Bhikhabhai Jethabhai Bhoi vs Bhkhabhai Shanabhai Barot
2021 Latest Caselaw 18573 Guj

     C/LPA/1058/2021                                ORDER DATED: 20/12/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 1058 of 2021

            In R/SPECIAL CIVIL APPLICATION NO. 7373 of 1999
                                 With
               R/LETTERS PATENT APPEAL NO. 1060 of 2021
                                   In
               SPECIAL CIVIL APPLICATION NO. 7438 of 1999
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                     BHIKHABHAI JETHABHAI BHOI
                               Versus
                BHKHABHAI SHANABHAI BAROT & 14 other(s)
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Appearance:
KUMAR H TRIVEDI(9364) for the Appellant(s) No. 1
MS URMILA DESAI, AGP for Respondent State.
for the Respondent(s) No. 1,10,11,12,13,14,15,2,3,4,5,6,7,8,9
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 20/12/2021

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. By way of present Letters Patent Appeals under clause 15 of Letters Patent, the appellants - original writ petitioners in Special Civil Application No.7373 of 1999 and Special Civil Application No.7438 of 1999 have challenged common oral judgment dated 13.07.2016 passed by learned Single Judge.

2. Brief facts leading to Writ petitions at the instance of the appellants can be stated thus :-

2.1. The appellants were serving as Work Charged establishment in Class IV service and had made demand of promotion to Class III service. A proposal was made by the Superintending Engineer on 28.08.1997. The Government on

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29.01.1998, directed the Superintending Engineer to make appointment to Class III service in accordance with the Recruitment Rules and existing Government policy. Accordingly, the appellants were given deemed promotion as Work Charged Karkuns.

3. Pending hearing of the Writ petitions, it appears that on 28.04.2014, following order was passed :-

"1. In all these petitions, the petitioners have challenged the orders of their reversion passed somewhere in the year 1999. It is their case that considering their long tenure of service, they were given promotion to the post of work charged karkoon and they had also become entitled to further promotion to the post of work charged assistant. However, after a period of about one year, their promotions came to be cancelled without hearing them.

2. It appears that pending the petitions, some of the petitioners have been again promoted as work charged karkoon in the year 2008. One of such order placed by amendment with Special Civil Application No.7373 of 1999 is office order no. 87 of 2008 dated 16.4.2008 annexure I for promotion of four petitioners from the post of work charged chokidar and work charged phone attendant to the post of work charged karkoon.

3. Learned advocate Mr. U.I. Vyas appearing for the petitioners submitted that now only below named five petitioners are left out and there is no dispute that right

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from 1978 onwards, they have been working as work charged karkoons and work charged phone attendant and still they have not got any benefit of promotion.

1.Bhikhabhai Jethabhai Bhoi

2.Pravinbhai Somabhai Solanki

3.Babubhai Khodabhai Makwana

4.Chandubhai R. Chauhan.

5.Sanmukhbhai Vadilal Brahmbhatt.

4. Learned A.G.P. Mr. Ronak Raval however pointed out that these 5 left out petitioners were hangami (temporary) chokidar and they did not get the status of work charged chokidar-attendant. Learned A.G.P. Mr. Raval however could not dispute that the above said left out petitioners have served for very long time and will be in fact on the verge of retirement in the near future having continuously worked with other petitioners who have been given benefit of promotion as work charged karkoon.

5. In such view of the matter, and considering the fact that in the year 1997, they were given promotion to the post of work charged karkoon, the court finds that the interests of justice would be sub-served if the respondents consider the cases of the above said five left out petitioners for giving them benefit of promotion to post of work charged karkoon so that at least when they retire, they may have satisfaction of getting promotional benefit.

6. At this stage, learned A.G.P. Mr. Raval submitted that

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since these left out petitioners have worked as temporary chokidar, their cases may be considered for promotion to the post of junior clerk and not work charged karkoon. The Court has not gone into such aspect of the matter. It is for the respondent no.1 to consider the cases of left out petitioners for the posts for which they deserve consideration.

7. In view of the above, respondent no.1 is directed to consider the cases of the above said five left out petitioners for the purpose of giving them benefit of promotion and pass necessary orders within a period of two months from the date of receipt of this order. The decision which may be taken by respondent no.1 shall be placed on record of these petitions. Now the matters shall appear on Board on 7th July, 2014.

Direct Service is Permitted. "

4. It appears that pursuant to aforesaid order passed by the learned Single Judge, the State Government considered the representation filed by the appellants and by order dated 31.05.2014 rejected the claim of the appellants on the following grounds :-

(I) the writ applicants have not undergone the prior service training and examination, necessary for the purpose of seeking promotion on the temporary establishment from Class-IV to Class-III. (II) In the cadre of Junior Clerk, the necessary educational qualifications are S.S.C. pass and also passing of the examination in the subject of Hindi.

(III) The writ applicants have not passed the C.C.C. Exam.

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5. Thereafter, it appears that Writ petitions were heard finally and learned Single Judge while rejecting the writ petitions made following observations in para 23 to 25 :-

"23. Let me assume for the moment that the promotions were legal, However, even while holding that such promotions were legal, the writ applicants have no right to continue on the said posts after 20th February, 1999. I take notice of the fact that the posts were not sanctioned after 20th February, 1999 and inspite of the instructions issued by the State Government, the Superintending Engineer continued the writ applicants in service on the promotional post till 18th September, 1999.

24. Mr. Parikh, the learned AGP, after taking instructions from the officer present today in the Court, clarified that the periodical departmental examinations were conducted, but at no point of time, the writ applicants had applied to appear in the same.

25. I take notice of the fact that along with these three writ applications, there was a fourth matter, which was ordered to be tagged, i.e. the Special Civil Application No.7438 of 1999. The same came to be disposed of on 18th November, 2011 in the following terms;

"Mr. Rashesh Rindani, learned Assistant

states that the petitioners are already granted the difference of wages pursuant to the order dated 15.02.2000 passed by this Court. In that view of the

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matter, no further orders are required to be passed in these petitions. Petitions stand disposed of accordingly. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated. "

6. We have heard learned advocate Mr. Kumar Trivedi for the appellants at length and examined the issue raised in the present appeals. It is a matter of fact that the appellants have never challenged order dated 31.05.2014 in the pending writ petitions or made any attempt to amend the petitions suitably.

Not only that it is an admitted position of fact that the appellants have not undergone prior service training and examination necessary for the purpose of promotion on the temporary establishment from Class IV to Class III. The appellants are lacking educational qualification i.e. S.S.C. pass and also passing of examination in the subject of Hindi. Further the appellants have not passed C.C.C. exam.

7. So, the appellants lack requisite qualification for promotional post and more particularly, after rejection of representation dated 31.05.2014 pursuant to order dated 28.04.2014, the appellants thought it fit not to challenge the grounds of rejection of appellants' representation as recorded herein above. It is a matter of fact that though periodical departmental examinations were conducted but at no point of time, the appellants had applied to appear in the same. So considering all this aspects, more particularly, not challenging rejection of representation vide dated 31.05.2014 and for non clearance of pre service examination, the appellants were not promoted. Therefore, on both this counts, the Court is not inclined to entertain present appeals, as there is no

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impropriety or illegality noticed in the common oral judgment rendered by the learned Single Judge. Thus, present appeals being devoid of merits, both on facts and law are hereby dismissed.

(S.H.VORA, J)

(ANIRUDDHA P. MAYEE, J.) SATISH