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2024 DIGILAW 493 (GUJ)

Ramniklal Manishankar Joshi v. State of Gujarat

2024-03-11

HEMANT M.PRACHCHHAK

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JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The petitioner has preferred present petition, under Articles 14, 16 and 226 of the Constitution of India and challenged letter dated 5.11.2011 of the respondents with below mentioned reliefs: “14(A) Quashing and setting aside the letter dated 5.11.2011 and to direct the Respondents to grant the second higher grade scale to the petitioner from 13.11.2004 and to revise his pensionary benefits and to pay the arrears with 12% interest. (B) During the pendency and final disposal of this petition, the Respondent No. 2 may be directed to grant the second higher grade scale to the petitioner form 13.11.2004. (C) To grant such and further relief as may be deemed fit and proper.” 2. The brief facts giving rise to present petition are that the petitioner was appointed on 13.11.1980 as Turner, Grade-I with respondent No. 2 and retired from service on superannuation on 31.5.2007 on the same post without getting promotion. 2.1 The State Government framed a scheme for higher grade scale by the Resolution dated 5.7.1991, which was modified by the Resolution dated 16.8.1994 and thereafter modified by the Resolution dated 2.7.2007. Present petition relates to grant of second higher grade scale in accordance with the Resolution dated 2.7.2007. 2.2 Since the petitioner was not granted the first higher grade scale as per the Resolution dated 5.7.1991, he filed Appeal No. 526/1993 before the Gujarat Civil Services Tribunal, Gandhinagar. The said appeal came to be allowed by the judgment and order dated 22.6.1994 and the present respondent no. 2 was directed to pass orders granting the first higher grade scale to the petitioner. By the order dated 30.6.1995, the petitioner was granted the first higher grade scale from 13.11.1989 on completion of 9 years service. 2.3 As per the above Resolution dated 2.7.2007, the petitioner became eligible for the second higher grade scale from 13.11.2004, i.e. on completion of 15 years service after the grant of first higher grade scale from 13.11.1989. However, by the letter dated 5.11.2011 the Respondent No. 2 denied the second higher grade scale on the ground that the petitioner has not passed the prescribed examination. 2.4 By this petition, the petitioner has challenged the aforesaid letter as being illegal, arbitrary, unreasonable and in violation of Arts.14 and 16 of the Constitution of India. 3. Heard Ms. Mamta Vyas, learned Counsel for the petitioner and Ms. 2.4 By this petition, the petitioner has challenged the aforesaid letter as being illegal, arbitrary, unreasonable and in violation of Arts.14 and 16 of the Constitution of India. 3. Heard Ms. Mamta Vyas, learned Counsel for the petitioner and Ms. Dharitri Pancholi, learned Assistant Government Pleader for respondent State of Gujarat. 4. Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that after considering the various rules on the subject the tribunal ordered to grant the First Higher Grade Scale to the petitioner and the said judgment has become final. She has further submitted that the said judgment is applicable for the grant of Second Higher Grade Scale also. 4.1 Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that once the First Higher Grade Scale is granted, there is no question of passing the same examination for the purpose of earning the Second Higher Grade Scale. 4.2 Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that one welder Shri N.G. Prajapati has been granted the Second Higher Grade Scale by the order dated 15.10.2009 and he was not holding the driving licence for heavy vehicle and he was granted the Second Higher Grade Scale on completion of 15 years and therefore, the petitioner is also entitled to the same. 5. On the other hand, Ms. Pancholi, learned Assistant Government Pleader for the respondent State of Gujarat has referred to and relief upon the affidavit-in-reply filed on behalf of the respondent, more particularly paragraph Nos. 9 to 13 which read as under: “9. I say further that, as per G.R. dated 16.8.1994, the mandatory condition is to pass Departmental Examination for either promotion or higher pay scale. Petitioner has never tried to appear in the said examination. (Annexure-R/2) 10. I say and submit that Respondent No. 2 had invited applications for Departmental Examination by its Circular dated 24-4-2002 and 30-8-2006 (ANNEXURE/3 & R/4). Though, the circulars were issued the petitioner never applied for the Departmental Examination. I further state that as the petitioner has not complied with the mandatory condition, i.e. passing in Departmental Examination, he is not entitled for higher pay scale. I further say that the petitioner never tried to obtain Heavy Transport Vehicle Driving License and never applied for Departmental Examination. Thus he is not entitled for the benefit of the said higher pay scale. I further say that the petitioner never tried to obtain Heavy Transport Vehicle Driving License and never applied for Departmental Examination. Thus he is not entitled for the benefit of the said higher pay scale. I further say that the petitioner is not entitled even for benefit of higher grade pay scale according to the Schedule of Finance Department G.R. No. PGR/102007/615/M dated 2.7.2007 as per 3(1) schedule. (ANNEXURE R/5) as the post of petitioner is not an isolated post and promotion is available on isolated post only. 11. I say and submit that rule 64 of Gujarat Police Manual 1975 Para 64 is as under: (I) A valid driving license of heavy transport vehicle of not less than two years standing. (II) Power of organization and capacity to handle skilled and/or unskilled labour. Besides, the candidate will have to pass written examination and a practical test in the above items before being selected for the post. (III) Departmental men (i.e. the incumbents of posts of Head Constable Driver Mechanics, Fitter, Turners, Welders, Electricians and Store-keepers) if they possess all the qualifications required for appointment by nomination may be allowed to compete for recruitment to the post of Sub-Inspector, Motor Transport, as if they are direct nominees. (ANNEUXRE R/6) 12. I further say that the petitioner has stated that Mr. Prajapati has been granted 2nd higher pay scale. I say that Mr. Prajapati had applied for the Departmental Examination on 7.9.2006. He had also appeared in the Departmental Examination held on 21.7.2010. Hence, 2nd higher pay scale is granted to Mr. Prajapati as per the provisions Finance Department G.R. No. PGR/102007/615/M Dated 2.7.2007 (ANNEXURE R/7) and Finance Department G.R. No. PGR/1009-80/M Dated 12.8.2009 (Annexure R/8) 13. I again Reiterate that petitioner neither applied nor tried to comply with the condition of the above mentioned G.R. Hence he is not entitled to get 2nd higher pay scale.” 5.1 Ms. Pancholi, learned Assistant Government Pleader for the respondent State of Gujarat has submitted that as per G.R. dated 16.8.1994, the mandatory condition is to pass departmental examination for either promotion or higher pay scale and the petitioner has never tried to appear in the said examination and therefore, he is not entitled to get the Second Higher Grade Scale. 5.2 Ms. 5.2 Ms. Pancholi, learned Assistant Government Pleader for the respondent State of Gujarat has submitted that respondent No. 2 had invited applications for departmental examination by its circular dated 24.4.2002 and 30.8.2006, however petitioner neither applied for the departmental examination nor tried to obtain Heavy Transport Vehicle Driving License and as the petitioner has not complied with the mandatory condition i.e. passing of departmental examination, he is not entitled for Second Higher Grade Scale. 6. I have perused the documents placed on record along with relevant materials as well as the order passed by the Gujarat Civil Services Tribunal. I have also considered the submissions made on behalf of the respective parties. 7. It appears that at the first instance when the petitioner approached respondent with a request to extend the benefit of First Higher Grade Scale, the respondents have refused to extend the benefits of First Higher Grade Scale to the petitioner. 8. Being aggrieved and dissatisfied with the said decision, the petitioner has approached the Gujarat Civil Services Tribunal, Gandhinagar by preferring Appeal No. 526 of 1993. The said Gujarat Civil Services Tribunal, after considering submissions of the concerned parties, allowed the said Appeal being Appeal No. 526 of 1993 on 22.6.1994. The said Gujarat Civil Services Tribunal has observed in paragraph Nos. 8 and 9 as follows: “8. In any case, it is clear that the appellant is not eligible for promotion to the post of sub inspector (MT) in the present circumstances either because no departmental qualifying examination as required under the Notification dated 2.12.1986 has been laid down or the department insists on passing a test as provided for in the police manual for which he would be eligible only if he possesses a Heavy Driving Licence. Thus the appellant does not have the opportunity of being promoted to the post of Police Sub Inspector (M.T.) in his present position. 9. Thus the appellant does not have the opportunity of being promoted to the post of Police Sub Inspector (M.T.) in his present position. 9. In such circumstances, good sense and equity demand that he should be given the benefit of the next higher grade scale according to the Schedule annexed to the Government, Finance Department G.R. dated 5th July 1991 in terms of the said G,R. In the circumstances we pass the following order: Order The appeal is allowed and the Respondent No. 1 is directed to pass orders granting the higher grade scale pay according to the schedule annexed to Government, F.D. and G.R. dated 5th July 1991.” 9. The Tribunal has specifically observed that the appellant is not eligible for the promotion to the post of Sub-Inspector (MT) either because no departmental qualifying examination as required under Notification 2.12.1986 has been laid down or the department insists on passing a test as provided for in the police manual, for which he would be eligible only if the he possesses a Heavy Driving Licence. 10. In view of the aforesaid observations and considering all the relevant aspects, the Tribunal has passed order granting benefit of First Higher Grade Scale as per G.R. dated 5.7.1991. 11. The Tribunal has also considered Rule 64 of Gujarat Police Manual 1975 Volume-I which reads as under: “64. Sub Inspectors of Police, Motor Transport Section: (1) Appointment to the post of Sub Inspector of Police, Motor Transport, shall be made either: (a) by promotion of suitable departmental men in the Police Central Motor Transport Workshops or the Motor Transport Sections in the districts (including State Reserve Police Force Group). (b) By nomination, provided that not more than 30 percent of the posts shall be filled by the promotion if the required number of such post is available. (2) To be eligible for appointment by nomination, a candidate should possess the following qualifications: (a) Age: Below 35 years (this limit can be relaxed in the exceptional cases) (b) Height: Not less than 163 centimetres (c) Chest: 79 centimetres (d) Educational Qualifications: General Education, reading and writing (e) Technical education: (i) A diploma in automobile Engineering from a recognized Institution, 3 years practical experience in repair and maintenance of motor vehicle in well established engineering work or military workshop and must have worked as Head Fitter for at least a year. (ii) A valid driving licence of heavy transport vehicle if not less than two years standing. (iii) Power of organisation and capacity to handle skilled and/or unskilled labour. Besides, the candidate will have to pass written examination and a practical test in the above items before being selected for the post. (3) The selection of direct nominees will be made by a board consisting of a deputy inspector general of police, the deputy superintendent of police, motor transport and works manager, Gujarat State Roads Transport Corporation. (4) Departmental Men (i.o.) the incumbents of posts of Head Constable, Driver Mechanics, Fitters, Turners, Welders, Electricians and Store Keepers) if they posses all the qualifications required for appointment by nomination may be allowed to compete for recruitment to the post of sub inspector, motor transport as if they are direct nominees. (G.L.H.D. No. MTS-1258-9476-6 dated 16.2.1969) (5) (a) Appointing Authority for motor transport sub inspector will be the deputy inspector general of police, armed units (b) appointment by promotion will be made from those who passed the prescribed test. (c) Directly recruited sub inspector will be on probation for a period of 18 months, after which they will be to their date of appointment as sub inspectors “Copy of the rule confirmed, if found fit. (d) seniority will be determined according no. 167 of Gujarat Police Manual 1975 Volume-1” 12. In view of the above, it is made clear that once the First Higher Grade Scale is granted by the Tribunal, there is no question of passing the same examination for the purpose of earning the Second Higher Grade Scale. Hence, I am of the opinion that the petitioner is entitled to get Second Higher Grade Scale though, the petitioner retired from service on superannuation in 2007. 13. Considering the aforesaid aspects, the concerned respondent is hereby directed to calculate the benefits on the basis of the Second Higher Grade Scale and pay all the consequential benefits to the petitioner, in three equal installments. First installment be calculated and paid to the petitioner within period of two months from the date of receipt of copy of the order and thereafter, on every two months the same shall be paid to the petitioner. 14. With aforesaid observations, present petition is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs. 15. Direct service is permitted.