Babubhai Jethabhai Makwana vs State Of Gujarat
2022 Latest Caselaw 4360 Guj

     C/LPA/1645/2017                              JUDGMENT DATED: 25/04/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1645 of 2017
                                    In
                R/SPECIAL CIVIL APPLICATION NO. 5727 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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 or any order made thereunder ?

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                       BABUBHAI JETHABHAI MAKWANA
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
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Appearance:
MR K I KAZI(5030) for the Appellant(s) No. 1
MS DHWANI TRIPATHI AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 25/04/2022

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/LPA/1645/2017 JUDGMENT DATED: 25/04/2022

1. By way of this appeal under Clause 15 of the Letters Patent

Appeal, the appellant - original petitioner has challenged the

impugned judgment and order dated 19.07.2017 passed by the

learned Single Judge, whereby, the petition filed by the appellant

- petitioner came to be dismissed.

2. Following facts emerge from the record of the appeal.

2.1 The appellant - original petitioner was working as peon on

Class - IV post. It is the case of the appellant that the appellant

was possessing minimum qualification of S.S.C. The appellant

has prayed for promotion to the post of Class - III. Record

indicates that the appellant approached this Court by filing

petition being Special Civil Application No.7653 of 1997 which

came to be disposed of by directing the appellant to approach

the Civil Service Tribunal. The appellant approached the Tribunal

by way of filing an appeal filed, which came to be rejected by the

Tribunal vide order dated 29.01.2002. It is the case of the

appellant that after rejection of the appeal by the Tribunal,

similarly situated persons were promoted to the post of Class -

IV. Being aggrieved by the same, the appellant approached this

C/LPA/1645/2017 JUDGMENT DATED: 25/04/2022

Court by way of filing petition being Special Civil Application

No.6120 of 2012. It is also the case of the appellant that after

order dated 29.01.2002, the appellant had worked on the same

post and vide order dated 29.04.2003, the appellant was again

reverted back to the original post. The record further indicates

that vide order dated 10.01.2007, the appellant came to be

promoted to the post of Class III on temporary basis and

ultimately, by order dated 22.07.2016, this Court was pleased to

direct the respondents to consider the case of the appellant for

promotion in accordance with the rules and regulation. It is the

case of the appellant that he was communicated vide letter

02.08.2016 that he would accept the age of retirement of 58

years, if promoted to Class - III. It is the case of the appellant

that the appellant filed such undertaking to that effect. However,

by impugned communication dated 07.10.2015 / 07.10.2016, the

appellant came to be informed that the promotion could not be

given to him as he had attained the age of superannuation and

being aggrieved by the same, the above-mentioned petition

being Special Civil Application No.5727 of 2017 filed by the

appellant, which was dismissed by the learned Single Judge.

Being aggrieved and dissatisfied by the same, the present

C/LPA/1645/2017 JUDGMENT DATED: 25/04/2022

appeal is filed by the appellant.

3. Heard Mr.K. I. Kazi, learned counsel appearing for the

appellant and Ms.Dhwani Tripathi, learned Assistant Government

Pleader for the respondent - State.

4. Mr.K. I. Kazi, learned counsel appearing for the appellant

contended that though the undertaking given by the appellant,

he was not promoted to the post of Class - III. He, therefore,

contended that the appellant eventhough promoted on

temporary basis was reverted back to his original post which is in

breach of the rules and regulations. It is therefore contended by

Mr.Kazi, learned counsel that the appellant has, now, retired and

deemed promotion be granted by allowing the appeal.

5. Per contra, Ms.Dhwani Tripathi, learned Assistant

Government Pleader for the respondent - State has opposed the

appeal and supported the impugned judgment and order and

submitted that the appeal being meritless deserves to be

dismissed.

C/LPA/1645/2017 JUDGMENT DATED: 25/04/2022

6. No other or further submissions, grounds or contentions

have been raised by the learned counsel appearing for the

parties.

7. Having heard learned counsel for the parties and on

perusal of the record and proceedings of the case, it clearly

appears that the appellant was S.S.C. passed. The impugned

communication dated 07.10.2015 was sent by the respondents

informing the appellant that he attained the age of

superannuation i.e. he crossed the age of 58 years. It is a matter

of fact that having been promoted temporarily, the appellant was

to clear the departmental examination so as to confirm his

promotion, however, he could not pass the departmental

examination and he was reverted back to his original post in

public interest. It is also a matter of fact that the appellant opted

for promotion for early retirement and however, he could not

clear the departmental examination. It is a matter of fact that

the appellant was continued on Class IV post wherein the

superannuation age was of 60 years, whereas, in Class III the

superannuation age was of 58 years. The appellant having not

cleared the departmental examination and having crossed the

C/LPA/1645/2017 JUDGMENT DATED: 25/04/2022

age of 58 years, he cannot claim promotion. We are in complete

agreement with the observations made by the learned Single

Judge and no interference is called for. Hence, the appeal being

meritless deserves to be dismissed and accordingly, it is

dismissed. There shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL