2016 (3) TMI 833 - SC - Indian Laws

Grant of a higher grade scale to the eligible employees - Held that - From perusal of the Government Resolution dated 16th August, 1994, it is manifest that the grant of a higher grade scale to the eligible employees who have completed nine years of service is permissible, provided that the employee is eligible to get the promotion on the basis of his overall performance, qualifications and passing the examination if prescribed. It is also material that if the employee gets higher grade scale without passing any competitive examination, he will have to clear the departmental examination otherwise the grant of higher grade scale is to be withdrawn. However, by circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court s order and directed that in cases where for getting higher pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organised in time. Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law. Considering the entire facts of the case, vis-a-vis the Government Resolution time to time issued relating to the condition for giving benefit of promotion, we are of the view that the reasons assigned by the learned Single Judge and the Division

Summary

Issues:
1. Grant of higher pay scale to an employee without passing the departmental examination.
2. Withdrawal of higher pay scale due to failure in departmental examination.
3. Interpretation of Government Resolution regarding eligibility for higher grade scale.
4. Consideration of subsequent circulars modifying the eligibility criteria for higher pay scale.

Issue 1: Grant of higher pay scale without passing examination
The appellant was initially granted a higher pay scale of &8377; 4000-6000 despite not passing the departmental examination, as the examination was not conducted by the department. The Departmental Promotion Committee considered this and granted the higher scale based on the Government's policy. However, audit authorities objected to this decision, leading to the withdrawal of the higher pay scale granted to the appellant.

Issue 2: Withdrawal of higher pay scale due to examination failure
The higher pay scale granted to the appellant was withdrawn by an order dated 14.2.2008, without providing the appellant with an opportunity to be heard. The appellant challenged this order through a Special Civil Application, which was allowed by the High Court, quashing the withdrawal order and directing a fresh decision after providing an opportunity of hearing to the appellant.

Issue 3: Interpretation of Government Resolution
The Government Resolution dated 16.8.1994 provided that upon completion of nine years of service, an employee is entitled to a higher grade scale if certain conditions are met, including passing the departmental examination. The policy aimed to prevent stagnancy in service but required employees to meet specific criteria for promotion, including passing examinations.

Issue 4: Consideration of subsequent circulars
Subsequent circulars modified the eligibility criteria for higher pay scales, emphasizing the timely organization of departmental examinations. The High Court upheld the withdrawal of the higher pay scale based on the 1994 circular, without considering the later circulars. The Supreme Court found that the High Court's decision was not in line with the subsequent circulars and allowed the appeal, holding the appellant entitled to the higher pay scale on completion of nine years of service.

In conclusion, the Supreme Court set aside the High Court's decision and held that the appellant was entitled to the higher pay scale based on the Government Resolution and subsequent circulars emphasizing the importance of timely departmental examinations for eligibility criteria.