M D MAVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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).

(2.) 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.

(3.) 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 Jaswant Singh and others Vs. State of M.P. and others, reported in AIR 2000 SC 3586. (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) All the 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.