The Resolution dated 16.8.1994 provided conditions for granting higher grade pay scale, and services not considered for fixing seniority could not be availed for earning the benefit of higher pay scale.

JUDGMENT :

N.V. ANJARIA, J.

1. Heard learned Assistant Government Pleader Mr.Manan Mehta for the appellant State, learned advocate Mr.V.K.Joshi for the private respondent Nos.1 to 8 and learned advocate Mr.Hemang Shah for respondent No. 9.

2. By filing this Letters Patent Appeal under Clause 15 of the Letters Patent, the appellant State has called in question judgment and order dated 15.5.2008 of learned single Judge, whereby the petition came to be allowed and the benefits of higher scale came to be granted to the private respondents-original petitioners. The respondent No. 3 was directed to implement the orders in that regard and pay the arrears arising thereby.

3. In the petition, the petitioners prayed to direct respondent No. 3 authority to grant the higher grade pay scale to them as per the fixation made by the Registry of the High Court and disburse the arrears arising out of the fixation. In other words, the petitioner had challenged the communication of the respondent No. 3 Assistant Examiner, Local Audit Fund Office, whereby the audit objection was raised to deny the benefits of higher grade pay scale. The higher grade pay scale was under the Resolution dated 16.8.1994. In cases where promotions may have stagnated, the benefits were to be granted in accordance with the conditions provided in the Resolution.

3.1 The petitioners-private respondents herein were originally appointed in the sub-ordinate courts in the State of Gujarat. Having applied pursuant to and in response to advertisement published, they were subsequently came to be appointed in establishment of High Court working. Therein was a fresh appointment in the High Court establishment. They had been working as High Court employees since last seven years. As per the aforesaid Resolution dated 16.8.1994, services rendered by government employee without any break till they join another establishment were required to be clubbed together to become eligible to the benefits under Resolution dated 16.8.1994. The petitioner claimed that they were entitled to the higher grade pay scale after completion of nine years of continuous service in cadre.

3.2 It was the grievance of the petitioners that despite representation made by them to respondent No. 1, the Registrar General, the benefits upon completion of nine years was not granted. The petitioners relied on the case of one Mr.V.C. Darji who had approached this court by filing Special Civil Application No. 10019 of 1993 seeking to get counted their earlier services rendered in sub-ordinate courts. The said petition was allowed on 20.8.1999. It was stated that the petitioner had filed Special Civil Application No. 62 of 2007 to 70 of 2007 and other petitions where the Registrar General had issued necessary orders in light of the Resolution dated 16.8.1994 and other attendant Resolutions. It was contended that yet another order was passed in Departmental Appeal No. 6 of 2003 preferred by one Shri Y.N.Momin who was Section Officer.

3.3 The following averments were made in the petition representing such case:

“The petitioners say and submit that, impugned objection memo issued by the Respondent No. 3 is also discrimination for the reasons that in the case of Shri. V.C. Darji who earlier preferred the writ petition being No. 10019 of 1993 and the order passed by the Hon’ble High Court, dated 20.8.1999 came to be complied by the respondent No. 3 and also made the payment to the petitioner Shri. V.C. Darji. In the case of Shri Y.N.Momin, Section Officer who also preferred the Departmental Appeal and came to be allowed by the Gujarat High Court, in that case also the respondent No. 3 not raised any objection as raised presently in the case of present petitioner and paid the difference of amount granting the benefit of First Higher Grade Scale of next promotional post. In view of this facts and circumstances as stated herein above the impugned order passed by the respondent No. 3 is arbitrary.”

3.4 Thus, the whole case of the petition