher level examination under Appendix-B, the junior clerk would be eligible for promotion. It is submitted that the notification dated 30.04.2011 came to be published by the Gujarat Police Department wherein, the statutory rules came to be amended, which provide that there shall be exemption in respect of paper nos. I and II of higher level departmental examination, as prescribed in Appendix-A of the Rules of 2010, which required to be passed for higher level examination in Appendix-B for becoming eligible for promotion i.e. Paper-I of Appendix-A, which is prescribed as Paper-I Service Matter (Page 60/5) and Paper-II was prescribed as ‘Accounts Matters’, as Paper-II - forming part of Appendix-A (page No. 60/6). It is submitted that the aforesaid 2 papers were exempted i.e. incumbents, who had passed departmental examination under the Rules of 2010 and had passed 2 papers, then as per the statutory amendment published through the notification dated 30.04.2011, the incumbents would not be required to pass the same Paper-I and Paper-II of Appendix-B, prescribed for promotion as well as the papers of lower level and higher level or having same subjects. 5.4. It is submitted that the petitioners had already passed the papers of Appendix-A i.e. lower level examination and were released increments and, therefore, as per the amended rules published through the notification dated 30.04.2011, the petitioners were deemed to have been exempted or passed and were not required to pass the examination of paper nos.I and II of higher level examination of Appendix-B. Thus, the petitioners were required to pass the paper no. III i.e. miscellaneous subjects and paper no. IV i.e. departmental matters as per Appendix-B of the 2010 notification. 5.5. It is submitted that in view of the aforesaid, the petitioners have already passed the paper of miscellaneous subjects as per Appendix-B of higher level examination under the Rules of 2010. Therefore, the question remained is for passing paper no. II, which was originally Paper No. IV of the departmental matters, Gujarat Police Manual. 5.6. It is submitted that the respondent-State published resolution dated 30.07.2016, duly annexed at Annexure-4 (Page 60/28/A) wherein, it was resolved that as per the new rules which came to be published through notification dated 31.03.2015, the respondent-State had resolved that there would be exemption to such incumbents from passing the paper no. V of the new rules and paper no. II of the old rules i.e. 2010 rules. 5.7. Reliance is placed on the Right to Information Act wherein, the details are given with respect to the old departmental examination i.e. 2010 rules, Paper-II and as new Rules i.e. as per Rules of 2015 in lower level examination and Paper-V has been prescribed in the police manual. II of the old rules i.e. 2010 rules. 5.7. Reliance is placed on the Right to Information Act wherein, the details are given with respect to the old departmental examination i.e. 2010 rules, Paper-II and as new Rules i.e. as per Rules of 2015 in lower level examination and Paper-V has been prescribed in the police manual. It is submitted that the Rules, which have come into effect from 31.03.2015 are prospective in nature and Rule 3(3) at pg.60/16 provides that any person has passed the relevant departmental examination before the appointed date i.e. before publication of the new rules i.e. before 31.03.2015 or has been exempted under the old rules from passing the relevant departmental examination, shall not be required to pass the departmental examination. It is submitted that even as per Paper-V, as per the new rules of 2015 as well as Paper-V pertaining to the acts and rules of the departmental and other activities, Paper-V was given nomenclature as ‘Departmental Matters, Gujarat Police Manual’ in old rules and as per the RTI information, the aforesaid Paper-IV, which remained as paper No. II in the old rules after exemption in paper No. I and paper No. II as per the 2011 amendment, the petitioners deemed to have been exempted from passing the remaining paper i.e. departmental matters, Gujarat Police Manual for higher level examination under old rules of 2010 and the same was the paper No. V of the new rules and, therefore, the petitioners are deemed to have passed after exemption in respect of the aforesaid paper and, therefore, out of 4 papers under the old rules, the petitioners were granted exemption in the papers with the subjects namely, service matters, account matters and Paper-IV which become paper No. II after 2011 amendment i.e. Departmental Matters, Gujarat Police Manual and the petitioners had passed Misc. subjects of higher level examination of old rules and, therefore, the petitioners deemed to have passed all the 4 papers of Appendix-B of 2010 for higher level examination and as per clause 3(3) Notification dated 31.03.2015, the petitioners are not required to pass any examination under new rules and are eligible to be considered for promotion to the post of senior clerk. 5.8. 5.8. In light of the aforesaid submissions, it is submitted that the payers, as prayed for, by the petitioners herein are such that the same be allowed and the action of the respondent-authorities of subjecting and treating the petitioners as eligible only on passing examination prescribed under the new rules i.e. the notification dated 31.03.2015, be declared as illegal. 6. Ms. Nidhi Vyas, learned A.G.P. for the respondent-State vehemently opposed the aforesaid submissions made by Mr. Majmudar, learned advocate for the petitioners. Ms. Vyas, learned A.G.P. relied on the affidavit-in-reply, which is duly placed on record at page 61 and further affidavit filed at page 146. It is submitted that the prayers, as prayed for, in the present petition are such that the same may not be granted. It is submitted that the recruitment to the post of junior clerk in the police department is to be undertaken under Rule 68 of the Gujarat Police Manual. It is submitted that the said Rule prescribes the method and manner of appointment to the post of junior clerk. It is submitted that Rule 68(8) prescribes that any person, who is appointed by way of direct selection to the post of junior clerk, has to pass the post training examination before being confirmed to the post. It is submitted that as the promotional post from junior clerk is senior clerk, there are separate examination rules framed by the State in the form of Junior Clerk and Senior Clerk Examination rules-1972. Reliance is placed on rule 3(1) and 5 of the said Rules. It is submitted that rule 4 prescribes that for being eligible to the post of senior clerk, junior clerk, who is recruited prior to 1972, has to pass senior clerk examination within 6 years from the date of his appointment as junior clerk. It provides that the junior clerk, who is recruited prior to 05.10.1972, shall be entitled to appear in senior clerk examination after completion of 3 years of service as junior clerk. It is submitted that the petitioners herein were appointed as junior clerk under the Home Department from 25.06.1987 to 02.03.2005. The petitioners have to undergo the post training examination as stipulated in Rule 68 of the Gujarat Police Manual and are required to clear the said examination as contemplated under the Recruitment Rules, 1972. It is submitted that the petitioners herein were appointed as junior clerk under the Home Department from 25.06.1987 to 02.03.2005. The petitioners have to undergo the post training examination as stipulated in Rule 68 of the Gujarat Police Manual and are required to clear the said examination as contemplated under the Recruitment Rules, 1972. It is submitted that the petitioners had passed the pre-service training examination at the relevant point of time. For the said departmental examination for junior clerk, senior clerk was prescribed in two stages i.e. lower level examination and higher level examination. The petitioners gave the lower level examination, which was made for the junior clerk eligible to get primary increments and yearly increments. It is submitted that till 2015, there was no condition of clearing any departmental examination for further promotion for the post of junior clerk to senior clerk or senior clerk to head clerk or head clerk to office superintendent. It is submitted that any junior clerk, who has cleared senior clerk departmental examination, was considered to be eligible for promotion to the post of head clerk after completing requisite years of service. 6.1. It is submitted that the State Government has farmed the Gujarat Civil Services (Conditions of Service relating to Departmental Examination) Rules, 2015 wherein, to be eligible to be considered for promotion to the post as prescribed in part 1 and 2 of the appendix-A, a person has to pass lower level departmental examination or higher level departmental examination as per the post on which he is working. It is submitted that there were no provisions under the earlier rules prior to 2015, which would have exempted the petitioners from appearing in the examination because, there were no specific rules for the promotions or passing the examination and, therefore, such exemptions which the petitioners have claimed would automatically not be applicable to the petitioners. It is submitted that Rule 3(3) of the GAD government resolution dated 31.03.2015 specifically contemplates and intends that only those employees, who have been granted exemptions under the earlier rule, shall be eligible and entitled to claim exemption. It is submitted that the nomenclature for examination have changed in Rules of 2015 and hence, the higher level examination for promotion under the old Rules is renamed as lower level examination under new rules. It is submitted that the nomenclature for examination have changed in Rules of 2015 and hence, the higher level examination for promotion under the old Rules is renamed as lower level examination under new rules. Under old rules, there was no examination prescribed for head clerk but, under new rules, the same is prescribed under nomenclature of ‘higher level examination’. It is submitted that Rule 3(3) provides for exemption wherein, candidate who has already availed exemption under the old rules, will not be required to pass the said papers. As per Rule 6, the syllabus for lower level examination consists of 5 papers. It is submitted that by way of resolution dated 30.07.2016, it was resolved that paper V (Police Manual) of higher level and lower level as well as paper II (Accounts Matters) of old rules, is exempted. The said resolution is duly produced at page 60/27. Rule 8(2) of the Rules of 2015 provides that the paper V can be exempted if the candidate has availed 60 marks. Placing reliance on the aforesaid, it is submitted that thereafter, by communication dated 28.02.2017, by the Home Department, the persons, who availed exemption under lower level examination and higher level examination under Rule 10, shall get exemption under the Rules of 2015. The aforesaid is duly produced at Annexure-R2. It is submitted that the aforesaid communication clarifies in point no. 1 that only those, who availed exemption in higher level examination of Rules 2010, shall be granted exemption in lower level examination under the Rules of 2015. The aforesaid communications were also subject matter of challenge in Special Civil Application No. 7272 of 2017 wherein, the Letters Patent Appeal is pending as on date. It is submitted that further clarification on exemption under Rules of 2015 was issued by the Home Department on 02.08.2019, clarifying the provisions and applicability of Rules 3(3), 5(b), 8(2) and Rule 13 of the Rules of 2015, which is duly produced at Annexure-R4. It is submitted that the further opinion was sought for from the office of the Director General of Police wherein, it was specifically clarified by communication dated 22.04.2022 on applicability of the Rules of 2015, that the persons who availed the exemption in Paper-II of old rules, shall get exemption in Paper-II of the new Rules. It is submitted that the further opinion was sought for from the office of the Director General of Police wherein, it was specifically clarified by communication dated 22.04.2022 on applicability of the Rules of 2015, that the persons who availed the exemption in Paper-II of old rules, shall get exemption in Paper-II of the new Rules. Persons who availed exemption in Paper-IV of the old rules, shall get exemption in Paper-V of the new Rules. The persons who availed 60 marks in the papers under the old rules, shall be exempted in the respective papers under the new Rules. The aforesaid is duly produced at Annexure-R5. 6.2. Placing reliance on the aforesaid, it is submitted that the petitioners herein appeared in the examination in the year 2013 held under the old Rules and neither of the petitioners could pass the higher level examination and in view thereof, no promotion was granted. Thereafter, upon applicability of the Rules of 2015, the examination was held from 17.12.2018 to 21.12.2018, which is duly produced at page 60/A and paper-V in the year 2019 wherein, the petitioners appeared except petitioner nos.1,2 and 5 out of 7 and six of them failed and the petitioner no. 1 passed the examination and was given the promotion. 6.3. Reliance is placed on the result, which is duly produced at Annexure-R6. It is submitted that the petitioners also appeared in the examination, which was held in the year 2021 wherein, all the six petitioners failed and in view thereof, reliance is placed on Annexure-R7. The petitioners were granted exemption for the examination held in the year 2021 but, they availed less than 60 marks because, they had availed more than 60 marks in the examination held in the year 2018-19. The exemption can be given only when 60 marks are obtained in the paper of departmental examination held for the promotion. It is submitted that the contention raised by the petitioners that they were exempted from papers-I and II as per the old Rules, Paper-IV as per the new Rules and they have already passed the Paper-III, are required to be granted promotion as the new Rules, would not be applicable to them retrospectively. It is submitted that the contention raised by the petitioners that they were exempted from papers-I and II as per the old Rules, Paper-IV as per the new Rules and they have already passed the Paper-III, are required to be granted promotion as the new Rules, would not be applicable to them retrospectively. It is submitted that the aforesaid submissions are contrary to each other wherein, on one hand, the petitioners seek exemption of Paper-IV under the new Rules i.e. as per the notification dated 30.07.2016 whereas, on the other hand, it is the case of the petitioners that the new Rules are not made applicable to them retrospectively. 6.4. Placing reliance on the aforesaid submissions, it is submitted that such contentions are contrary to each other. It is submitted that the petitioners became eligible for promotion in the year 2013 when they appeared in the said examination however, failed and, therefore, no promotion was granted. Upon subsequent change in the Rules, when the petitioners were again required to fulfill the criteria of promotion by giving examination under the new Rules, they cannot seek exemption merely on the ground that they are eligible for promotion earlier. It is submitted that from time to time, the examinations are held, the petitioners have appeared and failed and in view thereof, the prayers, as prayed for, are such that they are dehors the Rules. It is submitted that the petitioners placed reliance on the communication dated 08.02.2019, stating that as per the RTI, Paper-II under old Rules and Paper-V under the new Rules are police manual however, the said letter itself is erroneous as the appendix in the Rules itself is clear that the Paper-II under the old Rules is the accounts paper and Paper-V under the new Rules is the police manual. Reliance is placed on the chart, which is placed on record at page 155, giving a comparative chart of the subjects under the old Rules i.e. the Rules of 2010 and new Rules i.e. the Rules of 2015. It is submitted that the said communication, in view thereof, cannot be relied upon. Reliance is placed on the chart, which is placed on record at page 155, giving a comparative chart of the subjects under the old Rules i.e. the Rules of 2010 and new Rules i.e. the Rules of 2015. It is submitted that the said communication, in view thereof, cannot be relied upon. It is submitted that even considering that the petitioners are required to be exempted in papers - I and II under the old Rules and Paper-V under the new Rules then also, they are required to give the remaining papers i.e. Paper-III and IV of the new Rules, unless they obtain 60 marks. Moreover, the petitioners ought to have availed 60 marks and more in papers-I, II and V. The result-sheet reflects that the petitioners have not secured requisite marks and cannot seek exemption. It is submitted that there is no retrospective application of the Rules of 2015. It is submitted that the petitioners have applied under the Rules prevailing during their grant of promotion. If the petitioners’ contention is accepted that the Rules of 2015 cannot be applied, then they cannot avail the exemption in the remaining papers-III and IV, which is clearly not exempted under the old Rules. Therefore, the entire foundation of the submissions of the petitioners is such that the same may not be accepted. It is submitted that the petitioners cannot seek selected applicability of the Rules to suit their convenience. As per the prevailing Rules, the petitioners are required to comply with the same and having not been able to comply and pass the competitive examinations, the present petition is required to be dismissed. It is submitted that while granting the promotion, the Rules in force are required to be seen and the petitioners have appeared in the examination in the years 2013, 2018 and 2021 wherein, the Rules prevailing at the relevant point of time were applied. Merely because the petitioners are required to pass the examination, the petitioners are seeking exemption and the same may not be considered. 6.5. It is submitted that the respondent-State has framed the Rules by exercising the powers under Article 309 after considering the overall aspects, which are made applicable, not just to the petitioners but, the departments of the entire State and hence, they are valid in the eye of law, having been applied uniformly. 6.5. It is submitted that the respondent-State has framed the Rules by exercising the powers under Article 309 after considering the overall aspects, which are made applicable, not just to the petitioners but, the departments of the entire State and hence, they are valid in the eye of law, having been applied uniformly. It is submitted that the petitioners cannot seek deemed date promotion and higher scale together. The higher scale is only granted when there is no promotional avenues and in view thereof also, the prayers seeking promotion and higher scale both together are such that the same cannot be granted. It is submitted that the contention raised by the petitioners is that the juniors to the petitioners are promoted, which affects their rights. It is submitted that Rule 5 of the Rules of 2010 and Rule 5(a) of the Rules of 2015 stipulate that no seniority can be claimed by the candidates, who have passed earlier then him. Hence, the petitioners cannot avail their rights against the juniors, who have passed the examination. It is submitted that the petitioners are appointed on different dates from 1987 to 2005 and, therefore, their eligibility either for higher pay scale or promotion would valid and there cannot be any specific/blanket relief granted to the petitioners. It is submitted that it is incumbent for the petitioners to pass the lower level examination under the Rules of 2015 to seek promotion and only then, they can avail exemption, if they fulfill the requisite criteria. 6.6. Placing reliance on the aforesaid submissions, it is submitted that the present petition be dismissed, the petitioners having not passed the requisite examination. 7. Mr. Majmudar, learned advocate, in rejoinder, reiterated the contentions raised earlier and submitted that the prayers, as prayed for, in the present petition are required to be allowed. 8. Having heard the learned advocates appearing for the respective parties, the following emerge. 9. The petitioners herein came to be appointed as junior clerks under the Home Department from various dates between the years 1987 to 2005. A table of which, is duly produced at Annexure-A page 27. 10. Upon passing of the pre-service training examination, the petitioners came to be confirmed in the services as junior clerk. 9. The petitioners herein came to be appointed as junior clerks under the Home Department from various dates between the years 1987 to 2005. A table of which, is duly produced at Annexure-A page 27. 10. Upon passing of the pre-service training examination, the petitioners came to be confirmed in the services as junior clerk. The service book with respect to the same is produced at Annexure-C. As per the petitioners’ appointment orders, the petitioners are required to pass departmental examination as and when conducted and also to complete the training. The appointment order of one of the petitioners dated 22.06.1987, is duly produced at Annexure-B at page 29, which provides for the following conditions: “1. The candidate shall have to undergo the training prescribed for Clerk and pass the post-training examination after the training. 2. The candidate shall have to undergo a medical examination as per the rules and submit a physical fitness certificate within six months from the date of appointment. 3. The candidate shall have to clear the departmental examination of this department within the stipulated time i.e. within three years and backward class candidates within four years. 4. A candidate shall not get employment in any business organisation without prior permission of this office. 5. The candidate shall have to pledge allegiance to the Constitution of India. 6. This appointment of the candidate is purely temporary. Therefore, a candidate can be released from the employment after issuing a notice of one week, if the period of employment is less than one year, and a notice of one month, if the period of employment is more than one year. 7. A candidate shall have to give one week's notice, if his employment is for less than one year and one month's notice, if his employment is for more than one year. 8. No allowance of any kind shall be admissible for joining at the place of appointment. 9. A candidate shall not have more than one wife. 10. A candidate shall have to pass the Hindi examination prescribed by the Government within three years after joining. 11. The candidate shall have to regularize his appointment as per the provisions of the General Administration Department Resolution dated 17/4/70.” 11. Condition nos.1 and 3 provide for passing the departmental examination. A candidate shall not have more than one wife. 10. A candidate shall have to pass the Hindi examination prescribed by the Government within three years after joining. 11. The candidate shall have to regularize his appointment as per the provisions of the General Administration Department Resolution dated 17/4/70.” 11. Condition nos.1 and 3 provide for passing the departmental examination. The petitioners have passed the lower level examination under the Rules of 2010, which they are eligible for appearing in the higher level examination for promotion. As per the then prevailing 2010 Rules, the higher level departmental examination was conducted from 04.03.2013 to 07.03.2013 wherein, the petitioners appeared. Since all of the petitioners had availed more than 60 marks, as per Rule 8, the petitioners were granted exemption in Paper-I and Paper-II and were required to appear in Paper-III (Miscellaneous) and Paper-IV (police manual). All the petitioners appeared in the examination wherein, they availed exemption but, could not clear the other two papers. Hence, none of the petitioners were granted promotion at the relevant point of time. The aforesaid is also admitted by the petitioners in paragraph 9 of the petition. 12. Thereafter, the respondent-State issued the government resolution dated 31.03.2015 introducing “The Gujarat Civil Services (Conditions of Service Relating to Departmental Examination) (General) Rules, 2015 (page 60/15). As per the said Rules, the lower level examination for seeking increment (Rule 3 of the Rules of 2010) came to be repealed and the higher level examination for head clerks came to be introduced for the first time. Under the said Rules i.e. under Rule 3, two type of examinations were envisaged i.e. lower level departmental examination for promotion of junior clerk to senior clerk as per Rule 3(1) and higher level departmental examination for promotion from senior clerk to head clerk as per Rule 3(2). 13. By way of resolution dated 30.07.2016, it was resolved that Paper-V (Police Manual) of higher level and lower level examination as well as paper II (Accounts Matters) of old rules, are exempted. The said resolution is duly produced at page 60/27. Upon conjoint reading of Rule 8(2) of the Rules of 2015 with the resolution 2016, paper V can be exempted if the candidate avails 60 marks. 14. The said resolution is duly produced at page 60/27. Upon conjoint reading of Rule 8(2) of the Rules of 2015 with the resolution 2016, paper V can be exempted if the candidate avails 60 marks. 14. A communication was thereafter, issued on 28.02.2017 by the Home Department that the persons, who availed exemption under the lower level examination and higher level examination under Rules of 2010, shall get exemption under the Rules of 2015 which was immediately set aside by another communication dated 20.03.2017 and it was clarified that only those, who availed exemption in higher level examination under Rules 2010, shall be granted exemption in lower level examination under Rules of 2015. The aforesaid was the subject matter of challenge in Special Civil Application No. 7272 of 2017 wherein, the said communication was set aside by order dated 25.04.2022, which was the subject matter of challenge by preferring Letters Patent Appeal No. 635 of 2023 which is pending. The Home Department issued clarification in Rules of 2015 on 02.08.2019 clarifying the provisions and applicability of Rule 3(3), Rule 5(b), Rule 8(2) and Rule 13 of the Rules of 2015. Further opinion from the office of the Director General of Police was sought for and a specific clarification is also issued by the Home Department on 22.04.2022 on the applicability of Rules of 2015 whereby, it is explained that the persons, who availed exemption in Paper-II of the old rules, shall get exemption from Paper-II under the new rules. The persons who availed exemption under Paper-IV of the old rules, shall get exemption from Paper-V under the new rules. The persons, who availed 60 marks in the papers under the old rules, shall be exempted in the respective paper under the new rules. The aforesaid clarification is duly produced at Annexure-R5. 15. In light of the aforesaid, it is not in dispute that the petitioners herein appeared in the examination in the year 2013 held under the old Rules of 2010 however, they could not pass the said examination. Hence, no promotion was granted. Upon applicability of the Rules of 2015, the examination was held from 17.12.2018 to 21.12.2018 (Page 60/A) and Paper-V in the year 2019. All the petitioners appeared in the said examination except petitioner nos. 1, 2 and 5. Hence, no promotion was granted. Upon applicability of the Rules of 2015, the examination was held from 17.12.2018 to 21.12.2018 (Page 60/A) and Paper-V in the year 2019. All the petitioners appeared in the said examination except petitioner nos. 1, 2 and 5. Out of the remaining 7 petitioners, 6 petitioners failed and one petitioner passed the examination and was granted promotion. 15.1. This Court has perused the result of the examination held in the year 2018-2019 which is duly produced at Annexure-R6. The petitioners appeared in the examination held in the year 2021 and availed exemption in the relevant papers because, they had availed more than 60 marks in the examination held in the year 2018-2019 however, all the 6 petitioners failed in Paper-IV. This Court has perused the result, is duly produced at Annexure-R7. 16. The contention of the petitioners that the petitioners were exempted from Paper-I and II as per the old rules, Paper-IV as per new rules and they have already passed Paper-III, are required to be granted exemption and the new rules are not applicable to them, is contrary to the contention raised by the petitioners wherein, the petitioners on one hand, seek exemption in the Paper-IV under the new Rules i.e. the notification dated 30.07.2016 and on the other hand, submit that the new rules are not applicable to the petitioners. The petitioners failed in the examination held in the year 2013 and in view thereof, are governed by the Rules of 2015. The Rules of 2015 are prospective in nature. 17. Mr. Majmudar, learned advocate relied on the order passed in Special Civil Application No. 7272 of 2017 which, in the opinion of this Court, is not applicable in the facts of the present wherein, in the facts of the said case, the candidates had passed the departmental examination and were promoted as senior clerks and in view thereof, the said petitioners were working on the post of senior clerk since many years and in the facts of the said case, it was directed that the case of the petitioners be considered for promotion of Head Clerk. 18. This Court deems it fit to refer to the position of law as under: (i) Rajendra Shivrambhai Patel vs. State of Gujarat, AIR Online 2020 Guj. 1999. Paragraph 10 reads thus: “10. 18. This Court deems it fit to refer to the position of law as under: (i) Rajendra Shivrambhai Patel vs. State of Gujarat, AIR Online 2020 Guj. 1999. Paragraph 10 reads thus: “10. The Apex Court, in yet another decision, in the case of Binoy Viswam v. Union of India and Ors. (2017) 7 SCC 59 , has propounded that the Court cannot question the wisdom of the Legislature in enacting a legislation. The judicial review of administrative act is different from review of legislative enactment. The limited grounds on which the Court can strike down a law are stated as a lack of legislative competence or if the same contravenes fundamental rights or constitutional guarantees and here we see no such reasons in existence. As a result of this, we are not inclined to exercise our writ jurisdiction to set at naught the Rules, precisely Rule 2 and 4, of the new Rules which have been framed.” (ii) State of Himachal Pradesh and others vs. Raj Kumar and others, (2023) 3 SCC 773 . Paragraphs 2, 82.2, 82.3, 82.4 and 87 read thus: 2. The question is whether appointments to the public posts that fell vacant prior to the amendment of the Rules would be governed by the old Rules or the new Rules. 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. 82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14. 82.4. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14. 82.4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. 87. We have already held that there is no right for an employee outside the rules governing the services. We have also followed and applied the Constitution Bench decisions in Union of India v. Tulsiram Patel and more particularly the decision in Roshan Lal Tandon v. Union of India that the services under the State are in the nature of a status, a hallmark of which is the need of the State to unilaterally alter the rules to sub-serve the public interest. The 2006 Rules, governing the services of the respondents came into force immediately after they were notified. There is no provision in the said rules to enable the respondents to be considered as per the 1966 Rules. The matter must end here. There is no other right that Respondents 1 to 3 can claim for such consideration. 19. Considering the prayers, as prayed for, in the present petition, the petitioners herein seek the deemed date of promotion as well as the higher pay scale. It is well settled that the higher pay scale can be granted only if there are no promotional avenues. The prayers seeking promotion and higher pay scale cannot be granted analogously. 20. The petitioners having failed to pass the examinations cannot avail the right against the juniors, who have passed the examination and promoted. 21. For the foregoing reasons, the petitioners having not passed the higher level examination under the Rules of 2010 and lower level examination under the new Rules of 2015, the prayers, as prayed for, are such that the same cannot be granted. The petition fails and the same is hereby dismissed. Rule is discharged.