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Gujarat High Court · body

2013 DIGILAW 754 (GUJ)

T. J. Patel v. State of Gujarat

2013-12-21

RAVI R.TRIPATHI

body2013
Judgment Ravi R. Tripathi, J.—True it is that it is a petition of 1995 and there is no error committed in mentioning the number. The petition is having a checkered history. The petitioner appeared for GPSC examination and cleared the same in the year 1975. Thereafter, he was given appointment order dated 23.12.1977. It is the case of the petitioner that all other persons, whose names are mentioned in that order dated 23.12.1977 as many as 62 including the petitioner, received further orders except the petitioner. 2. The petitioner did not do anything until the District Development Officer, Banaskantha District, issued an order dated 27.2.1979 giving a fresh temporary and adhoc appointment making it subject to clearing the GPSC examination. The petitioner having received that order made a request to the Authorities that as he has already passed GPSC examination in the year 1975, he should be exempted from passing GPSC examination. This request was rejected as back as on 29.7.1980. The petitioner did not do anything. Thereafter his services came to be terminated on 13.4.1981 that made the petitioner to approach this Court by filing Special Civil Application No. 1482 of 1981 in which interim relief was granted. By virtue of that, he remained in service. The petition remained pending before this Court for long 13 years. On one fine morning, i.e. on 23.9.1994, when the matter came up for consideration, the learned advocate for the petitioner produced a Xerox copy of the confirmation order dated 1.6.1985. Look at the irony, though the order of confirmation as claimed by the petitioner is dated 1.6.1985 the learned advocate for the petitioner did not place the same before the Court. It was only in the year 1994, when the matter reached consideration before this Court, the same was produced (emphasis supplied). 3. Learned AGP, Mr. Rindani, states that as per the instructions available to him from the Government Authorities, no such order was ever passed. The learned Assistant Government Pleader submitted that in Misc. Civil Application No. 252 of 2012 filed by the petitioner for revival of the petition, an affidavit-in-reply is filed. 3. Learned AGP, Mr. Rindani, states that as per the instructions available to him from the Government Authorities, no such order was ever passed. The learned Assistant Government Pleader submitted that in Misc. Civil Application No. 252 of 2012 filed by the petitioner for revival of the petition, an affidavit-in-reply is filed. Along with that affidavit, a copy of order dated 9.8.2010 is produced on record; wherein, it is stated that, “your appointment in the year 1979 was on ad-hoc basis and as you were on temporary and ad-hoc basis, your services were terminated but you continue in the service by virtue of the order of the High Court. As your appointment was on temporary and on ad-hoc basis, you are not entitled to seniority, promotion, etc.”. 4. Learned advocate appearing for the petitioner in Special Civil Application No. 1482 of 1981 produced that order and sought permission to withdraw the petition. The Court granted that permission and rule issued in the matter was discharged and interim relief granted earlier was vacated. 5. Interestingly, a copy of confirmation order is not produced in this petition. The petitioner has produced in this petition that: “21-(A) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, directing the respondents to promote the petitioner to the post of Deputy Executive Engineer and further be pleased to direct the respondents to permit the petitioner to work without any disturbance or obstruction”. What does it mean only learned advocate for the petitioner can explain to the Court. 6. It so happened that this Special Civil Application No. 2981 of 1995 came up for consideration on 15.4.2010 only after one and half decade. The learned advocate appearing for the petitioner deemed it proper to rest contended with the order passed by the Court which reads as under: “2. This Court on 25.4.1995 had passed the following order: “Notice returnable on 02.05.1995. Status-quo with regard to petitioner’s service to be continued till then”. 3. As the aforesaid order has continued till date, it will not be proper to disturb the said position at this stage. Hence, the parties will be goverened by the aforesaid order. The petition stands disposed of. Rule is made absolute to the aforesaid extent. Liberty to either side is granted to revive this petition in case of difficulty”. (Emphasis supplied). 7. Hence, the parties will be goverened by the aforesaid order. The petition stands disposed of. Rule is made absolute to the aforesaid extent. Liberty to either side is granted to revive this petition in case of difficulty”. (Emphasis supplied). 7. It is the case of the petitioner that the petitioner then made a representation on 15.6.2010 which was rejected by an order dated 9.8.2010. This rejection of representation led him to filing a new petition being Special Civil Application No. 16082 of 2010. This petition was again withdrawn on 13.1.2011. The learned advocate for the petitioner states that the petition was withdrawn with a view to file Misc. Civil Application seeking revival of the present petition. The Misc. Civil Application No. 252 of 2012 was filed which was allowed by this Court by order date 21.9.2012. 8. At this juncture, learned AGP, Mr. Rindani, invited the attention of the Court to an affidavit-in-reply filed on behalf of respondent No. 1 in the Misc. Civil Application No. 252 of 2012. The relevant part of the affidavit reads as under: “8. I say and submit that thereafter petitioner joined his service as Assistant Engineer purely on temporary and ad-hoc basis on his selection by the Departmental Selection Committee by order dated 8.1.1979 and his appointment was not on the basis of the recruitment through Gujarat Public Service Commission. Therefore, the question of considering him as a regular employee and entering his name in the seniority list does not arise.” 9. The petitioner then filed Civil Application No. 12009 of 2012 seeking amendment to the present petition which came to be rejected by order dated 17.7.2013. Learned advocate for the petitioner submitted that the Hon’ble Court while rejecting that application did observe that: “However, it will be open for the petitioner to take independent appropriate remedy for the prayers made as proposed to be amended in the main petition”. 10. The learned advocate states that it is thereafter, Special Civil Application No. 15093 of 2013 is filed on 19.8.2013; wherein, notice is issued and it is pending. 11. Coming to the present petition i.e. Special Civil Application No. 2981 of 1995 which was disposed of by order dated 15.2.2010 and which got again revived by order dated 21.9.2012, is for consideration of this Court. 12. 11. Coming to the present petition i.e. Special Civil Application No. 2981 of 1995 which was disposed of by order dated 15.2.2010 and which got again revived by order dated 21.9.2012, is for consideration of this Court. 12. At this juncture, it will be necessary to consider whether the petitioner deserves any relief as prayed for in the petition. The relief prayed for is that: “A writ of mandamus be issued directing the respondents to promote the petitioner to the post of Deputy Executive Engineer and it is also prayed that further direction be issued to respondents to permit the petitioner to work without any disturbance or obstruction”. 13. This Court is of the opinion that this petition is thoroughly misconceived more particularly because the petition is filed with all possible vagueness and with all possible delay seeking promotion directly to the post of Deputy Executive Engineer. The petitioner was appointed as Junior Engineer in the year 1979 hence by any standard this petition is barred by limitation. The promotion directly from the post of Junior Engineer cannot lie to the Deputy Executive Engineer. This makes it clear that the petitioner has not approached the Court at the relevant time when he was denied the promotion to the next higher post. It is only in the year 1995 that he filed a petition directly praying for promotion to the post of Deputy Executive Engineer. Besides the petitioner has not set out any ‘Rules’ about the promotion. He has also not set out the channel of promotion. He is also not able to satisfy about his confirmation in service. He has not stated when did he became due for first promotion, to which post. 14. In light of that, this Court finds no substance in the present petition and the same is dismissed. 15. The Court restrains itself from making any observation further with regard to prayer that direction be issued to permit the petitioner to continue to serve without disturbance or obstruction. The Court is not able to appreciate as to what exact relief is prayed for by such prayer clause. Be that as it may. The petition is dismissed having found no substance in the same. The Court is of the opinion that the petition should have been dismissed with exemplary cost but then, on a submission made by learned advocate, Mr. Be that as it may. The petition is dismissed having found no substance in the same. The Court is of the opinion that the petition should have been dismissed with exemplary cost but then, on a submission made by learned advocate, Mr. Vyas, for the petitioner that the petitioner has retired from service on 30.6.2011, the Court restrains itself from imposing any cost. 16. At the request of learned advocate Mr. Vyas, it is clarified that non-entertainment of this petition may not preclude the petitioner from pursuing the matter (Special Civil Application No. 15093 of 2013) on merits in accordance with law.