Gujarat High Court
Kaid Maganbhai Alias Maheshwarkumar vs State Of Gujarat & 4 on 4 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4034/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4034 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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KAID MAGANBHAI ALIAS MAHESHWARKUMAR
RAYMALBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR SUREN M SHAH, ADVOCATE for the Petitioner(s) No. 1
MR. KRUTIK PARIKH, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 2 , 5
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/07/2016
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C/SCA/4034/2001 JUDGMENT
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the petitioner, desirous of seeking appointment on the post of the Junior Clerk or Meter Reader with the Erstwhile Gujarat Electricity Board, has prayed for the following reliefs;
"(a) That this Honourable Court will be pleased to issue an appropriate writ, order or direction in the nature of mandamus and / or any other appropriate writ, direction or order that the appointment of junior clerk and/or meter reader should be made firstly from the seniority list only on the priority basis.
(b) Be pleased to pass further order or direction to consider the seniority list at the time of making any appointment of junior clerk or meter reader and petitioner's seniority be consider furthwith.
(c ) Be pleased to pass such other and further reliefs as the facts and circumstances of the present case may requires."
2. It is the case of the petitioner that he belongs to the Scheduled Caste. It is his case that he has been issued a Provisional National Apprenticeship Certificate dated 26.6.1990 by the Deputy Director (Training), Regional Apprenticeship Advisor. The certificate would indicate that the petitioner had completed the course of apprenticeship Training under the Apprentice Act, 1961 at the G.E.B (O&M), Deesa from 26.2.1988 to 25.2.1989. It is his case that the Board appointed him as an apprentice and he worked for some time. It is also his case that, thereafter, a test was taken by the Board which he cleared, and on clearing the said test, the Board should have offered him the appointment on the post of the Junior Clerk. Since the Board did not offer him the appointment on Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Jul 06 01:39:50 IST 2016 C/SCA/4034/2001 JUDGMENT the post of the Junior Clerk or the Meter Reader, he had to come up before this Court by this writ application.
3. An affidavit-in-reply has been filed on behalf of the respondents, inter alia, stating as under;
"2. I state that the petition involves various disputed questions of facts and the same cannot be decided in the present petition under the Article 226 of the Constitution of India. The petitioner's no fundamental right much less any other right is violated and therefore, also the present petition may not be entertained. In view of the provisions of Apprentice ship Act, 1961, it is not obligatory on the part of the respondent to offer any employment to the petitioner. Condition No.11 of the Apprenticeship Contract at page 17 r/d with Section-22 of the Apprenticeship Act, it is crystal clear that the petitioner has no right of appointment. In view of Provisions under Section-20, there is a special remedy provided under the Act and in that view of the matter, the petition may not be entertained since the petitioner has alternate efficacious remedy.
3. With reference to the contention of the petitioner that, despite he appeared in examination he is deliberately and arbitrarily failed in the said examination is misconceived in the fact and law both. The petitioner having undergone the examination cannot now challenge the result of the examination on the ground that he is arbitrarily or deliberately filed. Once the petitioner is over-aged he is treated at par with or other candidates who have become overage and is offered a chance for appearing into the examination for the post of Meter Reader. The petitioner having availed the chance now cannot challenge the same on the ground that the first, seniority list of waiting candidates is to be completed. It is further respectfully submitted that relevant Circular regard to the age prescription is annexed herewith at Annexure-I to this reply for ready perusal. Other legal contentions will be dealt with by the Advocate of the Board at the time of hearing of the petition."
4. There is one further affidavit-in-reply, duly affirmed by Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Jul 06 01:39:50 IST 2016 C/SCA/4034/2001 JUDGMENT the Superintending Engineer of the U.G.V.C.L, inter alia, stating as under;
"2. I respectfully state and submit that the petitioner has not stated in his memo of Special Civil Application that in the year 1994 he has appeared for written test as well as interview for the post of Meter Reader which was arranged for candidates who were trained apprentice (Junior Clerk Trade) on 18.3.1994. He was also subject to oral interview which was arranged on 30th March, 1994. Since the petitioner could not perform well, he was not found suitable to place in the list of selected candidates. It is in this context, the statements and avrerments in paragraph-3 may kindly be considered.
3. It is further submitted that once when the petitioner was not found suitable for appointment as Meter Reader, even otherwise, there was no question of giving him an opportunity in the year 2001 because at that time he was not getting over-age and thereafter, on crossing age limit, he was deleted from the list of candidates who have cleared apprenticeship training, on account of becoming over-age. Annexed hereto and marked as Annexure-I is a copy of the panel report. It is further respectfully submitted that the name of candidate found on the final list of SCBC category is one Shri P.C. Chauhan, who obtained 54.79 marks whereas petitioner has obtained 51.62 marks. In the above sets of circumstances, the petitioner's case was rightly not considered at the relevant point of time."
5. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to any of the reliefs prayed for in this writ application.
6. The entire claim of the petitioner, for the purpose of seeking appointment on the post of the Junior Clerk or the Meter Reader, is on the basis of the fact that he worked with the Board as an apprentice. It appears that by merely working Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Jul 06 01:39:50 IST 2016 C/SCA/4034/2001 JUDGMENT with the Board as an apprentice would not confer any legal right for being appointed on a substantive post of the Junior Clerk or the Meter Reader. It appears that by the time he could be offered the appointment, he had crossed the requisite age. With a view to give him one more opportunity and also to the other identically situated, the Board conducted an exam, and in the said exam, the petitioner failed. This is exactly what has been explained in the affidavit-in-reply affirmed on 30.8.2012. The necessary documents, accompanying the affidavit dated 30.8.2012 also makes the picture further clear.
7. Mr. Shah, the learned counsel appearing for the petitioner submits that at no point of time, his client was informed that he had failed in the exam.
8. Mr. Shah raised one additional point which has not been raised in this writ application. According to him, having worked as an apprentice with the Board for a period of more than 240 days, then the provisions of the Industrial Disputes Act would come into play and before relieving the petitioner from the service as an apprentice, those provisions ought to have been complied with. It is too late in the day for the petitioner to make this submission. With the failure on the part of the petitioner in clearing the exam which was specially conducted by the Board, everything came to an end. I repeat that merely serving as an apprentice even for a particular period of time could not be said to have conferred any indefeasible right in favour of the petitioner for being appointed on the post in question.
9. In view of the above, this writ application fails and is hereby rejected. Rule is discharged.
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