(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.N.K.Majmudar, learned counsel appearing for the appellant and Mr.Rakesh Patel, Assistant Government Pleader appearing for the respondent.
2. The dispute is with regard to seniority. The seniority is governed by Gujarat Non Secretariat Clerks and Clerk-typists (Training and Examination) (Amendment) Rules, 1985 which have been amended on 30.3.1994. The amended Rules read as under:
"2. In the Gujarat Non-Secretariat Clerks and Clerk-Typists (Training and Examination)(Amendment) Rules, 1985, for rule 2, the following shall be substituted, namely :-
"2. In the Gujarat Non Secretariat Clerks and Clerk-typists (Training and Examination) Rules,1970, in Rule 8, after sub-rule(2), the following sub-rule (3) shall be and shall be deemed to have been inserted with effect from 10th June, 1970.
(3) Notwithstanding anything contained in clause (a) of sub-rule (1) of rule 21 of the Gujarat Non Secretariat Clerks, Clerk-Typists (Direct Recruitment Procedure) Rules, 1970, a candidate who is appointed as a Clerk or a Clerk-Typist subject to undergoing training and/or passing the examination shall get seniority from the date of joining service, if he completes the post training and passes the examination as prescribed in Rule 7 within three chances (Four chances in case of Scheduled Caste or Scheduled Tribes candidates):
Provided that seniority of a candidate as referred to above shall be counted from the date of passing the post training examination, if he fails to pass the examination as prescribed in rule-7 within three chances (four chances in case of a Scheduled Castes or Scheduled Tribes candidates)."
3. It is not disputed that initially the appellant was appointed as Junior clerk on 28.3.1980, and one J.A.Vala was appointed as Junior clerk on 3.4.1980. There was a condition that they have to pass a departmental examination and the maximum attempts were three. The proviso appended to Rule 2(3) clearly mentions that the seniority shall be counted from the date of passing of the training and/or examination. Admittedly, Mr.J.A.Vala passed departmental examination on 8.2.1982 wherein the appellant passed the departmental examination on 22.2.1984. Therefor, J.A.Vala was much senior to the petitioner. In the writ petition, the appellant claimed that he is senior to J.A.Vala, but he was not impleaded as party to the writ petition. Mr.N.K.Mamudar does not know as to how many persons were senior to him as it is not mentioned in the writ petition or all the senior persons have been made party because alongwith J.A.Vala, many others junior to him would have passed departmental examination. Be that as it may. Since the seniority was to be counted from the date of passing departmental examination, J.A.Vala has been treated as senior to the appellant. Learned counsel for the appellant has vehemently urged that there were three chances provided to the appellant and after the appellant has cleared in three chances, then even if J.A.Vala passes in the first attempt,it will not make any difference and if the appellant passes within three attempts, the petitioner will be placed above J.A.Vala. The argument runs contrary to the provision which clearly provides that seniority has to be counted from the date of passing of the examination. We do not find any substance in the argument of the learned counsel Mr.N.K.Majmudar nor we find any illegality committed by the learned Single Judge in dismissing the writ petition filed by the appellant.
4. For the aforesaid reasons, we do not find any merits in this Letters Patent Appeal. The Letters Patent Appeal fails and is accordingly dismissed.
(V.M.SAHAI,J) (G.B.SHAH,J) ***vcdarji