STATE OF GUJARAT Vs. C D CHOKSHI

JUDGEMENT

(1.) This is an appeal under clause 15 of the Letters Patent filed by the State of Gujarat challenging the judgment dated 5.7.1993 passed by the learned single Judge in SCA No.511 of 1990 by which order dated 30.7.1988 retiring the respondent compulsorily from service passed under clause (aa)(i)(1) of Rule 161 (1) of BCSRs 1959 is set aside and the appellant is directed to reinstate the respondent in service with back wages to be worked out on the basis of observations made therein.

(2.) The respondent- original petitioner was born on 4.3.1938. He was appointed as an Overseer a class-III post on 5.1.1961 and thereafter was promoted to the higher post of Executive Engineer on adhoc and temporary basis by an order dated 18.10.1985 . By the impugned order dt. 30.7.1988 he was compulsorily retired from Government service at once in the interest of public service in accordance with clause (aa)(i)(1) of Rule 161(1) of BCSRs 1959 and paid three month's notice pay and allowance in lieu of notice period as laid down under clause (aa)(i) of the aforesaid Rules. This order was challenged by the respondent by filing Special Civil Application No. 511 of 1990 on several grounds. However,at the time of hearing of the petition, the original petitioner had challenged the impugned order only on one ground, namely that since he was promoted to the post of Executive Engineer on adhoc and temporary basis, he could not have been subjected to compulsory retirement but could have been only reverted to the substantive post from which he was promoted on adhoc and and temporary basis.

(3.) In order to substantiate his say, the respondent had relied upon the judgment of the Supreme Court in the case of Union of India etc. vs. K. R.Tahiliani & anor. AIR 1980 SC 953 . The learned single Judge dealt with this plea in para 3 of the judgment and after relying upon the judgment of the Honourable Supreme Court in the case of Union of India (Supra) held that as the respondent was promoted to the post of Executive Engineer on ad-hoc and temporary basis, he had no right to the post and therefore, he could not have been retired compulsorily from service. In view of this conclusion, the learned Single Judge allowed the petition by the impugned judgment, giving rise to this appeal. We may observe that operation of the judgment of learned single Judge which is impugned in the appeal has been stayed during the pendency and final hearing of the appeal.