SCA/27922/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27922 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 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 ? ====================================== ARJUNBHAI MAGABHAI THAKOR Versus GOVERNMENT OF GUJARAT & others ====================================== Appearance : MR BS BRAHMBHATT for Petitioner Ms. Asmita Patel, AGP for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 28/01/2008 ORAL JUDGMENT SCA/27922/2007 2/5 JUDGMENT 1 This petition under Article 226 of the Constitution of India seeks a writ of mandamus directing the respondents to give permission to the petitioner for appearing in Pre-service Training/Departmental Examination for clerk cadre. 2 On 7.6.1995, the petitioner was appointed on the post of peon by the respondents on compassionate grounds. He later on passed SSC examination in the year 2002 and became eligible to appear in Pre- service Training/Departmental Examination [for short, 'the examination] for clerk cadre. According to the petitioner, he applied in August 2002 seeking permission to appear in the examination. By letter dated 7.3.2003, he was not given permission. However, the petitioner continued to approach the respondents by way of representations. According to the petitioner, if he is permitted to appear in the examination and is successful in the said examination, at least he is entitled to receive a higher pay-scale as per the Government Resolution of 1994. Thus, the learned counsel for the petitioner submits that denial to the petitioner to appear the examination is illegal and unreasonable since the same precludes the petitioner to get further benefits. 3 The learned counsel for the petitioner has, on the basis of the information received from the office of the Collector, submitted that, so far as direct recruitment to Class III post of clerk is concerned, due to SCA/27922/2007 3/5 JUDGMENT circular dated 29.8.2001 imposing a ban on recruitment on the post of class III by way of economic measure by the Government, such posts remain vacant and, on the other hand, even though qualified candidates are available from the feeder cadre of class IV, no recruitment is made since ratio of promotee is maintained and, therefore, at least the case of class IV employees is to be considered on ad-hoc basis and, as and when candidate, by way of direct recruitment, is available, such employees shall be reverted to their original post. In view of the above, learned counsel for the petitioner submits that a suitable direction may be given to the respondents to consider the case of the petitioner on ad-hoc basis. 4 Ms. Asmita Patel, learned Assistant Government Pleader, has relied upon the affidavit in reply and submitted that the action of the respondents to refuse permission to the petitioner for the examination cannot be said to be arbitrary or unreasonable in as much as, as per the procedure, the Additional Commissioner, S.P. Institute of Public Administration, a body which conducts the departmental examination, instructed the Head of all the Departments and the Collectors to submit a list, in a prescribed format, of eligible persons for appearing in the examination. In column 9 of the above format, it is clearly mentioned that the Head of the Department has to certify that clear vacancy in the ratio of 8:2 for direct recruit and promotee is available in the office and SCA/27922/2007 4/5 JUDGMENT the candidate belongs to class IV post and is qualified for being appointed in Class III post. According to the learned AGP, the details about vacancy in the office of the Collector are also available. There are 163 employees in the office of the collectorate and, as per ratio of 8:2, only 32 employees can be promoted, whereas, 38 persons have already been promoted, which is in excess of the requisite ratio and, therefore, there is no vacancy, for which the case of the petitioner can be considered even for appearing in the examination. Learned AGP has relied upon the government resolution dated 15.7.1998 issued by the General Administration Department, by which an amendment is made in the earlier notification dated 1.3.1994 to change the ratio of direct recruit and promotee from 9:1 to 8:2. In view of the above, according to the learned AGP, no rights are accrued in favour of the petitioner and the petition deserves to be rejected. 5 Having heard the learned counsel for the parties and on perusal of the record and the provisions relating to pre-service training examination and the procedure prescribed for recommending the name of the qualified and eligible candidate from Class IV by the Head of Department by observing the ratio of 8:2 prescribed in the government resolutions for direct recruit and promotee and considering the total number of employees in the present set up of the respondents being 163 out of SCA/27922/2007 5/5 JUDGMENT which 34 are already working on the post in question, which is in excess of more than six persons, no right has accrued in favour of the petitioner for considering his case to give permission for appearing in the examination. Therefore, no direction, as prayed for, in exercise of power under Article 226 of the Constitution of India, can be issued in the present petition. 6 The petition fails and is rejected. Notice is discharged. (ANANT S. DAVE, J.) (swamy)