Niramlkumar K Patel vs State Of Gujarat and Others

Abhilasha Kumari, J.—In these petitions, common questions of fact and law arise, therefore, the facts of Special Civil Application No. 8558 of 2010 only, are being adverted to.

This petition under Article 226 of the Constitution of India, has been filed with the following prayers:

A) Quashing and setting aside the letter dt.2.1.2010 and 21.4.2010 and further directing the Respondents to grant the first higher grade scale to the Petitioner from 10.10.2006 subject to passing of departmental examination and pay the consequential arrears with interest of 8%

B) During the pendency and final disposal of this petition, the Respondent No. 2 may be directed to grant the 1st Higher grade scale to the Petitioner.

to grant such and further relief as may be deemed fit and proper.

Briefly stated, the facts of the case are that the Petitioner was appointed as English Typist with effect from 10.10.1997 vide order dated 16-10-1997 under Commandant, S.R.P. Group 1,Vadodara. The Petitioner become eligible for 1st Higher Grade Scale after completion of 9 years of service in the cadre of English Typist with effect from 10.10.2006, as per the Scheme of Higher Grade Scale. The Petitioner has cleared the pre-service training examination and has appeared in the departmental examination of Senior Clerk in the year 2004. He cleared two papers but failed in the other two. The Petitioner was required to pass those two papers in which he has failed, for being eligible for Higher Grade Scale. However, no departmental examination for Senior Clerks has been held by the Respondents after 2004. The case of the Petitioner is that he has become eligible for grant of Higher Grade Scale of the post of Senior Clerk after completion of 9 years service with effect from 10.10.2006 but as no departmental examination has been held after 2004, this benefit is denied to the Petitioner on the ground that he has not cleared the examination. Meanwhile, Respondent No. 1, by letter dated 2.1.2010 informed Respondent No. 2 that the benefit of Higher Grade Scale cannot be granted since it is against the Rules. Being aggrieved by this decision as also letter dated 2-1 2010 of the Respondent No. 3 addressed to Respondent No. 4 to the same effect, the Petitioner has approached this Court by filing the present petition.

Mr. A.S. Supehia, learned advocate for the Petitioners has submitted that by Resolution dated 14-9-2007 the State Government has clarified the aforesaid dispute of non-passing of departmental examination and grant of Second Higher Grade Scale on completion of 24 years service. As per Para 1(1) of the said Resolution an employee who has not passed the Departmental Examination can also be granted the Higher Grade Scale from the date on which he becomes eligible. It is further submitted that paragraph 2 states that after the grant of Higher Grade Scale, the same employee should be sent to training and the concerned Department shall make arrangements for conducting departmental examination. It is, therefore, submitted that on the same principle and analogy, the Petitioners are also entitled to Higher Grade Scale.

The learned advocate for the Petitioners has drawn the attention of this Court to judgment dated 31-3-2009 rendered in Special Civil Application No. 2146 of 2009, the relevant extract of which is reproduced herein-below:

Even otherwise, considering the fact that when since 1991, the departmental promotional examination has not been conducted by the Respondent-State and when the Petitioner was always ready and willing to appear in the examination and had twice filled up the form, Petitioner cannot be denied the benefit of higher grade scale on completion of 9 (nine) years service solely on the ground that Petitioner has not passed departmental promotional examination, which is not conducted by the State since 1991. To deny the benefit of higher grade scale to the Petitioner on the ground that Petitioner has not passed departmental promotional examination would be penalizing the Petitioner/employee for their no fault. It is also required to be noted that even in the present Special Civil Application also, in paragraph 13 of petition, Petitioner undertakes to appear and pass the examination within the prescribed trials whenever it is held. Under the circumstances, Petitioner can be extended the benefit of first higher grade scale subject to Petitioner appearing and passing the examination within the prescribed trials whenever it is held.

For the reasons stated above, petition succeeds. Respondents are directed to grant the actual benefit of first higher grade scale as per the order dated 10.12.2004 from the date of completion of 9 (nine) years as Head Constable, Driver Mechanic Grade-I subject to the Petitioner appearing and passing the examination for the post of Police Sub Inspector- Motor Transport within the prescribed trial(s) whenever it is held. Petitioner shall be paid the arrears within a period of 2 (two) months from today and is continued to pay the benefit of first higher grade pay scale.

Accordingly, Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, no order as to costs.

On the basis of the above judgment, it is submitted by the learned advocate for the Petitioners that the Respondents can be directed to consider the case of the Petitioners along similar lines, and the interest of justice would be met if the Petitioners of each petition are permitted to approach Respondent No. 2 by filing representations, which may be considered in the light of Government Resolution dated 14-9-2007 and judgment dated 31-3-2009, rendered in Special Civil Application No. 2146 of 2009.

Upon the above statement being made by the learned advocate for the Petitioners, the following order is passed:

The Petitioners of each petition are permitted to make representations, within a period of two weeks from today, to Respondent No. 2, who is directed to consider and decide the same in light of Government Resolution dated 14-9-2007 and judgment dated 31-3-2009 rendered in Special Civil Application No. 2146 of 2009, which, according to the Petitioners, is applicable to them. Respondent No. 2 may take a decision, in accordance with law, as expeditiously as possible and preferably, within a period of six weeks from the date of receipt of a copy of this order.

It is clarified that this order has been passed without entering into the merits of the case.

The petitions are disposed of, in the above terms. Rule is discharged in Special Civil Application Nos. 8558 and 8559 of 2010. Notice is discharged in Special Civil Application No. 9289 of 2010. There shall be no orders as to costs. Direct service is permitted.