IMPORTANT POINT
Entitlement to higher grade scale is not contingent upon passing the same examination for the purpose of earning the second higher grade scale, once the first higher grade scale is granted.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. The petitioner has preferred present petition, under Articles 14, 16 and 226 of the Constitution of India and challenged letter dated 5.11.2011 of the respondents with below mentioned reliefs:

“14(A) Quashing and setting aside the letter dated 5.11.2011 and to direct the Respondents to grant the second higher grade scale to the petitioner from 13.11.2004 and to revise his pensionary benefits and to pay the arrears with 12% interest.

(B) During the pendency and final disposal of this petition, the Respondent No. 2 may be directed to grant the second higher grade scale to the petitioner form 13.11.2004.

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

2. The brief facts giving rise to present petition are that the petitioner was appointed on 13.11.1980 as Turner, Grade-I with respondent No. 2 and retired from service on superannuation on 31.5.2007 on the same post without getting promotion.

2.1 The State Government framed a scheme for higher grade scale by the Resolution dated 5.7.1991, which was modified by the Resolution dated 16.8.1994 and thereafter modified by the Resolution dated 2.7.2007. Present petition relates to grant of second higher grade scale in accordance with the Resolution dated 2.7.2007.

2.2 Since the petitioner was not granted the first higher grade scale as per the Resolution dated 5.7.1991, he filed Appeal No. 526/1993 before the Gujarat Civil Services Tribunal, Gandhinagar. The said appeal came to be allowed by the judgment and order dated 22.6.1994 and the present respondent no. 2 was directed to pass orders granting the first higher grade scale to the petitioner. By the order dated 30.6.1995, the petitioner was granted the first higher grade scale from 13.11.1989 on completion of 9 years service.

2.3 As per the above Resolution dated 2.7.2007, the petitioner became eligible for the second higher grade scale from 13.11.2004, i.e. on completion of 15 years service after the grant of first higher grade scale from 13.11.1989. However, by the letter dated 5.11.2011 the Respondent No. 2 denied the second higher grade scale on the ground that the petitioner has not passed the prescribed examination.

2.4 By this petition, the petitioner has challenged the aforesaid letter as being illegal, arbitrary, unreasonable and in violation of Arts.14 and 16 of the Constitution of India.

3. Heard Ms. Mamta Vyas, learned Counsel for the petitioner and Ms. Dharitri Pancholi, learned Assistant Government Pleader for respondent State of Gujarat.

4. Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that after considering the various rules on the subject the tribunal ordered to grant the First Higher Grade Scale to the petitioner and the said judgment has become final. She has further submitted that the said judgment is applicable for the grant of Second Higher Grade Scale also.

4.1 Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that once the First Higher Grade Scale is granted, there is no question of passing the same examination for the purpose of earning the Second Higher Grade Scale.

4.2 Ms. Mamta Vyas, learned Counsel for the petitioner has submitted that one welder Shri N.G. Prajapati has been granted the Second Higher Grade Scale by the order dated 15.10.2009 and he was not holding the driving licence for heavy vehicle and he was granted the Second Higher Grade Scale on completion of 15 years and therefore, the petitioner is also entitled to the same.

5. On the other hand, Ms. Pancholi, learned Assistant Government Pleader for the respondent State of Gujarat has referred to and relief upon the affidavit-in-reply filed on behalf of the respondent, more particularly paragraph Nos. 9 to 13 which read as under:

“9. I say further that, as per G.R. dated 16.8.1994, the mandatory condition is to pass Departmental Examination for either promotion or higher pay scale. Petitioner has never tried to appear in the said examination. (Annexure-R/2)

10. I say a