Gujarat High Court
Bhuralal K Baraiya vs State Of Gujarat on 5 September, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2644 of 1997
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BHURALAL K BARAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MB KYADA for Petitioner
SERVED for Respondent No. 1
MR DH WAGHELA for Respondent No. 2
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CORAM : MISS JUSTICE R.M.DOSHIT
Date of Order: 08/07/97
ORAL ORDER
Petitioner was appointed as an Overseer by the respondent-Municipality some time in the year 1969. In the year 1989, the Administrator promoted the petitioner as a Junior Engineer. The petitioner's promotion as a Junior Engineer was sent for approval of the Director of Municipalities. However, in view of the educational qualifications required for the post of Junior Engineer, the petitioner's promotion was not approved by the Director. In view of the said objection, the petitioner was reverted from the post of Junior Engineer to that of Overseer under order dated 6th March, 1997 (Annexure-C to the petition).
2.Feeling aggrieved, the petitioner has preferred this petition. Learned advocate Mr. Kyada has appeared for the petitioner and has submitted that the petitioner could not have been reverted to the lower post of Overseer after having served as a Junior Engineer for nearly 8 years. He has further contended that the petitioner ought to have been given an opportunity to acquire the necessary qualification and even otherwise, the impugned order having been made without affording an opportunity of hearing to the petitioner, the same requires to be quashed and set aside.
3.In response to the notice issued by this court, learned advocate Mr. Vaghela has appeared for the respondent no.2-Municipality. He has relied upon the order of the Director of Municipalities made in the month of August, 1986 sanctioning a post of Junior Engineer under the Municipality. According to the said sanction, the qualification required of a candidate to be appointed as a Junior Engineer is either a Degree in Civil Engineering or a Diploma in Civil Engineering with three years experience as Overseer. Mr. Vaghela has contended that the petitioner does not possess either a Degree or a Diploma in Civil Engineering. It is not disputed that the petitioner did posses the requisite experience as an Overseer. Mr. Vaghela has submitted that in view of the above referred sanction and the order of promotion, the petitioner's promotion was subject to the approval by the Director of Municipalities and in view of the refusal of such approval, the Municipality had passed a resolution on 26th February, 1997. Pursuant to the said resolution dated 26th February, 1997, the impugned order has been made on 6th March, 1997.
4.It is undisputed that the petitioner does not possess either a Degree or a Diploma in Civil Engineering. Even under the order dated 5th August, 1989 (order of promotion), the Administrator has noted that procedure to fill in the post of Junior Engineer should take a long time, and in the meanwhile, it would not be justified to ask the petitioner who was, then an Overseer', to discharge duties as a Junior Engineer. The petitioner was, therefore, temporarily promoted as Junior Engineer and the said promotion was subject to the approval by the Director of Municipalities. Hence, in my view, the petitioner's promotion as a Junior Engineer, inspite of lack of eligibility, was irregular and again subject to the approval to be granted by the Director of Municipalities. It is not disputed that the Director of Municipalities has not approved the promotion of the petitioner. In view of the term of his promotion, the petitioner was bound to be reverted to his substantive post of Overseer. Thus, the petitioner's reversion to his substantive post of Overseer is nothing but implementation of the condition of his appointment/promotion as a Junior Engineer. For implementing the condition of appointment/promotion, neither the petitioner was required to show cause nor was he required to be afforded an opportunity of hearing. The petitioner being not qualified to hold the higher post of Junior Engineer, his promotion as such can not be protected. Petition is, therefore, summarily rejected. Notice is discharged.
(MISS R.M.DOSHIT J) JOSHI