1. Heard learned counsel for the parties.
2. By way of this petition, the petitioner has prayed to issue a writ of mandamus directing the respondents to upgrade the post of the petitioner from Peon cum driver to driver with effect from 01.01.2005 as per Government Resolution dated 21.08.1990 issued by the Revenue Department, State of Gujarat.
3. The petitioner joined service as Peon under respondent no. 4 on 07.10.1989 vide order dated 30.09.1989 but was on frequent occasion asked to give his service as driver. It is the case of the petitioner that it was decided by the Government that those peons cum drivers who were appointed as peon and who have completed their service of 10 years as peon and who have been working as peon cum driver for five years should be upgraded to the post of driver as per the resolution dated 21.08.1990 which is not done in the case of the petitioner.
3.1 The petitioner therefore was constrained to prefer SCA No. 2710 of 2009 before this Court for benefit of resolution dated 02.06.1999 whereby this Court vide order dated 20.06.2009 disposed of the same on the ground that there was no averment in the petition that the petitioner was performing his duty as driver for last five years. The petitioner thereafter preferred Misc. Civil Application No. 937 of 2011 with a request that the case of the petitioner be considered for the benefit of resolution dated 02.06.1999 which was also disposed of with a liberty to initiate appropriate proceedings afresh with supporting material pointing out that the petitioner is entitled for benefit of resolution dated 02.06.1999. Hence, the present petition has been preferred.
4. Mr.
Buch, learned advocate appearing for Nanavaty Advocates for the petitioner has submitted that the respondent authorities have ignored the services rendered by the petitioner as Peon since 1989 and was working as a peon cum driver since 01.01.1990 with a office of the Mamlatdar, Paddhari and thus having completed 10 years of service on 01.01.2000 the petitioner is entitled to get benefit of upgradation of his post. He submitted that in other districts the persons who were working as peon cum driver for ten years have been absorbed as driver and there is no justifiable reason to deny extension of the said benefit to the petitioner.
5. Mr.
Soni, learned AGP appearing for the respondent authorities has supported the stand taken by the respondents and has submitted that this petition is not maintainable as at the first place itself there is an inordinate delay by the petitioner in preferring this writ petition. He has submitted that the petitioner is claiming the benefits of the year 2005 in the year 2012 and the same should not be entertained by this court in view of the decision of the Apex Court in the case of Shiv Dass vs. Union of India & Ors. reported in AIR 2007 SC 1330. He has submitted that the order does not call for any interference from this court.
6. This Court has perused the documents placed on record by both the sides. As a result of hearing and perusal of records, it is clear that the petitioner joined service as Peon under respondent no. 4 on 07.10.1989. In this regard, it will be relevant to peruse decision of the Apex Court in the case of Shiv Dass (supra) wherein the Apex Court relying upon the decision reported in AIR 1987 SC 251 has upheld the view that if there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
7. In view of the above, this Court is not inclined to grant the prayers prayed for in the present petition at such a belated stage. No interference is caused in the present petition and the same requires to be dismissed. For the foregoing reasons, petition stands dismissed.
(K.S.
JHAVERI, J.) Divya// Top