The five petitioners, by filing present petitioner filed under Article 226 of the Constitution pray for a writ of mandamus to direct to respondents to grant the benefit of first higher pay scale grade of Police sub-inspector (PSI) in the scale of Rs.1640-2900 (revised). It is further prayed that the entire arrears accrued from 01.06.1987 be paid with interest and all consequential benefits. 2. The petitioners case in the petition is that they all initially joined State Reserve Police as armed constables on different dates. They received promotion as Second Grade Constables and got second promotion as First Grade Head Constables. It is their case that they having completed 9 years of regular service in the cadre of First Grade Head Constables, they are entitled to the benefit of First Higher Pay Scale of PSI in view of Resolution dated 05.07.1991 passed by the State Government introducing the scheme known as Higher Grade Scheme. The said scheme is for the benefit of Government servants who suffer stagnation in their service career in terms of promotional avenues, who are offered the Higher Grade benefit on completion of their continuous service in lieu of deprivation of promotion.
3. Heard learned advocate Mr.V.M.Dhotre for the petitioners and learned Assistant Govt. Pleader Mr. Dharmesh Devanani for the respondent state authorities.
3.1 At the outset learned advocate submitted that the case of the petitioners is covered by decision of this court in Ramkumar Kaluram Yadav Vs. State of Gujarat being Special Civil Application No. 9538 of 2001 and cognate petitions decided by common oral judgment dated 03.03.05. It was submitted that the petitioners herein are similarly situated to the petitioners in the said petitions, who had raised same grievance for entitlement of First Higher Scale grade of PSI in the scale of Rs.1640-2900. Learned advocate submitted that the petitioners were denied the benefit on the ground that they did not satisfy the condition in the subsequent resolution dated 16.08.94.
4. On behalf of the respondent, affidavit in reply is filed, wherein it is contended inter alia that as per para 3(2) of Resolution dated 16.08.94 of the Finance Dept. of Govt. of Gujarat, a condition is prescribed about passing the departmental examination of PSI to be entitled to Higher Grade. One of the conditions also prescribed that on 05.07.91, a government employee should not have attained the age of 45 years. According to the respondents, since the petitioners have not fulfilled the conditions, they are not entitled to the benefit. It is contended further that the petitioners have been given chance to appear in the departmental examination of PSI lastly in 2001, but they failed to clear the same. It is also contended that if 45 years is completed on 05.07.91, there is a provision in the Resolution to give exemption from examination of departmental promotion but such exemption is not to be given in the cases of those employees, who complete 45 years after 05.07.91.
4.1 The relevant factual data in respect of each of the petitioners may be summarized at this stage.
(i) Petitioner No.1 was appointed on 06.01.1968, granted grade-II promotion on 23.03.1983, granted grade-I promotion on 06.10.1985. He completed age of 45 years on 01.07.1993.
(ii) Petitioner No.2 was appointed on 18.11.1969, granted grade-II promotion on 07.07.1978, granted grade-I promotion on 08.11.1983. He completed age of 45 years on 07.09.1996.
(iii) Petitioner No.3 was appointed on 01.03.1967, granted grade-II promotion on 02.04.1983, granted grade-I promotion on 08.10.1985. He completed age of 45 years on 02.06.1992.
(iv) Petitioner No.4 was appointed on 01.01.1969, granted grade-II promotion on 18.03.1983, granted grade-I promotion on 01.06.1989. He completed age of 45 years on 04.01.1994.
(v) Petitioner No.5 was appointed on 16.12.1978, granted grade-II promotion on 22.07.1988, granted grade-I promotion on 01.06.1991. He completed age of 45 years on 29.12.1997.
4.2 As far as petitioner Nos.1,3 and 5 are concerned, they have cleared the departmental examination and they have been promoted to the post of Assistant Police Inspector, as stated by learned advocate for the petitioners in course of the hearing. Petitioner No.2 completed 45 years on 1.07.1993. Petitioner No.4 completed 45 years on 4.10.1994.
5. Having carefully gone through the decision in Rajkumar (supra), as rightly submitted by learned advocate for the petitioners, the case of the present petitioners is covered by what is laid down in the said decision. The Court observed and held in Rajkumar(supra) as under :
“The learned Advocate for the petitioners submitted that while making the aforesaid submission and also the submission in paragraph-12, the deponent lost sight of Government Resolution dated 1st January, 1999, which was amended by another Resolution dated 4th January, 2000. He submitted that by Government Resolution dated 1st January, 1999, the Government decided, on a representation made by the Union of the Government State Employees (dated 27th October, 1998), that, in the cases where departmental examination is prescribed for promotion, but, not held on account of administrative reasons or for the reasons beyond the control, the employees are not at fault. In such cases where after the framing of rules for the departmental examination, on the date of holding the first examination or till such examination is held, if the employees have completed 45 years' of age, then, they will be entitled to `exemption' from passing of the departmental examination. The employees, who are found to be eligible for `exemption', as above, will also be eligible for the benefit of higher pay scale and promotion.”
“7. The learned Advocate for the petitioners submitted that in this Resolution dated 1st January, 1999, certain conditions were prescribed as conditions precedent in paragraph-2, but then, those conditions were diluted by subsequent Resolution dated 4th January, 2000. The learned Advocate emphatically submitted that in view of the aforesaid facts and in view of the material, which is placed by the deponent along with his affidavit-in- reply, in a tabular statement at Annexures R2 and R3, all the petitioners are eligible for `exemption' and consequently, for higher pay-scale. The learned Advocate submitted that from Annexure-R2, it is clear that examinations were held in the year 1996, 1997 and 2001. Whereas Column No.7 of Annexure-R3 provides the date on which the petitioners' completed 45 years' of age between 1991 to 1996. He submitted that the petitioners, whose names appear at Serial Nos.26 and 27 in Annexure-R3, have already retired from service in the years 2001 and 1998 respectively. The petitioner, whose name appears at Serial No.31, had completed 45 years' of age on 11th August, 1996. He submitted that qua this petitioner, the exact date of holding the examination will be material. He submitted that otherwise all other petitioners are eligible on the basis of the information placed before this Court by the aforesaid two Annexures.”
“9. On careful consideration of the matters and on careful consideration of the contents of Government Resolution dated 1st January, 1999, read with Government Resolution dated 4th January, 2000, this Court is of the opinion that the petitioners are eligible for Higher Grade Pay Scale. Hence, all these petitions are allowed. The respondents are directed to grant Higher Grade Pay Scale to the petitioners. It is directed that the respondents shall complete the exercise of calculating the amount payable on account of grant of Higher Grade Pay Scale as early as possible, but, not later than 15th May, 2005. After the calculation is over, the amount shall be paid within four weeks thereafter.”
5.1 The above decision was carried in Letters Patent Appeal No. 1573 of 2005 and other cognate appeals, which came to be dismissed and the decision of learned single judge came to be affirmed.
6. The facts of the present are similar. It is the case of the respondent in particular coming out from the averments in paragraph 13 of the affidavit-in- reply that the departmental examination had not been held regularly because of the administrative reasons. The departmental examination was held in the year 2001. If the examination was not offered by the respondent to the petitioners and due to that, they could not fulfill the condition of passing examination, as held in the decision of Rajkumar (supra) the benefit of higher grade pay could not have been denied to the petitioners. What is laid down in Rajkumar (supra) covers the present case.
7. Therefore, the petitioners have to be treated eligible for higher grad pay scale on the basis of the contents of government Resolution 1.1.1999 read with Government Resolution dated 04.01.2000 and in view of the decision of Rajkumar (supra) of this Court. In the result, the present petition is allowed. The respondents are directed to grant the higher grade pay scale to the petitioners. It is further directed that the respondents shall complete the exercise of calculating the amount becoming payable on account of granting higher grade pay scale, expeditiously and within 8 weeks from the date of receipt of this order.
8. As stated by learned advocate and noted above, petitioner Nos. 1, 3 & 5 have already cleared the departmental examination and have been promoted to the next higher posts. It was submitted that therefore, the grievance in the present petition survive only in respect of petitioners No. 2 & 4. While allowing the present petition accordingly, however, as prayed for by learned advocate, liberty is reserved for the other petitioners in case of any difficulty.
9. The Rule is made absolute as above. There shall be no order as to the costs.
cmjoshi (N.V.ANJARIA, J.)