IMPORTANT POINT
While adjudicating the current and prevailing provisions must be considered.

JUDGMENT

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 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 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.

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 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 th