MOHANSINH CHIMANLAL RAO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned advocate, Mr. Paresh Upadhyay, on behalf of applicants and learned Advocate General, Mr. Kamal Trivedi with learned A.G.P., Mr. L.B.Dabhi, appearing on behalf of respondent No.1.

(2.) The brief facts which have been narrated in the Civil Applications are relevant, therefore, same have been quoted as under :-

(3.) It is also necessary to refer the order passed by this Court (Coram : Hon'ble Mr. Justice M.R.Shah) in group of Civil Application No.6674/2006 dated 9/6/2006. The relevant paras are quoted as under :- By way of this applications, the respective applicants original petitioners have prayed for an appropriate interim order restraining the opponents original respondents from holding departmental examination scheduled to be held on 11/6/2006 pursuant to the circular dated 4/6/2006 (Annexure A to the applications). Accordingly, ad-interim order is prayed to direct the opponents original respondents to permit the applicants original petitioners to appear in the departmental examination scheduled to be held on 11/6/2006 pursuant to the circular dated 4/6/2006. It is the contention on behalf of the respective applicants original petitioners that the respective applicants have challenged Rule 2 (C) of Police Sub Inspector (Unarmed Branch Class III) Recruitment Rules, 2003 (hereinafter referred to as "the Recruitment Rules for convenience) and in the meantime, now the opponents original respondents have proposed to hold departmental examination for promotion as contemplated under Rule 2 (C) of the Recruitment Rules. He has also further submitted that if the examination is held and if ultimately the applicants original petitioners succeed, their respective Special Civil Applications will become infructuous. He has also further submitted that if ultimately the main Special Civil Applications preferred by the applicants are allowed and it is held that the case of the respective applicants are required to be considered, in that case either fresh examinations are required to be held and/or the examination which is scheduled to be held on 11/6/2006 are required to be quashed and set aside. It is also further submitted by Mr. Upadhyay, learned advocate appearing on behalf of the respective applicants that it will not be proper for the applicants to pray interim relief restraining the respondents from holding examination on 11/6/2006. However, the interest of the applicants can be protected if the applicants are permitted to appear in the said examination without prejudice to the rights and contentions of either parties and subject to the ultimate outcome of the main Special Civil Applications and/or all further orders and their results can be kept in a sealed cover and they will not claim may equity subsequently on the ground that they are permitted to appear in the examination and that they will also not file any applications and/or pray in future till the main Special Civil Applications are heard, that sealed cover be opened. Mr. Upadhyay, learned advocate appearing on behalf of the respective applicants has relied upon the interim order passed by the learned Single Judge of this Court (Coram : A.L.Dave, J) in Special Civil Application No. 14349 of 2003 and other allied matters dated 11/3/2004. He has further submitted that the aforesaid order dated 11/3/2004 is passed after considering the order passed by the Division Bench of this Court in Letters Patent Appeal No. 866 of 1998 in Special Civil Application No. 3509/1998. The applicants are opposed by Mr. Dipen Desai, learned A.G.P. appearing on behalf of the opponents original respondents. He has further submitted that so far as the cases contemplated under Rule 2 (C) of the Recruitment Rules is concerned, it is with regard to the promotion and for promoting a person, experience is required and therefore, experience of 5 years as Head Constable or Assistant Sub- Inspector is provided, which is neither illegal nor arbitrary in any manner. It is also further submitted that as on toady Rule 2 (C) of the Recruitment Rules which is challenged by the respective applicants in the main Special Civil Application is in operation and the main Special Civil Application s are yet to be heard even for admission. He has also further submitted that unless and until the said Rule 2 (C) of the Recruitment Rules is set aside, any order permitting the applicants herein original petitioners to appear in the ensuing examination will be contrary to Rule 2 (C) of the Recruitment Rules. Submitting accordingly, he has requested to dismiss the applications. Heard the learned advocates appearing on behalf of the respective parties and considered the material produced on record. Having heard the learned advocates and considering the material on record, it is not in dispute that the respective applicants - original petitioners have challenged Rule 2 (C) of the Recruitment Rules in so far as it prescribes minimum 5 years experience as Head Constable by way of preferring the aforesaid Special Civil Applications wherein notices have been issued by this Court and (Coram : D.H.Waghela, J) and the said Special Civil Applications are now adjourned to 23/6/2006. In the meantime, the opponents original respondents have now proposed to hold departmental examination for considering promotion as contemplated under Rule 2 (C) of the Recruitment Rules on 11/6/2006 and if ultimately the applicants original petitioners succeed in their respective Special Civil Applications, their cases will have to be considered and the respondent authority either will have to take afresh departmental examination or examination which is scheduled to be held on 11/6/2006 might be required to be set aside. If the fresh examinations/additional examination is taken, then it can be said that the applicants herein original petitioners will not be given treatment which will be given to those candidates who have appeared in the examination scheduled to be held on 11/6/2006, as for them other question paper will be there. Under the circumstances and to avoid any further complication and/or multiplicity of proceedings and with a view to see that the main Special Civil Applications preferred by the respective applicants original petitioners may not become infructuous, if the applicants are permitted to appear in the examination which is scheduled to be held on 11/6/2006 without prejudice to the rights and contentions of both the sides and without creating equity in favour of the applicants original petitioners and their results are kept in a sealed cover and on conditions which are suggested by the learned advocate appearing on behalf of the respective applicants, the ends of justice would be met. Therefore, by way of interim order, during the pendency and final disposal of the aforesaid Special Civil Applications preferred by the respective applicants original petitioners, the opponents original respondents are directed to allow the respective applicants herein original petitioners to appear in the ensuing departmental examination which is to be beheld on 11/6/2006 without prejudice to the rights and contentions of both the sides and subject to the ultimate outcome of the aforesaid main Special Civil Applications. As agreed by the learned advocate appearing on behalf of the respective applicants, the applicants original petitioners will not claim any equity in their favour by allowing them to appear in the ensuing departmental examination. The respondents are further directed that the result of the applicants original petitioners will be kept in a separate sealed cover so that the same may be considered at the time of hearing of the aforesaid main Special Civil Applications preferred by the applicants herein. If is also agreed by the learned advocate appearing on behalf of the applicants original petitioners that till the main Special Civil Applications are finally heard, they will not pray/submit before the Court for opening of the sealed cover and to consider their case accordingly. It is also made clear that this interim order is passed subject to the ultimate outcome of the aforesaid main Special Civil Applications preferred by the applicants herein original petitioners, the hearing of which is kept on 23/6/2006.