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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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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