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SCA/8257/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8257 of 2011
=========================================================
AMRUTBHAI
HIRABHAI SOLANKI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AS SUPEHIA for
Petitioner(s) : 1,
MR AL SHARMA, AGP for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/07/2011
ORAL
ORDER
1. Heard
learned Advocate Mr. A. S. Supehia for petitioner and learned AGP Mr.
A. L. Sharma for respondent State authority.
2. Brief
facts and events of present petition are as under:
“11.8.1993-
At present the petitioner is serving as Jr. Clerk under the
Respondent no.3. He was appointed as Safai Kamdar on 8.8.1989.
Thereafter he was appointed as Junior Clerk on 11.8.1993.
The
petitioner passed his pre service training examination on 7.5.1993 in
his first attempt. He passed the departmental examination meant for
Jr. Clerk in the year December, 2002. Thereafter the petitioner
appeared for the departmental examination meant for Sr.Clerk held
between 31.3.2004 to 2.4.2004 in which he failed in paper No.4
whereas he was given exemption in paper No.3. No departmental
examination for the Sr. Clerk has been held by the Respondents
thereafter.
11.8.2002
– It may be stated that the petitioner has become eligible for
the higher grade scale of the post of Sr.Clerk after completing 9
years from service w.e.f. 11.8.2002. By the letters dt. 21.8.2009
and 25.8.2009, the petitioner requested the respondent 2 and 3 to
grant of higher grade scale since he had completed 9 years of
service. He has stated in his letters he is deprived of the higher
grade scale since no departmental examination of Senior Clerks has
been held since 2004.
12.10.2009
– By the letter dt.8.10.2009, the respondent no.3 called for
the information for the purpose of Ist higher grade scale from
Jr.Clerks working under him. Accordingly the petitioner furnished
his details on 12.10.2009.
28.1.2011
– Since nothing further was heard the petitioner filed Spl. C.
A. No.3570/2010 before this Hon’ble Court praying for grant of higher
grade scale. By the judgment dt.28.1.2011, this Hon’ble Court the
aforesaid petition was disposed of permitting the petitioner to make
a representation to the respondent no.2 who was directed to decide
the same in light of G. R. dt. 14.9.2007 and judgment dt.31.3.2009.
17.2.2011
– Accordingly the petitioner made the representation
dt.176.2.2011 to the respondent No.2 requesting to grant the higher
pay scale to the petitioner.
13.9.2011
– By the letter dt. 19.5.2011, the respondent No.2 rejected the
request of the petitioner.
By
this petition, the petitioner challenges the aforesaid letter dt.
19.5.2011 and prays for directions to grant the first higher grade
scale to the petitioner from 11.8.2002 with consequential arrears
with interest of 8%.”
3. Learned
advocate Mr. Supehia for petitioner submitted that in identical case
of Nirmalkumar K. Patel in Special Civil Application No.7966 of 2009,
this Court has passed order on 29/6/2011 which is quoted as under:
“1. Heard
learned Advocate Mr. AS Supehia for petitioner and learned AGP Mr. AL
Sharma for respondents.
2. Petitioner
was appointed as English Typist with effect from 10.10.1997 vide
order dated 16.10.1997 under Commandant, SRP Group 1, Vadodara.
Thereafter, he was transferred to Baroda on 23.6.1992 in SRP Gr. I
and presently, petitioner is serving under respondent NO.4 and posted
under Commandant, SRP Group No. 9, Vadodara. According to petitioner,
he has become eligible for 1st Higher Grade Scale after
completion of nine years’ service in cadre of English Typist from
10.10.2006 as per Scheme of of Higher Grade Scale. Petitioner has
cleared Pre Service Training Examination. Petitioner appeared for
departmental examination meant for Senior Clerk in 2004 in which he
cleared two papers but failed in two. Petitioner has to pass further
two papers for getting eligible for higher grade scale. No
departmental examination for Senior Clerks has been held by
respondents thereafter and for that, request was made by petitioner
on 12.12.2008 to grant higher grade benefit since no departmental
examination has been held and respondents are denying same because of
not clearing departmental examination. Petitioner has approached to
this Court by filing Special Civil Application NO. 8558 of 2010
praying for first higher grade scale to petitioner from 10th
October, 2006 subject to passing of departmental examination which
petition was disposed of by this court on 15th December,
2010 permitting petitioner to make representation to respondent no.2
who was directed to decide such representation in light of GR dated
14.9.2007 and judgment dated 31st March, 2009. This
representation has been decided by respondent no.2 on 13.4.2011 and
request made by petitioner has been rejected. Therefore, present
petition has been filed by petitioner before this court. Answer given
by respondents is annexed to this petition at page 19 and 20.
3. Answer
which has been given by respondent no.2 after examining
representation made by petitioner is that Resolution of Finance
Department dated 14th September, 2007 is applicable in
case when second higher grade is required to be granted but that
resolution is not applicable in case when question of granting first
higher grade is to be considered by department. In Case which has
been cited as precedent by petitioner being decision in Special Civil
Application NO. 2146 of 2009, of that, petitioners employees were
not able to clear departmental examination since departmental
examination was not held, therefore, in that matter, there was no
fault on the part of employees, therefore, higher pay scale has been
granted in that case on condition to pass examination when it is held
but in this case, petitioners have appeared and failed in
departmental examination and, therefore, on that ground, decision of
this Court in Special Civil Application No. 2146 of 2009 is not made
applicable by respondent no.2. Therefore, on these two grounds, facts
are having total distinction and difference and accordingly,
representation made by petitioner has been rightly rejected by
respondent no.2. However, further opportunity has not been made
available to appear in departmental examination by respondent
authority to petitioner because in earlier occasion, petitioner has
failed, so, for all time to come, petitioner may not be denied this
legal right to have first higher grade.
4. Therefore,
it is directed to respondent authority to hold departmental
examination for Senior Clerk as early as possible, within eight
months from date of receiving copy of present order. It is open for
petitioner to appear in such examination and in case if he clears
such examination, then, he may make further detailed representation
claiming first higher grade from respondents. On that occasion, it is
directed to respondents to consider case of petitioner for first
higher grade with effect from 10.10.2006. It is also made clear that
in case if within eight months respondents are not able to hold
departmental examination for post of senior clerk, then, it is open
for petitioner to revive present petition by filing merely note in
registry of this Court.
5. In
view of above observations and directions, present petition is
disposed of by this Court without expressing any opinion on merits.”
4. In
view of order passed by this Court and considering facts which has
been taken from statement of facts and events, it is directed to
respondent authority to hold departmental examination for post of
Senior Clerk as early as possible preferably within a period of eight
months from date of receipt of copy of present order. It is open for
petitioner to appear in said examination and in case if he clears
such examination then he may make further detailed representation
claiming first higher grade from respondent. On that occasion it is
directed to respondent to consider case of petitioner for first
higher grade with effect from 11/8/2002. It is also made clear that
in case if within eight months respondents are not able to hold
departmental examination for post of Senior Clerk then it is open for
petitioner to revive present petition by filing merely note in
Registry.
5. In
view of above observations and directions, present petition is
disposed of by this Court without expressing any opinion on merits.
Direct service is permitted.
(H.K.
RATHOD, J.)
(ila)
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