MD Mavani vs state of Gujarat and 2

Honourable Mr. Justice C.L. Soni

The petition is filed under Article 226 of the Constitution of India, initially with following prayers in para 13:

13(A) Quashing and setting aside the order dated 29.8.1998.

(B) Directing the respondents to grant permission to the petitioner to undergo the pre-service training and to appear at the post training

examination;

(C) During the pendency and final disposal of this petition, respondent No. 1 may be restrained from enforcing or implementing the order dtd.

29.8.1998;

(D) to grant such other and further relief/s as may be deemed fit and proper.

Under order dated 29.8.1998, originally challenged in the petition, the petitioner was reposted as work-charge Clerk by cancelling his temporary

appointment to the post of Junior Clerk. The petition was then amended and one more prayer was added, which reads as under:

(BB) Directing the respondents to send the petitioner for interview to the concerned committee as contemplated by Notification dated 10.11.76

read with Resolution dated 25.1.78 for the purpose of regularising his service and if found suitable to regularise his services according to law and

also to extend him all consequential including promotion to the post of Senior Clerk accordingly.

The amendment was also permitted and carried out by adding para 9(A), 9(B) and 9(C).

It is the case of the petitioner that the petitioner was appointed as work charge Clerk on 2.12.1964 and taken up as Junior Clerk on

30.10.1973. In April 1974, he made application to join Pre-service Training and to pass Post-Training examination. Thereafter, he made request

to various authorities to send him for training, but he was not sent for training. He passed departmental examination for promotion to the post of Sr.

Clerk in 1983 and requested for promotion. Much correspondences followed between various authorities on the subject as to whether the

petitioner was required to undergo pre-service training or his services were required to be regularised or whether he was entitled for exemption

from passing the said training examination. By letter dated 30.7.1991, the Administrative Officer of respondent No. 2 Institute requested

respondent No. 1 to pass appropriate order for regularising the services of the petitioner. The petitioner also made representation to respondent

No. 1. However, there was no reply given to the petitioner. The petitioner had to file Special Civil Application No. 8682 of 1996 seeking direction

against respondent No. 1 for passing appropriate order on the representation of the petitioner and this Court, vide order dated 11.12.1997,

directed the respondents to decide the representation of the petitioner. Respondent No. 1 by order dated 29.8.1998 has cancelled the order of

appointment to the post of Junior Clerk and reverted the petitioner to the post of work-charge Clerk. The petitioner has challenged the above-said

order as being illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India and has made other prayers as stated above.

The petition is opposed by respondent No. 2 by filing affidavit-in-reply. The petitioner has also filed rejoinder thereto. Respondent No. 2 filed

one more affidavit-in-reply.

I have heard learned advocate Mr. Supehia for the petitioner and learned Assistant Government Pleader Mr. Pranav Dave for the respondents.

Learned advocate Mr. Supehia has made following submissions:

(1) The appointment of the petitioner to the post of Junior Clerk came to be cancelled without hearing the petitioner. He has relied upon one

decision of the Hon''ble Supreme Court in the case of H.V.P.N.L. Vs. Mahavir, .

(2) The appointment of the petitioner on the post of Junior Clerk came to be cancelled after a period of 25 years, on the ground that the petitioner

was not fulfilling the requirement of Government Resolution dated 29.10.1971, and also not complying with Government Resolutions dated

10.11.1976 and 17.4.1970, which provided for passing of pre-service training examination. The petitioner was not required to pass any pre-

service training examination. Not only this but even if the petitioner was required to pass such pre-service training examination, the petitioner was

exempted from passing such examination by virtue of the Government Resolution dated 10.11.1976.

(3) The petitioner was directly appointed as Junior Clerk in 1973 and since the resolution for passing the examination came into force

subsequently, i.e. in the year 1976 and since amendment of Rule 10 was brought in force in 1978 in Resolution dated 17.4.1970, the petitioner

would not be required to pass any examination. The provisions of those Government Resolutions would not be applicable to the case of the

petitioner.

(4) Even otherwise also, right from the beginning, the petitioner went on requesting for permitting him to pass pre-service training examination but

his request was never considered and he was allowed to continue to serve the post of Junior Clerk and therefore, it cannot be said that his

appointment on the post of Junior Clerk was not regular appointment.

(5) In any case, there is a clear provision in Government Resolution dated 10.11.1976 at page 33, whereunder the petitioner was exempted from

passing the examination for the post of Junior Clerk and therefore, the respondents were not justified in cancelling the appointment of the petitioner

on the post of Junior Clerk.

(6) Allthe persons shown in the list produced at page 30 of the petition, are Junior Clerks and they have got the benefits though they have not

passed any examination and the petitioner is the only person who has been singled out and sent back to the original post of work-charge. One Mr.

J.D. Dabhi, who was though not eligible to get promotion to the post of Clerk, still he was given all benefits and was not required to pass any

examination.

(7) Though the petitioner has retired, still the petitioner could be sent for training and interview and the petitioner is ready to go for training and

interview and the service can be regularized and he should be given all consequential benefits including promotion to the post of Sr. Clerk, by

regularizing the service of the petitioner.

As against the above submissions advanced on behalf of the petitioner, learned Assistant Government Pleader Mr. Pranav Dave, appearing for

the respondents has made following submissions:

(1) The petitioner was appointed as work-charge in 1964 and resumed duty on 2.12.1964. The appointment of the petitioner on the post of Junior

Clerk was purely temporary and when he was appointed on the post of Junior Clerk on 30.3.1973, Government Resolution dated 17.4.1970 was

in existence and as per the Government Resolution, the petitioner was required to undergo the training

and pass necessary examination for the purpose of getting appointed on the post of Clerk. Therefore, as on 1973, the petitioner was required to

pass examination as per the said Government Resolution and the petitioner having not passed the requisite examination and since the appointment

of the petitioner on the post of Junior Clerk was purely on temporary basis, the respondent authorities have not committed any illegality in passing

the impugned order dated 29.8.1998, at Annexure-''C''.

(2) The petitioner for the first time made application on 21.9.1989 on the basis of 1976 Government Resolution for exemption from passing the

examination. In fact, Government Resolution dated 17.4.1970 would apply in the case of the petitioner and therefore, it was mandatory for the

petitioner to pass the requisite examination and there was no question of any exemption to the petitioner under the Government Resolution of

1976. The fact that the petitioner had not applied for any exemption till 1989, shows that the petitioner knew that he was required to pass the

requisite examination on the basis of 1970 Government Resolution. Thus, there was no question of any exemption in the case of the petitioner.

(3) The fact that the petitioner has averred in the petition that the petitioner had made many efforts to request the authorities to permit him to pass

the requisite examination, would go to establish that the petitioner was in fact required to pass the requisite examination under Government

Resolution dated 17.4.1970 and since the appointment of the petitioner was purely temporary and in contravention of the said Government

Resolution, the petitioner is not entitled to continue to work on the post of Junior Clerk and he has been rightly restored to his original post of

work-charge.

(4) Simply because the petitioner has completed 25 years of service and has retired from the post of Junior Clerk is no ground to confer any other

benefit to the petitioner. Since the appointment of the petitioner on the post of Junior Clerk was itself temporary and not according to the prevailing

Government Resolutions dated 17.4.1970, the petitioner is not entitled to ask for any relief of regularization or promotion to the post of Senior

Clerk and therefore, the petition of the petitioner is required to be dismissed.

I have heard the arguments of both the sides. I have also perused the entire record of the petition. It appears that the appointment of the

petitioner as Junior Clerk, vide order dated 30.8.1973 was purely on ad-hoc basis. The petitioner was not the regular employee on the permanent

set up of the cadre of Clerk. When the appointment of the petitioner was made on the post of Junior Clerk, he was governed by Government

Resolution dated 17.4.1970, which is found at page 19. Clause (7) of the said Resolution specifically provides to undergo training and to pass

post-training examination before appointment to the post of Clerk.

The contention of the petitioner that the petitioner was always ready and willing to pass interview, pre-service training examination etc. and it

was the respondent authority who did not consider the request of the petitioner for permitting the petitioner to appear in such interview or

examination and therefore, the respondent authorities were not justified in passing the impugned order, cannot be accepted. Similarly, the

contention of the petitioner to the effect that the petitioner was exempted from passing the requisite examination, as provided in proviso to

Government Resolution dated 10.11.1976 and therefore, his appointment to the post of Junior Clerk was required to be considered as regular

appointment and the impugned order cannot stand scrutiny of law, can also not be accepted. It is required to be noted that the petitioner is sent

back to his original post as work-charge Clerk on the ground that the petitioner did not comply with the conditions required for appointment to the

post of Clerk under the Government Resolutions dated 17.4.1970, 10.11.1976 and 29.10.1971. When the petitioner was appointed purely as ad-

hoc Junior Clerk, he was governed by Resolution dated 17.4.1970 and Resolution dated 31.8.1972, which is found at page 23. Resolution dated

31.8.1972 provides for training and examination for the persons to be taken up on temporary establishment from work-charge establishment. Sub-

clause (ii) of Rule 3 of the said Resolution, specifically provides that the persons on work-charged establishment shall be considered for

appointment to the posts of Clerks on temporary establishment only after they have undergone training and passed the post-training examination,

prescribed for directly recruited Clerks under the aforesaid Rules. It clearly appears that when the petitioner was appointed on 30.8.1973, his

appointment was contrary to the provisions of the Government Resolutions dated 17.4.1970 and 31.8.1972. The petitioner had not passed the

requisite examination, as provided by the Government Resolution dated 31.8.1972 before the petitioner was taken up on the post of Clerk from

work-charge establishment. The reliance placed on proviso to Government Resolution dated 10.11.1976 would of no help to the petitioner,

because it provided for passing of the examination for regular appointment to the post of Clerk. However, when the appointment of the petitioner

as ad-hoc Junior Clerk was itself invalid from the beginning, continuing on such post and asking for permission to appear in the examination under

the subsequent resolutions was not of any help to the petitioner. The petitioner was continued with same status right from 1973 till the impugned

order was passed. The petitioner, therefore, cannot be given any benefit of regularization, simply because, subsequently, the petitioner was ready

to appear in the examination. It is pertinent to note here that for long time, the petitioner enjoyed the post of Junior Clerk with status as ad-hoc

Junior Clerk and for long time, he did not make any grievance for continuing him just as ad-hoc Junior Clerk. Therefore, when respondent No. 1

found that the very appointment of the petitioner on the post of Junior Clerk was itself an invalid appointment and contrary to the provisions of the

Government Resolution, there was nothing wrong in respondent No. 1 passing the impugned order dated 29.8.1998. However, since the challenge

to the impugned order did not survive, as the petitioner has retired, the petitioner amended the petition and prayed to direct the respondents to

send the petitioner for interview to the concerned Committee as contemplated by notification dated 10.11.1976 read with Resolution dated

25.1.1978 for the purpose of regularizing his services and if found suitable, to regularize his services according to law and to extend him all the

consequential benefits, including promotion to the post of Sr. Clerk. The petitioner is not entitled to get the relief under the above-said amended

prayer.

As stated above, to have regular entry, on the post of Clerk, first step was to pass the requisite examination as per the Resolution dated

31.8.1972. The stage for passing the requisite examination under the subsequent resolutions would have arisen if the petitioner had complied with

the condition of passing of the requisite examination before he was taken on temporary establishment on the post of Clerk. But, the petitioner''s

appointment to the post of Junior Clerk on temporary establishment was not a valid appointment and therefore, there is no question of considering

the case for now directing the respondents to send the petitioner for interview and requisite examination for the purpose of regularizing his services

and for other consequential benefits. Simply because the petitioner has continued in service all throughout on the post of Junior Clerk till the

impugned order was passed and till he retired, that would also not give any cause to the petitioner for seeking the relief of regularization of his

services.

At this stage, it is required to be noted that pursuant to order dated 30.4.2010, passed by this Court, the respondent Joint Director (R) GERI,

Vadodara has filed affidavit dated 10.6.2010 and has pointed out that Mr. J.D. Dabhi was not working in the Institute at any point of time and he

was not promoted as Sr. Clerk by the office of the deponent. It is stated in the said affidavit that while issuing the appointment order to the

petitioner, the conditions laid down by the Government Resolution were not fulfilled by the Superintending Engineer and therefore, the Government

of Gujarat cancelled the said appointment vide order dated 29.8.1998 and ordered to put the petitioner again on work-charge establishment.

Considering the overall facts and circumstances of the case and considering the fact that the initial appointment of the petitioner on the post of

Junior Clerk was not only ad-hoc appointment on temporary establishment of Clerk, but the said appointment was not legal one and therefore, the

prayer of the petitioner for regularizing his services cannot be granted. The case law cited by the petitioner, reported in H.V.P.N.L. Vs. Mahavir, ,

will be of no help to the petitioner, because the petitioner has enjoyed his full term of service under the interim order passed by this Court after the

impugned order and has retired from service. Not only this but, what was sought to be done by the impugned order was to send back the

petitioner to his original position on the ground that the appointment of the petitioner was purely ad-hoc and was not in consonance with the

conditions of the Government Resolution. Under these circumstances, the question of hearing the petitioner would not arise.

Under the above-said facts and circumstances, the petition is required to be dismissed and accordingly, it is dismissed with no order as to

costs. Rule is discharged. Interim relief, if any, stands vacated forthwith.