Gujarat High Court
R vs State on 6 April, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/26020/2009 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 260 of 2009
=========================================================
R
N PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AY KOGJE for
Petitioner(s) : 1,
MR KARTIK PANDYA AGP for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/04/2009
ORAL
ORDER
By way of this petition under Article 226 of the Constitution of India, the petitioner original plaintiff prayed for appropriate writ, order and/or directions quashing and setting aside the impugned decision of the respondent dtd.23/7/2008 (Annexure-K) rejecting application of the petitioner for promotion to the post of Technical Assistant. The petitioner has also further prayed for an appropriate writ, order and/or direction directing the respondent to give promotion / appointment to the petitioner on the post and cadre of Technical Assistant w.e.f. 15/3/1984 and considering the petitioner to have worked as Technical Assistant from the deemed date and to grant all consequential benefits including the difference in the salary of a Technical Assistant and Work Assistant.
It is the case on behalf of the petitioner that he was appointed as Work Charged Survey Mistry under the Superintending Engineer, Water Resource Investigation, Circle No.1, Ahmedabad on 6/6/1980 and the pay scale of the petitioner at the relevant time was Rs.260-400. Thereafter on 21/1/1981, the petitioner was given an appointment as Temporary Survey Mistry. That as per the petitioner in the administration set up of the department, till 1979, there was no post of Survey Mistry and only in the year 1979, the said post was created. However, at that time, the post of Technical Assistant was existence in the set up and in the pay scale of Rs.290-480. The educational qualification for the Technical Assistant and the Survey Mistry was one and the same i.e. S.S.C. pass.
By resolution dtd.21/9/1989 of Water Resource Department, a technical cadre of Work Assistant was created combining the posts of Clerk, Survey Mistry, Canal Inspector. Initially the post of Survey Mistry was not included as the educational qualification of Clerk, Mistry and Canal Inspector was fixed as S.S.C.E. Pass whereas the qualification for Survey Mistry was fixed as stated hereinabove. The pay scale of work assistant was Rs.290-4780. It is the case on behalf of the petitioner that one Mr.P.R. Patel and C.R. Patel who joined as Work Charged Survey Mistry on 5/6/1980 and 10/9/1979 respectively, were appointed out of turn and given appointment as Technical Assistant. In doing so, the respondents even considered their services as Work Charged Survey Mistry and therefore, though both of them were much junior to the petitioner, still both of them were given appointment as Technical Assistant w.e.f. 15/3/1984. It is the case on behalf of the petitioner that when the same came to the knowledge of one Mr.P.C. Parmar, he in his individual capacity made representation to the State Government and the Circle Office. That the State Government thereafter was pleased to pass Office Order No.481 under the instructions of the State Government giving promotion to Mr.C.R. Patel and Mr.P.R. Patel and also to Mr.P.C. Parmar and others who had also appointed as Survey Mistry along with the petitioner and were also permitted as Work Assistant and all of them were given post of Technical Assistant. The said order was dtd.19/12/1995. It is the case on behalf of the petitioner that in the set up in the year 1984, 17 posts of Technical Assistant were vacant and available and therefore, at that time only the petitioner ought to have been given the appointment to the post of Technical Assistant. That therefore, the petitioner submitted representation dtd.22/3/1996. It is the case on behalf of the petitioner that though the petitioner was not replied to his representation, however, orally he was always communicated that the office is trying to rectify the mistake that it has committed. That again the petitioner made a representation on 19/8/2002 and reminder on 8/9/2003. The representation of the petitioner came to be rejected. That the petitioner preferred appeal No.219 of 2005 before the Gujarat Civil Services Tribunal, Gandhinagar and the tribunal partly allowed the said appeal vide order dtd.25/7/2007. It is the case on behalf of the petitioner that pursuant to the order passed by the tribunal, and the directions issued by the tribunal, the petitioner made representation on 14/8/2007 and his representation was forwarded to the appropriate authority with a recommendation to give appointment / promotion to the petitioner to the post of Technical Assistant. That vide communication dtd.23/7/2008, the petitioner has been informed that as the petitioner has accepted promotion to the post of Work Assistant in the year 1991, his claim for appointment to the post of Technical Assistant cannot be accepted and accordingly, the same came to be rejected and hence the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India.
Mr.Kogje, learned advocate appearing on behalf of the petitioner has vehemently submitted that Mr.C.R. Patel and Mr.P.R. Patel who were junior to the petitioner were given promotion / appointment to the post of Technical Assistant in the year 1984, the petitioner ought to have been promoted and/or given appointment as Technical Assistant. It is further submitted by Mr.Kogje, learned advocate appearing on behalf of the petitioner that in fact the petitioner was having requisite qualification for the post of Technical Assistant and therefore, the petitioner ought to have been appointed / promoted to the post of Technical Assistant. It is further submitted that there was no mistake in the year 1995 in appointing / promoting the said Mr.C.R. Patel and Mr.P.R.Patel, Technical Assistants as sought to be contended by the respective respondent. It is submitted that with a malafide intention, the petitioner has been singled out and in fact, there was no mistake at all in appointing / permitting Mr.C.R. Patel and Mr.P.R. Patel. It is further submitted that even inspite of the liberty reserved by the learned Single Judge in its order dtd.12/12/2001 in Special Civil Application No. 2722 of 2001, in the case of Mr.P.R. Patel, no further action has been taken to rectify the mistake in appointing/permitting the said Mr.P.R. Patel as Technical Assistant and therefore, the petitioner ought to have been permitted / appointed as Technical Assistant w.e.f. 15/3/1984 considering the appointment / promotion of said Mr.C.R. Patel, who are juniors to the petitioner.
Mr.Kogje, learned advocate appearing on behalf of the petitioner has heavily relied upon the averments made in para 3 of the Additional Affidavit dtd.5/4/2009. It is submitted that in the Circle establishment in all there were 41 posts of Technical Assistants out of which 29 posts were filled in and 17 are vacant, out of 24 vacant posts, 17 posts of the Technical Assistants were filled up by appointing persons as Work Charged Survey Mistry and/or Work Assistant. The said appointments from the post of Survey Mistry to Technical Assistant were made at different point of time. It is submitted that in the year 1980, 12 appointments were made from Survey Mistry to Technical Assistant. In the year 1982, 3 appointments, in the year 1984, 2 appointments and in the year 1995, 4 appointments were made from Survey Mistry to Technical Assistant and therefore, it is submitted that at the relevant time, it was the policy of the State Government to appoint Survey Mistry as Technical Assistant. It is submitted that none of the Technical Assistant appointed from Survey Mistry / Work Assistant have made application pursuant to the public advertisement and without facing interview and other formalities, were given appointment to the post of Technical Assistant. It is submitted that so far as remaining 7 posts of the Technical Assistant also, no public advertisement was issued, no interview was conducted and after following the procedure, appointments were given to the several candidates. Therefore, it was not open for the State not to contend that there cannot be any promotion / appointment from the post of Survey Mistry to the post of Technical Assistant.
Mr.Kogje, learned advocate appearing on behalf of the petitioner has submitted that the petitioner was also qualified and having requisite qualification for appointment as Technical Assistant and therefore, considering the aforesaid policy, the petitioner is required to be appointed/promoted to the post of Technical Assistant.
Mr.Kogje, learned advocate appearing on behalf of the petitioner has further submitted that the order dtd.19/12/1995 (Annexure-B page 19) cannot be said to be mistake. It is submitted that by the aforesaid order, appointments / promotions are made to the post of Technical Assistant from the post of Survey Mistry. Therefore, ti is requested to allow present Special Civil Application.
The petition is opposed by Mr.Kartik Pandya, learned Assistant Government Pleader for the State. He has submitted that as per the relevant rules and the notification dtd.14/8/1967 the post of Technical Assistant is required to be filled in by way of direct recruitment only and as at the relevant time, when Mr.P.R.Patel and Mr.C.R. Patel were promoted/appointed on the post of Technical Assistant from Survey Mistry, the authority tried to rectify its mistake vide order dtd.5/6/2000 and Mr.P.R. Patel was reverted from the post of Technical Assistant to the post of Temporary Survey Mistry. However, this Court set aside the said order solely on the ground that the same was without giving an opportunity to the said Mr.P.R. Patel. It is submitted that from the very beginning and even in the said Special Civil Application it was the case on behalf of the State that by mistake the said Mr.P.R. Patel and Mr.C.R. Patel were promoted to the post of Technical Assistant. It is submitted that all the instances which are pointed out by the petitioner are prior to 1995 and thereafter the State Government has realised the mistake and hence no appointment / promotion to the post of Technical Assistant from the post of Survey Mistry has been made after 1995. It is submitted that merely because the petitioner is qualified to be appointed as Technical Assistant, is no ground to appoint the petitioner as Technical Assistant. It is submitted that as stated above, appointment to the post of Technical Assistant is only by direct recruitment and the petitioner has to compete with other eligible candidates. It is submitted that merely because the petitioner is serving in the department and might be qualified and/or having requisite qualification for the post of Technical Assistant, is no ground to straightway appoint/promote the petitioner to the post of Technical Assistant.
Submitting accordingly it is requested to dismiss the present Special Civil Application.
Heard the learned advocates appearing on behalf of the respective parties.
It is not in dispute that the petitioner was serving as Survey Mistry and he wants promotion / appointment to the post of Technical Assistant. When Mr.Kogje, learned advocate appearing on behalf of the petitioner was confronted with the Government Resolution dtd.14/8/1967 providing that the post of Technical Assistant is required to be filled in only by way of direct recruitment, Mr.Kogje, learned advocate appearing on behalf of the petitioner has fairly conceded that the prayer of the petitioner to promote him on the post of Technical Assistant cannot be granted, however, he has submitted that his case for appointment to the post of Technical Assistant is required to be considered. It is the case on behalf of the petitioner that as he is having requisite qualification of Technical Assistant and working in the Department, his case is required to be considered for appointment as Technical Assistant. It is also the case on behalf of the petitioner that earlier persons who are serving as a Temporary Survey Mistry / Survey Mistry were appointed / promoted to the post of Technical Assistant and therefore, it is the case on behalf of the petitioner that it was the policy of the State Government to consider the employees serving as Survey Mistry for the post of Technical Assistant. It is the case on behalf of the petitioner relying upon the order dtd.19/12/1995 that other juniors to the petitioner came to be appointed / promoted to the post of Technical Assistant and therefore, the petitioner is required to be appointed / promoted as Technical Assistant. It is also the case on behalf of the petitioner that order dtd.19/12/1995 cannot be said to be a mistake but it was as per the policy prevailing at the relevant time. It is also the case o;n behalf of the petitioner that only with malafide intention and only in the case of the petitioner, the respondents have come out with a case that earlier orders / appointments to the post of Technical Assistant were by way of mistake. The aforesaid submissions cannot be accepted. Even in the case of Mr.P.R. Patel who was promoted to the post of Technical Assistant in the year 1995 w.e.f. 1984, having realised the mistake, order came to be passed on 5/6/2000 reverting him from the post of Technical Assistant to the post of Temporary Survey Mistry and he preferred Special Civil Application before this Court and the learned Single Judge of this Court set aside the said order mainly on the ground that the said order is in breach of the principles of natural justice and/or passed belatedly. Thus, right from 2000 it is the case on behalf of the State Government that order of 1995 promoting / appointing to the post of Technical Assistant from the post of Survey Mistry was a mistake.
It is also required to be noted and is not disputed that as per the Government Resolution dtd.14/8/1967 the post of Technical Assistant is required to be filled in only by way of direct recruitment and therefore, any appointment / promotion de-hors the Government Resolution dtd.14/8/1967 is absolutely illegal. In view of the above, assuming that the some persons in the past might have been promoted / appointed as Technical Assistant from the post of Survey Mistry. It does not confer any right in favour of the petitioner to claim promotion / appointment as Technical Assistant de-hors the Government Resolution dtd.14/8/1967. As such, the instances relied upon by the petitioner are of 1995 and prior thereto and after 1995 more particularly in the year 2000, the State Government tried to rectify the mistake by reverting those persons who were wrongly given promotion. Merely because after decision of the learned Single Judge reserving liberty in favour of the State to take appropriate decision after giving an opportunity to the concerned employee and inspite of that no steps have been taken and the said employees might have been continued, is no ground to claim similar treatment by the petitioner. Admittedly, as stated above, the post of Technical Assistant is required to be filled in only by way of direct recruitment.
It is the contention on behalf of the petitioner that as the petitioner is qualified and having requisite qualification for the post of Technical Assistant and he is in the same department, he is required to be appointed as Technical Assistant, the aforesaid submission cannot be accepted. Merely because the petitioner is qualified and/or having requisite qualification for the post of Technical Assistant and he is in the department, he is not required to be appointed as Technical Assistant straightway. He has to compete with others, as the post in question is required to be filled in by way of direct recruitment. As and when applications are invited, the petitioner has to compete with other eligible candidates. Merely because the petitioner is in the department and qualified, is no ground to straightway appoint the petitioner as Technical Assistant, and the same would be contrary to the scheme of public employment. Mr.Kogje, learned advocate appearing on behalf of the petitioner has heavily relied upon the order dtd.19/12/1995 by submitting that the same cannot be said to be a mistake. For the sake of submission assuming that it cannot be said to be a mistake, in that case also the same is absolutely illegal in view of the Government Resolution dtd.18/4/1967 and the relevant recruitment rules. Court cannot perpetuate the illegality by directing the respondent to continue illegality. Under the circumstances, merely on the basis of the order of 1995 which is found to be illegal and de-hors the recruitment rules and the Government Resolution, no relief can be granted to the petitioner which would be contrary to the relevant recruitment rules, the petitioner cannot be appointed on the post of Technical Assistant o;n that post.
In view of the above and for the reasons stated hereinabove, there is no substance in the present petition. It deserves to be dismissed and is accordingly dismissed. Notice is discharged.
[M.R. SHAH, J.] rafik Top