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 inaction on the part of the respondents with below mentioned prayers: “15(A) admit this petition. (B) issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pass appropriate order for granting benefit of 2nd Higher Pay Scale to the petitioner i.e. the pay scale for the post of Assistant Nursing Director (Pay Scale of further Promotional post) w.e.f. 1/10/2010 and the 2nd Higher Pay Scale be ordered to be granted with 12% interest and further consequential benefits may be ordered to be paid to the petitioner accordingly. (C) issue appropriate writ, order or direction and be pleased to hold that the action of respondent no. 4 authority of pressurizing the petitioner and using coercive tactics upon the petitioner for execution of writing for surrendering statutory right of the petitioner to get 2nd Higher Pay Scale, be declared as illegal, illogical, arbitrary and further be pleased to hold that the petitioner would be entitled to get the 2nd Higher Pay Scale irrespective of writing executed by the petitioner by which the petitioner had surrendered her right qua 2nd Higher Pay Scale and appropriate writ, order or direction be issued in this regard. ALTERNATIVELY Issue appropriate writ, order or direction upon the respondent authorities to consider and decide the representation dated 24/6/2014 preferred by the petitioner after giving reasonable opportunity of hearing to the petitioner and the respondent authorities be directed to pass reasoned order as expeditiously as possible in the interest of justice in respect of granting benefit of 2nd higher pay scale to the petitioner. 2. The short facts giving rise to present petition are that the petitioner came to be appointed as Staff Nurse in April, 1980. Thereafter, the petitioner was appointed as Nursing Tutor by order dated 19/4/1986 and the petitioner had resumed her duties w.e.f. 1/5/1986. Thereafter, the petitioner came to be transferred to various places, however, the fact remains that the petitioner had served as Nursing Tutor and she had completed 9 years of services in the cadre of Nursing Tutor on 1/5/1995. 2.1 The State of Gujarat had floated a Scheme for granting benefits of Higher Pay Scales. Thereafter, the petitioner came to be transferred to various places, however, the fact remains that the petitioner had served as Nursing Tutor and she had completed 9 years of services in the cadre of Nursing Tutor on 1/5/1995. 2.1 The State of Gujarat had floated a Scheme for granting benefits of Higher Pay Scales. Thereafter, the said G.R. came to be replaced by another G.R. dated 2/7/2007 and as per the said G.R. of 2007, the petitioner became eligible and entitled to get 2nd Higher Pay Scale on completion of 24 years of services. The petitioner had completed 24 years services on 1/5/2010. Though, the petitioner had made representation to concerned respondent authority, the concerned respondent authority had not granted the benefit of 1st as well as 2nd Higher Pay Scales and, therefore, the petitioner was constrained to prefer petition being Special Civil Application No. 2228/2013. The said petition came to be disposed of by the Hon'ble High Court vide order dated 19/6/2013. 2.2 Pursuant to the order of the High Court, the petitioner had made representation dated 9/9/2013 to the concerned respondent authority. However, as the concerned authorities has not complied with the said order, the petitioner was constrained to prefer application being Misc. Civil Application No. 669/2014 for initiation of proceedings under Sec. 10 of the Contempt of Courts Act. During the course of pendency of the aforesaid application, the order dated 28/3/2014 came to be passed and on the basis of the said order, further order dated 31/3/2014 came to be passed. 2.3 Thus, the petitioner was granted 1st Higher Pay Scale i.e. the pay scale of 2200-4000 w.e.f. 2/10/1995 however, the concerned respondent authority has passed an order dated 5/4/2014 to the effect that as the petitioner was granted higher pay scale of Rs. 2200-4000, she would not be entitled to get the benefit of 2nd Higher Pay Scale. 2.4 In fact considering the aforesaid G.Rs and considering the settled proposition of law, the petitioner would nevertheless be entitled to get the benefit of 2nd Higher Pay Scale i.e. the pay scale of Promotional post i.e. Assistant Nursing Director. Without any justifiable reason, the petitioner was denied the 2nd Higher Pay Scale by the respondent authorities and the respondent authorities had passed an order dated 5/4/2014, denying the benefits of 2nd Higher Pay Scale to the petitioner. Without any justifiable reason, the petitioner was denied the 2nd Higher Pay Scale by the respondent authorities and the respondent authorities had passed an order dated 5/4/2014, denying the benefits of 2nd Higher Pay Scale to the petitioner. 2.5 During pendency of the contempt proceedings, the petitioner was called by the concerned authorities including the respondent no. 4 in the Office of Jamnabai General Hospital and she was informed that the petitioner must give undertaking to the effect that she would not claim 2nd Higher Pay Scale, otherwise she would have to face serious consequences and would not get even 1st Higher Pay Scale. The petitioner was compelled to give the undertaking to the effect that she would not claim 2nd Higher Pay Scale. Thus, by using coercive and pressurized tactics, the petitioner was virtually compelled to issue writing for surrendering her right of 2nd Higher Pay Scale. 2.6 The petitioner has also sent one communication/representation dated 24/6/2014 and she has stated all the aspects in the said representation/communication, however, the same has remained un-disposed of and the same is not considered. 2.7 In view of the aforesaid facts, the petitioner has filed present petition and prayed benefits of 2nd Higher Pay Scale w.e.f. 1.10.2010 along with 12% interest. 3. Heard Mr. N.K. Majmudar, learned Counsel for the petitioner and Mr. Jay Trivedi, learned Assistant Government Pleader. 4. Mr. N.K. Majmudar, learned Counsel for the petitioner has submitted that the petitioner was denied the benefit of 2nd Higher Pay Scale by the respondents and that decision of the respondents is illegal, erroneous and arbitrary. He has further submitted that the said decision of the respondent is contrary to the facts and contrary to the settled legal principles. He has further submitted that the petitioner was denied the benefits of higher pay scale, therefore earlier the petitioner had approached this Court and this Court issued direction to the respondents to consider the case of the petitioner and since it was not considered by the respondents, the petitioner had approached Division Bench of this Court by way of preferring contempt petition and the said contempt petition was disposed of. However, the concerned respondent authority had refused and rejected the request of the petitioner with regard to the benefits of 2nd Higher Pay Scale. However, the concerned respondent authority had refused and rejected the request of the petitioner with regard to the benefits of 2nd Higher Pay Scale. The learned Counsel for the petitioner has referred to and relied upon the communication dated 31.3.2014 and the communication dated 5.4.2014, whereby the decision of the respondent authority was challenged. 4.1 In support of his submission, learned Counsel for the petitioner has referred to and relied upon the decisions of the Hon’ble Apex Court in the case of Food Corporation of India and Others vs. Parashotam Das Bansal and Others and State of Tripura and Others vs. K.K. Roy. Learned Counsel for the petitioner has relied upon the following observations: “It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle.” 4.2 In view of the above facts and in view of the above referred decisions of the Hon’ble Apex Court, learned Counsel for the petitioner urges before this Court that present petition may be allowed and the prayer made in present petition may be allowed. 5. As against the same, Mr. Jay Trivedi, learned Assistant Government Pleader has referred to and relied upon the affidavit-in-reply filed by the respondents and submits that the petitioner was originally appointed as Staff Nurse on 11.4.1980 (Class-III) and thereafter, she was appointed as PHN Tutor by direct selection on 1.5.1986 in the scale of 1640-2900 (Class-III). He has further submitted that thereafter, on completion of 9 years of service, the petitioner received 1st Higher Pay Scale of Rs. 2200-4000 from 2.10.1995. He has further submitted that thereafter, her scale was revised to Rs. 2200-4000 to Rs. 8000-13500 from 1.1.1996. He has further submitted that the petitioner reached to the highest pay scale of the said cadre and therefore, the petitioner is not entitled to get any higher pay scale. He has also relied upon resolution dated 16.8.1994. Relevant part of the affidavit-in-reply, relied upon by learned Assistant Government Pleader for the respondents, reads as under: “3(1) This scheme shall be applicable to all the posts carrying pay or scale of pay, the maximum stage of which does not exceed Rs. 3,500/- per month. 3(2) The First H.G.S. shall be granted to the employee who has completed 9 years of service in the respective cadre and pay Scale provided that the said employee should not have got more than two promotions prior to this. 3,500/- per month. 3(2) The First H.G.S. shall be granted to the employee who has completed 9 years of service in the respective cadre and pay Scale provided that the said employee should not have got more than two promotions prior to this. For the purpose of granting the higher Scale 9 years of service in respective pay Scale means the regular service being taken into account for the purpose of seniority of employees recruited by approved method and rendered in the one and same cadre and grade shall be taken into consideration However, the service of isolated cadres encadred in other cadres without the request of employee and the earlier service of isolated cadre which may be encadred hereafter or cadres who pay scale is equal but nomenclature is changed may be taken into consideration for sanctioning the Higher grade Scale. Similarly, in individual cases also, if the Government has made transfer from one cadre to other for public interest and pay scales of these posts are equal, the service rendered in both the cadres shall be taken, into account for the scheme of Higher Grade Scale subject to the other conditions. For this purpose the office concerned shall Finance Department No. AOP-1191-20-1-1, dated 11th October, 1991 for giving stepping up, the benefit of stepping up will not be given in such cases even if junior employee gets more pay than his senior employee due to the change of cadre/nomenclature. That means clarification of said resolution will not become applicable to this case. 3(4) The highest Grade Scale admissible under the scheme shall not exceed the scale of Rs. 2500-4200. This Scale shall be admissible to the posts with the scale of Rs. 2000-3500 which have promotional post with the scale of Rs. 2500-4200 or higher scale. If the scale of promotional post is Rs. 2200-4200 or Rs. 2200-4000, the higher Grade scale shall be Rs. 2200-4200 or 2200- 4000. As the case may be in case of posts with scale of Rs. 2000-3500, if there is no promotional post, the scale of Rs. 2200-4000 shall be considered Higher Grade Scale. 2500-4200 or higher scale. If the scale of promotional post is Rs. 2200-4200 or Rs. 2200-4000, the higher Grade scale shall be Rs. 2200-4200 or 2200- 4000. As the case may be in case of posts with scale of Rs. 2000-3500, if there is no promotional post, the scale of Rs. 2200-4000 shall be considered Higher Grade Scale. However, according to the said resolution, she is not entitled for the second higher pay-scale as per the Clause 3(4) of the said resolution (At Page-34 of the petition), the scale should not exceed, the scale of 2200-4000 Even otherwise, as per the Government Resolution dated 02.07.2007, the higher pay-scale should exceed the pay of Rs. 10,500. In the present case, since the petitioner was already granted first pay scale of 2200-4000 Therefore, as per the Government Resolution dated 16.08.1994, it is more than Rs. 3,500/- and as per the Government Resolution dated 02.07.2007, it is more than 10,500/- Therefore, she is not entitled for the second higher pay-scale. (Annexure here with and marked as Annexure R-1)” 5.1 Learned Assistant Government Pleader has also submitted that the decision of the respondent authority was never challenged by the petitioner and since the petitioner is reached to the highest level of the pay, which is mentioned at page 53 of the petition, more particularly serial no. 19 i.e. Rs. 2200-4000, the benefits of second higher pay scale was denied to the petitioner. 6. I have perused the material and relevant papers available on record and the submissions canvassed by both the learned advocates. I have also gone through the record of the petition. 7. It appears that the petitioner is already reached to the highest grade pay scale of the particular cadre and therefore, she was denied the benefit of 2nd Higher Pay Scale. Further, in the resolution, it was provided that in case of the petitioner, if the petitioner gets any promotion or if the petitioner reaches to the highest grade pay scale of that particular post, in that circumstance, the petitioner is not entitled to get benefits of 2nd Higher Pay Scale. 8. Considering the resolution dated 16.8.1994 and clause 3(4) of the said resolution, I am of the opinion that the petitioner is not entitled to get any benefits as prayed for in present petition. 9. 8. Considering the resolution dated 16.8.1994 and clause 3(4) of the said resolution, I am of the opinion that the petitioner is not entitled to get any benefits as prayed for in present petition. 9. Since the petitioner has not challenged the decision of the respondent authorities, it does not lie in the mouth of the petitioner that the petitioner was deprived by extending the benefits of the 2nd Higher Pay Scale. 10. In view of the above observations, I am of the opinion that the decision of the respondent authority of not granting the 2nd Higher Pay Scale to the petitioner is in consonance with and is in accordance with the resolution dated 16.8.1994. Further, since the petitioner is reached upto the highest grade of the pay scale in the particular cadre, the respondent authority has rightly denied the benefits 2nd Higher Pay Scale to the petitioner. 11. For the foregoing reasons, the petition is devoid of any merits. The petition does not deserve to be entertained and the same is hereby dismissed. Rule is discharged. Interim relief if any stands vacated forthwith.