SCA/9112/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9112 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= N.K.RAVAL STAMP VENDOR - Petitioner(s) Versus UNION OF INDIA THRO' THE SECRETARY & 2 - Respondent(s) ========================================================= Appearance : MR GIRISH PATEL for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1 - 3. MR YN RAVANI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 30/01/2008 SCA/9112/2007 2/9 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India, challenging the judgment and order dated 17.10.2006 of the Central Administrative Tribunal, Ahmedabad Bench in Original Application No.159 of 2006. 2. The facts leading to filing of this petition, briefly stated, are as under:- 2.1 The petitioner is a Stamp Vendor working in the Postal Department of the Central Government. The petitioner joined the service in the year 1981 and has been working as Stamp Vendor since then. For promotion to the higher post of Postal Assistant/Sorting Assistant, the employees working in the department are required to pass the departmental examination. It appears that earlier the maximum number of attempts for passing the said examination was five. However, in view of the amendment made in the year 1999, the number of attempts was raised to six. 2.2 The dispute in this litigation is about the examination which was held in the year 1999. There is no dispute about the fact the petitioner had appeared in the departmental examination for promotion in the years 1989, 1990, 1997, 1998 and 2001 and had SCA/9112/2007 3/9 JUDGMENT failed. 2.3 The 1999 examination was scheduled to be held on 27.6.1999 and that would have been the fifth attempt of the petitioner. The petitioner had applied for permission to appear in the said examination to be held on 27.6.1999 and was also granted the permission. However, the petitioner proceeded on medical leave on 22.6.1999 after obtaining prior permission of the concerned authority. The petitioner remained on medical leave till 28.6.1999 and resumed duty on 29.6.1999 along with the fitness certificate. It is the petitioner's case that on 30.6.1999 the petitioner submitted application for withdrawal of her candidature from the examination which was held on 27.6.1999. 2.4 It appears that, when the examination was to be conducted on 23.4.2006, the petitioner applied for permission to appear at the said examination. Since that request was rejected by the respondents by letter dated 23.2.2006 on the ground that the petitioner had already exhausted six attempts, the petitioner moved the Central Administrative Tribunal, Ahmedabad contending that she had appeared in the examination only five times i.e. 1989, 1990, 1997, 1998 and 2001, and that therefore the petitioner had still one more chance to appear in the examination. 2.5 The Tribunal rejected the petitioner's application by the SCA/9112/2007 4/9 JUDGMENT impugned judgment and order dated 17.10.2006 mainly on the ground that the petitioner had not produced a copy of the application for withdrawal alleged to have been submitted by the petitioner to the department on 30.6.1999. 3. Mr.Girish Patel, learned counsel for the petitioner has assailed the judgment of the Tribunal mainly on the ground that the Tribunal erred in not believing the petitioner's case that the application for withdrawal of her candidature submitted by the petitioner on 30.6.1999, merely because the copy of the application was not produced before the Tribunal. It is submitted that, when the examination was held on 27.6.1999, at that time the employees were permitted to avail of only five attempts to pass the examination and therefore no employee would make the mistake of not submitting an application for withdrawal of candidature upon resuming duty after availing of the medical leave. It is also submitted that the Tribunal has erred in adopting the hyper technical approach and in not properly construing the Rules particularly para 6 of the Rules relating to departmental examination. 4. On the other hand, Mr.Y.N. Ravani, learned Standing Counsel for the Union of India and Postal Department has supported the judgment of the Tribunal. It is also submitted that all the SCA/9112/2007 5/9 JUDGMENT promotional posts are filled in after 23.4.2006. 5. Before considering the rival submissions, we may set out the relevant para 6 of the Rules relating to the departmental examination which reads as under: “Withdrawal of candidature :- (a) Permission to a candidate to withdraw his candidature from an examination may be granted by the same authority who had granted him the permission to appear at that examination, or by such other authority as may have been specially authorised in this behalf. The decision of such authority will be final. (b) Withdrawal of candidature should not ordinarily be allowed unless the circumstances of the case fully justify the concession. After the assignment of roll numbers, a candidate should be allowed to withdraw his candidature only if he could not avail of the chance owing to circumstances beyond his control, and if the Head of the Circle (or any other competent authority,as the case may be) is fully satisfied about the genuineness of the case. (c) No candidate should be allowed to withdraw his candidature after the examination except under very rare circumstances. Even when a candidate has been on medical leave during the days of the examination, the request for withdrawal must be submitted within 10 days from the date of his return to duty. No such request submitted later should ordinarily be entertained.” (emphasis supplied) 6. A perusal of the rules clearly indicates that a candidate is permitted to withdraw his candidature not only before the examination but even after the examination. Such withdrawal of candidature is to be permitted under rare circumstances but the rules themselves provide that even when a candidate has been on SCA/9112/2007 6/9 JUDGMENT medical leave during the days of the examination, the request for withdrawal must be submitted within 10 days from the date of his return to duty and that no such request submitted later should ordinarily be entertained. 7. In view of the above rules and in view of the fact that the 1999 examination held on 27.6.1999 would have been the fifth attempt of the petitioner and that the amendment raising the number of maximum attempts from five to six was made sometime in August 1999, it would be reasonable to proceed on the basis that the petitioner know the serious consequences of not withdrawing her candidature after resumption of duty on 29.6.1999 after availing medical leave from 22.6.1999 and therefore applied for withdrawal of her candidature. It is true that the petitioner did not produce a copy of such application before the Tribunal, but considering the fact that the application is stated to have been given in June 1999, and the dispute between the petitioner and the department arose in the year 2006, nobody would have expected the petitioner to keep a copy of such application for withdrawal submitted in June 1999. In any case, it is stated by the learned counsel for the petitioner that under the interim order of the Tribunal, the petitioner was permitted to appear at the departmental examination held on 23.4.2006 and the petitioner is declared to have passed the said examination, subject to the result of the litigation. The petitioner would, therefore, be eligible for SCA/9112/2007 7/9 JUDGMENT promotion to the higher post on the basis of the result of the said (April 2006) examination, if it is considered as the sixth attempt and the 2001 examination is considered as the fifth attempt. We also record the statement being made by Mr.Girish Patel, learned counsel for the petitioner that, if the petitioner is promoted to the higher post on the basis of the result of the examination held on 23.4.2006, the petitioner will not claim promotion in the higher cadre with effect from any date prior to 23.4.2006. 8. In these peculiar facts and circumstances of the case and also considering the fact that the genuineness of the medical leave granted to the petitioner at the relevant time in June 1999 itself, has never been doubted, we are inclined to hold that the benefit of doubt should have been given to the petitioner for holding that the petitioner did submit application for withdrawal of her candidature from the examination held on 27.6.1999, on 30.6.1999 more particularly when all that is being granted by this order is to allow the petitioner to be considered for promotion on her passing the requisite departmental examination for her first promotion after 25 years of service. 9. We may also deal with one argument of the department which had appealed to the Tribunal and that is in her application dated 4.3.2000 the petitioner had stated that she had availed of five chances including the 1999 examination. In para 10 of the SCA/9112/2007 8/9 JUDGMENT judgment, the Tribunal has observed as under: “The respondents have made available a copy of the application of the applicant submitted on 4.3.2000. The applicant has stated therein that she has availed off 5 chances including the 1999 examination.” In the first place, it appears that the said application was not produced by the department along with their written reply to the original application but was made available at the hearing of the original application. There is no indication in the judgment that the petitioner was given any opportunity of dealing with the said application dated 4.3.2000. In any case, once the amendment was made in August 1999 raising the maximum number of attempts from five to six, while submitting her application on 4.3.2000, it did not matter whether the 1999 examination was treated as the fifth attempt or a non-attempt. Hence, much cannot be made out of the contents of the said application dated 4.3.2000. 10. In view of the above discussion, the petition is allowed. The impugned judgment and order dated 17.10.2006 of the Tribunal is set aside and Original Application No.159 of 2006 before the Central Administrative Tribunal, Ahmedabad Bench stands allowed. It is declared that the examination held on 26.4.2006 at which the petitioner was permitted to appear under the interim order of Tribunal was the sixth attempt of the petitioner and the respondents shall proceed on that basis for the purpose of SCA/9112/2007 9/9 JUDGMENT considering the petitioner's case for promotion to the cadre of Postal Assistants/Sorting Assistants. This shall be done within one month from the date of receipt of the writ of this Court. In case there is no vacancy in the cadre of Postal Assistants/Sorting Assistants, the respondents shall consider the petitioner's case for promotion when the immediate next vacancy arises and her case shall be considered for promotion with retrospective effect from the date on which promotions were granted to the above cadre after 26.4.2006. 11. Rule is made absolute with no order as to costs. Direct service is permitted. ( M.S. SHAH, J. ) ( RAVI R. TRIPATHI, J. ) syed/