Gujarat High Court
Vijaykumar Ramanlal Panwala vs Collector & on 19 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16863/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16863 of 2011
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VIJAYKUMAR RAMANLAL PANWALA....Petitioner(s)
Versus
COLLECTOR & 1....Respondent(s)
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Appearance:
M/S ANAND ADVOCATES, ADVOCATE for the Petitioner(s) No. 1
MR GUNVANT R THAKAR, ADVOCATE for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/02/2016
ORAL ORDER
1. By this writapplication under Article226 of the Constitution of India, the petitioner serving as a PeoncumDriver with the office of the Collector, Surat has prayed for the following reliefs: "5(A) To quash and set aside the Judgment and order dated 20.07.2010 to the extent that not granting the deemed date and/or promotion from the date of his junior was promoted and not directing respondent authority to correct the seniority.
(AA) the Honourable Court may be pleased to quash and set aside the order dated 16.07.2013 passed by the respondent no.1Collector, Surat, and/or (B) Direct respondent authority to consider case of the petitioner for the post of driver and grant deemed date for the post of driver from the date of Shri H.M. Randera was appointed for the post of driver or any junior to the petitioner was promoted to the post of driver.
(C) Grant such other and further relief(s) as deemed just and proper in the interest of justice."
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2. The facts of this case may be summarized as under: 2.1 The petitioner was appointed as a PeoncumDriver on 01.09.1984. The issue as regards his promotion to the post of Driver was raised. The issue went before the Gujarat Civil Services Tribunal. The Tribunal vide order dated 20.07.2010 recorded a finding that the name of the petitioner figured in the senioritylist at Sr. No.48 as on 01.01.2000 and was senior to one Shri H.M. Randera. While partly allowing the Appeal, the Tribunal directed that the petitioner be promoted on the basis of the seniority as and when the vacancy occurs in the cadre of Driver.
3. On 26th July, 2012, while issuing Rule, the following order was passed.
"Rule expedited.
In view of the Gujarat Civil Services Tribunal's judgment and order dated 20.07.2010 passed in the Appeal No.51 of 2007, the case of the petitioner will be considered as and when the vacancies in the cadre of Driver is available."
4. Pursuant to the order referred to above, it appears that the Collector looked into the matter and passed an order, dated 16th July, 2013, Page38/J of this petition.
5. The said order has also been challenged by the petitioner by way of a draft amendment. The only argument of the learned counsel appearing for the petitioner is that although the petitioner may not be holding the requisite qualifications for being promoted to the post of Driver, yet, similarly situated employees, juniors to the petitioner were promoted in the past.
6. This writapplication has been vehemently opposed by Mr. Antani, Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Feb 21 03:10:18 IST 2016 C/SCA/16863/2011 ORDER the learned AGP appearing for the State. Mr. Antani has invited my attention to the affidavitinreply duly affirmed by the Collector, Surat, dated 03.07.2012 interalia stating as under: "I, A.J. Shah, Collector, Surat, DistrictSurat, do hereby solemnly affirm and state on oath as under:
1. I have perused the copy of the petition filed by the petitioners in the above matter and am conversant with the facts and circumstances leading to filing of the present petition and therefore, I am in a position to depose what is stated hereunder.
2. It is stated that I do not admit any of the allegations, averments and contentions raised in the petition and the same are hereby denied categorically.
3. It is submitted that I am filing the present affidavit in reply only with a view to oppose the admission of the present petition and grant of any interim relief in favour of the petitioners and I may kindly be permitted to file a detailed affidavit as and when necessary. At present, I am not dealing with the petition parawise and my non dealing with the petition parawise may not be construed as admission on my part.
4. I state that by filing this petition, the petitioner has prayed relief to the effect that this Hon'ble Court may be pleased to quash and set aside the judgment and order dated 20.07.2010 to the extent that not granting the deemed date and/or promotion from the date of his junior was promoted and not directing respondent authority to correct the seniority and be pleased to direct respondent authority to consider case of the petitioner for the post of driver and grant deemed date for the post of driver from the date of Shri H.M. Randera was appointed for the post of driver or any junior to the petitioner was promoted to the post of driver.
5. I state that the order passed by Gujarat Civil Services Tribunal is just and proper and not required any interference wherein it was specifically recorded that Mr. H.M. Randera is not given promotion on the post of Peoncumdriver and no order of promotion is passed. It is also mentioned at page no.36 of the order of Ld. Tribunal dated 20.07.2010 that in case of Mr. Randera there is a decision of Gujarat Civil Services Tribunal in Appeal No.229 of 1995 wherein it was held that the post where Mr. Randera is working is a post of driver.
6. I state that Mr. Randera was relieved esparte from service from Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Feb 21 03:10:18 IST 2016 C/SCA/16863/2011 ORDER Tribal Sub Plan, Mandvi on 25.05.1999 and transferred back to his parent department i.e. Collector's Office, Surat and thereafter, by order dated 11.06.1999 Mr. Randera was again appointed as Peoncum driver in the office of Flood Control on temporary basis and he had reported on duty on 21.06.1999. I state that the said order of Tribal Sub Plan, Mandvi was challenged by Mr. Randera by way of filing Special Civil Application No.4768 of 1999 wherein it was stated that he should not have been repatriated to his original department and prayed for the wages of driver. I state that by order dated 03.08.1999, the Hon'ble High Court had set aside the order passed by the Administrator, Mandavi dated 25.05.1999 and directed that Mr. Randera to be taken back as a driver and thereafter, on 23.03.1999 he was again placed on the post of driver in the office of Project Administrator, Mandavi.
7. I state that the petitioner is not entitled to the relief as prayed for as per letter dated 03.04.2012. A copy of letter dated 03.04.2012 is annexed herewith and marked as AnnexureRI to this reply.
8. I state that as per Rule No.2 of Government Notification No.GS/9/ 2009/CRR.1182/2451/G.5, dated 26.02.2009 to be eligible for a person for promotion to the post of Driver, Rule No.2(a)(i): have worked for not less than five years in the cadre of Class IV, in the inferior service in the Secretariat and/or nonSecretariat offices of the Government of Gujarat; No.2(a)(ii): he should have passed the Secondary School Certificate Examination conducted by a Secondary and/ or Higher Secondary Education Board or possess an equivalent qualification recognized as such by the Government and No.2(a)(iii): possess the qualifications and experience as prescribed in clauses (d),
(e), (f), (g) and (h) of rule 3 of direct selection; No.2(a)(iv) have passed the qualify examination for Computer knowledge in accordance with the Gujarat Civil Service Computer Competency Training and Examination Rules, 2006. In the present case from the servicebook of the petitioner it appears that the petitioner is only 8th Standard pass and not cleared C.C.C. Examination of Computer. I state that it is not only the petitioner but all other Peon Cum Drivers have not cleared the C.C. C. Examination as also not passed the S.S.C./H.S.C. Examination and not fulfill other condition as required by the above said Notification. A copy of letter dated 12/1304/2012 stating that other employees names were also not sent for promotion is annexed herewith and marked as AnnexureRII to this reply and copies of Government Resolution dated 26.02.2009 and Circular dated 02.03.2009 of G.A.D. Are annexed herewith and marked as AnnexureRIII and AnnexureRIV respectively."
7. There is no rejoinder to the reply filed by the Collector, Surat. It is Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Feb 21 03:10:18 IST 2016 C/SCA/16863/2011 ORDER evident from the averments made in the reply that when the petitioner was considered for being promoted to the post of Driver, the promotion was governed by the Government Notification, dated 26th February, 2009. It is not in dispute that the conditions necessary as laid down in the said notification are not fulfilled by the petitioner. The petitioner is 8th Standard pass.
8. In view of the stance of the respondents as noted above, it is difficult for me to pass any directions or issue any writ directing the respondents to promote the petitioner to the post of Driver.
9. In view of the above, this writapplication fails and is hereby rejected. Rule is discharged.
In view of the order passed in the main matter, the connected civil applications, if any are also disposed of.
(J.B.PARDIWALA, J.) aruna Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Feb 21 03:10:18 IST 2016