SCA/5332/1996 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5332 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 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 ? ========================================= = BS SANGADA & 10 - Petitioners Versus STATE OF GUJARAT & 1 - Respondents ========================================= = Appearance : NOTICE SERVED for Petitioners: 1 - 4,6 - 7,10 - 11.NOTICE UNSERVED for Petitioners: 5,MR DP VORA for Petitioner: 8,UNSERVED-EXPIRED for Petitioner: 9, MR HEMANT MAKWANA AGP for Respondent : 1, RULE SERVED for Respondent : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/02/2008 ORAL JUDGMENT 1. This matter initially appears to have been filed by 11 SCA/5332/1996 2/11 JUDGMENT petitioners. Advocate Ms. Sejal K. Mandavia appeared at the relevant time for petitioners and she filed a note for early date of hearing and she forwarded xerox copy of memo of petition for reconstruction of the papers in this matter and sought appropriate orders. This matter was notified before the Court (Coram: K.R. Vyas, J.)(as he then was) on 17.8.1998. The office note dated 17.8.2005 indicates that the aforesaid matter was lastly notified before the Court (Coram: K.R. Vyas, J.) on 17.8.1998 and thereafter, no entry had been made in the register in respect of the missing papers and on going through the record, it was found that the same was not traceable. Thereafter, Ms. Mandavia filed a note on 11.12.2006 with the registry for deleting her name as an advocate for the petitioners as she had returned the papers. In the note, she has indicated that Shri D.P.Vora, learned advocate would appear for the petitioners. 2. Thereafter, this matter was listed before this Court (Coram : S.R.Brahmbhatt, J.) on 27.11.2007 and it was adjourned to 20.12.2007 taking a note that Shri Vora, learned counsel is appearing only for petitioner No. 8 and therefore, for rest of the petitioners, as Ms. Mandavia was not appearing, notice was required to be issued and accordingly, office appears to have issued notice. The board shows that petitioner Nos. 1 to 4, 6, 7, 10 and 11 were served and notice for petitioner No. 5 was unserved and notice issued to petitioner No. 9 was returned as unserved as expired. Looking to the fact that matter is of 1996 and despite several attempts, petitioners have not appeared, this Court is of the view that the entire petition SCA/5332/1996 3/11 JUDGMENT be disposed of after hearing Shri Vora for the petitioner No. 8 and Shri Makwana, learned AGP for the respondent State and liberty be reserved to petitioner No. 5 for moving this Court in case of he has something to be added to the submissions made by Shri Vora. The petition qua petitioner No. 9 abates. 3. The petitioner has approached this Court under Article 226 of the Constitution of India interalia praying that the Court may declare that Deputy Chitnis (Departmental Examination) Rules 1994 were not applicable to them and petitioners were not liable to pass the examination for Deputy Chitnis in the office of the Development Commissioner and the Chitnis in the office of the Gujarat Panchayat Service Selection Board and sought exemption from passing the Class-III examination of Deputy Chitnis as prescribed under the said Rules dated 1st June, 1994 and seek further relief or declaration that the petitioners were entitled to take the examination for the post of Taluka Development Officer (Class-II) in Gujarat Panchayat Services to be held on 24th July, 1996 during the pendency of this petition. The record indicates that no interim relief appears to have been granted to the petitioners. 4. The facts in brief deserve to be set out as under. 5. The petitioners came to be appointed as Clerk, Clerk- cum-Typist and Typist and thereafter, they came to be promoted to the post of Deputy Chitnis in the office of the Deputy Commissioner. The details of the petitioners' SCA/5332/1996 4/11 JUDGMENT service is mentioned in para-3 of the petition. It appears from the averments made in para-3 that all the petitioners came to be promoted by identical orders. The appointment order dated 19.1.1980 and 29.9.1980 of petitioner No. 8 as indicated by Shri Vora, the petitioner was promoted to the post of Deputy Chitnis on the terms and conditions mentioned therein. The petitioners were working as Deputy Chitnis pursuant to the aforesaid order. In the meantime, the State promulgated the Rules in question i.e. The Deputy Chitnis (Departmental Examination) Rules, 1994 (hereinafter referred to as 'the Rules' for short). As per this Rules, the petitioners were also required to take the examination prescribed thereunder for retaining their promotions. Being aggrieved by the said, the petitioners preferred this petition under Article 226 of the Constitution of India seeking declaration that they were not governed by this rules and they be exempted from taking examination prescribed under the Rules and also sought declaration that they be declared eligible for further promotional post i.e for the post of Taluka Development Officer (Class-II) in Gujarat Development Services. 6. Shri Vora, learned counsel appearing for petitioner No. 8 submitted that the Rule are not applicable to the present petitioners because this Rules have came into force for the first time in the year 1994, as it is stated in the said Rules that they would come in force from the date of its publication in the official Gazette. He also submitted that though Rules have come into force from 1.6.1994, seniority list of Deputy Chitnis was circulated wherein the SCA/5332/1996 5/11 JUDGMENT petitioner's name was shown at Sr.No. 16, which was made final and therefore, on that count also it can be said that petitioner No. 8 ought not to have been reverted. He submitted that though the petitioners were officiating as Deputy Chitnis on 13.4.2003, the petitioners were reverted as Jr. Clerks bypassing their promotions which was affected by way of regular promotion to the post of Sr. Cl. He submitted that the rules are silent so far as the Deputy Chitnis, who have been working as such since last 10 to 12 years are concerned. Shri Vora placed reliance in case of RAJALEKSHMI vs. STATE OF KERALA, reported in 1992(2) SLR p.725 and submits that once the person is permitted to continue on the post for more than 10 years even though not eligible and qualified, his reversion is arbitrary. He also submits that as the names of the petitioners figured in the seniority list, it can well be said that the mentioning of ad-hoc promotion was of no avail as name of ad-hod appointees cannot figure in the list. He also submits that as the petitioners name figured in the seniority list, it could not even be removed without following the procedure as per law. In last, he submits that the petition deserves to be allowed with costs. 7. Shri Makwana, learned AGP for the respondents submit that the petitioners have never been promoted on regular basis as Chitnis at all. The promotion order of petitioner No. 8 unequivocally go to show that this promotion was purely on adhoc basis and subject to passing of the examination which is prescribed. He also relied upon the Government Resolution dated 7.8.1979, wherein, it is categorically prescribed that such promotions are to be SCA/5332/1996 6/11 JUDGMENT governed by condition of passing the departmental examination. Non promulgation of the Rules where the petitioners were promoted cannot be said to be a ground for exempting the petitioners from requirement of passing the examination prescribed under Rules. In fact, the simple reading of the Rules in question go to show that they were required to be promulgated only for regulating the service conditions of the similarly situated employees and therefore, the petition deserves to be dismissed as having no merits. Shri Makwana, learned AGP has also placed reliance on the decision of UNION OF INDIA AND ANOTHER vs. GAJINDER SINGH ETC., reported in 1972 SC p.1329. 8. This Court has heard learned counsel for the parties and perused the records and proceedings. The promotion order of petitioner No. 8 to the post of Chitnis mainly contained a condition that the petitioner was under an obligation to pass the examination and it was prescribed thereunder that promotion was purely temporary and adhoc and he was liable to be reverted at any time. On the strength of this order, the petitioner without passing the examination prescribed under the recruitment rules promulgated lateron seeks exemption from taking the examination for getting promotion, which was adhoc and temporary right from inception. The examination rules produced by the petitioner unequivocally go to show that they were required to be promulgated for regularizing the requirement which includes promotion to the post of Deputy Chitnis and Chitnis. The regulations were published on 1st June, 1994 and in those regulations, it is SCA/5332/1996 7/11 JUDGMENT unequivocally mentioned that the persons like present petitioners who have not passed the concerned examination were not to be confirmed on those posts. The relevant regulations governing the facts and circumstances of the present petition deserve to be set out as under. “The Deputy Chitnis (Departmental Examination) Rules, 1994. Rule 2(b): “Appointed Date” means the date of coming into force of these rules. Rule 4:Passing of the examination by person who is appointed as Clerk, Clerk-cum-Typist or Typist in the office of the Development Commissioner or in the office of the Gujarat Panchayat Service Selection Board subject to the provisions of Rule 5 - (1) xxx xxx xxx (2) Every person who has already completed three years continuous service as specified in sub-rule (1), before coming into force of these rules, shall be required to pass the examination within a period of three years (four years in case of a candidate belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Classes) from the appointed ate within three successive trials (four successive trials in case of candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Classes) strictly according to the seniority in accordance with the provisions of rule-11; Provided that where a person does not seek permission SCA/5332/1996 8/11 JUDGMENT under sub-rule(1) or (2) to appear in the examination, the period specified in this rule, shall be computed from the earliest date of granting such permission to any of the person junior to him; Provided further that a person shall not be entitled to appear at the examination, unless he has passed the Departmental Examination prescribed for Clerk, Clerk- cum-Typist and Typist or has been exempted from passing such examination. Provided also that if the specified period as provided in this rule expires before the date of commencement of the examination, in which a candidate had last chance, in the case of such, candidates, the specified period shall be deemed to have been extended upto the date of the declaration of he result of the examination so held. Rule 6 : Consequences for failure to pass the examination :- (1) If a direct recruit fails to pass the examination within specified chances, his services shall be terminated; Provided that in the case of any such person, the State Government is satisfied that he could not pass the examination under Rule 3 at which he had his last chance, for the reasons beyond his control or that he failed to pass such examination by a very narrow margin of marks, the State Government may, after recording reasons in writing give him not more than two additional chances to appear at the next examination. (2) Every person appointed as Clerk, Clerk-cum-Typist and Typist who does not pass the examination within the specified period in specified chances, shall lose his SCA/5332/1996 9/11 JUDGMENT seniority as provided in rule 7. He shall not be eligible for promotion to the post of Deputy Chitnis and for confirmation thereto until he passes the examination as provided in rule 7. Rule 8 : Provisional Promotion :- In an event of non availability of a person qualified for promotion to the post of Deputy Chitnis, an unqualified person whose chance for passing the examination are not exhausted under Rule 4, may be promoted to officiate on the post of Deputy Chitnis, subject to the condition that he shall be reverted immediately on availability of a qualified person for promotion or on his failure to pass the examination within specified period and chances specified in rule 4, which ever is earlier. Explanation :-”a qualified person” means a person appointed as Clerk. Clerk-cum-Typist and Typist who has passed the Departmental Examination, or who has been exempted from passing of the Departmental Examination and the expression “an unqualified person” shall be construed accordingly. 9. This, simple reading of the afore cited rules clearly indicate that the petitioners were not entitled to seek any permission without appearing in Pre-service Training Examination. The reliance placed by Shri Vora in case of Rajalekshimi(supra) would be of no avail to the petitioners in as much as the facts in the present case unequivocally go to show that the petitioners promotion orders itself indicate that they were promoted on a temporary basis and factum of reversion was very much SCA/5332/1996 10/11 JUDGMENT mentioned thereunder. The recruitment rules clearly indicate that the petitioners in order to eligible for regular promotion to the post of Deputy Chitnis were required to undertake the examination. No one is exempted except those who are mentioned in the rules. The petitioners have not been therefore, eligible for seeking exemption and in view of this, the petition being bereft of any merits and deserves to be dismissed. 10.This Court is unable to accept the submission of Shri Vora that the petitioners name figured in the seniority list and seniority list would contain the name of only regular appointed persons, the petitioners ought to have been treated as regularly appointed or at least before reverting the petitioners, they ought to have been heard. This submission cannot be accepted in view of the facts that reversion of the petitioners was pursuant to their appointment order as well as the conditions laid down in the statutory regulations in question. When the statutory regulations unequivocally prescribed the condition, fulfillment thereof is absolutely essential and merely inclusion of the in the seniority list would not confer any substantive right upon the petitioners for being continued on the post. Such an irregular appointee even otherwise has no right to be heard on account of impeding reservation as it is laid down by the Apex Court in case of Union of India and Another Vs. Gajinder Singh etc. 11.This Court is also not inclined to accept the submission of Shri Vora that as the order indicate that petitioner was SCA/5332/1996 11/11 JUDGMENT came to be promoted to the post of Senior Clerk and therefore, he was required to be promoted as Deputy Chitnis. The resolution pressed into service by Shri Makwana clearly indicates that the recruitment to the post of Deputy Chitnis, even that post of Senior Clerk was not dispensed with for the examination and therefore, the petitioners submission cannot be accepted at this stage as his first order of promotion indicated that he was at the relevant time working as Junior Clerk only and few months thereafter, he is shown to have been Senior Clerk. Be that as it may. This Court is not inclined to interfere that at this stage. Suffice it to say that so far his right to retain promotion on the post of Senior Clerk is concerned, he is at liberty to approach the respondents with appropriate representation which may be disposed of in accordance with law. 12.In view of aforesaid discussion, this Court is of the considered view that the petitioners have no right to claim any exemption as the petition is bereft of any merits and same deserves to be dismissed and is accordingly dismissed. Rule discharged. No costs. Liberty is reserved to petitioner No. 5 to move this Court as stated hereinabove. (S.R.BRAHMBHATT, J.) pallav