Gujarat High Court
S V Mir vs Principal Judge & 2 on 6 March, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/1322/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1322 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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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 or any
order made thereunder ?
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S V MIR....Petitioner(s)
Versus
PRINCIPAL JUDGE & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
MS RITU R. GURU, AGP for the Respondent(s) No. 3
MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 1 2
RULE SERVED for the Respondent(s) No. 1 2
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 06/03/2017
ORAL JUDGMENT
1. By way of present petition, petitioner has challenged the order dated 28.1.2010 passed by respondent no.1 and further prayed to direct the respondent to reinstate the Page 1 of 5 HC-NIC Page 1 of 5 Created On Mon Aug 14 04:57:51 IST 2017 C/SCA/1322/2010 JUDGMENT petitioner.
2. Petitioner was originally working as Daily Wager and was appointed as Peon on adhoc basis on 4.3.2002. Subsequently, he was promoted as Assistant (Junior Clerk) on provisional and temporary basis on 9.4.2004. At the relevant time, it came to the notice of the respondents that the petitioner was over age at the time of initial appointment and resultantly his services were terminated.
3. Mr.Vaibhav A. Vyas, leaned counsel for the petitioner has submitted that the petitioner was belonging to SEBC category and since he was entitled to age relaxation of 5 years at the time of his initial appointment, the appointment was a valid. Further he has referred to the minutes of the meeting wherein the impugned order has been passed. In this minutes it has been recorded that petitioner was having lien over the post for Page 2 of 5 HC-NIC Page 2 of 5 Created On Mon Aug 14 04:57:51 IST 2017 C/SCA/1322/2010 JUDGMENT which he was initially appointed. Leaned counsel for the petitioner has referred to the appointment of another person namely; Mr.R.M. Rot who was appointed long back with the petitioner at the relevant time. However, he has been continued in service and even promoted to the post of Assistant (Junior Clerk).
4. On the other hand, Mr.Hemang Shah, learned advocate appearing for respondent Nos.1 and 2 has vehemently opposed this petition and submitted that this petition needs to be dismissed.
5. This Court has considered the submissions of both the sides. There is no dispute that the petitioner belongs to the category of SEBC and certificate in this regard has been placed on record. However, merely possessing of certificate of SEBC does not entitle a person to claim benefit of age relaxation Page 3 of 5 HC-NIC Page 3 of 5 Created On Mon Aug 14 04:57:51 IST 2017 C/SCA/1322/2010 JUDGMENT unless the post for which he has applied was to be filled up from the candidates belonging to SEBC category.
6. Perusal of the documents available on record shows that at the time of initial appointment of peon, there was no public advertisement. The entry of the petitioner seems to be back door entry.
7. In case of State of Karnataka v. Umadevi reported in 2006(4) SCC 1 appointments by way of back door entry has been deprecated and set aside. There is nothing to show that the petitioner has been selected on the post meant for SEBC category and the benefit of age relaxation claimed by the petitioner can be granted to him. Learned counsel for the petitioner has referred the minutes of the proceedings wherein it is shown that petitioner will have lien on the post of peon for which he was originally appointed. Even Page 4 of 5 HC-NIC Page 4 of 5 Created On Mon Aug 14 04:57:51 IST 2017 C/SCA/1322/2010 JUDGMENT this recording by the Committee seems to be incorrect as entry of the petitioner as peon was on a temporary post and not on a permanent post. Once a person is selected on temporary post, he cannot claim lien on that post nor such benefit can be granted to him. Otherwise also, as discussed the entry of the petitioner was a back door entry and also being overage.
8. Under the above circumstances, the impugned order is valid and legal. Hence, this petition requires to be dismissed and accordingly the same stands dismissed. Rule is discharged.
(MOHINDER PAL, J.) * Vatsal Page 5 of 5 HC-NIC Page 5 of 5 Created On Mon Aug 14 04:57:51 IST 2017