K.K.GOHILversusSTATE OF GUJARAT AND OTHERS

                       (2015] 8 S.C.R. 788


A                          K.K.GOHIL
                                v.
               STATE OF GUJARAT AND OTHERS
                  (Civil Appeal No.5821 of2011)
B                      AUGUST 12, 2015
             [M.Y. EQBAL AND ARUN MISHRA, JJ.]

       Service law - Higher grade scale - Entitlement to -
C Employee granted higher grade scale on completion of nine
  years - Withdrawal of, on the ground of non-passing of the
  departmental examination - Said order upheld by High .
  Court- Sustainability of- Held: By Government Resolution
  dated 16.08.1994, if employee gets higher grade scale
0 without passing any competitive examination, he will have.to
  clear the departmental examination otherwise the grant of ·
  highergrade scale is to be withdrawn - However, by Circular
  dated 24.11.2004, State Government modified the earlier
  Resolution directing that in cases where for getting higher
E pay scales a departmental examination is necessary then
  in such cases it is equally necessary that the departmental
  examination should be organised in time - High Court did
  not considered the subsequent circular of 2004 and based
  on the circular of 1994, upheld the order of withdrawal of
F benefit- In view of the facts of the case vis-a-vis Government
  Resolution issued time to time, order passed by the High
  Court set aside.

        Allowing the appeal, the Court
G       HELD: From perusal of the Government Resolution
    dated 16th August, 1994, it is manifestthatthe grant of a
    higher grade scale to the eligible employees who have


H                             788
    K.K.GOHIL v. STATE OF GUJARAT AND OTHERS                 789


completed nine years of service is permissible, provided      A
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          B
clear the departmental examination otherwise the grant
of higher grade scale is to be withdrawn. 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    C
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
                                                              0
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      E
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 did not consider the
subsequent circular of 2004 and based on the circular         F
of 1994, the order withdrawing the benefit was upheld.
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, the reasons
assigned by the Single Judge and the Division Bench           G
of the High Court cannot be sustained in law, and the
order passed by the High Court is set aside. (Paras 12-
14] (794-F-H; 795-A-F]

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.            H
790         SUPREME COURT REPORTS                [2015] 8 S.C.R.


A     5821 of2011.

          From the Judgment and Order dated 11.12.2009 of the
      High Court of Gujarat atAhmedabad in Letters Patent Appeal
      No. 2392 of 2009.
B
          Manoj K. Mishra, Sandeep Kr. Dwivedi, Bheem Pratap
      Singh for the Appellant.

          Jesal Wahi, Hemantika Wahi for the Respondents.

C         The Judgment of the Court was delivered by

       M. Y. EQBAL, J. 1. 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
D Letters Patent Appeal No.2392 of 2009, whereby the High
  Court has dismissed the Letters PatentAppeal 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
E 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
F 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
G 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.
H
         4 The appellant was meeting with all the requirements to
,.       K.K.GOHIL v. STATE OF GUJARAT AND OTHERS                    791
                        [M. Y EQBAL, J.]

     get the higher grade scale as provided under the said scheme     A
     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        B
     this regard, the first highergrade 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 c
     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 D
     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 E
     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 F
     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 14.2.20.08 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 G
     by the High Court quashing ~nd 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.
                                                                      H
792         SUPREME COURT REPORTS                      [2015] 8 S.C.R.


A      7. The Commissioner of Tribal Development, Gujarat
  State issued a show cause notice to the appellant on
   17.7 .2009 calling upon the appellantto 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
B 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
C 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
D 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.
E         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.
F      9. Aggrieved by the said order of the Department, the
  appellant approached the High Court of Gujarat atAhmedabad
  under Article 226 of the Constitution of India by filing SCA
  No.11767 of2009. The learned Single Judge of the High Court
  vide order dated 16.11.2009 dismissed the above-said
G 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
H         higher pay scale and the benefit may also be conferred
    K.K.GOHIL v. STATE OF GUJARAT AND OTHERS                   793
                   [M. Y. EQBAL, J.]

    but in a case where, before the benefit is conferred upon A
  . 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 B
    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 C
    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."
                                                                D
     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:-
                                                                E
    "We have heard learned counsel forthe 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 F
    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 G
    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, H
    he will be entitled to get higher pay scale. For the foregoing
794       SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A        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,
B 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
C 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
D 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
E 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
F 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
G 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.

H       13. However, by circular dated 24.11.2004, the
    K.K.GOHIL v. STATE OF GUJARAT AND OTHERS                       795
                   [M. Y. EQBAL, J.]

Government of Gujarat modified the earlier Resolution taking A
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 B
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 C
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 D
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           E
condition for giving benefit of promotion, we are of the view
that the reasons assigned by the learned Single Judge an~
the Division Bench of the High Court cannot be sustained in
law. Hence, this appeal is allowed and the impugned order           F
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.

NidhiJain                                        Appeal allowed.