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TMI Blog2016 (3) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... tion otherwise the grant of higher grade scale is to be withdrawn.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, adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of Pay Rules, 1998 made effective from 1.1.1996. 3. The appellant had completed nine years of service on 30.6.2006 and was granted the first higher grade scale of ₹ 4000-6000 by the Competent Authority i.e. Commissioner of Tribunal Development, Gujarat State w.e.f. 1.7.2006 by order dated 22.6.2007, according to the policy of the Government of Higher Grade Scale introduced vide Government Resolution dated 16.8.1994. 4 The appellant was meeting with all the requirements to get the higher grade scale as provided under the said scheme except passing of the departmental examination, which the appellant had not been able to clear because such examination was not conducted at all by the department and this fact was taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14.2.2008 and liberty was granted to the respondent Authority to pass appropriate order in accordance with law and on merits after giving an opportunity of hearing to the appellant. 7. The Commissioner of Tribal Development, Gujarat State issued a show cause notice to the appellant on 17.7.2009 calling upon the appellant to show cause as to why the order dated 14.2.2008 withdrawing the higher grade scale granted to him should not be confirmed as the appellant failed to pass the examination held in December, 2008. Pursuant to the said notice the appellant gave an oral as well as written representation on 27.7.2009 explaining in detail that during the period of eligibility to get the higher grade scale, no examination was conducted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f not conferred will have to be kept in abeyance until he passed the examination at the second and/or third attempt. If out of three attempts, the employee has failed to clear the examination, he would not be entitled to the benefit of higher pay scale but if he passed examination, may be at second or third attempt, the benefit may be conferred effecting from the date on which he was entitled i.e. date of the earlier period upon completion of nine years of service. This appears to be with a view to maintain the requisite merit for grant of benefit to the government servant upon completion of nine years service. 10. Appellant then moved an appeal against the order of the learned Single Judge being LPA No.2392 of 2009. The Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no higher posts are available. But at the same time when such benefits were conferred, two conditions were provided. One was that, as and when the promotion is offered to him, he will have to accept the same and the second was that he will have to pass the requisite departmental examination. Failure to comply with either of the two conditions would result in withdrawal of the benefits and also the refund of the amount of higher pay scale which was already granted, if any, prior thereto. It was not by way of compromising the merit that the benefit was to be given, just because the requisite length of service was completed but also dependent upon the merit and acceptance of the promotion. 12. From perusal of the Government Resolution d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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