Gujarat High Court
Jigneshbhai Arvindbhai Trivedi vs State Of Gujarat & 2 on 22 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18145/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18145 of 2014
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JIGNESHBHAI ARVINDBHAI TRIVEDI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR. SAHIL M SHAH, ADVOCATE for the Petitioner(s) No. 1
MRS VACHA DESAI, ASSTT.GOVERNMENT PLEADER for the Respondent(s) No. 1
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 2 - 3
MR AS SUPEHIA, ADVOCATE for the Respondent(s) No. 2 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/02/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, serving as a Peon in the District Court, Sabarkantha at Himmatnagar has prayed for the following reliefs:-
A) To direct the respondents to consider the petitioner for promotion to the post of Bailiff, Class-III in the District of Sabarkantha;
B) Pending admission hearing and final disposal of the petition, to direct the respondents to consider the petitioner for promotion to the post of Bailiff, Class-III in the District of Sabarkantha;
C) Pending admission hearing and final disposal of the petition, to direct the respondents not to consider any inter-district transfer or any other peon junior to the petitioner as per the Gradation List;
It is the case of the petitioner that there are 11 posts of Bailiff vacant in the Sabarkantha District, and despite such vacancy, the petitioner is not being considered Page 1 of 3 HC-NIC Page 1 of 3 Created On Sun Feb 28 05:01:09 IST 2016 C/SCA/18145/2014 ORDER for promotion to the post of Bailiff. It is his case that he already holds a CCC Certificate necessary for seeking promotion. It is his case that few employees, who do not possess the CCC Certificate, have been promoted to the post of Bailiff, Class- III.
On behalf of the respondent No.3, an affidavit-in-reply has been filed, duly affirmed by the Registrar, inter-alia stating as under:-
"4. .... The petitioner was appointed as Peon on the establishment of the District Court, Sabarkantha on 19.9.2005. I further state that the Advisory Committee of the District Judiciary decided on 18.7.2005 to call interviews of eligible Class IV employees for the promotion to the post of bailiff. The interview was held on 8.9.2005. Accordingly, a final list was approved on 8.9.2005 by the Advisory Committee for the purpose of promotion in the cadre of bailiff. 38 candidates were selected for the purpose of promotion. Hereto annexed and marked as Annexure "R" is the copy of the minutes of the Advisory Committee along with the select list. The last selected candidate Mr. C.S. Trivedi was promoted as Bailiff from 31.3.2012.
5. With reference to the grounds stated in the petition, I state that a new gradation list to the post of Bailiff, Nayak and Peon was published on 7.3.2014 showing the position as on 1.1.2014. The four persons mentioned in the petition i.e. Mr. I.R. Chavda, Mr. M.M. Prajapati, Mr. M.S. Pathan and Mr. V.V.Joshi were promoted to the post of Bailiff in the year 2011-12. It is true that they have not passed the CCC examination. I state that the names of all these four employees were placed in the select list dated 8.9.2005, which is prior to the appointment of the petitioner i.e. 19.9.2005. Hence, the name of the petitioner does not figure in the promotional select list dated 8.9.2005. At the relevant time the Government Resolution dated 30.9.2006 providing the CCC examination was not in existence. A new gradation list showing the position of Class III and Class IV employees in the establishment of District Court, Sabarkantha was published on 7.3.2014. Hereto annexed and marked as Annexure R-1 is the copy of the Gradation List dtd. 7.3.2014. The name of the petitioner figures at Sr. No. 31 of the said list. The persons senior to the petitioner in the said gradation list, namely B.S. Nai, Nayak, I.V. Zalori, Peon, D.R.Patel, Peon, V.M. Panchal, Peon, A.K. Nai, Peon, K.D. Rathod, Peon and P.M. Kumpavat, Peon who are placed at Srl. Nos. 2, 8, 10, 12, 13, 14 and 15 respectively of the gradation list have preferred Departmental Appeal Nos. 7/2014 to 13/2014 before the High Court of Gujarat for their non-promotion. The petitioner has got the alternative remedy of Appeal under Rule-18(1) (d) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971.
6) I further state that it is true that 7 posts of bailiffs were vacant on 1.1.2013 and 11 posts of bailiffs were vacant on 1.1.2014. It is submitted that the vacant posts shown in the gradation list of the year 2013 and 2014 are of direct recruitment. As per the guidelines issued by the High Court of Gujarat, Page 2 of 3 HC-NIC Page 2 of 3 Created On Sun Feb 28 05:01:09 IST 2016 C/SCA/18145/2014 ORDER vide letter dtd. 10.12.1991, the ratio of the 3:1 is to be maintained between promotional quota and direct recruitment. Hereto annexed and marked Annexure "R-2" is the copy of the letter dtd. 10.12.1991. Hence, the petitioner cannot be promoted to the post of bailiff. So far as the transfer of bailiffs on the establishment of District Court, Sabarkantha is concerned, the High Court vide Resolution dtd. 27.8.2014, granted inter district transfer, on mutual basis or otherwise than on mutual (one-way) and it is specifically mentioned that such appointment and postings on inter district transfer shall be treated as fresh recruitment in the District where such staff member is to be posted and he shall not be entitled to claim any seniority."
Mr. Supeiha, the learned counsel appearing for the respondents Nos. 2 and 3 made his stance clear by submitting that as and when the establishment starts operating the 2014 Gradation List, the petitioner, who is at serial No.31 would be considered for promotion to the post of Bailiff. At present promotions are being given from the list of 2005. He further clarified that those Peons, who have been promoted to the post of Bailiff without the CCC Certificate were at a point of time when such Certificate was not mandatory. The Government Resolution with regard to the CCC Examination is dated 30th September, 2006. He also pointed out that identically situated Peons seeking promotion to the post of Bailiff, have preferred Department Appeal before this High Court, being Departmental Appeal Nos. 7 to 13 of 2014. He submitted that the petitioner has an alternative remedy of filing an appeal under Rule 18(1)(d) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
I do not propose to relegate the petitioner to prefer a Departmental appeal, in view of the specific stance of the respondents Nos. 2and 3 that at an appropriate time once the Gradation List of 2014 is taken up, the case of the petitioner will be considered for promotion. In view of the affidavit-in-reply filed on behalf of the respondent No.3, no case is made out for any direction. In the result, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.)
Mohandas
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