Gujarat High Court
Mokashi Kanchanben Shukarbhai vs State Of Gujarat on 17 September, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3040 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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MOKASHI KANCHANBEN SHUKARBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GAUTAM JOSHI, LD. SR. ADV. with MR MEHUL SHARMA and VYOM H
SHAH(9387) for the Petitioner(s) No. 1
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 17/09/2025
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr.Gautam Joshi appearing with learned advocate Mr.Mehul Sharma and learned advocate Mr.Vyom Shah on behalf of the petitioner and learned Assistant Government Pleader Mr.Aditya Pathak appearing on behalf of the respondent - State.
2. By way of this petition, the petitioner inter alia challenges a decision of the respondents to terminate the services of the petitioner vide an order dated 11.09.2016 and further prays for a direction that all consequential benefits as if the order of termination had not been passed at all from the Page 1 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined initial date of appointment, be granted to the petitioner.
3. Facts in brief, as much as are required for deciding the present petition, more particularly in view of the fact that the issue raised in the present petition appears to be covered by decisions of the Hon'ble Division Benches of this Court, are stated hereinbelow.
3.1. It appears that the petitioner was appointed as a Forest Guard vide an order dated 10.09.2009 and as per the terms of the appointment, the appointment was for a fixed period of 5 years with a fixed salary. The terms of the appointment further stipulated that the petitioner was required to clear the CCC examination upon his appointment.
3.2. It would appear that the petitioner had successfully cleared the CCC examination conducted by the Department of Electronics and Accreditation of Computer Courses (DOEACC) vide result dated 21.03.2011. It would appear that subsequently, upon completion of 5 years, services of the petitioner were regularized on 19.11.2015 w.e.f. 12.09.2014. It would appear that though the petitioner had cleared the CCC examination in the year 2011 as noted hereinabove, yet Page 2 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined vide an order dated 11.09.2016, the services of the petitioner were terminated on the ground that the petitioner did not complied with the conditions mentioned in the regularization order. The condition inter alia being as regards the petitioner being required to clear the CCC examination within a period of 2 years of his regularization / the date of resolution. 3.3. It would appear that the petitioner, upon his services being terminated on 11.09.2016, had applied for appearing in the CCC examination conducted by the Sardar Patel Institute of Public Administration (SPIPA) and whereas, the petitioner had cleared the CCC examination on 09.11.2016 and whereas, upon successfully clearing the said examination, the petitioner was reinstated in service on 10.11.2016. 3.4. It would appear that the grievance of the petitioner being that upon being reinstated, the seniority of the petitioner had been readjusted w.e.f. 09.11.2016 treating the petitioner as a fresh enterent with effect from that date, has resulted in grave prejudiced to the present petitioner. The petitioner, therefore, has approached this Court inter alia contending that the petitioner would be entitled for his seniority to be counted with effect from his date of original Page 3 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined appointment i.e. 10.09.2009.
4. Heard learned Senior Advocate Mr.Gautam Joshi on behalf of the petitioner who would submit that the issue raised in the present petition is covered by two separate decisions of the Hon'ble Division Benches of this Court. 4.1. Firstly, learned Senior Advocate would refer to decision of the Hon'ble Division Bench in Letters Patent Appeal No.129/2024 dated 15.07.2024 in case of State of Gujarat and Ors. vs. Mahesh Sureshbhai Parmar and Ors., wherein the Hon'ble Division Bench had inter alia laid down that the State Government could not have terminated the services of the employees once such employee has been regularized in service after completing prescribed period of 5 years. The Hon'ble Division Bench has inter alia laid down that upon completion of 5 years' contractual period and the services of the petitioner having been regularized, condition of Government Resolution dated 23.10.2015 which had been invoked to terminate the services of the employee, could not be resorted to.
4.2. Learned Senior Advocate would thereafter rely upon Page 4 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined decision of the Hon'ble Division Bench of this Court in Letters Patent Appeal No.376/2021 dated 20.07.2021 in case of State of Gujarat vs. Kodiyatar Manda Amarabhai, wherein the Hon'ble Division Bench had inter alia laid down that Government Resolution dated 23.10.2015 which had amended Rule 9(A)(3) of the Gujarat Civil Services Classification Recruitment (General) Rules, 1967, did not have retrospective effect. It is contended by learned Senior Advocate that Government Resolution dated 04.06.2009 was the first resolution whereby the State had inter alia stipulated that an employee, upon joining service, would be required to clear the CCC examination within the period of probation. It is submitted that Government Resolution dated 04.06.2009 had been substituted by later Government Resolution dated 23.10.2015 based upon which the services of the petitioner were terminated and whereas, the said resolution had inserted the words "or within a period of 2 years thereafter in Rule 9(A) of the Gujarat Civil Services Classification Recruitment (General) Rules, 1967".
4.3. It is submitted that Hon'ble Division Bench, in the decision referred to, had laid down that Government Page 5 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined Resolution dated 23.10.2015 could not be applied retrospectively and whereas, it is submitted that under such circumstances, the services of the petitioner ought not to have been terminated in the first instance.
4.4. Even otherwise, learned Senior Advocate would submit that the said resolution inter alia lays down that the employee would be required to clear the CCC examination within 2 years of regularization and whereas, it is submitted that the petitioner, while he was regularized on 12.09.2014, had cleared CCC examination on 09.11.2016 and subsequently reinstated on 10.11.2016.
4.5. Learned Senior Advocate would submit that on all three counts namely (i) the services of the petitioner could not have been terminated for non-clearance of CCC examination after his regularization, (ii) Government Resolution dated 23.10.2015 not having retrospective applicability, and (iii) even otherwise the condition of the said government resolution having been fulfilled by the petitioner, the issue would swing in favour of the present petitioner and whereas, this Court may grant the reliefs as prayed for. Page 6 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025
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5. As against the same, to a pointed query of the Court, learned AGP could not dispute the position that decisions of the Letters Patent Appeals referred to hereinabove had attained finality since the said decisions have not been assailed by the State before the Hon'ble Supreme Court.
6. Considering the submissions made by learned Senior Advocate for the petitioner and learned AGP for the respondent State, at the first instance, observations of the Hon'ble Division Bench in Letters Patent Appeal No.129/2024, more particularly para-26 thereof being relevant, is reproduced hereinbelow for benefit:-
"26. The case of the appellants entirely hinges on the Government Resolution dated 23.10.2015. The same will not apply to the respondents. The appellants have treated the respondents as fresh appointees from 2018-19 by wiping out their entire service from the year 2007, which includes the probation/contractual period. It is also an undisputed fact that the respondents were never terminated from the services on the ground that they had not passed the CCC examination within the prescribed period. The appellants have admitted the validity of the CCC certificates possessed by the respondents at the time of their appointments. The respondents were also regularized and placed in regular pay scale after completion of 5 years contractual period. Thus, the conditions of the Resolution dated 23.10.2015 cannot be invoked, after the respondents were regularized in service. In wake of these undisputed facts, the impugned action of treating the respondents as fresh Page 7 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined appointees could have been only taken during their probation/contractual period, and not thereafter. There is no provision of law shown to us, which enables the appellants to take such action against those employees, after they have been regularized in service. The only period/time frame available to the appellants to act or invoke the Government instructions/ Resolutions, was during the probation or contractual period, and if the State authorities have failed to do so, they cannot tinker with the seniority and treat the regular employees as fresh appointees. Such an action will amount to putting the cart before the horse, as the regular employees are being treated as fresh appointees with retrospective effect from the date of passing the CCC exams by curtailing the probation period. Thus, the appellants have absolutely acted without application of mind and without realizing the consequences of their orders."
6.1. Having regard to the observations of the Hon'ble Division Bench, it would appear that the Hon'ble Division Bench has inter alia laid down that once the employee has completed the probation / contractual period and has been regularized in service, then the condition of Government Resolution dated 23.10.2015 could not be invoked for terminating the services of the employee. The Hon'ble Division Bench has observed that while it would have been open for the State to have taken action against the employees i.e. to invoke the provision of the government resolution during the probation or contractual period, yet, upon the State regularizing the services of such employee, thereafter, Page 8 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined there could not have been any action for termination nor could the seniority etc. of the employee be tinkered with.
7. This Court would refer to observations of the Hon'ble Division Bench of this Court in decision dated 20.07.2021 in Letters Patent Appeal No.376/2021. Paragraph Nos.27 and 28 of the said decision being relevant for the present purpose, are quoted hereinbelow for benefit:-
"27. On conjoint reading of Notification dated 23.10.2015 which has amended Rule 9A by inserting words "or within a period of two years thereafter"
after the words "contractual basis" under Sub-rule(3) of Rule 9A of Rules, 1967 and Government Resolution dated 23.10.2015 which has substituted conditions no.11(2) and 12(2) of the terms and condition for appointment prescribed in Annexure-I of the Government Resolution dated 4.6.2009 for appointment on the posts of class-III and IV posts on contract basis with fixed pay would mean that Rule 9A(3) is amended to the effect that the employee who is appointed on contractual basis, is required to pass CCC/CCC+ examination for computer knowledge within a period of two years after contractual period is over and on basis of such amendment which has come into effect from 4.6.2009, clause 11(2) and 12(2) of the terms and conditions for appointment on contractual basis in Annexure-I of the Government Resolution dated 04.06.2009 have been substituted by Government Resolution dated 23.10.2015. Therefore, it cannot be said that Government Resolution dated 23.10.2015 substituting clauses 11(2) and 12(2) of the terms and conditions for appointment on contractual basis for fixed pay would be applicable with effect from 4.6.2009 making it compulsory for the employees who are appointed on Page 9 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined regular basis prior to coming into force of Government Resolution dated 23.10.2015 to pass CCC/CCC+ examination within two years from the date of their regular appointment failing which service of such employee would be terminated.
28. As the terms and conditions of appointment on contractual basis stipulated in Government Resolution dated 4.6.2009 have been substituted by Government Resolution dated 23.10.2015, the Learned Single Judge rightly held that Government Resolution dated 23.10.2015 would be applicable prospectively i.e. from 23.10.2015 and not retrospectively and the concerned employee whose service is regularised as per Government Resolution dated 4.6.2009 as per Rule 9A(3)of the Rules,1967 which is amended by Notification dated 23.10.2015, period of two years is to be considered from the date of Government Resolution dated 23.10.2015 and not from the date of regularisation of such employee." 7.1. Considering the observations made by the Hon'ble Division Bench, it would clearly appear that the Hon'ble Division Bench has laid down that the provisions of the Government Resolution dated 23.10.2015 could not be applied retrospectively prior to the date in question. In other words, what is laid down by the Hon'ble Division Bench being that in 2 years' period during which the employee was required to clear the CCC examination, could have been for appointments after 23.10.2015 and not for appointments which were given prior to 23.10.2015. Thus, it would appear that the basis on which the services of the petitioner had been terminated and Page 10 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025 NEUTRAL CITATION C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025 undefined later on his seniority position had been modified to his detriment being based upon Government Resolution dated 23.10.2015, could not be countenanced.
7.2. Furthermore, the Hon'ble Division Bench has also held that as per the terms of the Government Resolution dated 23.10.2015, the employee is required to clear the CCC examination within a period of 2 years from the date of completion of his contractual period i.e. from the date of regularization.
8. Having regard to the law laid down by the Hon'ble Division Bench in the proposition as reproduced hereinabove, it would clearly appear that the services of the petitioner ought not to have been terminated and whereas, in any case, upon his reinstatement upon clearing the CCC examination for a second time, upon reinstatement, the seniority of the petitioner ought to have been restored from the date of appointment i.e. 10.09.2009.
9. Having regard to the above discussion, observations and conclusions, the following directions, to this Court, would meet with the ends of justice:-
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(i) The decision of the respondents to grant prospective seniority to the petitioner w.e.f. 09.11.2016 is declared to be bad in law. The petitioner is declared to be entitled for seniority to be counted from the date of appointment i.e.
10.09.2009 in the post of Forest Guard.
(ii) In other words, the seniority position of the petitioner shall be restored as if termination order dated 11.09.2016 and consequent reinstatement order dated 10.11.2016 had not been passed at all.
(iii) The above exercise to be completed by the State and appropriate placement be given in the seniority list and further consequential actions based upon the seniority, including promotion shall be done within a period of six (06) weeks from the date of receipt of this order.
10. With the above observations and directions, the present petition stand disposed of.
(NIKHIL S. KARIEL,J) Bhoomi Page 12 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Sep 24 2025 Downloaded on : Wed Sep 24 21:32:18 IST 2025