Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 314 (GUJ)

NIRANJAN SHANTILAL BHATT v. STATE OF GUJARAT

2010-07-19

BHAGWATI PRASAD, K.M.THAKER

body2010
JUDGMENT 1. Present appeal, under Clause 15 of the Letters Patent, is directed against the judgment and order dated 9.2.1999 passed by the learned Single Judge in a writ petition preferred by present appellant. The learned Single Judge has, by the impugned judgment, dismissed the petition and declined to grant the relief prayed for in the petition. 2. Mr. Vyas, learned advocate has appeared for the appellant-petitioner. We have heard the learned counsel and have perused the record. 3. Learned counsel for the appellant-petitioner has submitted that the appellant could not have been subjected to the departmental examination under the amended Gujarat Cooperative Department (Conditions of Service Relating to Gujarat Cooperative Service, Class-I and Class-II Officers' Examination) Rules, 1975 {hereinafter referred to as the Rules of 1975 } and the action of the respondents to withhold his increments on the ground that the appellant-petitioner did not clear the departmental examination, as per the amended Rules viz. Rules of 1975 is arbitrary and contrary to law. He also assailed the denial of promotion to Class-I to the appellant-petitioner even though his immediate junior was promoted in June 1981. The learned counsel for the appellant also assailed the adverse remarks in the Confidential Report {hereinafter referred to as CR} for the period pertaining to 1.4.1980 to 31.3.1981 and submitted that the said adverse remarks deserve to be expunged. He has submitted that the learned Single Judge erred in not appreciating the relevant provisions under the Rules of 1975 and also erred in rejecting the submission that the appellant-petitioner would not be governed by the said Rules of 1975 but would be governed by the Gujarat Cooperative Department (Conditions of Service Relating to Gujarat Cooperative Service, Class-I and Class-II Officers' Examination) Rules, 1966 {hereinafter referred to as the Rules of 1966}. Learned counsel also submitted that the Rules of 1975 could not have been applied retrospectively. With a view to supporting his submissions, the learned counsel for the appellant-petitioner has relied on the judgments in the case between P. Tulsi Das & Others v. Govt. of A.P. & Others [ (2003) 1 SCC 364 ] and Abhishek Kumar v. State Of Haryana & Ors. [2006(13) SCALE 658]. 4. With a view to supporting his submissions, the learned counsel for the appellant-petitioner has relied on the judgments in the case between P. Tulsi Das & Others v. Govt. of A.P. & Others [ (2003) 1 SCC 364 ] and Abhishek Kumar v. State Of Haryana & Ors. [2006(13) SCALE 658]. 4. So as to appreciate the contentions of the appellant- petitioner, it is necessary to travel through the factual background of his service and some of the events which took place during the tenure of his service with the opponent-cooperative department. 4.1 The appellant-petitioner was promoted from Class-III service of the cooperative department to the Class-II as officer w.e.f. 5.11.1973. 4.2 At the time when the appellant-petitioner was promoted as Class-II officer in November 1973, the Rules of 1966 were in operation. 4.3 As per the said Rules of 1966, the appellant-petitioner was required to take and clear the departmental examination within 3 years after the completion of one year's service as Class-II officer. 4.4 The appellant-petitioner became eligible to take the departmental examination in November 1974. 4.5 After the appellant became eligible to take the examination in November 1974, it was conducted in January 1975. 4.6 However, the appellant-petitioner voluntarily skipped the said departmental examination. 4.7 Sometime thereafter (i.e. in March 1975), the said Rules of 1966 came to be amended and were superseded by the Rules of 1975. 4.8 The change in provisions between the Rules of 1966 and Rules of 1975, which is relevant for the purpose on hand, and with which the appellant-petitioner is aggrieved, is that, the officer/employees were (after Rules of 1975 came into force) required to clear 5 papers (subjects) instead of 3 papers (subjects) as was the position under the Rules of 1966. 4.9 In 1976, the appellant-petitioner appeared in the departmental examination and failed inasmuch as he could clear only 4 papers (subjects). 4.10 The appellant-petitioner was, by order dated 25.5.1977 allowed to cross first efficiency bar, however, since he had not cleared the departmental examination, certain increments, which would otherwise have been released had he cleared the departmental examination, were not released w.e.f. November 1977 on the ground that he had not cleared the departmental examination. 4.11 Thereafter in 1980-1981, certain adverse remarks were made in the CR of appellant-petitioner. 4.12 In June 1981 the promotion to the post of Class-I was released and one Mr. 4.11 Thereafter in 1980-1981, certain adverse remarks were made in the CR of appellant-petitioner. 4.12 In June 1981 the promotion to the post of Class-I was released and one Mr. M.J.Bhatt, who was immediate junior to the appellant-petitioner, was promoted while the appellant-petitioner was denied the promotion to the post to Class-I. 4.13 In the backdrop of such facts, the appellant-petitioner preferred the writ petition in September-1982 raising grievance against the denial of promotion to Class-I post and against the action of withholding increments from November 1977 and against the adverse remarks in the CR. 4.14 So as to give strength to his challenge against the action of not releasing the increments on the ground that he had not cleared the departmental examination, the appellant-petitioner had also challenged the vires of Rule-4(1) of the aforesaid Rules of 1975. The said challenge has failed before the learned Single Judge. We too do not see any merits in the challenge. In fact, the contention having failed earlier, has not been raised before us. The said Rules of 1975 have been framed in exercise of powers conferred by Article 309 of the Constitution of India. The State Government has the power to frame and amend the Rules. Even otherwise, when the appellant had, in 1976, appeared and failed in the departmental examination held as per the Rules of 1975, he cannot make any grievance about the 1975 Rules. 4.15 As noted above, the learned advocate has not challenged the vires of Rule-4(1) of 1975 Rules before us and has not raised any contention on that count, but has submitted that the 1975 Rules could not have been given retrospective effect and since he had become eligible to take the test in November 1974, he could not have been subjected to the amended Rules of 1975, but should have been allowed to take the departmental examination as per the Rules of 1966. 5. In the impugned judgment, the learned Single Judge has considered the contentions raised by the petitioner and none of the submissions found favour with the learned Single Judge. 5.1 Upon careful consideration of the impugned judgment of the learned Single Judge, we too, are not inclined to accept the challenge raised by the appellant-petitioner either against the impugned judgment or against the alleged decisions and actions of the respondent authorities. 6. 5.1 Upon careful consideration of the impugned judgment of the learned Single Judge, we too, are not inclined to accept the challenge raised by the appellant-petitioner either against the impugned judgment or against the alleged decisions and actions of the respondent authorities. 6. So far as the appellant-petitioner's contention that he could not have been subjected to the Rules of 1975 is concerned, the said contention is required to be rejected at the outset. 6.1 It is pertinent to note that even according to his own submission, the appellant-petitioner became eligible to take the departmental examination in November 1974, upon being promoted to Class-II in November 1973. 6.2 After November 1974, the departmental examination was held in January 1975. 6.3 The said examination was held as per the Rules of 1966. 6.4 However, it is the appellant-petitioner who, on his own volition and for the reasons best known to him, skipped the said departmental examination. The appellant-petitioner voluntarily dropped-out of the departmental examination held in January 1975 and then he failed in the examination held in 1976. Having not appeared/taken the said test, the appellant-petitioner has no right to make any grievance. 6.5 When the appellant-petitioner, had voluntarily and on his own, opted to not to take the examination in January 1975, he then cannot have any reason or justification to make grievance against the action of the respondent authorities including the action of not releasing the increments from 1977 on the ground that he did not clear the departmental examination since, under the Rules, the requirement to clear the departmental examination is, unless relaxed, an unavoidable condition. 6.6 There is no merits in the contention that the Rules of 1975 have been made applicable with retrospective effect. The said Rules came into effect on and from 10.3.1975 and the departmental examinations were taken as per the amended Rules of 1975, only after March 1975. Therefore, there is no substance in the contention that the said Rules of 1975 have been made applicable retrospectively. 6.7 Had the appellant-petitioner taken the departmental examination and cleared it in January 1975 then, he would not have been obliged to take and clear the examination as per the amended Rules of 1975. Therefore, there is no substance in the contention that the said Rules of 1975 have been made applicable retrospectively. 6.7 Had the appellant-petitioner taken the departmental examination and cleared it in January 1975 then, he would not have been obliged to take and clear the examination as per the amended Rules of 1975. Sub-rule (3) of Rule I of Rules of 1975, inter alia, provide that the said Rules shall apply to the persons recruited, whether by promotion or otherwise, as Class-I or Class-II officer and that if any person so appointed, has already passed the relevant examination, then, he will not be required to take the examination under Rules of 1975. It was only because the appellant-petitioner had skipped the examination held in January 1975 under the erstwhile Rules of 1966 that he was obliged to clear the departmental examination in accordance with Rules of 1975. Hence, the contention is without merits. After having voluntarily skipped the examination held in January 1975, the appellant has no cause to make any grievance on this count. 7. So far as the grievance regarding promotion is concerned, it deserves to be noted that the CR of the appellant-petitioner for the year 1980-1981 was not good. Further, as noted above, he also did not clear the requisite departmental examination. 7.1 Learned counsel for the appellant-petitioner attempted to allege that the adverse remarks were not communicated to the appellant-petitioner. However, the record belies the said submission. 7.2 It emerges from the record that not only the adverse remarks were communicated to the appellant-petitioner, but upon having been conveyed the adverse remarks, the appellant-petitioner had even preferred appeal before the appellate authority and after due consideration, the appeal was rejected. 7.3 The appellant-petitioner, therefore, is not right or justified in claiming that the remarks were not communicated. 7.4 Under the circumstances, if at the material point of time, the appellant-petitioner was not considered for promotion, he has no justification to make grievance against the said decision or action. 7.5 The appellant-petitioner has, even otherwise, failed to make out any case in support of his grievance on the point of promotion. It is not the case of the appellant-petitioner that the promotion was available automatically on completion of particular number of years of service and/or that it was purely and only on seniority basis. 7.5 The appellant-petitioner has, even otherwise, failed to make out any case in support of his grievance on the point of promotion. It is not the case of the appellant-petitioner that the promotion was available automatically on completion of particular number of years of service and/or that it was purely and only on seniority basis. 7.6 The appellant-petitioner has neither raised contention nor has been able to make out the case that he was more meritorious than his immediate junior and/or his immediate junior was not eligible or entitled for or fit for promotion. 7.7 The only premise on which the appellant-petitioner has based his claim and grievance is that his junior was promoted and therefore, he should not have been denied the promotion. However, the appellant-petitioner has not been able to point out any provision under the Rules to support his grievance. 7.8 The contention that he should be granted promotion because his junior was promoted, does not merit any consideration more particularly, in absence of any rules conferring right of promotion only on basis of seniority. 8. So far as the grievance of the appellant-petitioner that his increments from November 1977 were not released is concerned, the Rules of 1975 prescribe that the departmental examination must be cleared within span of 3 years from the date of becoming eligible to take the examination. As noted above, the appellant-petitioner became eligible to take departmental examination from November 1974, however, he did not clear the same until November 1977. When he attempted to take the examination in 1976, he failed. Therefore, in view of the provisions under Rule 6 of 1975 Rules, the increments were withheld. In this view of the matter, the grievance of the appellant-petitioner against the action of withholding of increments from 1977 is not justified and cannot be accepted. 9. The facts of the present case do not permit us to extend, to the appellant-petitioner, any benefit on the strength of the judgments of the Hon'ble Apex Court in the case of P. Tulsi Das & Others (supra) and Abhishek Kumar (supra) inasmuch as the facts in the said cases and the issue addressed by the Hon'ble Apex Court therein are different from the facts which we have on our hand in present case. 9.1 The learned counsel tried to derive support from the judgment in the case of P. Tulsi Das & Others (supra) to advance the contention that the Rules have been brought in effect retrospectively. As noted above, the Rules have not been given effect retrospectively hence there is no merit in the said contention. The judgment in the case of Abhishek Kumar (supra) also would not be of any help to the appellant-petitioner in taking his case further. In the said case, the petitioner before the Hon'ble Apex Court had made application for compassionate appointment in 2001 after the death of his father and the said application was rejected by the District Magistrate on the ground that there was no vacancy. Thereafter, the notification under the applicable Rules was issued in February 2003. The petitioner had approached the High Court in 2003 and while deciding the petition, Rules of 2003 were taken into consideration. It was in that background that the Hon'ble Court observed that the matter was required to be considered in light of the Rules applicable when the application was made and was rejected. The said judgment, therefore, does not come to aid of the appellant-petitioner. 10. The aforesaid discussion leads us to the conclusion that neither the action and decision of the respondents are arbitrary or erroneous nor the judgment of the learned Single Judge warrants any interference. In view of above, the appeal fails. Hence, it is required to be dismissed and is accordingly dismissed. No costs.