STATE OF GUJARAT THROUGH SECRETARY & ORS. vs SUKETUBHAI A DESAI

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 24.02.2016 passed in Special Civil Application No.16457 of 2010, by which, the learned Single Judge has allowed the said Special Civil Application preferred by the respondent herein - original petitioner and has quashed and set aside the order passed by the respondent dated 6.10.2010 cancelling the order of promotion of the original petitioner as Work Charge Assistant and consequently reverted him back to the post of Work Charge Clerk, the original respondentsState of Gujarat and others have preferred present Letters Patent Appeal.

The facts leading to the present Letters Patent Appeal in nutshell are as under: 2.1. That the original petitioner was appointed as daily wager on 20.02.1979. By way of Government Resolution dated 30.06.1998, the State Government resolved that the daily wagers, who have passed S.S.C. and who are working in department and are otherwise qualified for appointment to the post of Work Charge Clerk shall be absorbed in the Work Charge Establishment. Despite the above and though other daily wagers were absorbed in the Work Charge Establishment, the original petitioner and the other similarly situated persons in Ukai Circle were not given such benefit. Representation was made, which came to be turned down by the Divisional Office, Valod in December, 2002. That thereafter, once again the petitioner made representation to the State Government to look into the matter. Ultimately, the State Government considered the request of the original petitioner and by order dated 17.07.2006, the Superintending Engineer, Ukai Circle directed to absorb the Daily Wagers including the original petitioner in the Work Charge Establishment. That thereafter, as the original petitioner was qualified to be promoted to the post of Work Charge Assistant, for which, the training was necessary, the original respondent no.3 vide letter dated 05.10.2007 sent the list of persons to be sent for training which included the name of the original petitioner. That thereafter, original petitioner came to be promoted to the post of Work Charge Assistant vide order dated 25.09.2009 w.e.f. 01.10.1996 i.e. the day on which the original petitioner completed 10 years as Work Charge Clerk. One of the conditions in the said order was that original petitioner was to pass necessary training examination within a period of one year from the date of the order. It appears that an application for sending original petitioner for training was also submitted to the original respondent no.2 by the respondent no.3 vide letter dated 5.10.2007. The Executive Engineer, Surat, by an order date 17.12.2009 sent various Work Charge Assistant for training. However, the original petitioner was not included in the list of persons sending for training though he had applied for the same. That thereafter, by order impugned in the main petition dated 6.10.2010, the promotion of the original petitioner as Work Charge Work Assistant came to be cancelled on the ground that the original petitioner has not successfully completed the training and thereby he was reverted to the original post of Work Charge Clerk.

2.2. Feeling aggrieved and dissatisfied with the order cancelling the promotion as Work Charge Work Assistant and consequently reverting him to the post of Work Charge, respondent hereinoriginal petitioner preferred aforesaid Special Civil Application before the learned Single Judge. By impugned judgment and order, the learned Single Judge has allowed the said Special Civil Application and has quashed and set aside the order cancelling the order of promotion of the original petitioner as Work Charge Work Assistant and consequently reverting him to his original post of Work Charge Clerk on the ground that though the original petitioner did submit application for sending him to training, he was not sent for training.

2.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, original respondentsState of Gujarat and others have preferred present Letters Patent Appeal.

Ms. Mehta, learned Assistant Government Pleader appearing on behalf of the appellantsState of Gujarat and others has vehemently submitted that in the facts and circumstances of the case learned Single Judge has materially erred in allowing the petition and quashing and setting aside the order cancelling the promotion of the original petitioner. 3.1. It is vehemently submitted by Ms. Mehta, learned Assistant Government Pleader that one of the conditions of the promotion of the original petitioner to the post of Work Charge Work Assistant was that he was required to clear / pass the training examination within the period of one year. It is submitted that admittedly original petitioner did not pass departmental training examination within the period of one year. It is submitted that therefore, the concerned department was justified in cancelling the order of promotion. Making above submission, it is requested to admit / allow the present Letters Patent Appeal.

Present appeal is vehemently opposed by Shri Jay Trivedi, learned advocate for Shri Dipen Desai, learned advocate for the original petitioner. 4.1. It is submitted that in the facts and circumstances of the case, no error has been committed by the learned Single Judge in allowing the petition and quashing and setting aside order cancelling the promotion to the original petitioner as Work Charge Work Assistant.

4.2. It is submitted that in fact, original petitioner did submit the application before the appropriate authority for sending him to training. It is submitted that even original respondent no.3 send the application of the original petitioner to the original respondent no.2. However, when other persons were sent for training by the Superintending Engineer, the original petitioner was not sent for training. It is submitted that consequently the petitioner could not complete the training examination. It is submitted that therefore, there was no fault on the part of the original petitioner in not clearing training / examination within the period of one year. It is submitted that therefore, the learned Single Judge has rightly quashed and set aside the order cancelling the promotion. Making above submissions, it is requested to the dismiss the present appeal.

Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the original petitioner was working as a Work Charge since 1979. That thereafter, he was appointed as Work Charge Clerk vide order dated 17.07.2006. As per the earlier resolution of the State Government, on completing the period of 10 years as Work Charge Clerk, such Work Charge Clerk were required to be promoted to the post of Work Charge Work Assistant. Consequently, the original petitioner was promoted to the post of Work Charge Work Assistant by order dated 25.09.2009 w.e.f. 01.10.1996 i.e. the day on which the original petitioner completed 10 years as Work Charge Clerk. One of the conditions in the said order was that original petitioner was required to complete the training examination within a period of one year from the date of the order. That thereafter, by impugned order impugned in the main petition, order of promotion came to be cancelled on the ground that the petitioner had not completed training within the period of one year. However, it is required to be noted that even prior to the order of promotion dated 25.09.2009, the original petitioner submitted the application to the appropriate authority for sending him for training. It appears that respondent no.3 vide letter dated 05.10.2007 sent the list of persons to be sent for training which included the name of the original petitioner. However, thereafter there was no further communication by any of the original respondents. However, thereafter though other two persons were sent for training, the original petitioner was not sent for training. There was no communication by any of the original respondent on the application submitted by the petitioner to send him for training. As the petitioner was not sent for training, naturally he could not complete the training. Therefore, when though applied the original petitioner was not sent for training, thereafter it was not open for the original respondents to set aside the order of promotion on the ground that he had not completed the training within the period of one year. The reasons for not completing the training within the one year would not be attributed to the original petitioner. The original petitioner was always ready and willing to go for training and in fact he applied for training also. However, the petitioner was not sent for training by concerned authority. Considering the aforesaid facts and circumstances of the case, when the learned Single Judge has allowed the petition and has quashed and set aside the order canceling the promotion permitting the original petitioner to the post of Work Charge Work Assistant, it cannot be said that the learned Single Judge has committed any error which call for the interference of this Court in exercise of Appellate jurisdiction. We see no reason to interfere with impugned judgment and order passed by the learned Single Judge. We are in complete agreement with the view taken by the learned Single Judge.

In view of the above and for the reasons stated above, present appeal fails and same deserves to be dismissed and is accordingly dismissed. 6.1. In view of dismissal of Letters Patent Appeal, Civil Application No. 2352 of 2017 stands dismissed.