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Gujarat High Court · body

2011 DIGILAW 777 (GUJ)

Abdulhafis A. Shaikh v. Collector Panchmahal

2011-11-18

K.S.JHAVERI

body2011
Judgment K.S. Jhaveri, J.—This petition has been preferred praying for following relief(s):— (a) be pleased to admit this petition; (b) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus by directing the respondents to consider the case of the petitioner for promotion and to promote him to the post of Senior Clerk if he is otherwise found fit for promotion, from the date on which, his immediate junior’s case was considered and promoted that is from 01.12.1989, with all consequential benefits an incidental benefits; 2.0 The facts of the case in brief are that the petitioner was appointed on 08.01.1965 on the post of Octroi Naka Karkoon. Thereafter looking to his sincerity and honesty he was promoted to the post of Conservancy Inspector in the Health Department with effect 12.06.1970. Thereafter he was promoted to the post of Sanitary Inspector vide order dated 12.08.1988 as he was the senior most in the seniority list. The order of the promotion of the petitioner was challenged by one Mr. R.R. Patel before the Collector which came to be rejected. Again Mr. R. R Patel, preferred application before Collector which was allowed and the order dated 12.08.1988 promoting the petitioner on the post of Sanitary Inspector was quashed and set aside. The said order was challenged by the petitioner by way of Regular Civil Suit before the Civil Court at Godhra and interim relief on application Exh. 5 was granted by the learned Civil Judge (S.D.) at Godhra. Against that order, the Respondent No. 2 filed Misc. Civil Appeal No. 141 of 1993 before the District Court at Godhra and the learned Assistant Judge, Panchmahal at Godhra allowed the said appeal and the order passed below Exh. 5 by the learned Civil Judge was vacated. Against the aforesaid order, passed by the learned Assistant Judge vacating the interim relief granted by the learned Civil Judge (S. D.) at Godhra a writ petition being Special Civil Application No. 1292 of 1994 was filed by the petitioner and subsequently it was permitted to be converted into Civil Revision Application No. 175 of 1994. The said Civil Revision Application came up for hearing before this Court and the said Revision Application was withdrawn. The said Civil Revision Application came up for hearing before this Court and the said Revision Application was withdrawn. In pursuance to the above, the petitioner came to be reverted to the post of Conservancy Inspector and the order reverting the petitioner to the aforesaid post was passed on 03.02.1994. The petitioner has made representation to the respondents on 28.02.1994. On 08.03.1994, the respondents sought opinion from the advocate for the Godhra Municipality. Inspite of the legal opinion given by the advocate for the municipality, no steps have been taken by the municipality to promote the petitioner. Hence, the petitioner challenges the aforesaid action of the respondents of not promoting him to the post of Senior Clerk and promoting other six persons who are juniors to the petitioner to higher posts. 3.0 Learned Advocate appearing for the petitioner has raised contention that the petitioner was promoted to the post of Sanitary Inspector by virtue of bye-law No. 81 of the Bye-laws of the Godhra Municipality though he had not passed the Sanitary Inspector’s examination. He further submitted that as per Rule 81 of the Rules, the Respondent No. 3 has been wrongly promoted 4.0 Learned Advocate appearing for the petitioner submitted that Rule 81 of the of Godhra Borough Municipality Rules and Bye-laws, 1956 (hereinafter referred to as “the Rules” for the sake of brevity) goes by seniority. The petitioner’s service record was good throughout and no penalty was ever imposed upon him and no adverse remarks were communicated to him. In fact in view of the legal opinion sent to the Chief Officer, vide letter dated 09.08.1994, the petitioner should have been promoted from due date. 5.0 Learned Advocate for the respondents submitted that so far as the reversion of the petitioner to the post of Conservancy Inspector from the Sanitary Inspector is concerned, the decision of the Respondent No. 2- Municipality is justified in view of the existing Rules. So far as the Conservancy Inspector’s post is concerned it is equivalent to Junior Clerk cadre and so far as the post of Sanitary Inspector is concerned, it is equivalent to the post of Senior Clerk. The work and duties of Sanitary Inspector mainly requires experience in the Main Department, Octroi Department and Health Department. So far as the Conservancy Inspector’s post is concerned it is equivalent to Junior Clerk cadre and so far as the post of Sanitary Inspector is concerned, it is equivalent to the post of Senior Clerk. The work and duties of Sanitary Inspector mainly requires experience in the Main Department, Octroi Department and Health Department. So far as the Sanitary Inspector’s promotion is concerned, it is the cadre for specially qualified persons who are mainly experienced in different Departments of the Municipality. As far as the Godhra Nagarpalika is concerned, there are 17 Departments and amongst 17 Departments the Main Department i.e. the Octroi Department and the Health Department carry the work of Senior Clerk. The petitioner who claims that he should not be reverted to the post of Sanitary Inspector has actually not discharged his duties in the office of the Municipality but he has discharged his duties for 10 years as Conservancy Inspector outside the office. Before giving the promotion from the post of Sanitary Inspector it is also equally necessary to see that whether the promotee is able to discharge his duties as Senior Clerk. 6.0 Learned Advocate for the respondent further submitted that the petitioner has served more than 10 years in the post of Conservancy Inspector and his main work was regarding taking the presence of Scheduled Caste and to make pay bills of the scheduled Tribes persons and also to make Supervisory work regarding the sweeping in the village. The petitioner has also done his duties to supervise and to watch over the Scheduled Tribes and Mukardama. 7.0 According to him, so far as the Health Department is concerned there are cadres of Junior Clerks, Senior Clerks, Conservancy Inspector and Sanitary Inspectors. Amongst the above cadre or post, the post of Sanitary Inspector is designed for specially qualified persons and hence the Junior Clerk who is not qualified is not supposed to be promoted to the post of Senior Clerk. So far as the post of Sanitary Inspector is concerned, it is a post for specially qualified persons and the recruitment of which is done by direct recruitment and in such cases junior employee is not given such promotion except specially qualified. So far as the post of Auditor, Shops Inspector, Surveyor, Fire Superintendent, Head Mechanic, Deputy Engineer, Compounder, Food Inspector etc. So far as the post of Auditor, Shops Inspector, Surveyor, Fire Superintendent, Head Mechanic, Deputy Engineer, Compounder, Food Inspector etc. are concerned, the specially qualified employees are given the above post and after the recruitment they do not get any promotion but they are supposed to serve on the same post for their entire tenure of service. 8.0 Heard learned Advocates for the respective parties and perused the documents on record. The main controversy which arises is whether the Respondent No. 3 is wrongly promoted under Rule 81 of the Rules. Looking to the past services of the petitioner as Sanitary Inspector he did not discharge his duties in Health Department, Main Department and the Octroi Department as Senior Clerk. Further, looking to the merits and fitness of the petitioner, the petitioner’s case falls on weak footing and hence he is not entitled to the promotion of Senior Clerk under the Rule 81 of the Rules which reads as under:— “Promotion shall ordinarily go by seniority (subject to merit and fitness) but in special case (which shall not exceed one in every three successive promotion cases in each particular department) special promotion may be granted without consideration of seniority for reasons fully recorded in writing. 8.1 Rule 81 clearly lays down that the promotion will ordinarily be given by seniority of the employee subject to his merit and fitness. No doubt it is also stated that in special cases, special promotion may be granted without consideration of seniority for reasons fully recorded in writing. In the instant case, looking to the merits and fitness of the petitioner, he is not entitled to the promotion as claimed by him. Because, so far as the merit and fitness is concerned, his case is weak and hence he is not entitled to the promotion. Though the petitioner is senior he does not possess experience of office work in the Municipality. The petitioner has claimed his right qua seniority only but having regard to the mandate in Rule 81, the petitioner has not fulfilled the criteria of promotion which clearly shows that the promotion shall be given having regard to the merits and fitness of the employee. The petitioner has claimed promotion by way of his seniority only but only seniority cannot be considered under Rule 81. Therefore, the case of the petitioner fails. The petitioner has claimed promotion by way of his seniority only but only seniority cannot be considered under Rule 81. Therefore, the case of the petitioner fails. 9.0 In the premises aforesaid, the petition is devoid of merits and the same is dismissed accordingly. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.