MF SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has filed this petition under Article 226 of the Constitution of India praying for the direction to the respondent to assign the seniority to the petitioner in the cadre of clerk-cum-typist (English) from his initial date of appointment i.e with effect from 1.3.1985. The petitioner has also sought for the direction to the respondent to determine the seniority in the cadre of clerks and clerk-cum-typists, on the basis of the continuous officiation, as laid down by the Hon'ble Supreme Court and sought further direction to the respondent to give promotion to the cadre of assistant, from the cadre of clerk and clerk-cum-typists, considering the seniority determined on the basis of the continuous officiation.

(2.) The petition was originally dismissed by this Court vide order dated 5.10.1999. While dismissing the said petition, the Court has held that an incumbent who is appointed as Clerk-cum- typist in regular manner, the regular selection process is completed only on passing the departmental examinations within three prescribed chances. No fourth chance is permissible to be availed by an incumbent as a matter of right to be placed at par with those who cleared departmental examination within the prescribed chances. If a condition is attached to give a grace chance or an additional chance to an incumbent to save elimination from service altogether, in such event his appointment is subject to such condition and shall be treated as fresh appointment and he cannot claim his seniority on the basis of initial appointment. The Court has further held that the rule cannot be said to be unreasonable or contrary to any principle of equity, fairplay and justice. The question of seniority depends on the operation of the Rules itself and cannot be decided on general principles enunciated for different situations where specific Rules govern the field.

(3.) Being aggrieved by the said order the petitioner preferred LPA No.1606 of 1999. The said LPA was decided on 27.12.1999. Before the Division Bench the contention was raised on behalf of the appellant / petitioner that the petitioner wanted to challenge the validity of certain rules. The Court acceded to the request of the appellant and, thereafter, draft amendment was submitted. The petition was disposed of without any order being made to amend the petition. Considering this aspect of the matter, the Division Bench has allowed LPA and quashed and set aside the orders passed by the learned Single Judge. The court, however, made it very clear that the Court has not expressed any opinion on the merits of the matter and as and when the matter would be placed for hearing, it was open for both the parties to raise all contentions available to them in law.