Jayendrasinh Balubha Vaghela vs State of Gujarat and Others

K.M. Thaker, J.

Heard learned advocate for the petitioner.

The petitioner by way of this petition under Article 226 of the Constitution of India has approached this Court with following prayers:-

(A) Your Lordships may be pleased to admit this petition.

(B) Your Lordships may be pleased to quash and set aside the decision dated 19-6-2012 passed by respondent No. 3 directing the respondent to grant appropriate appointment posting as Forest Guard with seniority promotion, as may be admissible from time to time which is granted to the juniors of the petitioner.

(C) Your Lordships may be pleased to issue appropriate orders, direction, directing the respondents to pay consequential monetary benefits on granting of the above prayer.

Thus what is under challenge in this petition is essentially the order or communication dated 19/6/2012, where under petitioner''s claim for being treated as having been appointed in the cadre of Forest Guard is rejected.

The facts in short leading to filing this petition as could be culled out from memo of the petition deserve to be set out as under:-

The petitioner as per his own say was appointed as Adhoc Grid Chowkidar in the scale of Rs. 210-270. The petitioner has alleged that he was selected for the post of Forest Guard, therefore, he was given said post/designation. The post of Grid Watchman is certainly not one falling under the cadre of Forest Guard. The appointment order of the petitioner dated 4/2/1984 issued by Dy. Conservator of Forest, Bhavnagar, contain specific condition that the appointment is ad-hoc and can be terminated at any time and that the appointment was offered on account of unavailability of vacancy in Forest Guard, however, in future as & when the vacancy in Forest Guard is available petitioner would be absorbed therein.

The petitioner has alleged that he has been continued as Grid Watchman, despite the fact that other lesser qualified employees and persons including daily wagers came to be appointed as Forest Guard causing consternation in the petitioner. The petitioner had approached this Court by way preferring Special Civil Application No. 6025 of 2012, wherein this Court (Coram: K.M. Thaker, J.) on 27/4/2012 disposed of the matter by passing the following order.

In present petition, the petitioner seeks deemed date for promotion to the post of Forest Guard.

Learned advocate for the petitioner has submitted that the petitioner had actually participated in the selection and recruitment process for the post of Forest Guard and he was being selected for the said post, however, since there was no vacancy at the relevant time on the said post, appointment letter for the post of Grid Chowkidar was issued with assurance that whenever vacancy arises, appointment letter for the post of Forest Guard will be issued.

2.1 Learned advocate for the petitioner has also submitted that thereafter the petitioner has made various representations, however, the same are not duly considered and decided in light of the facts of the case.

Prima facie, on perusal of the appointment letter (page-13 and 14 of the petition), it appears that the petitioner was issued appointment letter on ad-hoc post. Therefore, at this stage, it is difficult to appreciate the claim made by the petitioner, unless the response of the respondent-competent authority, as regards the representations made by the petitioner, is tendered and considered. Prima facie, the facts emerging from the record, does not substantiate the case sought to be made out by the petitioner.

Therefore, present petition is disposed of, at this stage, with below mentioned directions:-

4.1 The respondent-competent authority shall take-up for consideration the representations made by the petitioner.

4.2 The respondent-competent authority shall decide the said representations within period of 4 weeks from receipt of certified copy of present order.

4.3 It would be permissible to the petitioner to file summary representation mentioning the contentions and details, stated in present petition, which will be taken into consideration by the respondent-competent authority. The respondent-competent authority is directed to take appropriate decision and convey the same to the petitioner.

4.4 The petitioner is permitted to serve a copy of present order to the respondent-competent authority.

With the aforesaid observations and direction, present petition stands disposed of.

The petitioner made representation. The respondent authority considered the grievance and rejected the claim of the petitioner vide order dated 20/6/2012 which is impugned in this petition under Article 226 of the Constitution of India.

Learned advocate for the petitioner claimed that the petitioner was qualified to be appointed as Forest Guard and he was selected also. According to the petitioner, due to Non-availability of post of Forest Guard, the petitioner accepted the employment as Grid Chowkidar, but that in itself does not give the petitioner any right to claim that he should be appointed as Forest Guard. The learned counsel for the petitioner has also alleged and claimed that selection of the petitioner in Forest Guard coupled with the assurance embedded in the appointment order at page-16 should have been appreciated by the authority in its true perspective and petitioner could have been treated to have been appointed on the post of Forest Guard right from the day of his appointment as Grid Chowkidar i.e. 4/2/1984. It is also claimed that the petitioner is fast reaching the age of superannuation and if this mistake or anomaly is not rectified by the authorities, then petitioner will have to suffer monitory loss also. As per policy of the State, petitioner was eligible to be appointed in Class-III post also, but as he was Grid Chowkidar he lost that opportunity of having been appointed in Class-III.

The respondents have opposed the petition. The learned AGP has relied on the facts and details mentioned in paras 7 to 14 of the reply affidavit.

6.1 The said facts and details are not disputed or denied by the petitioner. Hence, they have remained uncontroverted.

In this background, this Court is of the considered view that the petitioner has not made out any case for interfering with the order impugned in this petition i.e. the order dated 19/6/2012 for the following reasons, namely:-

6.1 From the appointment order dated 4.2.1984, it does not come out that due to non-availability of the post of Forest Guard, the petitioner was appointed on the post of Grid Chowkidar.

6.2 The said contention of the petitioner that the appointment on the post of Grid Chowkidar was only a stop gap/transitory arrangement until the vacant post of Forest Guard become available where he could be appointed, does not get support from the conditions of appointment.

6.3 The appointment order clearly recites that the appointment is purely ad-hoc and temporary and was for fixed tenure. In view of the terms and conditions of the said appointment order, the petitioner cannot claim any other right.

6.4 In the order dated 19.6.2012, the authority has considered all the contentions of the petitioner and has recorded reasons in support of the decision, which is impugned in the petition. It is mentioned by the authority that the post of Forest Guard has to be filled up by direct recruitment and that therefore, the petitioner''s request to promote/upgrade him from the post of Grid Chowkidar cannot be accepted. It is also clarified that the petitioner''s name was in the waiting list and only as a concession, the petitioner was granted appointment to the post of Grid Chowkidar. If the said concession were not granted, then, the petitioner would not have been appointed even on the said post. The reasons recorded by the authority in the said order do not appear to be unjust or arbitrary or unreasonable or contrary to rules and do not call for any interference. There is no reason to set aside the said order.

6.5 The petitioner has failed in establishing that his selection and appointment as Grid Chowkidar would entitle him to be absorbed later on as Forest Guard.

It goes without saying that selection in different services is for a particular period and select lists are having no perpetuation in itself. When the selected has not been appointed on account of dearth of vacancy then, that candidate cannot have any indefeasible right to seek appointment.

The order impugned suffers from no infirmity so as to call for interference under Article 226 of the Constitution of India. The petition being meritless deserves rejection and accordingly it is rejected. However, there shall be no order as to costs. Notice is discharged.