LAWS(GJH)-1991-3-7

TODARMAL JIVA JADAV Vs. KANDLA PORT TRUST

Decided On March 14, 1991
TODARMAL JIVA JADAV Appellant
V/S
KANDLA PORT TRUST Respondents

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution of India, the petitioner has inter alia challenged the action of the respondents in not giving him promotion to the post of Chief Engineer on the establishment of respondent No. 1.

(2.) It would be quite proper to narrate a few facts giving rise to the present petition most of which are not in dispute between the parties. The petitioner joined the services of respondent No. 1 as an Assistant Engineer (Civil) on 1/10/1965. He was promoted as Executive Engineer on 19/09/1974. He got his further promotion as Superintending Engineer with effect from 21/08/1988. He was placed on probation for a period of two years on the promotional post of Superintending Engineer. The Chief Engineer of respondent No. 1 retired from service with effect from 31/08/1989 (A.N.) presumably on his attaining the age of superannuation. The petitioner herein was thereupon required to discharge the current duties attached to the post of Chief Engineer as he was senior most Superintending Engineer. It appears that some advertisement inviting applications for the post of Chief Engineer on the establishment of respondent No. 1 was issued sometime in November 1989. The petitioner submitted his application on 29/11/1989 in response to the said advertisement. A copy of his application is at Annexure "B" to this petition. For some unknown reasons the advertisement inviting applications for the post of Chief Engineer on the establishment of respondent No. 1 was reissued sometime in March 1990. A copy of that advertisement is at Annexure "A" to this petition. It was provided therein that the candidate who had made applications in response to the previous advertisement need not apply again. It appears that certain applicants in response to the aforesaid advertisement were summoned for interview. The petitioner herein was not among them. He therefore, approached this Court by means of this Special Civil Application with a prayer that his case also should be considered for his appointment to the post of Chief Engineer on the establishment of respondent No. 1 on the strength of his application and by virtue of his working as the senior most Superintending Engineer on the very same establishment. It transpires from the record that this Court directed the respondents to interview the petitioner for the post of Chief Engineer, without finalising the result of such interview during the pendency of this petition. Apropos, the petitioner appeared for interview on 19/09/1990. It may be noted at this stage that, when this petition was placed for its preliminary hearing as to admission and some interim relief, notice was ordered to be issued making it returnable on 3/10/1990. During the pendency of this petition for its preliminary hearing as to its admission, a reply affidavit on behalf of respondent No. 2 came to be filed. Therewith was annexed as Annexure-II a copy of one telex message. Therein a reference was made that the post of Chief Engineer on the establishment of respondent No. 1 was required to be filled in by promotion in the first instance failing which by transfer/ deputation and failing both by direct recruitment. It was further mentioned therein that the first two methods had failed and the post was therefore required to be filled in by direct recruitment. It appears that the knowledge of this telex message stirred the petitioner to stake claim on the post of Chief Engineer by way of promotion instead of direct recruitment as he was the senior most Superintending Engineer on the establishment of respondent No. 1 and the next higher, post for promotion was that of Chief Engineer. He thereupon sought leave to amend the petition. Such leave was granted. By amendment the petitioner has challenged the action of the respondents in not giving him promotion to the post of Chief Engineer on the establishment of respondent No. 1.

(3.) Respondent No. 1 alone has filed reply affidavits in this case. The case as set up by respondent No. 1 is to the effect that the petitioner is not eligible to the post of Chief Engineer by promotion mainly on two grounds. In the first place, he does not posses the requisite experience of five years as Superintending Engineer and secondly he was still on probation as superintending Engineer when the post of Chief Engineer fell vacant on retirement of its incumbent on 31/08/1989.