Gujarat High Court
Shaileshkumar Haribhai Patel vs State Of Gujarat & 2 on 21 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3954/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3954 of 2016
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SHAILESHKUMAR HARIBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VA MANSURI, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/03/2016
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the petitioner serving as the Junior Clerk with the Secondary School (GrantinAid) has prayed for the following reliefs:
"(18) This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari, or any other appropriate writ, order or direction in the nature of certiorari, or any other appropriate writ, order or direction and thereby;
(A) This Honourable Court may be pleased to admit and allow to this petition.
(B) This Honourable Court may be pleased to direct the respondents more particularly respondent No.3 - District Education Officer to grant 2nd higher grade pay scale to the petitioner from the retrospective effect i.e. from the date of after completion of 24 years of the service of the petitioner.
(C) This Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioner for 2nd higher grade pay scale from the retrospective effect i.e. from the date of after completion of 24 years of the service of the petitioner.Page 1 of 5
HC-NIC Page 1 of 5 Created On Wed Mar 23 02:19:59 IST 2016 C/SCA/3954/2016 ORDER (D) This Honourable Court may be pleased to consider the representation dated 10/01/2016 made by the petitioner after completion of the CCC exam on 08/01/2016 for 2nd higher pay scale to the petitioner.
(E) Pending hearing and final disposal of this Honourable Court may be pleased to direct the respondents - authorities more particularly respondent No.3 to pay the arrears of higher grade to the petitioner.
(E) This Honourable Court may be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice and equity."
2 It appears from the materials on record that the petitioner was appointed in the year 1989. On completion of nine years of service, he was granted the first higher grade scale. The second higher grade scale fell due in the year 2013. However, at that point of time, the petitioner was not holding the C.C.C. Certificate as he had not cleared the C.C.C. examination. It is the case of the petitioner that he did apply, but the examination was not taken, and in the second attempt, he failed in one subject. In the third attempt, he had cleared the C.C.C. examination in 2016.
3 The only question that falls for my consideration is whether the benefits should be given from the year 2013 or from the date of clearing the C.C.C. examination. The answer is in the decision of the Supreme Court in the case of K.K. Gohil v. State of Gujarat and others [(2015) 9 SCC 652], wherein the Supreme Court observed as under:
"11. As per the Government Resolution dated 16.8.1994, upon completion of 9 years service the concerned government servant is entitled for the benefit of higher grade scale if he has not been promoted or that the requisite departmental examination for entitlement of higher post or for maintenance of the very post, are not cleared. The purpose of the policy was to see that no stagnancy was created in service on account of the fact that no higher posts are available. But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Mar 23 02:19:59 IST 2016 C/SCA/3954/2016 ORDER examination. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. It was not by way of compromising the merit that the benefit was to be given, just because the requisite length of service was completed but also dependent upon the merit and acceptance of the promotion.
12. From perusal of the Government Resolution dated 16th August, 1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn.
13. However, by circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court's order and directed that in cases where for getting higher pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organised in time. Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law."
4 My attention is drawn to a judgment and order passed by a learned Single Judge of this Court dated 8th January, 2016 in the Special Civil Application No.10885 of 2015 and allied matters wherein this Court observed as under:
"9. As submitted to this Court, all the petitioners meet with the requirements for the Higher Grade Pay Scale and the only issue that remains is whether they can be given such benefit from the date of their passing the Departmental Examination or from the date of their completing nine years. It is the case of the petitioners that such Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Mar 23 02:19:59 IST 2016 C/SCA/3954/2016 ORDER examination since was not conducted by the concerned authority before which they had applied, they were unable to clear the same within the stipulated time period. This was the circumstance beyond their control for which they cannot be deprived of their entitlement. It is not in dispute at all that all the petitioners at present are possessing CCC certificate.
10. It would be relevant to refer to the decision of the Apex Court at this Stage wherein also this very issue had been raised by the respondent authority when the appellant raised grievance of nongrant of Higher Grade Pay Scale from their actual date of entitlement. The Apex Court noted the facts that grant of higher grade scale to the eligible employees who have completed nine years of service is permissible as per GR dated 16th August, 1994 provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing of the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn.
10.a The Apex Court also noted that circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court's order and directed that in cases where for getting higher pay scales a departmental examination is necessary, then in such cases, it is equally necessary that the departmental examination should be organized in time. The Court did not sustain the order of High Court which had taken into account the subsequent Circular of 2004 and therefore, the order of withdrawing the benefit was quashed.
10.b Thus, the scenario emerges that if Departmental Examination is prescribed before the higher pay scale was granted. In the Departmental Examination requirement of clearing CCC examination and it needs to pass such examination but if no such examination is conducted, the authority cannot lie with the employee. If the Departmental Examination was not conducted during eligibility period for getting higher pay scales then in such cases the benefit cannot be stalled on such ground.
11. The petitioners since have cleared the CCC Examination. They shall have to place CCC certificate coupled with the date on which they applied for appearing for CCC Examination, as their entitlement of the first higher grade pay scale is on completion of nine years' period. Nonavailability of the opportunity to applying for examination and for want of conducting of the examination during their eligibility period will not come in the way of the petitioners.
11.a. In other words, if the person had already applied for CCC examination and due to nonavailability of seats, he could not appear in the same and thus, delay of clearing the examination is not attributable to Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Mar 23 02:19:59 IST 2016 C/SCA/3954/2016 ORDER the employees, his right to get the first higher pay scale cannot be denied. This Court is conscious that this also would give rise to multiple issues like whether the employee concerned in fact had applied well in advance before completing nine years or that almost on the last day of his completing nine years he had applied for the same and therefore could not clear the same. Corollary to this is whether the examination schedule of such examination is fixed well in advance by the concerned Institute and made known to one and all and whether they have sufficient number of seats available for accommodating one and all who desire to clear the same.
12. As argued before this Court and not controverted, employees are waiting in large number for their turn to arrive in the said examination. Realizing that number of recognized institutes being limited and their difficulty in managing this huge task, various Universities have now been recognized for the purpose. Therefore, rather than addressing this large issue in this petition, it would suffice to hold that those of them who already applied for the said CCC Examination and for want of availability of seats are deprived of chance to clear the same before their completion of 9 years' period, benefit should be given to them by the State.
13. Resultantly, all the petitions are allowed. The respondent No.3 authority shall grant first higher grade pay scale to all the petitioners on their producing CCC certificate before the concerned authority and their date of application to appear for such examination at the earliest but not later than two weeks on receipt of copy of this order.
On due verification in light of directions and observations above, respondent authority shall avail the benefits of first higher pay scale to all the petitioners within four weeks thereafter. Rule is made absolute to the aforesaid extent.
All the petitions stand disposed of in the above terms. Direct service is permitted."
5 Keeping in mind the ratio of the two judgments referred to above, the authority concerned shall pass an appropriate order as regards the grant of the second higher grade scale within a period of four weeks from the date of receipt of the writ of this order.
6 With the above, this writ application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Mar 23 02:19:59 IST 2016