Gujarat High Court

Parmar Pravinkumar Kuberbhai vs State Of Gujarat on 9 February, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

                                                                                     NEUTRAL CITATION




       C/SCA/15318/2023                              ORDER DATED: 09/02/2024

                                                                                      undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15318 of 2023

==========================================================
                          PARMAR PRAVINKUMAR KUBERBHAI
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ADITYA PATHKA, AGP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                 Date : 09/02/2024
                                  ORAL ORDER

1. Heard learned Advocate Mr. Gaurav Chudasama for the petitioner

and learned AGP Mr. Aditya Pathak for the respondent-State.

2. By way of this petition, the petitioner has sought for the following

prayers :

"14. A. This petition be admitted and allowed.

B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ and or direction, directing the respondent authority to quash and set aside the order Dt. 20-04- 2023 and order Dt. 05-03-2021 passed by the respondent no.2 for denying the benefit of deemed date for promotion on the post of Bench Clerk - Grade-1 (Class-II) from the deemed date of his entitlement i.e. Dt. 18.11.2019 on which date the other co- employees have been granted promotion or from the date on which the vacancy was there in the Bench Clerk, Grade-I (Class-II) from Dt. 01-01-2020, instead of Dt.05-11-2020.






                                                                                  NEUTRAL CITATION




     C/SCA/15318/2023                              ORDER DATED: 09/02/2024

                                                                                  undefined




       C.    Your Lordships may be pleased to direct the respondents to

give the deemed date of promotion of Bench Clerk - Grade-1 (Class-II) with effect from Dt.18-11-219 from the date on which the co-employee have been given promotion on Dt. 18-11-2019 instead of Dt. 05-11-2020 or from the date of which the vacancy of Bench Clerk Grade - I (Class-II) are available i.e. on Dt. 01-01- 2020 along with the consequential benefits and difference of amount may be paid to the present petitioner.

D. During the pendency and final disposal of this petition, the respondent no.2 may be directed to give promotion with the deemed date for the post of Registrar, Civil Court/Bench Clerk - Grade - 1 (Class-II) with effect from Dt. 18-11-2019 from the date on which the co-employee have been given promotion on Dt.18- 11-2019 instead of Dt. 05-11-2020 or from the date of which the vacancy of Bench Clerk Grade-I (Class-II) are available i.e. on Dt.01-01-2020."

E. Any other relief that may be deemed just, proper and necessary may also be kindly granted."

3. It appears that the present petitioner was appointed as a Junior

Clerk with the respondent No.2 from the year 1996 and whereas the

petitioner upon clearing the departmental examination, had been granted

the first higher pay scale in the year 2005. It appears that the petitioner

had been promoted to the post of Superintendent (Senior Clerk) in the

year 2011. It would appear that the petitioner upon implementation of the

Shetty Pay Commission had been given promotion with effect from

29.11.2010 in the post of Senior Clerk and whereas the petitioner had

been given second promotion from the year 2015 in the cadre of Head

NEUTRAL CITATION

C/SCA/15318/2023 ORDER DATED: 09/02/2024

undefined

Clerk/Bench Clerk, Grade-II. It appears that the petitioner who claims to

have become eligible for promotion from 09.11.2019, raises a grievance

that he ought to have been promoted to the next higher post of Secretary

to the PDJ/Protocol Officer/Registrar/Bench Clerk along with other

persons who were promoted vide order dated 18.11.2019.

4. Considering the Recruitment Rules, it would appear that for

promotion to the post of Secretary to the PDJ/Protocol Officer/Registrar/

Bench Clerk, the employee in the feeder cadre of Head

Clerk/Nazir/Bench Clerk Grade-II, should have not less than 07 years of

experience jointly or separately. It would appear that the Recruitment

Rules also inter alia envisage that the appointing authority can relax the

period of experience by 1/3rd, on coming to a conclusion that persons

having the experience specified were not available and it is necessary in

the public interest to fill up the post by promotion even by promotion of a

person with lesser experience.

5. The petition is bereft of any pleadings stating as to whether the

order dated 18.11.2019 was passed by exercising the powers of

relaxation. It is also not the case of the petitioner that the respondents had

come to a conclusion at any point of time that there was an urgent

requirement of filling up of the post of Secretary/Protocol

NEUTRAL CITATION

C/SCA/15318/2023 ORDER DATED: 09/02/2024

undefined

Officer/Registrar/Bench Clerk, and whereas yet, they did not relax the

experience criteria to promote the petitioner.

6. In the considered opinion of this Court, it is now by a well settled

position of law that an employee is not entitled to claim for promotion as

a vested right merely on account of there being vacancy in the

promotional post and the employee working in feeder cadre completes his

eligibility for being promoted. The only right available to an employee as

regards promotion is to be given a fair opportunity when being

considered with other candidates.

7. In the instant case, while it is attempted to be urged by the learned

Advocate for the petitioner that the petitioner had completed eligibility,

the pleadings reflect otherwise. As noted hereinabove, the petitioner did

not complete the eligibility as per the Recruitment Rules, rather the

petitioner completed eligibility for being promoted if the appointing

authority in exceptional circumstances was of the opinion that the

required experience in the Recruitment Rules could be relaxed. No

material is produced before this Court to show that the appointing

authority had at the relevant point of time come to a conclusion that there

was a requirement for relaxation and yet, since the post had been kept

vacant without exercising the power of relaxation.





                                                                                    NEUTRAL CITATION




     C/SCA/15318/2023                                ORDER DATED: 09/02/2024

                                                                                    undefined

8. The above observations in view of the reliance placed by learned

Advocate for the petitioner upon the judgment of the Hon'ble Apex Court

in case of Major General H.M. Singh, VSM vs. Union of India and

Another, reported in (2014) 3 SCC 670, more particularly, observations

at Paragraph No.28 being relied upon by the petitioner to buttress his

submissions. Paragraph No.28 being relevant for the present purpose is

reproduced hereinbelow for benefit.

"28. The question that arises for consideration is, whether the non- consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the seniormost serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29.2.2008, and thereafter, by a further Presidential Order dated 30.5.2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for

NEUTRAL CITATION

C/SCA/15318/2023 ORDER DATED: 09/02/2024

undefined

a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant General, (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed).

The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant General, would have resulted in violation of his fundamental right under Article 14of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."

9. The observations of the Hon'ble Apex Court as hereinabove,

clearly reveal that the employee concerned could claim that his

fundamental right for promotion vested under Articles 14 and 16 of the

Constitution of India is violated only if the employee would be able to

show that the employer/appointing authority though was desirous of

filling up the vacancy, had for some reason decided not to do so.

10. As noted hereinabove, in the instant case, the entire case of the

petitioner rests on two arguments i.e. persons similarly situated having

been promoted on 18.11.2019 and the petitioner becoming eligible on

09.11.2019. As noted hereinabove, persons promoted on 18.11.2019 were

admittedly seniors to the present petitioner and whereas it is not the case

of the petitioner the persons junior to him had been promoted without the