K A CONTRACTOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition by five Government employees in the Gujarat State Accounts Service. In the sear 1976 or thereabout all these five petitioners were in the group I service which was the highest nongazetted post in Class III service. in this Accounts Service there are Group II service; Group I service; Class II service and Class I service. The persons in the Group I service as the petition paragraph 5 states without any controversy being raised in that regard were eligible for promotion to Gujarat Accounts Service Class II on the basis of (a) seniority in Group I post; (b) at least three wears working on the supervisory posts; (c) passing of the departmental examination prescribed by the Government; and (d) proved merit and efficiency to be adjudged from confidential reports. The examination prescribed by the Government is styled as the Gujarat Accounts and Treasuries Department (Gujarat Accounts Service) Examination Rules 1975 which are the Rules made by the Governor by virtue of the powers conferred on him by the proviso to Art. 309 of the Constitution of India. Those Rules were made by the Governor in supersession of the existing Rules on the subject. The petitioners admittedly were senior to the respondents nos. 9 to 12 as far as Group I service is concerned. The respondents nos. 9 to 12 passed the qualifying departmental examination prescribed by the above mentioned Rules in April 1966. The petitioners nos. 1 and 5 had appeared at that examination along with the respondents nos. 9 to 12 but they had failed while the respondents nos. 9 to 12 had passed. The petitioners nos. 2 3 and 4 had not passed the examination till April 1976. All the five petitioners however had appeared at the examination held in October 1976 and were declared successful in the results announced curiously enough after about 10 months that is in the month of August 1977. It so happened that in the month of November 1976 certain Class II pests were to be filled in. The petitioners though senior to the contesting respondents in the Group I cadre were not eligible because they had not passed the examination at the time the avenue for promotions opened. The respondents nos. 9 to 12 therefore had come to be promoted but the Government called their promotion ad hoc or provisional. In becoming eligible the petitioners claimed their eligibility and consequential right to promotion but the Government did not pay any heed. Therefore in September 1978 they filed the present petition and prayed for the following reliefs :-

(2.) In the petition there were impleaded the respondents nos. 3 to 8 hut they are now deleted from the contest. So we have to examine the petition vis a vis the petitioners and the respondents nos. 9 to 12 with the State and the Director of Accounts and Treasuries also arraigned on the other side. It is also to be noted pertinently that during the pendency of this petition the petitioners also came to be promoted to the Class II post and Mr. A. J. Patel the learned Assistant Government Pleader appearing for the respondents nos. 1 and 2 declared that the Rule 7 of 1975 Rules which is hereafter quoted will be given full effect and the petitioners will be accorded seniority pursuant thereto. Thus to some extent the petitioners grievance is redressed. However certain things do remain and that is why the petition had been prosecuted.

(3.) Mr. Girish Patel the learned advocate appearing for the petitioners raised two questions before me. He first prayed that in view of the Manual of Departmental and Language Examination Rules of the erstwhile State of Bombay the petitioners who had appeared at the examination held in October 1976 should be deemed to have passed the examination on the date following the date on which the examination ended. Clause (3) of Rule 2 of the alleged Rules which was relied upon by Mr. Girish Patel reads as follows :-