Gujarat High Court
Chhayaben Rajendra Desai vs State Of Gujarat on 8 February, 2021
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/2315/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2315 of 2021
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CHHAYABEN RAJENDRA DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 08/02/2021
ORAL ORDER
1. In this petition under Article 226 of the Constitution of India, the petitioner has made following substantive prayers: "9(A) Your Lordships may be pleased to admit and allow this petition;
(b) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, directing the respondents to give the Notional Promotion to the post of Registrar, District Court w.e.f. 01/09/2017 and to grant monetary benefits for post of Registrar of District Court with revised retiral pensionary benefits in the pay scale of Rs.78800209200 and disburse the difference of amount arising from such revision of pay scale accordingly;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authority to consider the case for revision of pay scale as per 7th Pay Commission report in the pay scale of Rs.78800209200 for the post of Registrar, District Court."
Page 1 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER2. The brief facts as could be gathered from the memo of petition and connected material are that the petitioner was appointed on the establishment of District Court, Valsad as Junior Clerk on 09.08.1983. The petitioner, therefore, cleared her departmental examination and came to be promoted as Senior Clerk on 30.09.2002 and as Deputy Registrar on 12.12.2011. The petitioner was, therefore, given charge of Registrar, District Court, Valsad by officer order - 30/2012 dated 29.02.2012 on retirement of Registrar, District Court, Valsad. However, due to inaction on the part of District Administration, the process of filling up the post of Registrar, District Court, Valsad was not initiated, and therefore, though the petitioner was senior most and fully qualified for promotion as Registrar of District Court, she retired on the post of Deputy Registrar on 31.12.2012. Such inaction initiating the process of promotion to the post of Registrar has deprived the petitioner from her legitimate expectation of promotion to the Registrar and has cause huge monitory loss. Hence, the present petition for notional promotion and consequential monitory benefits.
3. I have heard Mr. V.K. Joshi, learned advocate for the petitioner and Mr. Krutik Parekh, learned AGP for respondent No.1.
Page 2 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER4. Mr. Joshi, learned advocate for the petitioner submits that the post of Registrar fall vacant on 31.08.2017 and till the petitioner retired on superannuation on 31.12.2017 no steps were taken for filling up the post. He submits that the petitioner fulfilled all the criteria/requirement, therefore, till her retirement she discharged duties as InCharge Registrar. He submits that the High Court vide letter dated 13.12.2013 has laid down guidelines for forwarding of proposals for posting of substituted in place of Clerk of the Court, District Court who retires. He would submit that according to the guidelines, the Principle District Judge was required to forward the proposal for posting of a substitute in place of Clerk of the Court concerned, who retires, to this High Court well in advance at least two months before the date of retirement of the Clerk of the Court, District Court, concerned. He submits that the Principle District Judge, Valsad did not fall of these guidelines and to initiate the process of forwarding the proposal for filling up the post of Registrar two months before the retirement of the Registrar. As a result, the petitioner has suffered huge financial loss. Relying upon the order dated 24.06.2019 passed by this Court in Special Civil Application No.6231 of 2018. He submits that Page 3 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER petitioner is entitled to notional promotion with effect from 01.09.2017 and consequent benefits of the post of Registrar of District Court. He, therefore, submits that petition deserves consideration.
5. I have given my thoughtful consideration to the submissions canvassed by Mr. Joshi, learned advocate for the petitioner.
6. Rule15 of the Recruitment Rules prescribed eligibility for appointment on the establishment of the Courts of any post as under: "15.Eligibility - A person shall not be eligible for appointment on the establishment of the Courts on any posts unless he possesses the qualifications and fulfill the requirements of such posts as are indicated in ScheduleB to these Rules."
7. ScheduleB(Rule15)prescribes eligibility criteria for Gazetted Officers ClassI on the establishment of District Court as under: Gazetted Officer, ClassI Sr. Original Present Mode of Name of Minimum Experien No. Designation Designati Recruit Feeder qualifica ce if on ment Cadre tion required 1 i) Clerk of i) By Registr Preferabl Shall the Court, Registrar Promoti ar, y Law have 05 District , on, of Senior Graduate years Court District a Civil experien
ii) Court person, Court ce in Additional ii) on the If not the Clerk of Additiona basis availab cadre of the Court, l of le, Deputy Page 4 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER District Registrar proved then registra Court , merits, from r,
iii) Clerk District efficie I) (Class of the Court ncy and Secreta I) or Court, iii) past ry to Sahll Additional Registrar perform the have District , ance. Princip combined Court Additiona Merits al 08 years l shall Distric experien District be t ce as Court. evaluat Judge/P Deputy (ClassI) ed by rotocol Registra Oral/Pe Officer r rsonal /Regist (Class Intervi rar, I) and ew. Civil i) Court/B Secretar ench y to the Clerk Principa GradeI l District Judge/Pr otocol Officer District Court/ Registra r, Civil Court/Be nch Clerk GradeI (Class II)
8. The appointment to any post to be made by promotion is governed by "the NonJudicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2017" ("Recruitment Rules" for short). Rule27 of the Recruitment Rules provides as under: "27. Promotion(i) Where an appointment to any post is to be made by promotion, no employee shall be entitled to such promotion on the ground of seniority alone.
Page 5 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDERNo such appointment shall be made unless in addition to seniority, the employee to be appointed is found to be fit for such promotion.
(ii) No one shall be promoted to higher post unless he passes the requisite departmental examination as well as qualifying examination for Computer knowledge.
(iii) Promotion to any post in any class or category on the establishment of the Courts, shall be made by the Head of the Department in view of the Provisions of Rules 523 and 524 of the Civil Manual, 1960 as well as, as per the provisions made in ScheduleB to these Rules. However, prior approval of the High Court shall be required to be obtained for Class I posts.
However, where the Appointing Authority is satisfied that a person having the experience specified, is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience of a lesser period, it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than twothirds of the period specified."
9. It is thus eminently clear from the aforesaid eligibility criteria that to be promoted to the post of Registrar, District Court, the candidate should have experience as specified in Schedule B(2) Rule15. In addition to the experience, it is prescribed in the Schedule that preference would be given to a law graduate.
Page 6 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER10. Rule27 of the Recruitment Rules further prescribes that an employee is not entitled to a promotion solely on the ground of promotion unless he is found to be fit for such promotion.
11. From the averments made in the petition itself it becomes clear though the petitioner seems to be the senior most in the cadre of Deputy Registrars and was duly qualified for promotion to the post of Registrar, District Court but her case alongwith other employees was not scrutinized by the departmental promotion committee not only that the petitioner has not disclose her educational qualifications in the petition that in the other words whether the petitioner has not disclosed whether she is law graduate or not. In the backdrop of the facts of this case and the provisions of the Recruitment Rules when the petitioner though eligible for promotion cannot claim promotion as a right. The decision of this Court in the case of Mayank Bhagwandas Shethwala v. High Court of Gujarat & others dated 24.06.2019 cannot be of any help to the petitioner as the facts are diametrically different. In the said case, the name of the petitioner was repeatedly recommended for promotion as Registrar of District Court, however on one ground or the other, he could get the actual promotion whereas admittedly in the Page 7 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021 C/SCA/2315/2021 ORDER present case, the present case of the petitioner was never considered by the departmental promotion committee alongwith other candidates who assess the suitability or otherwise for promotion as Registrar and was never recommended tot he High Court for promotion before the petitioner attained the age of superannuation.
12. So far as the letter dated 13.12.2013 of this Court regarding forwarding of eligible employees for the post of Registrar, District Court two months in advance before the retirement of the Registrar is concerned, it is only administrative of District Court does not suffer on account of vacancy of the post of Registrar, District Court. Nonadherence to the administrative instructions would not create any wastage right in favour of the petitioner who has already retired to get a notional promotion for the purpose of retiral benefits.
13. In view of the above, I am of the considered opinion that the petition does not require consideration and deserves to be dismissed at threshold and is accordingly dismissed.
(A.G.URAIZEE, J) Manoj Page 8 of 8 Downloaded on : Thu Sep 02 04:05:15 IST 2021