1. Rule. Mr. HS Soni, learned advocate appearing for respondent no.1 and Mr. Biren Vaishnav, learned advocate appearing for respondents no. 2 to 4 waive service of notice of Rule. With the consent of the parties, matter is taken up for final hearing today.
2. The petitioner has prayed for quashing and setting aside the order dated 14.06.2012 passed by respondent no. 3 whereby the petitioner is reverted to his original post as Gram Sevak.
3. It is the case of the petitioner that he was appointed as Gram Sevak on 03.11.1989 and thereafter was promoted to the post of Extension Officer on 19.08.1996. It is the case of the petitioner that since then he has been working on the said post, however, vide order dated 14.06.2012, respondent no. 3 without giving him opportunity of hearing reverted him to the original post. Being aggrieved by the same, the present petition is preferred.
4. Mr. Nirav Sanghvi, learned advocate appearing for the petitioner submitted that the impugned order is passed without affording any opportunity of hearing to the petitioner.
4.1 Mr. Sanghvi submitted that respondent no. 3 has not properly considered the Extension Officer Class III (Panchayat) Departmental Examination Rules 2009 in its true and proper perspective. He submitted that respondent no. 3 has failed to appreciate Rule No. 4 on account of the fact that the present petitioner has been exempted from passing of departmental examination as he has completed 45 years of age at the time of conducting examination.
4.2 Mr. Sanghvi further submitted that respondent no. 3 has taken an action of reversion after enforcement of new rule in the year 2009. He submitted that the respondent has not taken any action under the Old Rules but has relied upon the repealed rules at the time of passing the impugned order which calls for interference by this Court.
5. Mr. Biren Vaishnav, learned advocate appearing for respondents no. 2 to 4 has supported the stand of the respondents and submitted that the promotion of the petitioner to the post of Extension Officer was purely conditional. He submitted that the petitioner was promoted subject to conditions that he shall be required to pass the departmental examination as prescribed by statutory rules within the specified chances as provided by the Departmental Examination Rules 1976. He submitted that the petitioner did not pass the examination though he was given eight chances and therefore he was liable to be reverted by the Panchayat as he failed to comply with the conditions of promotion contained in the order dated 19.08.1996.
6. Having heard learned advocates for both the sides and having perused the papers on record, more particularly the impugned order as well as the order dated 19.08.1996 promoting the petitioner, it is clear that the petitioner was temporarily promoted from Gram Sevak to Extension Officer (Panchayat) subject to conditions that (i) he will be required to pass the departmental examination as prescribed by statutory rules within the specified chances as provided by the Departmental Examination Rules of 1976 and that (ii) he will be reverted to his original post if he fails to pass the said departmental examination.
7. It is an admitted position that the petitioner was given eight chances to pass the examination but he could not clear the same. The petitioner therefore failed to comply with the conditions of the order dated 19.08.1996.
8. So far as the contention regarding violation of principles of natural justice is concerned, the same cannot be accepted. The petitioner was promoted temporarily and was aware of the conditions governing his promotion. The conditions were not complied with by the petitioner though he was given four regular chances to pass the examination and was also given four additional chances. Therefore there was no question of giving any opportunity of hearing to him which objection otherwise could have been raised before he joined the lower post.
8.1 So far as the contention regarding exemption on the ground of 45 years of age is concerned, the same cannot be accepted. As provided by the Resolution dated 28.03.2006, the petitioner was eligible for exemption only if he had reached the age of 45 on 17.09.1994 being born on 24.06.1954 and the petitioner in fact reached the age of 45 in 1999 and not in September 1994. Even otherwise, the promotion was granted prior to his attaining 45 years of age with certain conditions which were accepted by him and now when he did not fulfill the said conditions, the petitioner cannot claim advantage of the said resolution.
8.2 As far as the new and old rules are concerned, it goes without saying that even under the new rules passing of departmental examination is necessary. The order of reversion passed by respondent authorities is therefore justified. This court does not find any infirmity in the same.
9. In the premises aforesaid, petition is dismissed. Notice is discharged.
(K.S. JHAVERI, J.) Divya//