SCA/649719/1992 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6497 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= GAYATRI KELVANI MANDAL - Petitioner(s) Versus GUJARAT SECONDARY EDUCATION TRIBUNAL - Respondent(s) ========================================================= Appearance : MR BHARAT T RAO for Petitioner(s) : 1, None for Petitioner No(s).: for Petitioner(s) : 2, NOTICE SERVED for Respondent(s) : 1, MR BIPIN P JASANI for Respondent(s) : 2, MR JK SHAH AGP for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/12/2008 ORAL JUDGMENT 1. The petitioner by way of this petition has prayed to quash and set aside the judgment and order dated 11th July, 1991 passed by the Tribunal in SCA/649719/1992 2/4 JUDGMENT Application No. 885 of 1990, whereby the said application was allowed. 2. The short facts of the case are :- 2.1. Respondent no. 2 was appointed as Peon with effect from 7th April, 1983. At the time of his appointment, respondent no. 2 was possessing the qualification of S.S.C. with Maths and has put in more than seven years of service on the said post. Thereafter, the Government vide Resolution dated 22nd December, 1983 announced a policy wherein it has been stipulated that the peons who are working for more than three yeas in the school are required to be promoted to the post of Junior Clerk. It is the case of respondent no. 2 that though he was fulfilling the criteria prescribed in the said policy, the petitioner has denied him to be appointed on the post of Junior Clerk, on the ground that as and when it will decide to fill up the post of Junior Clerk, the case of respondent no. 2 will be considered. 2.2. Being aggrieved by it, respondent no. 2 preferred an application being Application No. 885 of 1990 before the Gujarat Secondary Education Tribunal. The Tribunal after hearing the parties and after considering the evidence on record, allowed the said application and directed the petitioner to promote respondent no. 2 to SCA/649719/1992 3/4 JUDGMENT the post of Junior Clerk with effect from 1st August, 1991 and shall pay the salary with effect from 1st August, 1991. Hence, this petition. 3. Mr. Rao, learned counsel for the petitioner has contended that the petitioner has suppressed the material facts before the management so as to get appointment on the post of Peon in the school. He has further contended that the Tribunal cannot compel the management to fill up the post of junior clerk. Hence, the order passed by the Tribunal is misconceived and requires to be quashed and set aside. 3.1. As against that Mr. Jasani, learned counsel for respondent no. 2 has submitted that the contention raised by the petitioner qua suppression of material facts is misconceived, inasmuch as no departmental inquiry nor any proceedings were initiated against respondent no. 2 and the issue before the Tribunal was qua promotion under Section 38 of the Act. Thus, the order passed by the Tribunal is just and proper and no interference is called for by this Court. 4. Heard learned counsel for the parties. It is evident from the record that the department has admitted before the Tribunal that as per department rules, SCA/649719/1992 4/4 JUDGMENT respondent no. 2 is required to be promoted to the post of junior clerk and it is for the school management to promote the applicant on the said post. Thus, in my opinion when the department rules allow the promotion in clerical staff, respondent no. 2 has right to be promoted to the higher post. However, the Tribunal has also observed that if the rules are not complied with there will be shortage of staff in the clerical cadre and the work of the management will suffer and further when there is increase in the student strength and the post for promotion is available, the same is required to be granted. 5. In the premises aforesaid, the impugned judgment and order passed by the Tribunal is just and proper and no interference is required by this Court. Hence, the petition is dismissed. Rule is discharged. Interim relief if any, stands vacated. No order as to costs. It is directed that the petitioner shall forward the pay-bill of respondent no. 2, after granting him promotion, to the concerned department, within a period of three months from today. [K.S. JHAVERI, J.] /phalguni/