Entitlement to higher pay scale should not be denied due to non-availability of examination seats, and the right to the higher pay scale cannot be denied if the employee had applied for the examination before completing nine years of service.

JUDGMENT :

1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of rule on behalf of respondents.

2. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today.

3. By way of this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order of reversion dated 17.12.2021 by which the petitioner has been reverted from the post of Superintendent to the post of Junior Clerk.

4. Prima facie, it appears that the order of reversion has been passed on account of the fact that the petitioner failed to pass his CCC examination before 31.12.2013. As reflected in the order while issuing notice on 4.1.2022, the issue is covered by a decision rendered by this Court. The first decision in point of time was one in Special Civil Application No.10885 of 2015 which was subsequently followed in Special Civil Application No.11198 of 2015 and in Special Civil Application No.3300 of 2016.

5. Mr. Kurven Desai, learned Assistant Government Pleader for the respondent-State would vehemently oppose the petition on the ground that the contents in the affidavit in reply which indicate that the petitioner was appointed as Junior Clerk cum Typist vide Office Order dated 24.05.2002. He was given conditional promotion as Senior Clerk on 14.10.2009 with a clear condition that he has to pass his CCC examination by 31.12.2009. The date was extended vide Circular dated 22.07.2013. Subsequently, the petitioner was promoted as Head Clerk and, thereafter to the post of Office Superintendent.

6. As is evident from the reply filed by the respondents, the failure to pass the examination would change the seniority position and, therefore, the promotion to the post of Office Superintendent was by a mistake, without taking into account the fact that the petitioner had not passed his CCC examination.

7. The decision dated 26.02.2016 of Special Civil Application No.3300 of 2016 in the case of Nanjibhai Kumpaji Patel v. State of Gujarat and others referring to the earlier decision reads as under:

“1 By this writ application under Article 226 of the Constitution of India, the petitioners serving as the primary Teachers under the respondents Nos.1 and 2 have prayed for the following reliefs:

“14. The petitioners, therefore, pray that this Hon’ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction:

A) Directing the respondents to consider the case of the petitioners for higher pay scales in light of the order dt. 19.1.2016 passed in Special Civil Application No.11198 of 2015 and if found eligible grant the same after completion of nine years service.

B) During the pendency and final disposal of the petition the respondents may be directed to consider the case of the petitioners for grant first pay scale after completion of nine years of service.

C) To grant such and further relief as may be deemed fit and proper”

2 The petitioners seek to challenge the action of the respondents in not sanctioning the higher pay scales in accordance with the Government Resolution dated 16th August 1994. The only reason perhaps is that the petitioners have not cleared the CCC (Course on Computer Concept) examination on the date of their completion of nine years of service. According to the petitioners, they have cleared the CCC examination and the benefits of the higher pay scale would be granted to them from the date of passing of the CCC examination and not from the date of their actual right accrued in terms of the Government Resolution of 1994.

3 According to the learned counsel appearing for the petitioners, the issue raised in this application is squarely covered by the judgment and order of this Court dated 19th January, 2016 passed in the Special Civil Application No.11198 of 2015 and allied matters. This Court disposed of the Special Civil Application No.11198 of 2015 and allied matters asunder:

1. The questions i