Gujarat High Court
State Of Gujarat & vs Jc Parmar & on 9 April, 2015
Author: Jayant Patel
Bench: Jayant Patel, G.B.Shah
C/LPA/1752/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1752 of 2005
In SPECIAL CIVIL APPLICATION NO. 9046 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
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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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STATE OF GUJARAT & 1....Appellant(s)
Versus
JC PARMAR & 1....Respondent(s)
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Appearance:
MR DHAWAN JAYSWAL, AGP for the Appellant(s) No. 1 - 2
MR LR PUJARI, ADVOCATE for the Respondent(s) No. 2
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
MR VAIBHAV A VYAS, ADVOCATE for the Respondent(s) No. 1
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C/LPA/1752/2005 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the order dated 16.9.2004 passed by the learned Single Judge in Special Civil Application No.9046 of 1997, whereby the learned single Judge, for the reasons recorded in the order, has allowed the petition and has directed to accept the candidature of the petitioner for the post of Assistant Engineer and to consider his case for appointment as recommended by GPSC.
2. The short facts of the case appear to be that the petitioner is belonging to Scheduled Caste and he was working as clerk on compassionate basis with the Government. On 30.4.1996, advertisement was published, inviting applications for the post of Assistant Engineer (Civil) reserved for SC/ST. On 13.12.1996, letters were sent for interview and 'no objection' from the existing employer was to be submitted. On 3.2.1997, the petitioner Page 2 of 9 C/LPA/1752/2005 JUDGMENT remained present before the Commission and interviews were conducted and on 17.3.1997, the result was published, wherein the name of the petitioner was at Sr. No.7 in the select list. On 25.3.1997, GPSC allotted the name of the petitioner to the post and the same was communicated to the petitioner by GPSC. In June 1997, the petitioner came to know that the persons selected along with him were appointed by the Government, but the appointment letter was not issued to the petitioner. Therefore, the petitioner represented the Government. However, no action was taken. Thereafter, vide letter dated 1.8.1997, GPSC communicated to the petitioner that the candidature of the petitioner is rejected. Under these circumstances, the petition was preferred before the learned Single Judge. The learned Single Judge found that the case was required to be considered and also was considered for relaxation in age under Rule (5-A) (1) and, therefore, ultimately allowed the petition. Under these circumstances, the present appeal before this Court.
3. We have heard Mr.Jayswal, learned AGP for the Page 3 of 9 C/LPA/1752/2005 JUDGMENT appellant State, Mr.Vyas, learned Counsel for the original petitioner - respondent No.1 and Mr.Joshi, learned Counsel for respondent No.2 - GPSC.
4. The only contention raised by the learned AGP, during the course of the hearing, was that by Sub-Rule (2) of Rule (5-A), it has been provided that the employee concerned, in whose case relaxation is to be granted, should be working in the posts, which are in the same line i.e. a feeder cadre from which the promotional posts may be available. In his submission, since the same line post or the post of feeder cadre was of Overseer/Supervisor, whereas the petitioner was working as a clerk and, therefore, the learned Single Judge has not properly considered the said aspect and this Court may consider in the present appeal.
5. Whereas Mr.Vyas, learned Counsel for the original petitioner submitted that the case was falling under Sub-Rule (1) of Rule (5-A) and not under Sub-Rule (2) of Rule (5-A). He submitted that, therefore, the learned Single Judge has taken the correct view and it may not be interfered with by Page 4 of 9 C/LPA/1752/2005 JUDGMENT this Court in the appeal.
6. Whereas Mr.Joshi, learned Counsel for the GPSC has supported the order passed by the State Government rejecting the candidature of the original petitioner.
7. We may, for the ready reference, record Rule (5- A) (1), (2) and (3) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 as under:-
"(5A) (1) Government servants may be allowed on a uniform basis, relaxation of a maximum period of 5 years or to the extent of equal number of Years for which service has been put in by him, whichever is less, in the upper age limit for recruitment to ClassI or ClassII posts or service, which is to be filled in by direct selection through the Commission for which experience has not been prescribed as one of the qualifications for such post.
(2) The age relaxation shall be admissible to such Government servants who are working in posts which are in the same line and where a relationship could be established that the service already rendered in a particular post shall be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised. The decision of the Commission in this regard shall be final.
Provided that a post in the same line means such next lower post from which an employee can be promoted to the post so advertised. (3) The relaxation admissible in upper age limit under subrule (1) above, shall be in addition to the relaxation in upper age limit admissible to Page 5 of 9 C/LPA/1752/2005 JUDGMENT the candidates belonging to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes".
8. The aforesaid shows that as per Rule (5-A) (1), if the Government Servant has a particular number of years' service with the Government, subject to the maximum limit of five years, such additional period may be available for relaxation, but the Government has to decide on uniform basis for such purpose with the discretion available to the Government. Rule (5-A) (2) provides for age relaxation in a case where the Government Servant is already working in the posts, which are on the same line. Rule (5-A) (3) provides that the relaxation under Sub-Rule (1) is in addition to the relaxation of upper age limit available to the candidates of reserved category belonging to SC, ST or SEBC. Hence, the power of grant of age relaxation under Rule (5-A) (1) and Rule (5-A) (2) can be said as taking care of different situations and not the same. Under Rule (5-A) (1), the language used is "Government Servant may be allowed on a uniform basis, relaxation", whereas under Rule (5-A) (2), the language used is "the age relaxation shall be admissible to Page 6 of 9 C/LPA/1752/2005 JUDGMENT such Government Servants". Hence, it can be said that Rule (5-A) (2) is for a separate category of the Government Servant in a general power of relaxation conferred under Rule (5-A) (1) and the reason is that the period of upper age limit of five years is common in respect of all the relaxation, may be under Sub-Rule (1) or may be of a category of the Government Servant falling under Sub-Rule (2). But the only distinction is that under Sub-Rule (2) relaxation is made available to the Government Servant by use of word "shall", whereas for the rest of the category of the Government Servant, the language would be applicable as that of "may". Hence, it is not correct to state that in case of every relaxation under Rule (5-A), persons should be meeting with the requirement under Sub-Rule (2) also, but it can be said that in general power under Sub-Rule (1) so far as the category of Government Servants working in the posts, which are in the same line is concerned, additional special rights are read, which may not be available to the Government Servants not working in the same line and falling in the category Page 7 of 9 C/LPA/1752/2005 JUDGMENT under Sub-Rule (1) of Rule (5-A).
9. If the facts of the present case are examined in light of the above referred observation, the case of the petitioner was not falling in the category of Sub-Rule (2) but can be said as falling in the category of Sub-Rule (1) of Rule (5-A). GPSC did forward the name of the petitioner, since otherwise on merits the petitioner was at Sr. No.7. However, the Government, instead of considering the power and discretion available for relaxation under Sub-Rule (1) of Rule (5-A), did not exercise the power and ultimately the impugned decision was taken by GPSC in view of the stand of the Government.
10. We are of the view that when the powers were available under Sub-Rule (1) and was also at one point of time recommended by GPSC, which is an expert body, the Government could have exercised the discretion. No material is brought to our notice, dis-entitling the relaxation available to the petitioner. It may also be recorded that as per Sub-Rule (3), relaxation under Sub-Rule (1) is in addition to the normal relaxation of upper age limit to the candidates belonging to SC, ST Page 8 of 9 C/LPA/1752/2005 JUDGMENT and SEBC.
11. If the aforesaid aspect is considered, it cannot be said that the learned Single Judge has committed any error, which may call for interference in the appellate power.
12. Hence, the appeal is meritless. Therefore, dismissed. No order as to costs.
(JAYANT PATEL, J.) (G.B.SHAH, J.) vinod Page 9 of 9