IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6888 of 1998 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NITINKUMAR RATILAL SHAH - Petitioner(s) Versus SECRETARY & 4 - Respondent(s) ========================================================= Appearance :
MR AD OZA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, MR VH DESAI for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, 4 - 5. MRS VD NANAVATI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 14/08/2012 CAV JUDGMENT By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order dated 11th May 1998 passed by the Gujarat Affiliated Colleges Services Tribunal, State of Gujarat, in Application No.67 of 1993 and thereby rejecting the application preferred by the present petitioner, praying for promotion to the post of Head Clerk.
Facts shortly stated be thus :
(1) Petitioner was appointed as a Senior Clerk in the College of respondent no.2 in the year 1978. Petitioner holds a Degree of M.Com., LL.B. In the month of September 1988, the Head Clerk was promoted to the post of Office Superintendent and, therefore, the post of Head Clerk fell vacant. As the petitioner was a Senior Clerk and had not been extended any promotion from the date of his appointment, he put forward his claim to be promoted on the post of Head Clerk, which was rejected by respondent no.2.
(2) The petitioner, therefore, preferred Application No.67 of 1993 before the Tribunal, praying, inter alia, to declare the action of the respondent College in not promoting the petitioner to the post of Head Clerk as illegal.
(3) It appears that respondent no.5 herein, also an employee serving with respondent no.2 College, preferred an application for being joined as a party respondent before the Tribunal in Application No.67 of 1993.
(4) The Tribunal rejected the application preferred by the petitioner herein but, at the same time, granted relief in favour of respondent no.5 who was permitted to be joined as a party respondent before the Tribunal and the Tribunal directed respondent nos.1 and 2 to promote respondent no.5 with effect from 13th October 1993 as a Head Clerk in respondent no.2 College.
Aggrieved by the aforesaid order passed by the Tribunal, the petitioner has come up before this Court by way of this petition.
Mr.A.D.Oza, learned counsel appearing for the petitioner vehemently submitted that respondent no.5 had not filed any substantive application before the Tribunal, but still the Tribunal erroneously proceeded to grant substantial relief in favour of respondent no.5. Mr.Oza further submitted that the Education Department i.e. respondent no.4 refused to sanction approval to the promotion of respondent no.5 and, therefore, respondent no.5 continued as a Store Keeper till he retired on 14th June 2004. Mr.Oza brought to the notice of the Court that respondent no.5 was appointed as a Laboratory Assistant and was promoted as a Store Keeper with effect from 24th March 1976. The setup of the cadre is reflected from the statement 'KH' of the Government Resolution dated 7th April 1978 produced at pp.49 to 54. Under such circumstances, according to Mr.Oza, the promotion was available to respondent no.5 as per the cadre shown in the said statement and accordingly he was promoted as a Laboratory Assistant to the cadre of Store Keeper.
Mr.Oza further submitted that on the other hand, the petitioner was appointed as a Senior Clerk in the cadre of Clerk/Librarian shown in the 'Patrak' 'K'
p.52 of the Government Resolution dated 7th April 1978.
As per this, the petitioner was promoted from the post of Senior Clerk to the post of Accountant on 1st January 1997. Mr.Oza submitted that the post of cadre mentioned in the 'Patrak' 'K' as a Head Clerk when the post fell vacant in the year 1988. Mr.Oza also brought to the notice of the Court that in the present petition an affidavit-in-reply has been filed on behalf of respondent no.4 by Mr.S.G.Desai, Joint Director, Officer of the Commissioner of Higher Education, wherein in paragraph 5 it has been categorically averred that the judgment and order passed by the Tribunal is illegal and deserves to be set-aside. Mr.Oza pointed out paragraph 6 of the said affidavit-in-reply, wherein it has been averred that non-teaching staff of non-government colleges, grant- in-aid colleges are the employees of a trust and for the promotion the concerned trust has to keep in mind the qualification & experience and seniority rules prescribed by the concerned universities.
Mr.Oza further pointed out that in paragraph 7 of the affidavit-in-reply filed by respondent no.4 it has been averred that respondent no.5 Mr.Surti had been appointed in the Chemistry Laboratory Department as a Store Keeper on 18th June 1986 and thereafter promotion had been given to the present petitioner by college trust vide letter dated 24th March 1976 from the post of Laboratory Assistant to Store Keeper and hence as per the Government Resolution dated 7th April 1978 and as per Schedule B paragraph 1.1, the petitioner could be said to be on the establishment of Laboratory.
Mr.Oza submitted that the order of the Tribunal is erroneous and a serious miscarriage of justice has been caused by such an erroneous order passed by the Tribunal.
On the other hand, learned counsel appearing for respondent nos.1 and 2 defended the order passed by the Tribunal urging that there is no merit in this petition and the same be dismissed.
Respondent no.5, though served, has not chosen to appear before this Court either in person or through an advocate.
Having heard learned counsel for the respective parties and having gone through the materials on record, I am of the view that the Tribunal has failed to consider the difference between the two cadres as shown in 'Patrak' 'K' and 'KH' while deciding the application filed by the petitioner. It is very surprising to note that respondent no.5 who joined himself as a party respondent before the Tribunal was granted substantial relief in the form of a direction to the college management to give promotion to respondent no.5 with effect from 13th October 1993 as a Head Clerk. Mr.Oza is right in submitting that there was no substantive application filed by respondent no.5 before the Tribunal.
It appears that the Tribunal in one paragraph has summed up its conclusion reflecting complete non- application of mind. In paragraph 17, the Tribunal held as under :
“After hearing all the parties and considering the documentary and oral evidence on record and relevant provisions of law as well as the facts and circumstances of the case, I come to a conclusion that the respondent no.5 was promoted as Store Keeper on 24.3.1976 from the post of Lab.Assistant and pay scale and the post of Store Keeper and Sr.Clerk is the same. Moreover, the cadre of store keeper and senior clerk is the same. The respondent no.5 was promoted on 24.3.76 from Lab.Assistant to Store Keeper in the respondent no.2 college where as the applicant was promoted in the year 1978. Therefore, considering the date of appointment and seniority of the applicant and the respondent no.5, it is very much clear that the respondent no.5 is senior than the applicant. Therefore, I agree with the submission of the learned advocate Mr.D.K.Shah that respondent no.5 is eligible to be appointed as Head Clerk in the respondent no.2 college by way of promotion from the date of application filed by him for joining as party opponent to the present application i.e. 13.10.1993.”
Paragraph 18 is the operative part of the order, which reads as under :
“In view of the above discussion, the application dated 13.10.1993 preferred by the respondent no.5 is allowed, with no order as to costs. The interim relief granted earlier in favour of the applicant by this Tribunal is hereby vacated. The application of the present applicant deserves to be rejected and accordingly the same is rejected, with no order as to costs. The respondent nos.1 and 2 are directed to give promotion to the respondent no.5 with effect from 13.10.1993 as Head-Clerk in the respondent no.2 college, as prayed for by him.”
I am of the view that ends of justice would be met if the entire matter is remitted to the Tribunal for fresh consideration, more particularly, keeping in mind Circular of the University dated 30th August 1979 produced at Annexure-'C' pp.41-43, whereby the Executive Council of the University has approved the respective cadre in the affiliated colleges and on the basis of which the petitioner has put forward his claim. It also appears that the Tribunal has failed to consider the difference between the two cadres as shown in 'Patrak' 'K' and 'KH' while deciding the application.
Prima facie, it appears that the Store Keeper mentioned in the 'Patrak' 'K' is for the purpose of Record Keeper and the Store Keeper mentioned in 'Patrak' 'KH' is for the purpose of preserving chemicals in the store. It appears that both the posts of Store Keeper are different in the cadre.
It has been brought to my notice by Mr.A.D.Oza, learned counsel appearing for the petitioner that during the pendency of this petition the petitioner was promoted as an Accountant with effect from 1st January 1997 and he still continues on the said post. The petitioner is to attain superannuation on 14th June 2015. On the other hand, respondent no.5 has already retired as a Store Keeper with effect from 14th June 2004.
Be that as it may, I am of the view that the Tribunal should look into the matter afresh keeping in mind the observations made by this Court and also the grounds which may be urged by the petitioner at the time of hearing before the Tribunal.
In the result, this petition succeeds in part. The order passed by the Tribunal dated 11th May 1998 in Application No.67 of 1993 is set-aside and the Gujarat Affiliated Colleges Services Tribunal, State of Gujarat is hereby directed to decide the matter afresh after giving opportunity of hearing to all the concerned parties. The Tribunal shall issue notice to the respective parties for fresh hearing within a period of fifteen days from the date of receipt of this order and thereafter pass final orders within a period of two months, without fail.
The Tribunal is directed to strictly adhere to the time period fixed by this Court for re-hearing of the matter as well as for final disposal of the application.
With the above observations and directions, this petition is disposed of accordingly.
(J.B.Pardiwala, J.)
/moin