Gujarat High Court
J Venkataramanan vs The Government Of Gujarat on 28 June, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18748 of 2023
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J VENKATARAMANAN
Versus
THE GOVERNMENT OF GUJARAT & ANR.
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Appearance:
MR YN RAVANI(718) for the Petitioner(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/06/2024
ORAL ORDER
1. By way of present petition under Article 226 of the
Constitution of India, the petitioner herein has challenged the
impugned communication No.1147/2023, dated 04.08.2023,
addressed by the Registrar, City Civil & Sessions Court,
Ahmedabad, under the instructions of the learned Principal
Judge, whereby the petitioner was informed that the
representation made by the petitioner to grant exemption from
passing the Gujarati Language Test, has been ordered to be
"Filed".
1.1 The petitioner further challenges the impugned
communication No.AC/502/2023, dated 06.10.2023 addressed
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by the Registrar, City Civil & Sessions Court, Ahmedabad,
under the instructions of the learned Principal Judge informing
the petitioner that since the petitioner did not clear the
Gujarati Language Test, the increments, Higher Grade and
Promotion, already granted to the petitioner, shall be
withdrawn. It is the case of the petitioner that both the
impugned communications are against the principles of law,
violative of Articles 14 and 21 of the Constitution of India and
violative of the concerned Rules i.e. The Gujarat Government
Servants (Lower Standard and Higher Standard Gujarat
Language Examination) Rules, 1970. In view thereof, the
present petition is filed by the petitioner seeking the following
reliefs:
"9. The petitioner, therefore, most respectfully prays that
a) This Hon'ble Court may be pleased to admit and allow this
petition.
b) This Hon'ble Court may be pleased to issue a writ of mandamus
and/or any other appropriate writ, order or direction in the nature of
mandamus and be pleased to hold that the impugned communications
dated 04.08.2023 (Annexure-A) as well as communication dated
06.10.2023 (Annexure-B) holding the same as illegal, against the
principles of natural justice, without application and in violation of
Articles- 14 & 21 of the Constitution of India and be further pleased to
direct the respondent authority to grant exemption to the petitioner
from passing the Hindi/Gujarati Language Examination, as per the
provisions of proviso to Rule-4 of The Gujarat Government Services
(Lower Standard and Higher Standard Examination Gujarati Language
Examination) Rules, 1970.
c) By an appropriate writ, order or direction, Your Lordships may be
pleased to hold and declare that the action of the respondent authority
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in asking the petitioner to clear the Hindi/Gujarati Language
Examination at this fag end of his career, is absolutely erroneous,
illegal, against the settled provisions of law and is nothing but cruelty
as has been observed by the Hon'ble Supreme Court.
d) By an appropriate writ, order and/or direction in the nature of
mandamus, Your Lordships may be pleased to hold and declare that
the respondent No.2 authority has no right to take back the
increments, higher-grade, upgradation/ promotion already granted to
the petitioner or to keep in abeyance the other retiral benefits of the
petitioner.
e) Pending admission, hearing and/or final disposal of this
application, this Hon'ble Court may be pleased to direct the respondent
to grant the necessary sanction for preparation of pension papers of
the petitioner and be further pleased to refrain from taking back the
increments, higher-grade, upgradation/promotion already granted to
the petitioner and to provide all other retiral benefits without insisting
for production of the certificate in Hindi/Gujarati Language
Examination.
f) Such other and further relief as this Hon'ble Court may deem
just, fit and expedient be granted in favour of the petitioner.
g) Costs of this petition be provided for to the petitioner."
2. Brief facts leading to the filing of the present petition
read thus:
2.1 The respondent No.2 herein published an advertisement
bearing Notice No.35/1991, inviting applications for the post of
Personal Assistants (English Stenographers, Grade- I) in the
pay scale of Rs.2000-3500 plus allowances, on 15.10.1991
wherein, the qualifications prescribed was that the candidate
should be between 18 and 35 years of age and having passed
the SSC Examination or examination recognized by the
Government equivalent thereto and must possess a speed in
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English Shorthand of 120 words per minute and a speed of 40
words per minute in English Typewriting and hold Government
Commercial Certificate (GCC) Examination for the same. The
said advertisement dated 15.10.1991 is duly produced at
Annexure - C, page 36, to the petition.
2.2 The petitioner being fully qualified, applied for the said
post and ultimately, came to be selected and appointed on the
establishment of the respondent No.2 as Personal Assistant
(English Stenographer, Grade- I) vide Office Order No.40/1992
dated 03.03.1992. The appointment order was on the condition
that the candidates will be required to pass the requisite
examinations in Hindi and Gujarati Languages, within the
prescribed time. The said Office Order is duly produced at
Annexure - D and the said condition is at Clause - 5, page 38
to the petition.
2.3 It is the case of the petitioner that at the relevant point of
time, the Recruitment Rules for Recruitment to Class - III and
IV Services in the Subordinate Judicial Services, 1957 was in
vogue wherein, there was no such condition has been
mentioned in the said Rules, 1957. The petitioner was assured
at the relevant point of time that the said condition could be
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exempted. Under such circumstances, the petitioner accepted
the appointment order of the respondent No.2 and joined the
services with effect from 23.03.1992.
2.4 It is the case of the petitioner that the respondent No.2
misconstrued the GCC Examination as Gujarat Certificate
Examination instead of Government Commercial Certificate
Examination and as such, the entire list was sent to the
Hon'ble High Court of Gujarat for its approval. The Hon'ble
High Court vide communication No.B.1458/79 dated
28.02.1992 re-fixed the seniority and placed the petitioner at
Sr.No.2 for want of such GCC Certificate, in-spite of the fact
that on merit, the petitioner was at Sr.No.1 and made the
appointment of the petitioner in relaxation of the requirement
of production of Certificate of requisite speed of 120 w.p.m. in
English Shorthand and 40 w.p.m. in English Typing from the
GCC Examination Board. At the relevant point of time also,
while approving the select list, such condition of clearing Hindi/
Gujarati Language Examination was not imposed.
2.5 It is the case of the petitioner that after the petitioner had
put up nine years of service with the respondent No.2, the
petitioner became entitled to the first higher pay grade as per
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the policy of the Government prevailing at that point of time,
which was initially refused on the ground of the petitioner
having been appointed on ad-hoc and temporary basis and
that, the same has not been regularized.
2.6 In light of the aforesaid, the petitioner preferred Special
Civil Application No.9322 of 2003 wherein, by order dated
13.10.2003, the said petition came to be allowed. It is further
the case of the petitioner that at the relevant point of time
also, the respondent authorities did not raise any contention
regarding the petitioner not clearing the Hindi/Gujarati
Language Examination because of which, such grant of higher
grade was stalled. Pursuant to the order dated 13.10.2003
passed in Special Civil Application No.9322 of 2003, the
petitioner came to be granted his first higher pay grade with
effect from 01.03.2001 and an entry was also made in the
service book of the petitioner. The said entry showing the
petitioner having been granted first higher pay grade with
effect from 01.03.2001 is duly produced at Annexure - G to the
petition.
2.7 In the meantime, pursuant to the order dated 25.02.1994
passed in Misc. Civil Application No.412 of 1995 in Special Civil
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Application No.7140 of 1989, the Government of Gujarat
conferred Gazetted status upon all the posts of Stenographer,
Grade- I of the respondent No.2 - authority and re-designated
them as Private Secretaries (Stenographer, Grade - I) Class - II
with effect from 30.04.1986 and as such, the services of the
petitioner became part of the State Service with effect from
19.01.1996 and thereafter, the Government upgraded 10% of
the posts of Private Secretaries (Stenographer, Grade- I) Class
- II, in the pay scale of Rs.3000-4500 and upgraded the same
as Principal Private Secretaries, Grade- I, Class- I and also
authorized the respondent No.2 herein to grant the same
accordingly. The petitioner has been confirmed on the post of
Private Secretary (English Stenographer, Grade - I) Class - II
vide Office Order No.203/1998 dated 04.07.1998. At this stage
also, the said confirmation is without any condition.
2.8 It is the case of the petitioner that the petitioner came to
be upgraded/promoted to the post of Principal Private
Secretary, Grade- I, Class - I, in the establishment of the
respondent No.2 vide Office Order No.590/2008. It is reiterated
by the petitioner that the said up-gradation/promotion is also
unconditional and the Office Order No.590/2008 mentioned in
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the service book of the petitioner, duly produced at Annexure-I
to the petition. The petitioner has continued to serve with the
respondent No.2 authority without any hindrance. The
respondent No.2 never informed the petitioner that because of
his non-clearance of Hindi/Gujarati Language Examination, the
work of the respondent No.2 is hindered or that the respondent
No.2 faces any difficulty in the work. Further, the service
record of the petitioner is unblemished and blotless.
2.9 The Government of Gujarat in consultation with the High
Court, implemented the First National Judicial Pay Commission
for non-judicial officers and staff of the Subordinate Courts of
the State of Gujarat (known as Shetty Pay Commission) with
effect from 10.04.2017 and accordingly, framed the new
Recruitment Rules namely, The Non-Judicial Officers and Staff
of the Courts (Recruitment and Conditions of Service) Rules,
2017 (for short 'the Rules, 2017') which states that the
Government Servants shall have to clear the Hindi/Gujarati
Language Examination, as per the policy of the Government.
The said Rules, 2017 is duly produced at Annexure - J to the
petition. Pursuant thereto, the respondent No.2 herein issued
Office Order No.473/2021 wherein, for the first time in 30
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years, the respondent No.2 directed the employees who had
not cleared the Hindi/Gujarati Language Examination, to clear
the same. The petitioner got the copy of the concerned Rules
under which, the petitioner is required to pass the
Hindi/Gujarati Language Examination namely "The Gujarat
Government Servants (Lower Standard and Higher Standard
Gujarati Examination) Rules, 1970, dated 14.08.1970, duly
produced at Annexure- K to the petition. It is only then that the
petitioner came to know about such examination ought to have
been cleared within two years from the date of joining of the
first appointment. The respondent No.2 apart from mentioning
such condition in the appointment order of the petitioner, had
never asked the petitioner to clear such examination nor the
petitioner had any knowledge as to who conducts such
examination. All along the respondent No.2 without insisting
for clearance of such Hindi/Gujarati Examination, confirmed the
petitioner in the year 1998, granted the petitioner his first
higher pay grade with effect from 01.03.2002 and thereafter,
upgraded/promoted the petitioner to the post of Principal
Private Secretary, Grade- I, Class - I with effect from
21.08.2008. At the time when petitioner filed Special Civil
Application No.9322 of 2003, the respondent has not taken any
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objection regarding non-clearance of Hindi/Gujarati Language
Examination. Under such circumstances, it is the case of the
petitioner that the respondent had, in fact, waived such
condition qua the petitioner and therefore, the respondent
No.2 authority is now estopped from calling upon the petitioner
to clear the Hindi/Gujarati Language Examination and is also
estopped from taking back first higher pay grade, upgradation/
promotion and/or increments granted to the petitioner.
3. Placing reliance on the aforesaid facts, Mr. Y.N. Ravani,
learned advocate appearing for the petitioner, submitted that
the impugned communications dated 04.08.2023 and
06.10.2023 deserve to be quashed and set aside; the same
being contrary to the Rules, 1970. It is submitted that the
petitioner herein has been regularly granted his increments,
higher grade pay, upgradation/promotion, as referred above,
without insisting for the clearance of Hindi/Gujarati Language
Examination. It is submitted that after considering the
petitioner eligible for higher pay scale and promotion, the
respondent authority is now estopped from asking the
petitioner to clear the Hindi/Gujarati Language Examination at
the fag end of his career inasmuch as the same amounts to be
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deemed waiver of the said condition. It is submitted that the
question of any eligibility aspect of the petitioner for holding
the post of English Stenographer, at the fag end of the
petitioner's career, does not arise. The aforesaid is governed
by the principles of estoppel as the services of the petitioner is
obtained as English Stenographer without insisting for
Hindi/Gujarati Language Examination Certificate and as and
when the petitioner became due to be eligible for the
pensionary benefit, the same cannot be deprived of on a
condition, which has been impliedly waived by the respondent
authority.
3.1 Mr. Ravani, learned advocate, submitted that except the
appointment order dated 03.03.1992, the respondent authority
never insisted the petitioner to clear the Hindi/Gujarati
Language Examination till the Office Order No.473/2021 dated
09.07.2021 came to be passed by the respondent No.2. It is
submitted that the Rules, 1970 clearly provides for the grant of
exemption to the employees, whether Gazatted or Non-
Gazetted, upon their attaining the age of 50 years. In this
context, it is submitted that once the petitioner was called
upon to produce the necessary certificates showing clearance
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of Hindi/Gujarati Language Examination, the petitioner made a
detailed representation dated 15.07.2023 to the respondent
authority pointing out Rule - 4 of the Rules, 1970 whereby, the
respondent authority is empowered to grant exemption to the
petitioner from clearing Hindi/Gujarati Language Examination.
It is submitted that the said representation was not considered
in its true prospective and came to be ordered to be 'filed'. The
said order is an unreasoned order and therefore, the petitioner
is deprived from knowing the reasons which weighed with the
respondent authority to reject the same. The petitioner has
also requested for personal hearing however, the same was
not granted. Meaning thereby, the action of the respondent
authority is in gross violation of principles of natural justice. In
view thereof, also the impugned communications deserve to
be quashed and set aside.
3.2 Reliance is placed on the ratio laid down in case of
Gujarat Rajya Panchayat Seva Karmachari Maha Mandal vs.
State of Gujarat, Special Civil Application Nos.10669/1994,
10818/1994 being filed by the employees of the Panchayat
Services of Gujarat Government reported in (1999) 2 GLR 833
wherein, by order dated 25.09.1998/09.10.1998, the
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employees were granted such exemption as per the Resolution
of the Government dated 06.04.1998, who crossed the age of
45 years. Reliance is also placed on the ratio laid down in case
of Gujarat Sachivalaya and Allied Offices Stenographers
Association vs. State of Gujarat, reported in 1986 (1) GLR 228
more particularly, paragraph 5 of the said decision.
3.2.1 Mr. Ravani, learned advocate, submitted that in the
case of the present petitioner, proviso to Rule - 4 of Rules,
1970 clearly stipulates the intention of the Legislature to
exempt those who attained the age of 50 years. Under such
circumstances, the petitioner herein; having crossed the age of
50 years, deserves to be exempted from clearing the
Hindi/Gujarati Language Examination at the fag end of his
career.
3.3 Mr. Ravani, learned advocate, submitted that the
Government of Gujarat in its General Administrative
Department, also passed a Resolution dated 22.08.2014
whereby, it was resolved that a judgment passed in a
particular case, shall be made applicable to all such similar
cases. In light of the aforesaid, the case of the petitioner also
stands covered by the said order and in view thereof, the
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impugned communication whereby, the representation of the
petitioner came to be 'filed' deserves to be quashed and set
aside. It is submitted that the Rules, 1970 not only provides for
granting exemption to employees who have crossed the age of
50 years but also provides that even if any increments or
higher grade pay etc. are withheld, the same shall required to
be released when such employees cross the age of 50 years,
as if no such increment and/or higher grade pay etc. was ever
withheld i.e. it does not have any bearing or relevance for the
aspect of deciding the pensionary benefit. Under such
circumstances, the impugned communication dated
06.10.2023 addressed by the respondent No.2 is also
erroneous and required to be quashed and set aside.
3.4 Mr. Ravani, learned advocate, submitted that Rule - 3 of
the Rules, 1970 also provides that the said Rules shall not
apply to Government Servants (Gazetted or non-Gazetted)
holding such technical or specialized posts. It is submitted that
the petitioner being a Private Secretary (English Stenographer)
Grade- I, also hold a technical and/or specialized post. It is
fairly submitted that the post of the petitioner is also not
dealing with the Rural people or with any subordinate staff who
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could follow only Gujarati Language. It is not even the case of
the respondent authority that due to not having the certificate
in Hindi/Gujarati Language, the services of the petitioner was
not up to the mark or that the office or the petitioner had ever
faced any hindrance to at, as a English Stenographer. Under
such circumstances, the impugned exercise undertaken by the
respondent authority is violative of Article 14 and 21 of the
Constitution of India.
3.5 Mr. Ravani, learned advocate, submitted that the
petitioner had applied for the post of English Stenographer in
view of the advertisement/notice dated 15.10.1991 wherein,
the advertisement did not prescribe any condition of passing
the Hindi/Gujarati Language Examination. It is submitted that
tough the appointment order of the petitioner dated
03.03.1992 stipulates a condition of passing Hindi/Gujarati
Language Examination, it did not prescribe any time limit for
the same nor it stated that failure to clear the same, would
invite taking back the increments, higher grade pay,
upgradation/promotion etc. Under such circumstances, the
condition of passing the Hindi/Gujarati Language Examination
shall be deemed to have been waived by the respondent.
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Reliance is placed on the ratio laid down by the Hon'ble Madras
High Court in case of N. Prabhakaran Nair vs. State of Tamil
Nadu as well as in case of Dr. S.S/Ebdul Khuddus Azami vs. The
Principal Secretary to Government, Writ Petition No.16309 of
2010 wherein, it was held that since the petitioner reached the
age of superannuation without any complaint of any nature
from any quarter and no defect of any nature has been pointed
out, relating to the execution of his work, basing on the non-
passing of the language test namely Tamil Part- II, the
impugned order passed by the respondent was not allowed to
stand and directed to grant exemption to the petitioner therein
along with all consequential benefits.
3.6 Placing reliance on the aforesaid submissions, it is
submitted that the petitioner having been selected and
appointed and continued in service for a period of more than
32 years as English Stenographer Grade- I, the petitioner is not
required to take dictation in Gujarati or do any typewriting
work in Gujarati. The petitioner deserves to be granted
exemption from passing the Hindi/Gujarati Language
Examination when the petitioner is left with only one month of
service with the respondent department at the time when the
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petition is filed. It is submitted that there is no criteria fixed for
passing the Hindi/Gujarati Language Examination. Neither any
University not any Institute was authorized to conduct or hold
such examination as has been the case of direction to pass the
CCC Examination by the Government Employees. The
petitioner is never informed to pass the examination, which is
to be conducted by any particular department and which is
authorized by the respondent. Under such circumstances also,
asking the petitioner to clear the Hindi/Gujarati Language
Examination is without prescribing any guiding rules and
regulations. In light of the aforesaid submissions, it is
submitted that the prayers, as prayed for, in the present
petition be allowed.
4. Mr. Hamesh C. Naidu, learned advocate appearing for the
respondent No.2, placed reliance on the affidavit-in-reply duly
produced at page 74 to the petition, and submitted that the
present petition is required to be dismissed only on the ground
that the petitioner accepted the benefits flowing from the
Shetty Pay Commission recommendations however, now the
petitioner has sought to challenge the conditions provided
therein. It is submitted that after accepting the benefits, it is
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now not open for the petitioner to challenge the conditions
provided in the said Rules and therefore, the petition is
required to be dismissed.
4.1 Mr. Naidu, learned advocate, submitted that admittedly,
the petitioner herein was initially appointed as Stenographer,
Grade- I vide Office Order No.40/1992, dated 03.03.1992,
which is duly produced at Annexure - A to the petition. Placing
reliance on the same, it is submitted that as per the Clause - 5
of the said appointment order, it was specifically provided that
each candidate is required to pass the requisite examination in
Hindi and Gujarati Languages, as the case may be, within the
prescribed time limit. The said terms were accepted by the
petitioner by joining the services. It is submitted that the same
is a general condition of appointment and a requirement for all
the Stenographers.
4.2 Mr. Naidu, learned advocate, submitted that huge
emphasis has been laid in regard to the higher pay-grade
which has been extended to the petitioner however, the same
was extended as per the order passed in Special Civil
Application no.9322 of 2003. It is submitted that the benefit of
Shetty Pay Commission was extended to the petitioner for
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which, Office Order No.211/2022 was specifically issued. In the
said order, it has been provided that for any Stenographer who
has not cleared the mandatory Hindi and/or Gujarati Language
Examination (higher or lower level as may be applicable), as
the case may be, as per the relevant Government Resolutions,
shall be required to cleared the said examination within a
period of two years from the date of the said order or the first
available opportunity of the examination that may be
conducted. It is submitted that as the per the said Office Order,
even the benefits of Shetty Pay Commission was extended to
the petitioner, which was accepted by the petitioner,
admittedly, the said condition was reiteration of the original
condition which was also accepted by the petitioner. It cannot
be the case whereby the benefits flowing from a specific order
are accepted and after taking the benefits, one condition is
objected. It is submitted that a specific letter was also
addressed to the petitioner asking the petitioner to submit the
certificate of Language Examination however, the same was
not submitted by the petitioner and certain documents sought
by the petitioner, which were provided by the respondent No.2.
4.3 Mr. Naidu, learned advocate, submitted that broadly the
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Rules of 1970 were sought and which were provided to the
petitioner herein. It is submitted that Rule 4 of the Rules, 1970
provides for exemption with regard to passing of the Language
Examination for employees who have completed 50 years of
age on the 'appointed date'. However, conveniently, the
definition of appointed date which is provided under Rule 3(b),
has been mentioned that 'appointed date' means the date on
which these Rules shall come into force' i.e. 14.08.1970. Thus,
the interpretation of the same can be whereby, exclusion
would be available to the persons who have completed 50
years of age on bringing the said Rules into effect which was
14.08.1970 and hence, the said exclusion would not cover the
case of the petitioner.
4.4 Mr. Naidu, learned advocate, submitted that the emphasis
has also been laid in cases wherein "mother tongue is not
Gujarati or whose mother tongue is Gujarati but, who may
have received his secondary education in English or any
medium other than Gujarati and has acquired the knowledge of
Gujarati by virtue of passing the Matriculation or SSC
Examination recognized by the Government as equivalent to
that examination or any higher examination with Gujarati as
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one of the subjects, shall not be required to pass lower
standard examination or higher standard examination in
Gujarati or both, as the case may be, shall not be applicable to
the petitioner as the clause specifically provides that
Matriculation or SSC with Gujarati as one of the subjects would
be required, in the facts of the matter, is not the case and
hence also, the said exclusion provision which has been
emphatically relied upon by the petitioner, would not be
applicable in the facts of the present case.
4.5 Mr. Naidu, learned advocate, submitted that the Rules
which are of 10.04.2017, are mandatory and the Rules
specifically covers and provides the aspect of passing of the
said Language Examination and hence, only the same was
intimated and informed to the petitioner herein. In the present
petition, what is under challenge is the communication/letter
asking the petitioner to provide certificate of Language
Examination and the Rules which are binding to the petitioner.
Thus, on the said ground alone, the present petition is required
to be dismissed. It is submitted that the promotion order dated
24.03.2022 specifically provides that the promotee shall be
required to pass the examination within two years or at the
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first available opportunity. In-spite of which, the petitioner has
not appeared in the examination which is taken time and again
at Gujarat Vidhyapith and other institutions. It is also
submitted that after the representation made by the petitioner,
the respondent No.2 had informed the petitioner to personally
meet in respect of any grievance whatsoever. However, in-
spite of coming forward for the same, the petition came to be
preferred making wrongful assertion that the petitioner was
never called upon by the respondent No.2 which is incorrect
and denied by the respondent. It is submitted that in the
present petition, it has been asserted and averted that the
communication dated 06.10.2023 provided that the pension
would not be sanctioned and the benefits as extended of
increment, higher grade etc. to the petitioner, shall be required
to be taken back. To that, it is submitted that in-spite of the
said factum in complete knowledge of the petitioner herein,
the petitioner has preferred a Civil Application whereby, it has
been claimed as if there is a new cause of action and contrary
to the Pension Rules and the pension would be stopped,
whereas, the same was already a subject matter of the main
petition which is already pending and hence, the same is also
incorrect and improper on part of the petitioner while
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preferring the said Civil Application.
4.6 Mr. Naidu, learned advocate, submitted that the
petitioner cannot be wrongfully benefited if he is not eligible
for certain specific benefits. The said ratio would be covered
the present case as in the present case, the petitioner was
supposed to clear the examination, though was aware of the
said fact, has preferred not to clear the said examination and
now, at the fag end of his service, is trying to make out a case
to get exemption/exclusion from undertaking the said
examination which is completely contrary to the Rules and
therefore, the relief, as prayed for, is required to be denied. It
is submitted that the aforesaid is a general policy for all the
Stenographers who are appointed and no exclusion is made
qua the same. The relief, as prayed for, if hypothetically is
even granted then the same would not only be dehors the
Rules but, will also be contrary to the prevalent practice and
procedure as adopted for recruitment of Stenographers. That,
passing of the examination is mandatory requirement for the
said post and hence, no relief as prayed for be granted.
Analysis:-
5. Having heard the learned advocates appearing for the
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respective parties, following emerge:
5.1 The petitioner herein came to be appointed as a English
Stenographer, Grade- I, vide Order No.40/1992 dated
03.03.1992 pursuant to the advertisement bearing Notice
No.35/1991 dated 15.10.1991 which is duly produced at page
36, Annexure- C to the petition. The said appointment order
being Office Order No.40/1992 is duly produced at page 37
wherein, Clause - 5 reads as under:
"5. Each of the candidates will be required to pass the requisite
examinations in Hindi and Gujarati languages, within the prescribed
time."
The aforesaid clause provides that the petitioner was
required to pass the requisite examinations in Hindi and
Gujarati languages, within prescribed time. The said terms
were accepted by the petitioner at the time of joining of
service. It is a general condition of appointment and
requirement for all the Stenographers.
5.2 At the time when the petitioner was appointed on
03.03.1992, the Rules of 1970, dated 14.08.1970 were in force.
The said Rules provides for passing of Hindi/Gujarati Language
Examination. The said Rules also provides for exemption qua
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the Gazetted Officers and Non-Gazetted Government Servants
to pass Higher Standard Examination in Gujarati or Lower
Standard Examination in Gujarati or both; as the case may be,
continuous post held by them if, they completed 50 years of
age on the 'appointed date', withheld increments if any, such
employee shall be released on the appointed date. The
petitioner herein relied on Rule 4 of the said Rules, 1970 and
submitted that the petitioner is governed by the exclusion
clause of the Rules, 1970 which provides for
exclusion/exemption for employees who are 50 years of age. In
view of the aforesaid, it is apposite to refer to relevant clause
of Rule 3(b) and Rule 4 of the Rules, 1970, duly produced at
page 53 to the petition, which reads thus:
"3(b) "Appointed date" means the date on which these rules shall
come into force;
4. (a) All Gazetted Officers referred to in rule 3 and All India Service
Officers shall be required to pass (i) Lower Standard Examination,
within the six months from the date of joining their first appointment or
from the appointed date, whichever is later and (il) Higher Standard
Examination in Gujarati within two years from, the date of joining their
first appointment or from the appointed date, whichever is later;
(b) All non-Gazetted Government servants (referred to in rule 3)
who are required to do noting and drafting in Gujarati shall be required
to pass (i) Lower Standard Examination within the six months from the
date of joining their fist appointment or from the appointed date,
whichever is later and (ii) Higher Standard Examination in Gujarati
within two years from the date of joining their first appointment or from
the appointed date, whichever is later. For the purposes of this rule, the
categories of Government servants (Class III) who are required to pass
the Higher Standard Examination in Gujarati shall be the same as
those categories which are required to pass Higher Standard
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Examination in Hindi;
(c) All non-Gazetted Government servants except those belonging
to the categories referred to in clause (b) of rule 4 who are not required
to do noting and drafting in Gujarati shall be required to pass Lower
Standard Examination within one year from the date of joining their
first appointment or from the appointed date; whichever is later. For the
purposes of this rule the categories of non-Gazetted Government
servants who are required to pass only Lower Standard Examination in
Gujarati shall be the same as those categories which are required to
pass the Lower Standard Examination in Hindi. In case Government
servants of this category get promotion to Higher posts for which they
are required to pass the Higher Standard Examination, they shall have
to pass that examination within two years from the date of promotion.
Note.- Those Gazetted and non-Gazetted Government Servants, who
are required to pass both the examinations (viz. Lower Standard
Examination and Higher Standard Examination) in Gujarati must have
first passed Lower Standard Examination in Gujarati in order to be
eligible for appearing at the Higher Standard Examination in Gujarati.
Provided that Gazetted Government servants specified in cause (a) of
rule 4 and non-Gazetted Government Servants specified in clause (b) of
rule 4 of the former States of Bombay, Hyderabad, Kutch, Madhya
Pradesh and Saurashtra who were required to pass the regional
examination in Gujarati, under the respective rules, if any, but have not
passed that examination shall be required to pass only Higher Standard
Examination in Gujarati within a period of one year from the date of the
first examination held on or after the appointed date.
Provided further that non-Gazetted Government Servants specified in
clause (c) of rule 4 of the forner States of Bombay, Hyderabad, Kutch,
Madhya Pradesh and Saurashtra, who were required to pass the
regional examination in Gujarati under the respective, rules, if any, but
have not passed that examination shall be required to pass the Lower
Standard Examination in Gujarati within a period of one year from the
date of first examination held on or after the appointed date.
Provided further that if a Gazetted Government Servant or a non-
Gazetted Government Servant whose mother-tongue is not Gujarati or
whose mother-tongue is Gujarati but who may have received his
secondary education in English or any medium other than Gujarati and
has acquired the knowledge of Gujarati by virtue of his passing the
Matriculation or S.S.C. Examination recognised by Government as
equivalent to that examination or any higher examination, with Gujarati
as one of the subjects, shall not be required to pass Lower Standard
Examination in Gujarati or Higher Standard Examination in Gujarati or
both, as the case may be. Withheld increments, if any, of such
employees shall be released from the appointed date.
Provided further that Gazetted Officers and non-Gazetted Government
Servants shall not be required to pass Higher Standard Examination in
Gujarati or Lower Standard Examination in Gujarati or both, as the case
may be, for continuance in the post held by them if they have
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completed 50 years of age on the appointed date. Withheld increments,
if any, of such employees shall be released from the appointed date."
5.3 The Non-Judicial Officers and Staff of the Courts
(Recruitment and Conditions of Service) Rules, 2017, (for short
'the Rules, 2017) came into effect from 10.04.2017. The said
Rules, 2017 apply to all the Non-Judicial Officers and Staff
members belonging to Class- I, Class- II, Class - III and Class -
IV, service on establishment of the District Courts of the State,
City Courts at Ahmedabad and Family Courts in the State of
Gujarat. Rule - 23 of the said Rules, 2017 provides that a
member of staff shall be required to pass an examination in
Hindi or Gujarati or both in accordance with the rules
prescribed by the Government from time to time. Rule 23 of
the Rules, 2017 reads thus:
"23. HINDI / GUJARATI EXAMINATION:
A member of the staff shall be required to pass an examination in Hindi
or Gujarati or both in accordance with the rules prescribed by the
Government from time to time in this behalf."
6. In absence of extension of higher pay grade to the
petitioner, the petitioner preferred Special Civil Application
No.9322 of 2003 wherein, admittedly it was recommended that
the higher pay scale should be extended to the petitioner on
completion of 9 years of service. The petitioner herein was
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thereafter extended the benefit of Shetty Pay Commission for
which, Officer Order No.211 of 2022 specifically issued. The
said order also provided that for any Stenographer who has not
cleared the mandatory Hindi/English Language Examination
(Higher or Lower level, as may be applicable), as the case may
be, as per the relevant Government Resolutions, shall be
required to clear the said examination within a period of two
years from the date of the said order or on the first available
opportunity of the examination that may be conducted, failing
which, the concerned Stenographers shall be reverted to
his/her previous cadre, duly produced at page 97 to the
petition. It is further clarified that the period stipulated for
clearing these examinations, shall not be extended further.
6.1 The benefit of Shetty Pay Commission was accepted by
the petitioner without any objection in view thereof,
admittedly, the said condition which was reiteration of the
original condition also came to be accepted by the petitioner.
Thereafter, by communication dated 12.06.2023, the petitioner
was specifically informed in writing to submit the Certificate of
Language Examination however, the same was not submitted
by the petitioner and on the even date, certain documents
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were sought for by the petitioner, which were also provided by
the respondent No.2 to the petitioner.
7. Pursuant thereto, the petitioner made a representation to
the respondent No.2 on 15.07.2023 duly produced at page 64
to the petition whereby, it was represented that the petitioner
is entitled to exemption under the said Rules of 1970 more
particularly, Rule - 4 as referred above. The said Rule provides
for exemption for those who have completed 50 years of age
on the "appointed date". 'Appointed date' as defined in Rule
3(b) meaning thereby the date on which these rules shall come
into force i.e. 14.08.1970.
8. At this stage, it is apposite to deal with the decisions
relied upon by Mr. Y.N. Ravani, learned advocate appearing for
the petitioner.
8.1 In case of Gujarat Rajya Panchayat Seva Karmachari
Maha Mandal vs. State of Gujarat, Special Civil Application
Nos.10669/1994, 10818/1994 reported in (1999) 2 GLR 833,
the respondents failed to hold the departmental examinations
for 18 years. The employees more than 45 years of age were
prevented from appearing in the examination and were
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granted promotions as well as confirmations. The respondent -
State Government agreed that those employees who
completed 45 years of age as on 17.09.1994 which was the
cut-off date, will be granted exemption according to the
interim order passed by the Court. However, after the
departmental examination for those cadres are held, then they
are required to appear in and pass therein and the benefits
shall be allowed only after getting an undertaking to the effect
that in case they fail to do so, the benefits so extended would
be withdrawn. It was held that once the Government fixed the
cut-off date of 14.09.1994 and granted exemption to the
employees who attained the age of 45 years on the said date,
the action of again asking the employees to appear at the
examination to be held thereafter, was unsustainable. The
Government conferred the right of exemption to the employees
who attained the age of 45 years on 14.09.1994, but for the
service benefits, viz., promotion as well as higher pay-scales,
wanted the employees to clear the examination. Under such
circumstances, it was held that there is no use of granting
exemption to the employees. An employee who attained the
age of 45 years on 14.09.1994, is bound to grow older and
older in the subsequent years and therefore, when the
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Government decides to fix 45 years as age-limit for granting
exemption, it cannot change its stand for the same employees
and insist for appearing in the subsequent examinations. It was
further held that the persons belonging to super Panchayat
service, who have passed any examinations which are held
after 14.09.1994, will not be entitled to claim seniority and/or
other benefits like promotion as well as higher pay-scales qua
the person of super Panchayat Service who attained the age of
45 years on 14.09.1994 and thus, have been exempted from
appearing in the departmental examinations.
The aforesaid decision is not applicable to the facts of the
present case. In the facts of the present case, the examination-
in-question is held from time to time and the similarly placed
persons have Certificate as issued from time to time. However,
the petitioner has not appeared in the examination and in view
thereof, the respondent is constrained to take steps against
the petitioner in accordance with law.
8.2 In case of Gujarat Sachivalaya and Allied Offices
Stenographers Association vs. State of Gujarat, reported in
1986 (1) GLR 228, it was held that the petitioners are entitled
to continue in the cadre of English Stenographer on the
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conditions on which they were recruited. There was no
condition of taking training in Gujarati Stenography and
therefore, it was held that they could not take training in
Gujarati Stenography.
In the facts of the present case, the appointment order
dated 03.03.1992 clearly imposes the condition of passing the
Gujarati/Hindi Language Examination and as also the
Recruitment Rules, 1970 and Rules, 2017 provide for the
same.
8.3 In case of Dr. S.S/Ebdul Khuddus Azami vs. The Principal
Secretary to Government, Writ Petition No.16309 of 2010,
dated 29.03.2011, the petitioner on acquiring Bachelor Degree
in Unani Medicine and Surgery, selected to the post of
Assistant Medical Officer by TNPSC and by order dated
17.03.1996 of the Director of Indian Medicine, Homeopathy,
the petitioner joined the said department, rendered the service
of 24 years without earning any promotion and was due to
retire on 31.05.2010 on attaining the age of superannuation.
The Government after considering the request of the petitioner
for relaxation of the relevant rules regarding passing 'Tamil' as
Second Language Test, has rejected the same and
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consequently, removed the petitioner from service as per Rule
12A of the General Rules for Tamil Nadu State and Subordinate
Service Rules. The said order passed by the State Government
was subject matter of challenge by way of petition before the
Madras High Court wherein, it was held that in absence of any
serious complaints from any of the quarters, rejection of the
request of the petitioner for relaxation of Rule 12A of the
General Rules, was against the order of the interim stay
granted by the Tribunal and that, the order of removal, a major
penalty, could not be inflicted to achieve the object of
discharging him from the service. Consequently, it was
directed that the petitioner was allowed to retire from service
by granting relaxation of the Rules, with consequential service
and monetary benefits, including retiral benefits and pension
with effect from the date of attaining the age of
superannuation holding that the said penalty of removal was
disproportionate.
In the facts of the present case, the petitioner has
approached this Court challenging the communication dated
04.08.2023 whereby, the Registrar of the City Civil and
Sessions Court, Ahmedabad, has communicated to the
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petitioner that the petitioner's representation for exemption
from passing the examination-in-question was declined. By
further communication dated 06.10.2023, it was
communicated that in absence of Hindi/Gujarati Language
Examination certificate placed on record before the competent
authority, the respondent would be compelled to take action
against the petitioner as per rules related to the promotion,
increments and higher grade pay benefits given to the
petitioner. In addition, the process of petitioner's pension case
would also be delayed. In view thereof, the reliance placed by
Mr. Ravani, learned advocate on the order passed by the
Madras High Court, is not applicable wherein, no punishment is
awarded to the petitioner.
9. Considering the aforesaid, in the opinion of this Court, the
petitioner's appointment was on 03.03.1992 and at that time,
the said Rules, 1970 were in force. The appointment letter of
the petitioner states that the petitioner was required to pass
the Hindi and/or Gujarati Language examination and the
petitioner has accepted the same.
10. It appears that in light of the aforesaid, the petitioner's
representation dated 15.07.2023 seeking exemption under
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Rule 4 of the Rules, 1970, came to be rejected by the
impugned communication dated 04.08.2023 duly produced at
page 34, Annexure - A, wherein, it is stated that, 'in the
petitioner's first appointment order as well as in the order of
promotion, it is mentioned that the petitioner was given
appointment/promotion subject to the condition of passing
prescribed examination of Hindi/Gujarati language. Moreover,
as the circulars/authorities submitted by the petitioner are not
applicable in case of the petitioner and the order dated
03.08.2023 has been passed by the Ld. Principal Judge to 'file'
the petitioner's representation dated 15.07.2023. The said
communication dated 04.08.2023 reads thus: (true translation)
"Outward No. 1147/2023
Dt. 04.08.2023
To,
Mr. J. Venketramanan,
English Stenographer, Grade-1 (Class-1)
Civil Civil Court, Bhadra,
Ahmedabad.
Sub:- Regarding your representation dated 15.07.2023 to pass order
granting exemption from passing Hindi/Gujarati examination.
Apropos to the subject cited above, I am directed by the Ld.
Principal Judge to inform you that in your first appointment order as
well as in the order of promotion, it is mentioned that you were given
appointment/promotion subject to the condition of passing prescribed
examination of Hindi/Gujarati language. Moreover, as the
circulars/authorities submitted by you are not applicable in your case,
order dated 03.08.2023 has been passed by the Ld. Principal Judge to
file your application/representation dated 15.07.2023. The same may
be known.
Sd/-
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Hardik S. Desai
Registrar"
10.1. By a further communication dated 06.10.2023 duly
produced at page 35, Annexure - B, it is informed to the
petitioner that, 'as per rules and as per the order passed by
the Departmental Promotion Committee, the petitioner to
submit the certificates of passing prescribed examination of
Gujarati/Hindi language however, the petitioner has not
submitted any certificate to the office till date in this regard.
Thus, as no entry of passing prescribed language examination
is found in petitioner's Service Book, the process of granting
pension to the petitioner could not be commenced. Thus, it is
requested to submit the required certificates immediately by
return post. Otherwise, the respondent to take action as per
rules related to the promotion, increments and higher grade
pay benefits given to the petitioner. In addition, the process of
petitioner's pension case would also be delayed'. The said
communication dated 06.10.2023 reads thus: (true translation)
"Outward No. AC/502/2023
Dt. 06.10.2023
To,
Mr. J. Venketramanan,
Stenographer, Grade-1,
Civil Civil and Sessions Court,
Bhadra, Ahmedabad.
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Subject:- To submit necessary certificates of passing prescribed
language examination.
Reference: (1) Outward No. 888/2023, dated 12/06/2023.
(2) Your application dated 24/07/2023 to receive pension.
Sir,
With regard to the subject and reference cited above, I am
directed to state that you were informed as per rules and as per the
order passed by the Departmental Promotion Committee to submit the
certificates of passing prescribed examination of Gujarati and Hindi
language. You have not submitted any certificate to this office till date
in this regard.
Thus, as no entry of passing prescribed language examination is
found in your Service Book, process of granting pension to you could
not be commenced. Thus, it is requested to submit the required
certificates immediately by return post. Otherwise, I would be forced to
take action as per rules related to the promotion, increments and
higher grade pay benefits given to you. In addition, the process of your
pension case would also be delayed. The same may be known,
sd/-
Registrar
City Civil and Sessions Court,
Ahmedabad."
11. In light of the aforesaid communications, in the opinion of
this Court, it is undisputed that the petitioner has not produced
the certificate in Hindi and/or Gujarati Language Examination
as required under the Rules, 1970 as well as Rules, 2017. The
petitioner was informed that the petitioner should procure the
certificate; which is mandatory. The aforesaid is borne out from
page 97 of the petition. The petitioner in-spite of the aforesaid
communication dated 24.03.2022 thought it fit not to appear in
the said Hindi and/or Gujarati Language Examination and have
the certificate.
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12. From the aforesaid, it emerges that the benefit of
exemption under Rule 4 of the Rules 1970 with regard to
passing of Language examination for employees, who have
completed 50 years of age on the 'appointed date', is also not
available to the petitioner in light of Rule 3(b) of the Rules,
1970 which defines the 'appointed date' as the date on which
the Rules, 1970 came into force i.e. 14.08.1970.
13. In view of the aforesaid discussion, the said exemption
having been denied by communication dated 04.08.2023, it
was informed that the representation of the petitioner came to
be 'filed' on 03.08.2023. Further, on 06.10.2023 also the
petitioner was once again informed that appropriate steps
would be taken against the petitioner herein in absence of
such certificate but, the petitioner has failed to do so.
14. Further, in the promotion order dated 24.03.2022, it is
specifically provided that the promotee shall be required to
pass Hindi/Gujarati Examination within two years or at the first
available opportunity. In-spite of the aforesaid, the petitioner
has not appeared in the examination which is taken time and
again at Gujarat Vidhyapith and other institutions. When the
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petitioner made representation, the respondent No.2 had
informed the petitioner to personally meet in respect of any
grievance whatsoever, however, the petitioner chose to file
present petition with an assertion that the petitioner was never
called upon by the respondent No.2.
15. The prayer 9(e) with respect to declaration that the
respondent authority has no right to take back the increments,
higher-grade, up-gradation/promotion already granted to the
petitioner or to be kept in abeyance, is pre-matured.
16. For the foregoing reasons, no case is made out to
exercise extra ordinary jurisdiction under Article 226 of the
Constitution of India. It is clarified that if the respondent
authority is inclined to take any action against the petitioner,
the same be in accordance with Rules and Regulations and in
accordance with law.
17. Accordingly, the present petition fails and is hereby
dismissed. Notice is discharged.
(VAIBHAVI D. NANAVATI,J)
NEHA
