Gujarat High Court
Harshvadan J Bhatt vs Gujarat Agriculture University & on 2 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10976/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10976 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
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 ?
==========================================================
HARSHVADAN J BHATT....Petitioner(s)
Versus
GUJARAT AGRICULTURE UNIVERSITY & 1....Respondent(s)
==========================================================
Appearance:
MR TEJAS M BAROT, ADVOCATE for the Petitioner(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/09/2016
ORAL JUDGMENT
1. By this writ application under Article 226 of the Page 1 of 6 HC-NIC Page 1 of 6 Created On Mon Sep 05 01:01:02 IST 2016 C/SCA/10976/2002 JUDGMENT Constitution of India, the writ applicant, a retired employee of the Gujarat Agriculture University, has prayed for the following reliefs;
"(A) Your Lordship may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent to appoint the petitioner on the post of Draughtsman with effect from 26.2.1980 with all consequential benefits or in the alternative YOUR LORDSHIPS may be pleased to direct the respondent to appoint the petitioner to the post of Draughtsman with effect from 12.6.1986 with all consequential benefits.
(B) YOUR LORDSHIP may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ order or direction, directing the respondent to release to the petitioner the amount of arrears for the years 1996 and 1997 with interest at the rate of 18% per annum till the amount is paid.
(C ) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIP may be pleased to direct the respondent to appoint the petitioner to thepost of Draughtsman with immediate effect.
(D) pending admission, hearing and final disposal of the present petition, YOUR LORDSHIP may be pleased to direct the respondent to release the amount of arrears for the years 1996 and 1997 to the petitioner."
2. It is the case of the writ applicant that pursuant to an advertisement issued by the respondent No.1 for the post of the draftsman and tracer, he had applied and was selected. It is his case that he was not appointed as a draftsman but as a tracer. It is also his case that after being asked to discharge his duties as a tracer, he was given to understand that the same Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Sep 05 01:01:02 IST 2016 C/SCA/10976/2002 JUDGMENT was on the temporary basis. In the year 1980, he was absorbed on permanent basis on the post of the tracer, and was later, promoted to the post of the senior clerk. It is also his case that he worked as a draftsman on ad-hoc basis for the period between 30th September, 1987 and 19th May, 1988. His case is that he should have been appointed on the post of the draftsman with effect from 26th February, 1980. Having not done so, he prays for a writ in that regard with all consequential benefits.
3. It appears that during the pendency of this writ application, he attained superannuation in the year 2009.
4. The respondents have filed an affidavit-in-reply, inter alia, stating as under;
"3. At the outset, I say and submit that the petition is thoroughly misconceived and liable to be dismissed because.
(i) That the petitioner is not entitled for appointment on the post draftsman with effect from 26.02.1980 with all consequential benefits or from 12.06.1986 de horse the Recruitment Rules. The petitioner is also not entitled for the amount of arrears for the period from 1996 to 1997. The claim of the petitioner is false, frivolous and without any basis and I deny the same.
(ii) The petitioner was appointed as Senior Clerk vide order dated 03.05.1980 and thereafter, by the order dated 27.08.2008 the petitioner was promoted to the post of Head Clerk and retired from service on 31.08.2009 as Head Clerk on attaining the age of superannuation.
(iii) The petitioner had accepted all retiral benefits of the post of Head Clerk and his pension is also fixed on the post of Head Clerk and the petitioner is getting the pension etc. Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Sep 05 01:01:02 IST 2016 C/SCA/10976/2002 JUDGMENT
(iv) The petitioner was never appointed as draftsmen on regular basis after following due process of selection by the competent selection committee against the sanctioned vacant post. The claim of the petitioner is baseless and I deny the same.
(v) This Hon'ble Court may not pass an order of appointment on the post of draftsman de horse the Recruitment Rules. It is a right and privilege of the management. This Hon'bule Court may not exercise the powers conferred under Article 226 of the Constitution of India.
In View of the above facts and circumstances, there is no substance in the petition and the petition is liable to be rejected.
4. I say that by the order dated 03.09.1974, the petitioner was appointed as tracer on purely ad hoc basis in the pay scale of Rs.130-240. Subsequently, by the order dated 03.05.1980, the petitioner was absorbed and promoted to the post of Senior Clerk in the pay scale of Rs. 330- 560. Annexed hereto and marked as Annexure- R/I is a copy of the promotion order dated 03.05.1980. The petitioner had with open eyes accepted the promotion to the post of Senior Clerk.
5. I say that by the order dated 08.09.1987, the petitioner was assigned the work of draftsman as stop gap arrangement on ad hoc basis in the pay scale of Rs. 1400 - 2600 subject to recruitment by the selection committee. It was made clear that the petitioner will not claim any right on the post of draftsman. Annexed hereto and marked as Annexure R/2 is a copy of the order dated 19.05.1988. The petitioner had worked as a draftsman on stop gap for the period from 30.09.1987 to 19.05.1988 i.e. about more than 7 months. Subsequently, by the order dated 19.05.1988, the ad hoc appointment of the petitioner was cancelled and he was relieved from the post of draftsman and posted on his original post of Senior Clerk. I respectfully submit that the petitioner is regularly working as Senior Clerk and thereafter promoted as Head Clerk. The petitioner retired on 31.08.2009 from the post of Head Clerk.
6. I further say and submit that by communication dated 17.02.1992, the claim of the petitioner for the post of Page 4 of 6 HC-NIC Page 4 of 6 Created On Mon Sep 05 01:01:02 IST 2016 C/SCA/10976/2002 JUDGMENT draftsman was rejected by the respondent University. Annexed hereto and marked as Annexure R/ 3 is a copy of the communication dated 17.02 1992 Subsequently, again by letter dated 15 04 2000 the claim for appointment to the "post of draft man was rejected by the respondent University Annexed hereto and marked as Annexure R/4 is a copy Of the letter dated 15.04.2000.
7. I say and submit that the petitioner was working as a Senior Clerk and therefore considering his seniority, by the order dated 27.08.2008, the petitioner was promoted to the post of Head Clerk in the pay scale of Rs. 5000- 8000. Annexed hereto and marked as Annexure R/ 5 is a copy of the promotion order dated 27.08.2008. It is relevant to point out that the petitioner with open eyes has accepted the promotion to the post of Head Clerk. Thereafter, by the order dated 24.08.2009, the petitioner retired from service as Head Clerk with effect from 31.08.2009 on attaining the age of superannuation. Annexed hereto and marked as Annexure R/6 is a copy of the retirement order dated 24.08.2009.
8. I say that the petitioner had accepted all retiral benefits of the post of Head Clerk and his pension is also fixed on the post of Head Clerk and accepted the same."
5. It appears from the reply referred to above that by communication dated 17th February, 1992, the claim of the writ applicant for being given the appointment on the post of the draftsman, was rejected. Again, in the year 2000, the claim was rejected. Having regard to his seniority, just before his retirement, he was promoted to the post of the head Clerk in the pay scale of Rs.5000-8000/-. It appears that he accepted all his retiral benefits and is receiving the pension also.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the writ applicant is not entitled to any of the reliefs as prayed for in this writ application. It appears that, at no point of time, he was appointed as a draftsman on the Page 5 of 6 HC-NIC Page 5 of 6 Created On Mon Sep 05 01:01:02 IST 2016 C/SCA/10976/2002 JUDGMENT permanent basis.
7. Mr. Chauhan clarified that he had worked for few months as a draftsman, and for that, he was adequately paid.
8. In view of the above, this writ application fails and is hereby rejected. Rule is discharged.
(J.B.PARDIWALA, J.) Vahid Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Sep 05 01:01:02 IST 2016