N C BANAWALA Vs. DISTRICT JUDGE PALANPUR

JUDGEMENT

(1.) The petitioner, in this petition under Article 226 of the Constitution of India, challenges the action on the part of the respondents by which he has been denied the benefits of retrospective seniority and promotion to the post of Junior Clerk and Head Clerk in the relevant cadre. He challenges the aforesaid action on the ground that the same is unjust, unfair, unreasonable, discriminatory and arbitrary and violative of Articles 14 and 16 of the Constitution of India and also violative of Amended Rules of Subordinate Judicial Services Recruitment Rules dated 16.7.1976. As can be seen from the petition, the petitioner challenges the order passed by the District Judge, Banaskantha, at Palanpur, dated 16.9.1981 with order dated 8.1.1982, rejecting the application/representation dated 6.6.1981 of the petitioner, for seniority retrospectively from 1969. The petitioner also challenges the order dated 22nd March 1982 passed in Appeal by the High Court (Administrative Side) preferred against the order passed by the District Judge. In substance, the petitioner challenges both the aforesaid orders at Annexures.A and B to the petition so far as they relate to the rejection of the prayer for retrospective seniority.

(2.) The petitioner was initially recruited as English Section Writer by the District Judge, Banaskantha at Palanpur on 26.12.1961. On 22.8.1963, he was temporarily promoted to the post of Junior Clerk. For confirmation as Junior Clerk, the petitioner was required to pass the Lower Standard Departmental Examination (in short, "LSD Examination") under the existing Rule 15 of the Recruitment Rules of Class-III and Class-IV servants in the Subordinate Judicial Services (in short, "the Recruitment Rules"), as amended from time to time, by availing three chances and within three years. According to the petitioner, the time was extended by the District Judge and therefore, he applied for permission to appear in the LSD Examination in 1968 which was not granted to him. In 1969, the petitioner was reverted to his original post of English Section Writer on the ground that he did not appear and clear the LSD Examination. The petitioner was confirmed on the post of Section Writer in the year 1969. In 1969, the petitioner again sought permission of the District Judge to allow him appear in the LSD Examination. However, the said request was rejected by the District Judge, Banaskantha by his order dated 4.8.1970 on the ground that the same is against the relevant rules. On 11.5.1975, the Recruitment Rules came to be amended. In pursuance to the amendment in the Recruitment Rules, the petitioner was given permission in June 1975 to appear in the LSD Examination to be held in July 1975 on payment of requisite fees. The petitioner passed the said examination and was promoted as Junior Clerk on 31.1.1976. The petitioner was confirmed as Junior Clerk with effect from 1.2.1977. It is the grievance of the petitioner that he should have been promoted from 1969 and that he is entitled to get the benefit of seniority and promotion and other consequential benefits as per the newly amended Rules. On 8.9.1980, the Gradation List came to be prepared. According to the petitioner, his name was not shown as per the relevant Rules with regard to the seniority and promotion. He, accordingly challenged the same by making an application to the District Judge, Banaskantha at Palanpur on 26.2.1981. The said application was amended on 6.7.1981. Annexures.H and I respectively are the copies of the said application as well as the amendment, attached with the petition. The said application/representation was rejected on 16.9.1981 vide order dated 8.1.1982 by the District Judge, which is produced at Annexure.A collectively to the petition. The High Court rejected the appeal on 18.11.1986, a copy of which has been annexed with the petition at Annexure.B. As stated above, both the orders are under challenge in this petition.

(3.) Before we deal with the submissions advanced before us by learned Counsel appearing for the parties, it is necessary to reproduce the relevant rules as well as certain correspondence. On 12th May 1975, the State Government, by issuing a Notification, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with the order by the President published in the Govt. of India, Ministry of Home Affairs, Order No. G.S.R./35/E dated 9th February 1974 amended the Rules for Recruitment to Class-III and Class-IV Services in the Subordinate Judicial Services contained in Appendix to Government of Bombay, Home Department, Resolution No. MIS/1055/62546/III dated 26th December 1957. Since we are concerned with Rule 15 of the Recruitment Rules, the same is reproduced as under: