Gujarat High Court

Manharba Govindsinh Chavda vs State Of Gujarat on 25 April, 2022

Bench: Vipul M. Pancholi

     C/SCA/7272/2017                       JUDGMENT DATED: 25/04/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO. 7272 of 2017
                              With
    CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
                               In
         R/SPECIAL CIVIL APPLICATION NO. 7272 of 2017
                              With
       CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
                               In
         R/SPECIAL CIVIL APPLICATION NO. 7272 of 2017

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/-
=======================================================
1 Whether Reporters of Local Papers may be
   allowed to see the judgment ?                 NO

2     To be referred to the Reporter or not ?                    NO

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

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

=======================================================
        MANHARBA GOVINDSINH CHAVDA & 15 other(s)
                         Versus
              STATE OF GUJARAT & 1 other(s)
=======================================================
Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
MR HARDIK MEHTA AGP for the Respondent(s) No. 1 - 2
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                       Date : 25/04/2022

                         ORAL JUDGMENT

1. This petition is filed under Article 226 of the

Constitution of India, in which, the petitioners

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

have prayed for following reliefs,

"(A) xxx xxx xxx.

(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 20-3-2017 at Annexure A by holding the same to be Violative of Article 14 and 16 of the constitution of India and Rule 2 Gujarat Civil Services (Conditions of Services relating to Departmental Examination) (Genera) Rules, 2015 and/or further be pleased to declare that the order dated 28-2- 2017 issued by the Respondents at Annexure G granting exemption to the petitioners for the promotion to the post of Head-Clerk is just legal and proper.

(C) pending admission, hearing and final disposal of this petition, be pleased to stay further implementation, execution and enforcement of the impugned order dated 20-3-2017 at Annexure A by holding the same to be Violative of Article 14 and 16 of the constitution of India and Rule 3 Gujarat Civil Services (Conditions of Services relating to Departmental Examination) (General) Rules 2015 and/or further be pleased to declare that the order dated 28-2- 2017 issued by the Respondents at Annexure G granting exemption to the petitioners for the promotion to the post of Head-Clerk is just legal and proper.

(D) xxx xxx xxx."

2. Heard learned advocate, Mr. Hardik C. Rawal for

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

the petitioners and learned AGP Mr. Hardik Mehta

for the respondents.

3. Learned advocate, Mr. Rawal appearing for the

petitioners submitted that the petitioners were

regularly appointed as Junior Clerk in the Police

department during the period between 1983 to 1988

on a condition that they will have to undergo

training and will have to clear the post training

examination within stipulated trials as per Rule

68(8) of the Gujarat Police Manual. It is further

submitted that all the petitioners have appeared

and succeeded in the post training examination

and, therefore, their services were regularized

after passing the said examination and in

pursuance thereto, necessary entry was also made

in the service book of the petitioners. At this

stage, learned advocate submitted that the

petitioners were, thereafter, required to pass

departmental examination for getting increments on

the post of Junior Clerk as per Rule 177 of the

Gujarat Police Manual. The petitioners, therefore,

appeared in the said examination and successfully

cleared the same. The petitioners, therefore,

started earning increments for the post of Junior

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

Clerks. Learned advocate, thereafter, submitted

that on being eligible to appear for the Senior

Clerk departmental examination, all the

petitioners again appeared in the departmental

examination and cleared the same as per Rule 177

of the Gujarat Police Manual. It is submitted that

pursuant to passing of the said examination for

the post of Senior Clerk, all the petitioners were

promoted to the post of Senior Clerk. It is the

case of the petitioners that they were working on

the post of Senior Clerk since many years and were

even granted higher pay scale for the post of Head

Clerk as per the Government policy. Learned

advocate submitted that the petitioners are

getting higher pay scale for the post of Head

Clerk. Learned advocate has referred to Page No.28

of the compilation i.e. the chart in which

complete details of the petitioners are given.

4. Learned advocate would further submit that till

the year 2015, there was no provision of any

departmental examination for the post of Head

Clerk and till the year 2015, almost all the

petitioners were in zone of consideration for the

promotion to the post of Head Clerk. It is

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

specifically contended that in fact, most of the

petitioners' cases were considered by the

Departmental Promotion Committee ("DPC" for short)

and were found fit but could not be given actual

promotion for want of sanctioned vacant post. In

the meantime, the State Government framed Gujarat

Civil Services (Conditions of Service Relating to

Departmental Examination) (General) Rules, 2015

(hereinafter referred to as "the Rules of 2015) on

31.03.2015. It is submitted that as per Rule 3(3)

of the Rules of 2015, the petitioners were

exempted from appearing in the departmental

examination for the post of Head Clerk as they

have cleared all three examinations of all posts,

inspite of that, the respondents were insisted

that the petitioners will have to appear in the

departmental examination for getting promotion for

the post of Head Clerk as per Rules of 2015. The

petitioners, therefore, made representations to

the respondents, however, no reply was given by

the respondents. The petitioners, therefore, filed

petition being Special Civil Application

No.4594/2017 before this Court, however before the

said petition was listed for hearing, an order

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

dated 28.02.2017 was passed by the Home

Department, Government of Gujarat, whereby the

respondent no.2 was informed that Junior Clerks/

Senior Clerks, who have already cleared

departmental examination, are exempted from

passing the examination as per Rule 3(3) of the

Rules of 2015. It is also submitted that the said

order was passed after getting sanction from the

General Administration Department of the State of

Gujarat, copy of said order is placed on record at

Page No.42 of the compilation. At this stage, it

is submitted that when the aforesaid petition was

listed for hearing before this Court, the

aforesaid decision/ communication dated 28.02.2017

was placed before this Court and the petition was

dismissed as not pressed in view of the said

statement, however, liberty was reserved to the

petitioner to file fresh petition in case of

difficulty.

5. At this stage, learned advocate further submits

that the respondent authority has withdrawn the

exemption granted to the petitioners vide order

dated 28.02.2017 without giving opportunity of

hearing to the petitioners and, therefore, as the

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

impugned decision dated 20.03.2017 has been taken

by the respondent no.1, the petitioners have filed

the present petition.

6. Learned advocate mainly contended that till the

year 2015, there was no provision for passing the

departmental examination for getting the promotion

to the post of Head Clerk and it was introduced

for the first time with an exemption clause for

such class of employees like the petitioners and

in fact, the petitioners had passed relevant

examination before the Rules of 2015 were

introduced and, therefore, the petitioners fall

under the exemption clause 3(3), inspite of that,

the respondent authority has withdrawn the said

exemption though initially granted, without giving

opportunity of hearing to the petitioners. Learned

advocate, therefore, urged that the impugned

decision taken by the respondents be quashed and

set aside and thereby appropriate direction be

issued to the respondents.

7. Learned advocate further contended that in fact,

the respondents have granted benefit of higher pay

scale to the petitioners for the post of Head

Clerk and, therefore, once the petitioners are

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

getting benefit of higher pay scale with regard to

the aforesaid post, direction be issued to the

respondents to consider the case of the petitioner

for promotion to the post of Head Clerk.

8. Learned advocate has placed reliance upon the

order dated 18.10.2019 passed by the Coordinate

Bench of this Court in Special Civil Application

No.5723/2019. Learned advocate has also placed

reliance upon the order dated 28.02.2022 passed by

the Coordinate Bench of this Court in Special

Civil Application No.6543/2019.

9. On the other hand, learned AGP has opposed this

petition and referred to the averments made in the

affidavit-in-reply filed on behalf of the

respondent no.2. Learned AGP has mainly contended

that the State Government has framed the Rules of

2015 while exercising powers under the proviso of

Article 309 of the Constitution of India. It is

submitted that by way of the Rules of 2015, the

concerned eligible persons are required to pass

the departmental examination for getting promotion

to the post of Head Clerk. It is submitted that

the petitioners are not exempted from appearing in

the examination as per Rule 3(3) of the Rules of

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

2015. He submitted that there was no provision

under earlier Rules prior to 2015, which exempted

the petitioners from appearing in the examination

for the promotion to the post of Head Clerk,

therefore, the exemption claimed by the

petitioners would not be automatically applicable

to the petitioners. He submitted that thus when no

exemption was granted under earlier Rules, the

petitioners are required to appear in the

examination as per the aforesaid Rules and,

thereafter, their case for promotion to the post

of Head Clerk, can be considered. Learned AGP

submitted that while passing order dated

28.02.2017, mistake was committed by the concerned

authority and, therefore, the exemption granted by

the said communication/ order was withdrawn by the

State Government by passing impugned order/

communication dated 20.03.2017 and thus, the

respondents have not committed any error while

passing the impugned order/ communication,

therefore, this Court may not entertain this

petition.

10. Learned AGP has placed reliance upon the decision

rendered by the Hon'ble Supreme Court in case of

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

Deepak Agarwal & Ors. Vs. State of Uttar Pradesh &

Ors., reported in (2011) 6 SCC 725. After

referring to relevant paragraphs, it is contended

by learned AGP that the candidate has right to be

considered in light of existing rules, which

implies 'rule in force' on date consideration took

place. In the present case, the Rules of 2015 are

applicable and, therefore at the time of

consideration of case of the petitioner for

promotion to the post of Head Clerk, the said

rules are required to be taken into consideration.

11. Learned AGP has, thereafter, placed reliance upon

the decision rendered by the Hon'ble Supreme Court

in case of Union of India Vs. Krishna Kumar,

reported in (2019) 4 SCC 319. Learned AGP has more

particularly referred to Paragraph No.14 of the

said decision. Learned AGP, therefore, urged that

the present petition may not be entertained.

12. Having heard learned advocates appearing for the

parties and having gone through the material

placed on record, it would emerge that the

petitioners were appointed on the post of Junior

Clerk in the Police department during the period

between 1983 to 1988 and, thereafter, the

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

petitioners cleared the post training examination

as per Rule 68(8) of the Gujarat Police Manual,

thereafter, the petitioners also cleared

departmental examination for getting increments

for the post of Junior Clerk as per Rule 177 of

the Gujarat Police Manual. The petitioners

thereafter appeared in departmental examination

for the post of Senior Clerk and they cleared the

said examination as per Rule 177 of the Gujarat

Police Manual, therefore, they were promoted on

the post of Senior Clerk. It is the case of the

petitioners that they were working on the post of

Senior Clerk and the respondents have granted them

benefit of higher pay scale for the post of Head

Clerk as per Government policy and second higher

pay scale for the post of Head Clerk was also

granted to the petitioners, necessary details with

regard to the petitioners are placed on record at

Page No.28 of the compilation. From the said

details, it is clear that after August, 2007, the

concerned petitioners are getting second higher

pay scale.

13. It further transpires from the record that now the

respondents have framed the Rules of 2015, copy of

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

which is placed on record at Page No.30 of the

compilation. Rule 3(3) of Rules of 2015 provides

as under,

"3. Requirement to pass the Departmental Examination.

(1) The person appointed to the post specified in Part-I of Appendix-A shall be required to pass the Lower level Departmental Examination to be eligible for promotion to the posts specified in part-II of Appendix-A, (2) The person appointed to the posts specified in Part-II of Appendix-A shall be required to pass the higher level Departmental Examination to be eligible for promotion to the posts specified in part-III of Appendix-A, (3) Notwithstanding anything contained in sub-rules (1) and (2), where any such person has before the appointed date passed the relevant departmental examination or has been exempted under the old rules from passing the relevant departmental examination, shall not be required to pass the departmental examination."

14. Now it is the case of the respondent - State that

the petitioners are required to pass the

departmental examination as per Rules of 2015 as

they are not exempted under the old Rules from

passing relevant departmental examination for the

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

purpose of getting promotion for the post of Head

Clerk. Whereas in the present case, the

petitioners have passed post training examination

pursuant to Rule 68(8) of the Gujarat Police

Manual and they have also passed departmental

examination for getting increments on the post of

Junior Clerk as per Rule 177 of the Gujarat Police

Manual, thereafter, they were promoted to the post

of Senior Clerk. The petitioners also passed

departmental examination as per concerned Rules.

It is the case of the petitioners that their cases

were considered by the DPC and the petitioners

were found eligible. Even the departmental

examination for the post of Head Clerk were not

conducted and now the Rules of 2015 are framed by

the respondents. It is also the case of the

petitioners that they have received first higher

pay scale for the post of Head Clerk and second

higher pay scale is also granted to the

petitioners as per the chart produced at Page

No.28 of the compilation. Thus, the petitioners

are getting higher pay scale for the post of Head

Clerk and next promotional post. In a decision in

case of Deepak Agarwal (supra), the Hon'ble

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Supreme Court has held that the candidate has

right to be considered in light of existing rules,

which implies 'rule in force' on date

consideration took place.

15. In a decision in case of Krishna Kumar, the

Hon'ble Supreme Court has observed in Paragraph

No.14 as under,

"14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

in accordance with the Rules as they exist when the exercise is carried out for promotion."

16. Thus from the aforesaid decision rendered by the

Hon'ble Supreme Court, it is revealed that the

candidate has a right to be considered for

promotion in accordance with the Rules as they

exist when the exercise is carried out for

promotion.

17. In the present case, it is the specific case of

the petitioners that DPC has considered the case

of the petitioners for granting promotion and at

the relevant time, Rules of 2015 were not in

existence. It is further revealed from the

communication/ decision dated 28.02.2017 issued by

the respondent no.1 to the respondent no.2 that

the petitioners were exempted from appearing in

the departmental examination as per Rules of 2015

and relying upon the said decision/ communication,

the petitioners had withdrawn the petition filed

by them being Special Civil Application

No.4594/2017 and after a period of 20 days only,

now the impugned decision has been taken on

20.03.2017 and thereby now the exemption granted

to the petitioners has been withdrawn without

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

giving any opportunity of hearing to the

petitioners and no reasons are given by the

respondent authority while withdrawing the said

exemption, which was granted vide communication/

decision dated 28.02.2017.

18. In similar type of case decided by this Court in

case of B.M. Mehta Vs. State of Gujarat by an

order dated 18.10.1999 passed in Special Civil

Application No.5723/1999, the Coordinate Bench has

observed in Paragraph Nos.3, 4, 5 and 12 as under,

"3. Rule 3 required every appointee by direct recruitment after the commencement of Rules to pass relevant Departmental Examination after appointment, before he could be confirmed within prescribed attempts. First proviso to Rule 1[3] also envisaged exemption from passing Departmental Examination in certain circumstances.

4. On 19/2/97, the Government passed an order granting the petitioner exemption from appearing in the relevant Department Examination as per rules, in consultation with the General Administration Department. Thereafter, the petitioner was also confirmed by making order dated 18/3/98 on successfully completing the probation period on 15/1/98. Consequential pay fixation etc. were also made. However now, by impugned order dated 25/6/99, the order of the Government dated

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

19/2/97 by which the petitioner was exempted from appearing in the relevant Departmental examination was canceled.

5. The petitioner challenges that order on two fold grounds. Firstly, that the order is contrary to principles of natural justice having been passed without affording opportunity of hearing which not only affects adversely the petitioner in the matter of withdrawing exemption from taking the relevant Departmental Examination but also affects adversely the petitioner's confirmation on successfully completion of the probationary period. The another ground on which the same is challenged is that the impugned order is contrary to the rules on merit, because the petitioner having already passed the relevant departmental examination making him eligible to be considered for promotion to the post of social welfare officer Class II was entitled to exemption to pass this departmental examination, even without any order to that effect, and at any rate, the order of exemption was in consonance with such Rules.

12. Thus, a person who has otherwise passed the departmental examination before being appointed is not again to be subjected to pass the departmental examination after being appointed. Apart from this, it also envisages that the incumbent can be exempted from passing the relevant examination otherwise also in appropriated cases. This exemption

C/SCA/7272/2017 JUDGMENT DATED: 25/04/2022

does not make any distinction between appointment by promotion or by direct recruitment. It applies equally. In the case of a direct recruit, obviously it can only refer to Departmental Examination taken by a person awaiting promotion. In such cases where exemption flows from having passed relevant examination earlier, the exemption operates a priori vigore, by operation of rule."

19. Recently, the Coordinate Bench of this court has

passed an order on 28.02.2022 in Special Civil

Application No.6543/2019, wherein it has been

observed in Paragraph No.7 as under,

"7. A specific averment is made in the petition that the petitioners having undertaken the examinations in the year 1976 pursuant to the 1976 Rules, they have been exempted from passing the examination in accordance with Rule 3(3) of 2015 Rules. If that be so, particularly in view of the fact that it is the case of the petitioners that they were appointed as Senior Clerks prior to 2015 and Rules of 1976 are applicable, the case of the petitioners be considered in accordance with law for the purposes of promotion and higher pay scale within a period of 10 weeks from the date of receipt of copy of this order."

20. Thus keeping in view of the aforesaid orders

passed by the Coordinate Bench of this Court in

almost similar cases, this Court is of the view

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that the petitioners are entitled to the relief as

prayed for in the present petition.

21. Therefore, the present petition stands allowed.

The impugned order dated 20.03.2017 is hereby

quashed and set aside. Therefore, the respondents

are hereby directed to consider the case of the

petitioners for promotion to the post of Head

Clerk. As the petitions are already getting pay