STATE OF GUJARAT Vs. JAGDISHCHANDRA N DESAI

JUDGEMENT

(1.) This appeal has been preferred by the defendant State of Gujarat in Regular Civil Suit No. 10 of 1974 against the judgment and order dated 16th November, 1981 passed by the learned Joint District Judge, Junagadh in Regular Civil Appeal No. 107 of 1978 arising of the judgment and order dated 14th August, 1978 passed by the learned Civil Judge (SD), Junagadh in Regular Civil Suit No. 10 of 1974.

(2.) The plaintiff at the relevant time was serving as an Aval Karkun (redesignated as Deputy Mamlatdar) in Junagadh District. It was contended that the plaintiff had entered the Revenue Service of the erstwhile State of Saurashtra on 24th February, 1956 and on reorganisation of States, he was absorbed in the service of the State of Bombay. On bifurcation of the State of Bombay in the year 1960, he was allocated to the State of Gujarat and continued in service as a Clerk in the Revenue Department of the State of Gujarat. In the year 1966, he was promoted as Aval Karkun but was reverted on 5th July, 1967. Time and again he was thus promoted as Aval Karkun and was reverted to the cadre of Clerk. Last he was promoted on 21st January, 1971. However, apprehending that he would again be reverted to the post of Clerk, he instituted the above referred Regular Civil Suit No. 10 of 1974 in the Court of Civil Judge (SD), Junagadh. It was contended that in the State of Saurashtra, the promotion to the post of Aval Karkun was made from amongst the Clerks in order of seniority, however, on reorganisation of the States and formation of the State of Gujarat, the State of Gujarat had decided to remove disparity in the matter of promotion to the post of Aval Karkuns and had in the year 1962, issued a Resolution introducing Revenue Qualifying Examination and made it a pre-requisite for promotion to the post of Aval Karkun. Even the seniority in the cadre of Aval Karkun was governed by the date of passing of the said Revenue Qualifying Examination and the rank therein. The said Resolution of 1962 was followed by the Statutory Rules of 1966. It was further contended that the said Resolution and the Rules were contrary to Section 115 (7) of the States Reorganisation Act, 1956 and the Section 81 (6) of the Bombay Reorganization Act, 1960. It was further contended that any reversion made on account of non-passing of the Revenue Qualifying Examination was in contravention of the provisions contained in Article 311 (2) of the Constitution of India. He, therefore, prayed for a declaration that the Government Resolution dated of 1962 and the Rules of 1966 were void and for a direction that the State of Gujarat should maintain the seniority of Aval Karkun without reference to the passing of the Revenue Qualifying Examination and the promotion be made in accordance with the seniority in the cadre of Clerk. The suit was duly contested. The State Government filed its written statement at Exh. 15.

(3.) The learned trial Judge by his judgment and order dated 14th August, 1978 was pleased to hold that the introduction of the Revenue Qualifying Examination in so far as it was made applicable to the employees of erstwhile State of Saurashtra was in contravention of Section 115 (7) of the State Reorganisation Act, 1956 and Section 81 (6) of the Bombay Reorganisation Act, 1960. The learned trial Judge relied upon the judgment of this Court [Coram : Mr. Justice B.J Divan, as he than was] passed in Special Civil Application No. 1030 of 1969 and other writ petitions on 3rd December, 1970 and held that, `the plaintiff who joined service as a Clerk in the State of Saurashtra had passed the sub-service examination and thus was a confirmed clerk and was not required to pass the Revenue Qualifying Examination and if promoted as Aval Karkun, cannot be reverted only because he had not passed the Revenue Qualifying Examination; his seniority in the cadre of Aval Karkun also should not be affected merely because he had not passed the Revenue Qualifying Examination. The suit was accordingly decreed. Feeling aggrieved, the State preferred Regular Civil Appeal No. 107 of 1978 which too was dismissed on 16th January, 1981. Feeling aggrieved, the State has preferred the present appeal.