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Tuesday, August 18, 2015

Service= 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the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994.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. 14. Considering the entire facts of the case, vis-a-vis the Government Resolution time to time issued relating to the condition for giving benefit of promotion, we are of the view that the reasons assigned by the learned Single Judge and the Division Bench of the High Court cannot be sustained in law. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. Consequently, it is held that the appellant is entitled to the higher pay scale on completion of nine years of service.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NOs.5821 OF 2011

K.K. GOHIL                                         …..Appellant(s)

                                   versus

STATE OF GUJARAT AND OTHERS             ..Respondent(s)





                               J U D G M E N T



M. Y. EQBAL, J.



      This appeal by special leave is  directed  against  the  judgment  and
order dated 11th December, 2009 passed by  the  High  Court  of  Gujarat  at
Ahmedabad in Letters Patent Appeal No.2392 of 2009, whereby the  High  Court
has dismissed the Letters Patent Appeal of the Appellant.



2.    The factual matrix of the case is that the appellant  had  joined  the
service on 16.11.1989 as a  peon  in  the  Social  Welfare  Department  and,
thereafter, the appellant was promoted as Junior Clerk in the  pay-scale  of
Rs. 950-1500 vide order dated 30.6.1997 and posted  under  the  Commissioner
of Tribunal Development, Gujarat State and the  said  scale  of  Rs.950-1500
which came to be revised as Rs.3050-1590 in view  of  the  Revision  of  Pay
Rules, 1998 made effective from 1.1.1996.



3.    The appellant had completed nine years of  service  on  30.6.2006  and
was granted the first higher grade scale of Rs.4000-6000  by  the  Competent
Authority i.e. Commissioner of Tribunal Development,  Gujarat  State  w.e.f.
1.7.2006  by  order  dated  22.6.2007,  according  to  the  policy  of   the
Government of Higher Grade   Scale  introduced  vide  Government  Resolution
dated 16.8.1994.



4     The appellant was meeting with all the requirements to get the  higher
grade  scale as provided  under  the  said  scheme  except  passing  of  the
departmental examination, which the appellant had not  been  able  to  clear
because such examination was not conducted at  all  by  the  department  and
this fact  was  taken  into  consideration  by  the  Departmental  Promotion
Committee and considering the policy of the Government in this  regard,  the
first higher grade scale of Rs.4000-6000 was granted to the appellant.



5.    The order of granting first higher grade scale to  the  appellant  was
not given effect to because of objection raised  by  the  audit  authorities
and the matter was referred to the Government and the Government  in  Social
Justice and Empowerment Department (Tribunal Development) had  referred  the
matter to the General Administration Department.   The  authorities  of  the
General Administration Department  held that even if the department has  not
conducted the examination,  it  is  the  disqualification  of  the  employee
concerned to be eligible to get the higher  grade  scale  and  the  specific
attention to the Judgment of the High Court was drawn  to  the  officers  of
the General Administration  Department  and  when  they  did  not  find  any
distinguishing features in both the cases, the  stand  was  taken  that  the
same cannot be made applicable to the appellant as he was not party  to  the
said judgment.



6.    Based on the above,  higher  grade  scale  that  was  granted  to  the
appellant came to be withdrawn by  the  order  dated  14.2.2008  and  it  is
pleaded that no opportunity of hearing  was  given  to  the  appellant.  The
order dated 14.2.2008 was challenged by the appellant by way of a by way  of
Special Civil Application No. 9683 of 2008 which was allowed on 5.2.2009  by
the High Court quashing and setting aside  the  order  dated  14.2.2008  and
liberty was granted to the respondent Authority to  pass  appropriate  order
in accordance with law and on merits after giving an opportunity of  hearing
to the appellant.



7.    The Commissioner of Tribal Development, Gujarat State  issued  a  show
cause notice to the appellant on 17.7.2009 calling  upon  the  appellant  to
show cause as to why the order dated 14.2.2008 withdrawing the higher  grade
scale granted to him should not be confirmed  as  the  appellant  failed  to
pass the examination held in December, 2008.  Pursuant to  the  said  notice
the appellant gave an oral as well as written  representation  on  27.7.2009
explaining in detail that during  the  period  of  eligibility  to  get  the
higher grade scale, no examination was conducted by the Department  and  the
same was conducted only in the year 2009 after long span of  12  years.   It
was also pointed out to the authorities that still three more  chances  were
available with the appellant to pass the examination and that  higher  grade
scale  cannot  be  denied  only  on  the  ground  of  non-passing   of   the
departmental examination in view of the policy of  the  Government  as  also
the settled position of law  and  based  this,  the  appellant  was  rightly
granted the first higher grade scale vide order dated 22.6.2007.



8.    It has been pleaded on behalf of the appellant that  the  Commissioner
of Tribal Development  passed an  order  dated  26.8.2009  in  view  of  the
decision taken by the Government and cancelled the higher  pay  scale  given
to the appellant.



9.     Aggrieved  by  the  said  order  of  the  Department,  the  appellant
approached the High Court of Gujarat at Ahmedabad under Article 226  of  the
Constitution of India by filing SCA No.11767 of  2009.  The  learned  Single
Judge of the High Court vide order dated  16.11.2009  dismissed  the  above-
said petition by observing as follows:-

“Therefore, it appears to the Court that if  within  the  requisite  period,
the departmental examination is not held,  the  employee  concerned  may  be
entitled for the benefit of higher pay scale and the  benefit  may  also  be
conferred but in a case where, before the benefit   is  conferred  upon  the
employee  concerned,  the  employee  who  appeared   at   the   departmental
examination, has failed at the first attempt, such benefit if not  conferred
will have to be kept in abeyance until he  passed  the  examination  at  the
second and/or third attempt.  If out of three  attempts,  the  employee  has
failed to clear the examination, he would not be entitled to the benefit  of
higher pay scale but if he passed examination, may be  at  second  or  third
attempt, the benefit may be conferred effecting from the date  on  which  he
was entitled i.e. date of the earlier period upon completion of  nine  years
of service.  This appears to be with a view to maintain the requisite  merit
for grant of benefit to the  government  servant  upon  completion  of  nine
years service.”



10.   Appellant then moved an  appeal  against  the  order  of  the  learned
Single Judge being LPA No.2392 of 2009.  The  Division  Bench  of  the  High
Court upheld the decision of the Single Judge and held that:-

“We have heard learned counsel for the appellant and  given  our  thoughtful
consideration. The law is very clear  and  we  are  in  agreement  with  the
proposition of law that at the completion of nine years an employee  becomes
entitled  to  higher  pay  scale.   If  the  departmental  examination   was
prescribed before higher pay scale was  granted,  and  in  the  departmental
examination he failed,  his  entitlement  to  promotion  came  under  cloud.
Therefore, the learned Single Judge was right in saying that as and when  he
passes the examination, he will  be  entitled  to  higher  pay  scale.   The
candidate has to pass the departmental examination  in  three  chances.  The
appellant having failed once,  there  are  two  chances  available  to  him.
Therefore, as and when he passes the examination in two chances, he will  be
entitled to get higher pay scale. For the foregoing reasons, we do  not  see
any reason to interfere with the order passed by the learned  single  judge.
The appeal fails and the same is rejected.”



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
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.

14.   Considering the entire facts of the  case,  vis-a-vis  the  Government
Resolution time to time issued relating to the condition for giving  benefit
of promotion, we are of the view that the reasons assigned  by  the  learned
Single Judge and the Division Bench of the High Court  cannot  be  sustained
in law. Hence, this appeal is allowed and the impugned order passed  by  the
High Court is set aside. Consequently, it is  held  that  the  appellant  is
entitled to the higher pay scale on completion of nine years of service.

                                                              …………………………….J.
                                                                (M.Y. Eqbal)

                                                              …………………………….J.
                                                               (Arun Mishra)
New Delhi
August 12, 2015




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