By way of these petitions, the petitioners have prayed for issuance of a direction directing the respondent authorities to pay the petitioners the higher pay scale by taking into consideration their entire length of service from their initial date of appointment with all consequential benefits. 2. Brief facts leading to the filing of the present petitions are as under:-
2.1 The petitioners are working as Stenographer Grade-II in the respondent-State Government since 20 to 30 years of service by passing GPSC examination. At the relevant time the candidates who have passed GPSC examination were not available and therefore, the heads of the departments were permitted by the State Government to recruit Stenographers who have not passed PSC examination on clear and substantive vacancies.
2.2 Some employees including petitioner no.7 herein had filed Special Civil Application No. 3624 of 1980 before this Hon'ble Court challenging the circular dated 15.10.1980 issued by the General Administration Department requiring the Stenographer to give an undertaking that if he fails in the proposed examination to be held by PSC than his services will be terminated. The Stenographers were required to give an undertaking as a pre-condition for becoming eligible to appear at the examination.
2.3 The said SCA No. 3624 of 1980 was disposed by this Hon'ble Court by the order dated 22.08.1994. The said order was carried in appeal by the State Government in Letters Patent Appeal No. 28 of 1995 which was disposed of by the Division Bench of this Hon'ble Court by the order dated 06.03.1995 and the appeal was allowed and the order of the learned single judge was set aside and the petition was dismissed.
2.4 Some other Stenographers have been given the benefit of the higher scale on the ground that they have completed 45 years age and are therefore, exempted from passing any departmental examination. S/Shri P.D.Balani, C. Shankaran, A.R.Nair, Achutan, E.R.K. Menon, D.S. Swaminarayan, Loish Joseph, K.M. Khatri and R.T.Bhatt have been given higher scale on the ground that they are exempted from passing the examination as they have completed 45 years of age.
2.5 All the petitioners have completed 45 years of age and have passed the PSC examination and therefore they should be given the same benefits. It is the case of the petitioner that the State Government has given the benefits of higher pay scale to the several employees in various departments without even requiring those employees to pass the examination and even to other employees who have not cleared the examination after several attempts. The benefits of higher pay scale has been given to the petitioners, which were confirmed to the identical situated stenographers, by taking into consideration their entire service from the date of appointment. Hence, this petition.
3. Mr. A.K. Clerk, learned counsel for the petitioner contended that the respondent authorities have granted the higher pay scale to several employees named in the petition even though they have not passed the required examination after making several attempts. The petitioners have passed the examination and therefore, the omission of the respondent authorities to give the benefit of the higher pay scale to the petitioners by taking length of service from their initial date of appointment into consideration is arbitrary, discriminatory, illegal and null and void.
3.1 He also contended that the respondent authorities have also granted the benefit of the higher pay scale to several employees from their date of appointment on their passing the examination subsequently. In fact several employees have been given the benefit of the higher pay scale from their date of initial appointment even though they have not passed the examination. Therefore, there is no reason for the Government to deny the benefit of the higher pay scale to the petitioners by reckoning their service from the date of their initial appointment once the petitioners have passed the examination.
3.2 He further contended that the respondent authorities are bound to give equal treatment to the employees of various department who are similarly situated in the matter of claiming higher pay scale on completing the requisite length of service.
3.3 He next contended that the petitioners have already reached the maximum of their pay scales and are stagnating at this stage. There is no scope or chance of further addition to salaries as the class III employees of the State Government are not given the benefits of stagnation increment as is given to other employees once in two years.
3.4 Most of the petitioners are on the verge of retirement and their retirement benefits would also be reduced by denying them the benefit of the Higher Pay Scale.
4. Mr. Clerk further contended that in view of the decisions of this Court rendered in Special Civil Application No. 9760 of 2001 dated 27.07.2004 and in Special Civil Application NO. 6914 of 1992 dated 07.07.1999, and the judgment rendered by this Court in Letters Patent Appeal No. 1573 of 2005 dated 28.09.2011, the petitioners were entitled to benefits.
4.1 He further contended that in view of the Circular dated 01.01.1999, the petitioner are exempted from passing departmental examination. The Government had issued another resolution in the General Administration Department No. KTP-1098-1507-K dated 04.01.2000 deleting the conditions nos. 2 and 3 of the GR dated 01.01.1999.
4.2 In the circumstances the petitioners are eligible to be granted Higher Grade Pay Scale from the date of their initial appointment. He next contended that the GR dated 01.01.1999 provides for exemption to the employees from appearing at the examination on attaining the age of 45 years in two contingencies. Firstly, where rules for conducting departmental examinations are not framed, in that case, at the first examination held after framing the Rules, if the government employees attained the age of 45 years, he is exempted from appearing the examination. Secondly, where the departmental examination is not held by the Government because of administrative reasons or reasons beyond their control and where the employees are not at fault, the government employees are exempted from appearing at the next examination, if they attain 45 years of age.
4.3 The petitioners are covered by the second contingency as it is a specific case of petitioners that the departmental examinations for promotion were not held regularly and for many years by the Government. The petitioners have attained 45 years of age and therefore they are exempted from appearing in departmental examination for promotion.
4.4 In the Government Resolution dated 01.01.1999, no cut of date is given. The Government conducted last departmental examination for this cadre on 15.12.2009. All the petitioners have attained the age of 45 years. Therefore, all the petitioners are eligible to be granted Higher Grade Pay scale with effect from the date of their initial appointment.
5. Counsel for the respondents has relied upon averments made in affidavit in reply, more particularly, in para 7, 10 and 11, which read as under:
“7. As per the provision 3(5) of the GR, dated 16.08.1994, the Government servants who have attained the age of 45 on or before 05.07.1991, shall be exempted from passing departmental examination for promotion to the higher post. Such Government servant would be eligible for first higher pay scale from 01.06.1987 or thereafter, on completion of nine years of service as the case may be. However, those who want actual promotion to the higher post shall be required to pass the departmental examination. Those Government servants who have attained the age of 45 years after 05.07.1991 shall not be exempted from passing the departmental examination for promotion to the higher post. The stenographer mentioned in para 8, S/Shri P.D.Balani, C. Shankaran, A.R.Nair, E.R.K. Menon, D.S. Swaminarayan, Louis Joseph, K.M. Khatri, and R.T. Bhatt have attained the age of 45 years on or before 05.07.1991. So, as pr the provisions 3(5) of GR, FD, referred to above, they were eligible to the sanctioned higher grade pay scale and hence, they have been sanctioned. Whereas, none of the petitioners have attained the age of 45 years, on or before 05.07.1991 as pr the birth dates mentioned in Annexure-A of the petition. Moreover, the irregularly recruited/non- GPSC Stenographers, who are petitioners of this writ petition, had not passed competitive examination held by the GPSC for the purpose of regularization of their service on or before 05.07.1991. Hence, they were not entitled to get benefit of higher pay scale as provided in GR FD dated 16.08.1994.
10. All the petitioners were irregularly appointed non-PSC stenographers. As per the statutory rules, mentioned above, only regularly appointed Stenographers, who have completed at least three years continuous service were eligible to appear in the English Shorthand test. Since all the petitioners did not fulfill the above provision, they were not allowed to appear in departmental examination held from April, 1983 to August, 1994.
11. Therefore, as per the provisions laid down in Government Notification referred to in para 11, both the Stenographers were eligible to appear in the departmental examination.”
6. Heard learned counsel for both the parties.
7. Contentions raised by the petitioner are ill conceived. Admittedly, petitioners have not completed the age of 45 years as on 05.07.1991 and therefore, they are not entitled to the benefits of exemption from passing departmental examination for promotion to the higher post. As per the provision -3(5) of the GR, dated 16.08.1994, the Government servants who have attained the age of 45 on or before 05.07.1991, shall be exempted from passing departmental examination for promotion to the higher post. Such Government servants would be eligible for first higher pay scale from 01.06.1987 or thereafter on completion of nine years of service as the case may be. However, those who want actual promotion to the higher post shall be required to pass the departmental examination.
8. Those Government servants who have attained the age of 45 years after 05.07.1991, shall not be exempted from passing the departmental examination for promotion to the higher post. None of the petitioners have attained the age of 45 years, on or before 05.07.1991 as per the birth date mentioned in annexure-A of the petition.
9. Moreover, the irregularity recruited/non GPSC Stenographers, who are petitioners of this writ petition, had not passed competitive examination held by the GPSC for the purpose of regularization of their service on or before 05.07.1991. Hence, they were not entitled to get benefit of higher pay scale as provided in GR dated 16.08.1994.
10. In view of the above, the petitions are devoid of any merits and deserve to be dismissed and same are hereby dismissed. Rule is discharged.
[K.S.JHAVERI, J] Siddharth//