Firdauskhan Latifkhan Pathan vs State Of Gujarat
2021 Latest Caselaw 16128 Guj

     C/SCA/2610/2008                                JUDGMENT DATED: 13/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2610 of 2008
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2612 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed                   NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                            NO

3     Whether their Lordships wish to see the fair copy                  NO
      of the judgment ?

4     Whether this case involves a substantial question                  NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                FIRDAUSKHAN LATIFKHAN PATHAN & 1 other(s)
                                Versus
                      STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1,2
MR.MEET THAKKAR, AGP (1) for the Respondent(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 13/10/2021

                           COMMON ORAL JUDGMENT

1. The petitioners of these petitions have approached

this Court for the following reliefs:

"(A) Quashing and setting aside the letter dt.8.10.2004, order dt.19.10.2004

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

and letter dt.31.12.2007 and further directing the respondents to treat the petitioners as promoted to the post of Junior Clerk w.e.f. from 27.8.1998 with all consequential benefits and to pay the arrears with 10% interest.

(B) During the pendency and final disposal of this petition, the Respondent no.1 may be directed to promote the petitioners to the post of Junior Clerk on ad-hoc basis forth with."

2. Facts in brief are that the petitioners are serving as

peons under the respondent no.3-Director, Water

and Land Management Institute (WALMI). They

were appointed as peons vide orders dated

17.10.1986 in the pay scale of Rs.196-232/-. By an

order dated 27.11.1995, they were given the first

higher grade scale of Rs.775-1025/-. On 06.01.1998,

the names of the petitioners were recommended for

undergoing pre-service training and examination.

Having considered the cases of the petitioners for

promotion and on approval by the Committee, vide

order dated 27.08.1998, both the petitioners were

promoted as Junior Clerks. The order stipulated that

such promotion was on condition of passing

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

pre-service training examination. On 08.10.2004,

their orders for promotion were canceled on the

ground that promotion was irregular and

accordingly the petitioners by order of 19.10.2004

were reverted to the post of peon. A representation

was made seeking details of cause of reversion. On

22.11.2005, the respondent no.3-WALMI wrote to

the State Government that since the petitioners had

not passed their pre-service training examination,

they had been reverted. On 22.06.2006, the

petitioners' names were again recommended for

training and the petitioners, ultimately cleared their

pre-service training examination on 01.08.2007.

Having passed their examination and completed

their training, the petitioners requested for

reinstatement on their promotional post. The

recommendation was made on 11.10.2007 by the

respondent no.3-WALMI and by a letter of

31.12.2007, the request was rejected.

3. Mr.P.A.Jadeja learned advocate for the petitioner

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

would submit that reading the orders of reversion

dated 08.10.2004 and 19.10.2004 would indicate

that not only they have been passed without

following the principles of natural justice, inasmuch

as, six years after their promotion, their reversion

has occurred without giving notice, but also despite

having been promoted on a condition of undertaking

pre-service training examination, the department did

not conduct any such examination, for which, the

petitioners cannot be faulted with.

3.1 Mr.Jadeja would also invite the attention of this

Court to the order dated 19.10.2004 and the

communication dated 31.12.2007 and submitted that

when the petitioners were promoted in the year

1998, the only condition that the order required was

that they pass pre-service training and examination.

However, by the communications impugned herein,

the ground of they not having passed Standard 12 is

an additional disqualification, which is bad. The

requisite qualification of passing standard 12 cannot

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

be retrospectively held against the petitioners who

have passed the standard 12 which was the requisite

qualification when they passed pre-service training

examination.

4. Mr.Varun Patel learned counsel appearing for

respondent no.3 would draw the attention of the

Court to the affidavit-in-reply and submit that since

the promotions were on condition that they pass the

pre-service training examination, since they did not

pass the examination, they were reverted. The order

of promotion was purely conditional and did not give

them any right. Moreover, he would submit that the

orders of reversion of 19.10.2004 was challenged

after period of three years in the year 2007.

4.1 Mr.Varun Patel would further submit that no

fault can be found at the hands of the respondent

no.3 of not sending the petitioners for training. He

would invite the Court's attention to the

communication dated 22.11.2005, which apparently

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

makes it clear that the State Government was not

clear as to who and under which government

employee they should undertake training. It should

be either a government employee or a panchayat

employee and the petitioners were neither of the two

and therefore the institution was unclear and hence,

the petitioners did not undergo training.

5. Mr.Meet Thakkar learned AGP, in addition to what

has been stated by Mr.Patel, would submit that the

petition is time barred, beyond the period of three

years and the promotions were conditional. The

circular of 09.12.2004 clearly stipulated that the

recruitment rules provided that the Junior Clerks

should have a qualification of H.S.C. Admittedly on

reading the letter of 11.10.2007, it is clear that the

petitioners were S.S.C. pass and therefore not

qualified.

6. Having considered the submissions made by the

learned counsel for the respective parties, what

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

emerges is as under:

6.1 It is not in dispute that the order of promotion

did qualify that the promotion was purely ad-hoc and

subject to the petitioners passing the pre-service

training examination. However, no defense has

come on record from the respondents, as to why,

though the petitioners' names were recommended

for training on 06.01.1998 and 03.03.1998, no

consequential action was taken to impart training to

the petitioners.

6.2 Reading the communication dated 22.11.2005,

post the orders of reversion indicates that the

respondent itself was not clear on the aspect that

the petitioners in fact were needed to undertake

training, they neither being government employees

or panchayat employees. Admittedly, for no fault of

their own, from the year 1998 till the time they were

sent for training and pass their pre-service training

examination on 01.08.2007, the department could

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

have imparted training to the petitioners. For a

period of seven years, the petitioners did not

undertake the training not because of a handicap on

their part, but because the department was not

providing them an opportunity of being trained

despite repeated recommendations.

6.3 In the interregnum, from 1998 to 2007, if the

qualifications were subsequently changed by the

resolution of 09.12.2004, the minimum qualification

being Standard 12th pass, certainly the same cannot

disqualify the petitioners who were reverted prior to

08.10.2004 and 19.10.2004 only because they had

not undergone pre-service training. The

disqualification of possessing a lower qualification

cannot apply to the petitioners retrospectively.

6.4 True it is that the petitioners have challenged

the orders of reversion of 19.10.2004 in the year

2007 but it has come on record that despite the

petitioners having passed the pre-service training

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

examination on 01.08.2007, by a communication

dated 31.12.2007, their cases for reinstatement to

the promotional posts have been rejected on the

ground of they not passing Standard 12 which is an

embargo which is sought to be applied

retrospectively. On these grounds, the orders of

reversion prayed for need to be set aside.

6.5 While setting aside the orders of reversion,

equity needs to be balanced in favour of the

department too. From 2004 till 01.08.2007, when

the petitioners passed their pre-service training

examination and became eligible for being

reinstated on the promoted posts, neither did the

petitioners act nor did the department consequently

promote them though they made such

representations. Particularly when this Court has

come to the conclusion that the disqualification of

they having passed Standard 12, could not have

been applied retrospectively, the interest of justice

would be served if the orders of reversion are set

aside and the petitioners are treated to have been

C/SCA/2610/2008 JUDGMENT DATED: 13/10/2021

promoted as junior clerks with effect from

01.08.2007 i.e. the date on which they passed their

pre-service training examination. The period from

01.08.2007 till the date of actual promotion shall be

treated as notional for the purposes of consequential

benefits. The petitioners shall not be entitled to

actual financial benefits but the period post

01.08.2007 on the promoted post shall be treated as

notional for future prospects and other

consequential benefits.

7. Both these petitions are partly allowed to the

aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH