LPA/110020/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1100 of 2008 In SPECIAL CIVIL APPLICATION No. 11814 of 2008 With CIVIL APPLICATION No. 11511 of 2008 In LETTERS PATENT APPEAL No. 1100 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE K.M.THAKER ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= IMAMKHAN YASINKHAN PATHAN - Appellant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ================================================= Appearance : MR BL TRIVEDI for Appellant(s) : 1, Ms.ASMITA PATEL for Respondents. ================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE K.M.THAKER Date : 26/09/2008 LPA/110020/2008 2/8 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) The present Letters Patent Appeal is filed by the original petitioner being aggrieved by an order passed by the learned Single Judge dated 23rd September 2008. From perusal of the order, it appears that the learned advocate for the appellant-original petitioner insisted for ex parte order in the matter on the ground that if ex parte order is not passed, the matter will become infructuous on 28th September 2008. In response to the said urgency, the Court inquired as to whether the learned advocate is ready to serve the notice on the other side by direct service so that appropriate orders can be passed in a shorter date. The learned advocate for the appellant-original petitioner expressed his unwillingness to serve the notice of the petition on the other side by direct service and therefore, the Court declined to pass any mandatory order against the respondents without service of notice on the other side. The learned Judge also recorded that passing of an order ex parte would amount to allowing of petition without hearing the other side. 2. The facts of the case are that the appellant- original petitioner is serving in Police Department. He was recruited as a Police Constable in the year 1974. Thereafter, he was promoted as Head Constable in the year 1996 and thereafter, he came to be promoted to the post of Assistant Sub Inspector (ASI) in the year 2005. LPA/110020/2008 3/8 JUDGMENT There is a reference made in para 2 of the Special Civil Application, wherein facts are set out that, “ .. .. In the previous order dated 7.4.2006, the same type of examination for Police Sub Inspector, Mode-III was held by the government of Gujarat on 11.6.2006 which was permissible for the petitioner to appear in the examination held on 11.9.2007 and after that even the examination held by the Gaun Seva Samiti, Gujarat State, he was allowed to appear in the examination on 13.1.2007, all the reliable orders are enclosed herewith, which is annexed hereto and marked as ANNEXURE : C to this petition.” On perusal of Annexure 'C' to the petition, it is noticed that the appellant-original petitioner is petitioner no.6 in Special Civil Application No.10075 of 2006. In that Special Civil Application, Civil Application No.6677 of 2006 was filed, which was heard by this Court (Coram: M.R. Shah, J.) and along with other Civil Applications, the said Civil Application was disposed of by order dated 9th June 2006. Taking into consideration the fact that there is already a pending petition, when inquired form the learned advocate for the appellant as to why a separate Special Civil Application is filed for a similar relief as is sought for in Civil Application No.6677 of 2006, the learned advocate for the appellant requested that he be permitted to convert the Special Civil Application into a Civil Application and the submissions made by his counterpart at the time of hearing of Civil Application No.6677 of LPA/110020/2008 4/8 JUDGMENT 2006 be permitted to be adopted by him. In the interest of justice it is deemed fit that the request made by the learned advocate be granted and the same is accordingly granted. Office is directed to register the Special Civil Application as a Civil Application in pending Special Civil Application No.10075 of 2006. 3. Taking into consideration the paucity of time as the examination is scheduled on 28th September 2008, if the appellant is now asked to move the office and get the matter placed before the concerned court, the same will stand infructuous, in the interest of justice the following order is passed. 4. The learned advocate for the appellant has adopted the arguments made by the learned advocate appearing for the applicant in Civil Application No.6677 of 2006 filed in Special Civil Application No.10075 of 2006, which are as under : “ .. .. It is also further submitted by Mr.Upadhyay, learned advocate appearing on behalf of the respective applicants that it will not be proper for the applicants to pray interim relief restraining the respondents from holding examination on 11/6/2006. However, the interest of the applicants can be protected if the applicants are permitted to appear in the said examination without prejudice to the rights and contentions of either parties and subject to the ultimate outcome of the main Special Civil Applications and/or all fuhrer orders and their results can be kept in a LPA/110020/2008 5/8 JUDGMENT sealed cover and they will not claim any equity subsequently on the ground that they are permitted to appear in the examination and that they will also not file any application and/or pray in future till the main Special Civil Applications are heard, that the sealed cover be opened. Mr.Upadhyaya, learned advocate appearing on behalf of the respective applicants has relied upon the interim order passed by the learned Single Judge of this Court (Coram : A.L. Dave, J.) in Special Civil Application No.14349 of 2003 and other allied matters dtd.11/3/2004. He has further submitted that the aforesaid order dtd.11/3/2004 is passed after considering the order passed by the Division Bench of this Court in Letters Patent Appeal No.866 of 1998 in Special Civil Application No.3509 of 1998. The learned Judge has passed the order, the relevant part of which is para 8, which reads as under : “Under the aforesaid circumstances and to avoid any further complication and/or multiplicity of proceedings and with a view to see that the main Special Civil Applications preferred by the respective applicants – original petitioners may not become infructuous, if the applicants are permitted to appear in the examination which is scheduled to be held on 11/6/2006 without prejudice to the rights and contentions of both the sides and without creating equity in favour of the applicants – original petitioners and their results are kept in a sealed cover and on conditions which are suggested by the learned advocate appearing on behalf of the respective applicants, the ends of LPA/110020/2008 6/8 JUDGMENT justice would be met. Therefore, by way of interim order, during the pendency and final disposal of the aforesaid Special Civil Applications preferred by the respective applicants – original petitioners, the opponents – original respondents are directed to allow the respective applicants herein – original petitioners to appear in the ensuing departmental examination which is to beheld on 11/6/2006 without prejudice to the rights and contentions of both the sides and subject to the ultimate outcome of the aforesaid main Special Civil Applications. As agreed by the learned advocate appearing on behalf of the respective applicants, the applicants – original petitioners will not claim any equity in their favour by allowing them to appear in the ensuing departmental examination. The respondents are further directed that the result of the applicants – original petitioners will be kept in a separate sealed cover so that the same may be considered at the time of hearing of the aforesaid main Special Civil Applications preferred by the applicants herein. It is also agreed by the learned advocate appearing on behalf of the applicants – original petitioners that till the main Special Civil Applications are finally heard, they will not pray/submit before the Court for opening of the sealed cover and to consider their case accordingly. It is also made clear that this interim order is passed subject to the ultimate outcome of the aforesaid main Special Civil Applications preferred by the applicants herein – original petitioners, the hearing of which is kept on 23/6/2006.” (emphasis supplied) 5. This Court passes a similar order so far as the ensuing examination to be held on 28th September 2008 is concerned. At LPA/110020/2008 7/8 JUDGMENT this juncture, the learned Assistant Government Pleader Ms.Patel submitted that passing of this order may be taken as basis by other candidates also and they may ask for a similar permission. The apprehension expressed by the learned AGP is not well founded in light of the fact that no other applicant is before this Court though in Special Civil Application No.10075 of 2006 there are 16 petitioners, none of them have come forward to file such petition. Similarly, in Special Civil Application No.10071 of 2006 there are 6 petitioners. Whereas there is single petitioner in Special Civil Applications No.8391 of 2006 and 8392 of 2006. Nobody is before this Court and nobody has come to this Court. 6. At this juncture, learned Assistant Government Pleader, Ms.Asmita Patel informs this Court that some other petitioners have filed petitions before the learned Single Judge being Special Civil Application No.11983 of 2008, wherein the learned Single Judge after having admitted the petition declined to grant interim relief. The learned Single Judge then referred the matter to a Division Bench and the matter is for consideration before the 1st Court today. The learned Assistant Government Pleader further informs that the Division Bench has permitted the petitioners of that petition to appear in the examination scheduled on 28th September 2008. The appeal is accordingly disposed of. Notice is discharged. No order as to cost. LPA/110020/2008 8/8 JUDGMENT 7. As the appeal is disposed of no orders on Civil Application No.11511 of 2008. The Civil Application is disposed of. (RAVI R. TRIPATHI, J.) (K.M. THAKER, J.) karim