K. S. Jadav vs State Of Gujarat
2023 Latest Caselaw 5769 Guj

                                                                                NEUTRAL CITATION




     C/LPA/514/2023                              ORDER DATED: 08/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 514 of 2023
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 14295 of 2008
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                                  In
              R/LETTERS PATENT APPEAL NO. 514 of 2023

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                            K. S. JADAV
                               Versus
                         STATE OF GUJARAT

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Appearance:
MS.P J.JOSHI(3888) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR K.M.ANTANI, AGP for the Respondent(s) No. 1

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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE N.V.ANJARIA

                          Date : 08/08/2023

                            ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard learned counsels appearing for the parties and perused the record.

2. This appeal is directed against the judgment and order dated 23.1.2020 passed by the learned single Judge wherein it is categorically recorded that at earlier point of time, a Special Civil Application No.1991 of 1998 was filed by the petitioner

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herein which was dismissed as withdrawn by order dated 15.7.1998 on an application filed by the writ petitioner. A perusal of the order of withdrawal at Page No.18 of the paper book indicates that leave was sought for by the petitioner to withdraw the writ petition as he proposed to make a representation before the competent authority. The prayer to issue mandamus directing to consider the claim of the petitioner for grant of promotion was based on the ground that the petitioner was eligible but the respondents were not applying 'Roster Point Formula'.

3. The learned single Judge categorically records and there is no dispute about the fact that no proper representation was made by the petitioner, moreover the petitioner has approached this court by filing this writ petition seeking the same relief as was sought in an earlier writ petition, after a period of ten years. The writ petition out of which the instant appeal has arisen, has also been found to be bereft of necessary facts. The learned single Judge has gone to the averments made in the writ petition as also the representations made by him.

4. It is also recorded in the judgment impugned that the learned counsel for the petitioner could not place the relevant Rules to demonstrate that the petitioner was eligible for promotion.

5. Taking note of the above findings returned by the learned single Judge, we have raised further queries from Ms.P.J.Joshi, the counsel for the appellant to place the relevant Rules, which provide for promotion of Sanitary Inspector to the post of Para-

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Medical Assistant. The Rule as placed before us by Shri K.M.Antani, learned Assistant Government Pleader which reads as under:-

"The Gujarat Government Gazette EXTRA ORDINARY PUBLISHED BY AUTHORITY Vol. XLII, SATURDAY, JULY. 20, 2002/ASADHA 29, 1924.

Separate paging is given to this Part in order that it may be filed as a Separate Compilation PART 1-A CENTRAL SECTION Orders and Notifications (Other than those published in Part IV-B) under the Gujarat Local Boards, Village Panchayats, Municipal Boroughs. District Municipal, Primary Education and Local Fund Audit Acts.

PANCHAYATS, RURAL HOUSING AND RURAL DEVELOPMENT DEPARTMENT Notification Sachivalaya; Gandhinagar, 20th July, 2002.

GUJARAT PANCHAYATS ACT, 1993

No. KP/45/2002/PRR/1194/492/963/1 - In exercise of the powers conferred by Section 217 read with Section 274 of the Gujarat Panchayats Act, 1993 (Guj. 18 of 1993) the Government of Gujarat hereby makes the following rules further to amend the Para Medical Assistant (Class III) (Panchayat Service) Recruitment Rules, 1998.

1. These rules may be called the Para Medical Assistant (Class III), (Panchayat Service) (Amendment) Recruitment Rules, 2002.

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2. In the Para Medical Assistant (Class III), (Panchayat Service) Recruitment Rules 1998), in rule 2, for the words "Sanitary Inspector", the words "Sanitary Inspector or Vaccination Supervisor or School Health Assistant who have passed Sanitary Inspector Examination", shall be substituted.

By order and in the name of the Governor of Gujarat, R. N. NINAMA, Under Secretary to Government."

5.1 A perusal of Sub-rule (2) of Rules, known as Para-Medical Assistant (Class-III), (Panchayat Service), (Amendment) Recruitment Rules, 2002, shows that those Sanitary Inspectors or Vaccination Supervisor or School Health Assistant who have passed Sanitary Inspector Examination, were found to be eligible under Rule 2 of the Recruitment Rules, 1998, which was amended by the Notification dated 28.7.2002 enforcing Recruitment Rules, 2002.

6. It was vehemently argued by the learned counsel for the appellant that several representations were made by the petitioner before approaching this court in the year 2008 and it was a case of non-consideration on part of the respondent.

6.1 However the said explanation cannot be treated as a sufficient explanation for condonation of latches of ten years. Moreover, for the facts noted above that the petitioner could not demonstrate before us that he was eligible for consideration before attaining the age of retirement or there has been any case of non-consideration in the promotion exercise conducted

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by respondent, we do not find any substance in the submission made by learned counsel for the appellant.

6.2 Learned counsel for the appellant however could not place before us as to how and in what circumstances petitioner could be said to be aggrieved by non-consideration of his claim for promotion. The appellant has attained the age of superannuation in the year 2005. At this juncture after a period of ten years, we do not find any reason to refer the matter for consideration. Moreover, no infirmity is found in the order passed by learned single Judge.

7. The present Letters Patent Appeal is dismissed.

In view of dismissal of the appeal, the Civil Application will not survive. Accordingly, it is disposed of.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J) Mansi