Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 1039 (GUJ)

Arunkumar Dolatrai Desai v. Principal Secretary

2019-10-23

S.R.BRAHMBHATT

body2019
JUDGMENT : S.R. Brahmbhatt, J. 1. Heard Shri Jayraj Chauhan, leaned counsel for he petitioner. Shri Kashyap R. Joshi, learned advocate for the respondent no. 2 and Shri Utkarsh Sharma learned Assistant Government Pleader for respondent nos. 1 and 3. Though served, none appears for respondent no. 4. 2. The present petition has been taken out seeking following reliefs: (A) YOUR LORDSHIP may be pleased to admit and allow this petition; (B) YOUR LORDSHIP may be pleased to direct the respondents to club the services of the petitioner rendered from 29.11.1991 to 19.1.1993 as Lecturer and count the period as continuous service from the date of initial appointment i.e. 29.11.1991 and give confirmation from the date of initiate appointment i.e. 29.11.1991 and grant all the consequential benefits including senior scale, selection grade and pay fixation as per time scale entitlement from 29.11.1991; (C) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIP may be pleased to direct the respondent authorities to decide the representation dated 30.12.2012 made by the petitioner within stipulated time. (D) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIP may be pleased to direct the respondent authorities to comply with the order of the Tribunal dated 13.04.2010. (E) Pass such other and further orders as may deem fit in the interest of justice. Thus, what is sought for is appropriate direction, order or writ directing the respondents to reckon the period spent on probation by the petitioner as part of the service and grant him all the consequential benefits as ordered by the Tribunal vide its order dated 13.04.2010 in the proceedings of Application No. 84 of 2004. 3. Facts in brief, as could be gathered from the memo of petition deserve to be set out as under: 3.1. The respondent college was the grant-in-aid institute and was affiliated with respondent university. The petitioner was appointed by respondent authorities as a Probationer for two years in the respondent college on 14.10.1991 and was selected as a lecturer. 3.2. As per the say, there was a clear vacancy in the respondent no. 2 College in the discipline of commerce faculty and the Director of Higher Education has permitted to appoint two lecturers on unreserved post. Pursuant to said permission from the competent authority, interviews were held on 14.10.1991 by the competent selection committee, who have selected present petitioner at serial no. 2 College in the discipline of commerce faculty and the Director of Higher Education has permitted to appoint two lecturers on unreserved post. Pursuant to said permission from the competent authority, interviews were held on 14.10.1991 by the competent selection committee, who have selected present petitioner at serial no. 1 along with Shri Mukesh T. Solanki at serial no. 2. 3.3. It is the say of the petitioner that the said appointment was full time lecturer in commerce faculty from the date of his appointment and joining the college and appointment of the petitioner was also approved by the vice-chancellor of the university vide its letter dated 22.10.1991. The petitioner was appointed by due process of selection vide order dated 25.10.1991. The said order was sent to present petitioner under the signature of principal of the college. 3.4. It is the say of the petitioner that pursuant to said appointment letter, present petitioner has accepted the appointment and intimated the college that he will join the duties from 29.11.1991. The officiating director in the office of Commissioner of Higher Education has approved the appointment of present petitioner. The appointment of the petitioner was also approved by the university vide letter dated 11.01.1991. The Commissioner of Higher Education has also approved the appointment of present petitioner for the completion of educational term till 30.04.1993, which was subsequently extended further till the completion of next term i.e. academic year 1993-94, which was to be over on 30.04.1994. 3.5. The petitioner filed an Application No. 84 of 2004 before the Gujarat Affiliated Colleges Service Tribunal at Ahmedabad for ventilating his grievances, wherein, it is prayed that services of present petitioner be considered as continuous service from his first date of appointment, which is 29.11.1991 and gave all the benefits of salary including pensionary benefits. The Tribunal admitted the matter and issued notice. In response thereto, the respondent nos. 1 and 2 have tendered their reply, wherein it has been stated that since 11.01.1993, the petitioner was in active and continuous service of the college. 3.6. Considering the reply of the respondents, the Hon'ble Tribunal vide its order dated 13.04.2010 was allowed the application of the petitioner and directed the respondent authorities that services of present petitioner was required to be considered as continuous from initial date of appointment dated 29.11.1991 and to give all the benefits of service with immediate effect. 3.7. 3.6. Considering the reply of the respondents, the Hon'ble Tribunal vide its order dated 13.04.2010 was allowed the application of the petitioner and directed the respondent authorities that services of present petitioner was required to be considered as continuous from initial date of appointment dated 29.11.1991 and to give all the benefits of service with immediate effect. 3.7. Pursuant to which, the College vide its letter dated 28.06.2010 informed the director of higher education to give benefits of order of the Tribunal of extending benefits to the petitioner from 29.11.1991. The petitioner, thereafter has moved representations/applications to the authorities dated 15.12.2011, 20.03.2012 and 27.06.2012, but no heed was paid. Hence, the present petition. 4. Learned counsel appearing for the petitioner invited Court's attention to the judgment of the Tribunal to indicate that for no rhyme or reason the probation period reckoning cannot be denied. 5. Learned Assistant Government Pleader as well as Shri Joshi, learned counsel for the respondent no. 2, could not controvert this fact in any manner as there is no reply filed. Learned Assistant Government Pleader, at this stage, seeks time to file reply and submitted that if the Court is not inclined to grant time let there be a direction to the concerned for passing appropriate order. 6. This Court is of the considered view that the fundamental principles of pleadings requires that the respondents when are issued notice and served, if they want to controvert the contentions and averments in the petition appropriate reply has to be filed. In the instant case, no reply is filed by any of the respondents. Therefore, the learned counsel for the petitioner is justified in contending that the contentions of the petitioner may be accepted as not controverted. 7. The matter is that of year 2013 and now at this stage, when the matter is being listed for final disposal, the time for filing reply could not have been requested without there being any cogent reason for not filing the reply. Even otherwise also, it would not be open to the respondents to flout with impunity the order of the Tribunal which is a competent Tribunal under the statute i.e. Gujarat Affiliated Colleges Service Tribunal. The Tribunal's order under which the direction is issued to reckon the probation period has remained unchallenged and thus it has attained finality. Even otherwise also, it would not be open to the respondents to flout with impunity the order of the Tribunal which is a competent Tribunal under the statute i.e. Gujarat Affiliated Colleges Service Tribunal. The Tribunal's order under which the direction is issued to reckon the probation period has remained unchallenged and thus it has attained finality. Moreover, in absence of any cogent reason to indicate that probation period was not required to be reckoned in absence of any Rule, the probation period and the service rendered as a probationer could not have been declined and therefore even on merits also there exists no challenge either to the proposition of law that the probation period in such a case is required to be reckoned as service and especially when the judicial order passed by the Tribunal has remained unchallenged and when the respondents have permitted the same to attained finality, there exists all the more reasons for allowing the petition. Hence, the petition is allowed in terms of prayer (B). Rule made absolute.