Point of Law : Promotion of an employee can not be withheld if no departmental proceedings are pending on the date when an employee becomes eligible for promotion.

JUDGMENT :

1. Heard learned Advocate Ms. Mamta R. Vyas appearing for the petitioner and learned AGP Mr. Jayneel Parikh appearing for the Respondent- State.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“18) …

(A) Directing the respondents to grant the Second Higher grade scale to the petitioner with effect from 1.6.2002 and to revise his retirement benefits accordingly and pay the arrears with 10% interest.

(B) Quashing and setting aside Resolution dt. 31.3.2005 and letter dt. 24.10.2011.

(C) During the pendency and final disposal of this petition the respondent no.2 may be directed to reconsider the case of the petitioner for 2nd higher grade scale ignoring the Resolution dt.31.3.2005.

(D) ...”

3. The brief facts of the case are that the petitioner was serving as Sales Tax Officer, Class-II, under the State Government and he retired on superannuation on 30.06.2006.

3.1 The petitioner was granted the first higher grade scale from 01.06.1987 and the petitioner became eligible for the second higher grade scale with effect from 01.06.2002. By proforma application dated 7.1.2008, the petitioner informed the Respondent no. 2-Commissioner of Commercial Tax, Ahmedabad, that the petitioner is eligible for higher grade scale with effect from 01.06.2002. The Additional Commissioner of Commercial Tax by the letter dated 7.10.2008, informed the petitioner that since he is eligible for grant of second higher grade scale of Rs.2000-3500, he is required to furnish necessary details. Accordingly the petitioner furnished the details and completed all the formalities. Thereafter by the order dated 12.01.2010, Respondent No.1-State of Gujarat granted higher grade scale to 94 Sales Tax Officers from the due date except the petitioner.

3.2 The petitioner therefore filed an application under the Right to Information Act, 2005, on 05.4.2011 seeking information for the denial of second higher grade scale. The petitioner was informed by the letter dated 21.04.2011 that he is not granted the higher grade scale in view of Paragraph 4(b) of the Government Resolution dated 31.3.2005. The petitioner therefore preferred Special Civil Application No. 7164 of 2011 for direction to Respondent No.2 to grant the second higher grade scale and also challenging Government Resolution dated 31.3.2005, which was disposed of by this Court vide order dated 02.08.2011 by directing the Respondents to reconsider the case of the petitioner for grant of second higher grade scale. Thereafter by order dated 24.10.2011, Respondent No.1 rejected the claim of the petitioner on the ground that as the petitioner was imposed the penalty of monthly pension cut of Rs.100/- for one year vide order dated 30.04.2007, the petitioner was not entitled to second higher grade scale in view of the Government Resolution dated 31.03.2005.

4. Learned Advocate Ms. Mamta Vyas appearing for the petitioner submitted that the petitioner was granted first higher grade scale with effect from 01.06.1987 and accordingly, he became eligible for the second higher grade scale with effect from 01.06.2002 and therefore the petitioner could not have been denied the second higher grade scale in view of the Government Resolutions dated 16.08.1994 and 02.07.2007.

4.1 It was submitted that the Government Resolution dated 31.03.2005 whereby the procedure has been prescribed in cases where the grant of higher grade scale was decided later on, i.e. after the due date by the State Government due to administrative or other reasons, and therefore this Resolution, which prescribes that the subsequent events which have taken place with regard to the departmental inquiry or suspension or dismissal from service can be considered while deciding the grant of higher grade scale is contrary to the Government Resolutions dated 16.08.1994 and 02.07.2007. It was therefore submitted that the Government Resolution dated 31.03.2005 deserves to be quashed and set aside.

4.2