Gujarat High Court
Mokashi Kanchanben Shukarbhai vs State Of Gujarat on 17 September, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/3040/2024 JUDGMENT DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3040 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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MOKASHI KANCHANBEN SHUKARBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GAUTAM JOSHI, LD. SR. ADV. with MR MEHUL SHARMA and VYOM H
SHAH(9387) for the Petitioner(s) No. 1
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 17/09/2025
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr.Gautam Joshi
appearing with learned advocate Mr.Mehul Sharma and
learned advocate Mr.Vyom Shah on behalf of the petitioner
and learned Assistant Government Pleader Mr.Aditya Pathak
appearing on behalf of the respondent - State.
2. By way of this petition, the petitioner inter alia
challenges a decision of the respondents to terminate the
services of the petitioner vide an order dated 11.09.2016 and
further prays for a direction that all consequential benefits as
if the order of termination had not been passed at all from the
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initial date of appointment, be granted to the petitioner.
3. Facts in brief, as much as are required for deciding the
present petition, more particularly in view of the fact that the
issue raised in the present petition appears to be covered by
decisions of the Hon'ble Division Benches of this Court, are
stated hereinbelow.
3.1. It appears that the petitioner was appointed as a Forest
Guard vide an order dated 10.09.2009 and as per the terms of
the appointment, the appointment was for a fixed period of 5
years with a fixed salary. The terms of the appointment
further stipulated that the petitioner was required to clear the
CCC examination upon his appointment.
3.2. It would appear that the petitioner had successfully
cleared the CCC examination conducted by the Department of
Electronics and Accreditation of Computer Courses (DOEACC)
vide result dated 21.03.2011. It would appear that
subsequently, upon completion of 5 years, services of the
petitioner were regularized on 19.11.2015 w.e.f. 12.09.2014.
It would appear that though the petitioner had cleared the
CCC examination in the year 2011 as noted hereinabove, yet
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vide an order dated 11.09.2016, the services of the petitioner
were terminated on the ground that the petitioner did not
complied with the conditions mentioned in the regularization
order. The condition inter alia being as regards the petitioner
being required to clear the CCC examination within a period
of 2 years of his regularization / the date of resolution.
3.3. It would appear that the petitioner, upon his services
being terminated on 11.09.2016, had applied for appearing in
the CCC examination conducted by the Sardar Patel Institute
of Public Administration (SPIPA) and whereas, the petitioner
had cleared the CCC examination on 09.11.2016 and whereas,
upon successfully clearing the said examination, the petitioner
was reinstated in service on 10.11.2016.
3.4. It would appear that the grievance of the petitioner
being that upon being reinstated, the seniority of the
petitioner had been readjusted w.e.f. 09.11.2016 treating the
petitioner as a fresh enterent with effect from that date, has
resulted in grave prejudiced to the present petitioner. The
petitioner, therefore, has approached this Court inter alia
contending that the petitioner would be entitled for his
seniority to be counted with effect from his date of original
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appointment i.e. 10.09.2009.
4. Heard learned Senior Advocate Mr.Gautam Joshi on
behalf of the petitioner who would submit that the issue
raised in the present petition is covered by two separate
decisions of the Hon'ble Division Benches of this Court.
4.1. Firstly, learned Senior Advocate would refer to decision
of the Hon'ble Division Bench in Letters Patent Appeal
No.129/2024 dated 15.07.2024 in case of State of Gujarat and
Ors. vs. Mahesh Sureshbhai Parmar and Ors., wherein the
Hon'ble Division Bench had inter alia laid down that the State
Government could not have terminated the services of the
employees once such employee has been regularized in
service after completing prescribed period of 5 years. The
Hon'ble Division Bench has inter alia laid down that upon
completion of 5 years' contractual period and the services of
the petitioner having been regularized, condition of
Government Resolution dated 23.10.2015 which had been
invoked to terminate the services of the employee, could not
be resorted to.
4.2. Learned Senior Advocate would thereafter rely upon
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decision of the Hon'ble Division Bench of this Court in Letters
Patent Appeal No.376/2021 dated 20.07.2021 in case of State
of Gujarat vs. Kodiyatar Manda Amarabhai, wherein the
Hon'ble Division Bench had inter alia laid down that
Government Resolution dated 23.10.2015 which had amended
Rule 9(A)(3) of the Gujarat Civil Services Classification
Recruitment (General) Rules, 1967, did not have retrospective
effect. It is contended by learned Senior Advocate that
Government Resolution dated 04.06.2009 was the first
resolution whereby the State had inter alia stipulated that an
employee, upon joining service, would be required to clear the
CCC examination within the period of probation. It is
submitted that Government Resolution dated 04.06.2009 had
been substituted by later Government Resolution dated
23.10.2015 based upon which the services of the petitioner
were terminated and whereas, the said resolution had
inserted the words "or within a period of 2 years thereafter in
Rule 9(A) of the Gujarat Civil Services Classification
Recruitment (General) Rules, 1967".
4.3. It is submitted that Hon'ble Division Bench, in the
decision referred to, had laid down that Government
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Resolution dated 23.10.2015 could not be applied
retrospectively and whereas, it is submitted that under such
circumstances, the services of the petitioner ought not to have
been terminated in the first instance.
4.4. Even otherwise, learned Senior Advocate would submit
that the said resolution inter alia lays down that the employee
would be required to clear the CCC examination within 2
years of regularization and whereas, it is submitted that the
petitioner, while he was regularized on 12.09.2014, had
cleared CCC examination on 09.11.2016 and subsequently
reinstated on 10.11.2016.
4.5. Learned Senior Advocate would submit that on all three
counts namely (i) the services of the petitioner could not have
been terminated for non-clearance of CCC examination after
his regularization, (ii) Government Resolution dated
23.10.2015 not having retrospective applicability, and (iii)
even otherwise the condition of the said government
resolution having been fulfilled by the petitioner, the issue
would swing in favour of the present petitioner and whereas,
this Court may grant the reliefs as prayed for.
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5. As against the same, to a pointed query of the Court,
learned AGP could not dispute the position that decisions of
the Letters Patent Appeals referred to hereinabove had
attained finality since the said decisions have not been
assailed by the State before the Hon'ble Supreme Court.
6. Considering the submissions made by learned Senior
Advocate for the petitioner and learned AGP for the
respondent State, at the first instance, observations of the
Hon'ble Division Bench in Letters Patent Appeal
No.129/2024, more particularly para-26 thereof being
relevant, is reproduced hereinbelow for benefit:-
"26. The case of the appellants entirely hinges on
the Government Resolution dated 23.10.2015. The
same will not apply to the respondents. The
appellants have treated the respondents as fresh
appointees from 2018-19 by wiping out their entire
service from the year 2007, which includes the
probation/contractual period. It is also an undisputed
fact that the respondents were never terminated from
the services on the ground that they had not passed
the CCC examination within the prescribed period.
The appellants have admitted the validity of the CCC
certificates possessed by the respondents at the time
of their appointments. The respondents were also
regularized and placed in regular pay scale after
completion of 5 years contractual period. Thus, the
conditions of the Resolution dated 23.10.2015 cannot
be invoked, after the respondents were regularized in
service. In wake of these undisputed facts, the
impugned action of treating the respondents as fresh
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appointees could have been only taken during their
probation/contractual period, and not thereafter.
There is no provision of law shown to us, which
enables the appellants to take such action against
those employees, after they have been regularized in
service. The only period/time frame available to the
appellants to act or invoke the Government
instructions/ Resolutions, was during the probation or
contractual period, and if the State authorities have
failed to do so, they cannot tinker with the seniority
and treat the regular employees as fresh appointees.
Such an action will amount to putting the cart before
the horse, as the regular employees are being treated
as fresh appointees with retrospective effect from the
date of passing the CCC exams by curtailing the
probation period. Thus, the appellants have
absolutely acted without application of mind and
without realizing the consequences of their orders."
6.1. Having regard to the observations of the Hon'ble
Division Bench, it would appear that the Hon'ble Division
Bench has inter alia laid down that once the employee has
completed the probation / contractual period and has been
regularized in service, then the condition of Government
Resolution dated 23.10.2015 could not be invoked for
terminating the services of the employee. The Hon'ble
Division Bench has observed that while it would have been
open for the State to have taken action against the employees
i.e. to invoke the provision of the government resolution
during the probation or contractual period, yet, upon the
State regularizing the services of such employee, thereafter,
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there could not have been any action for termination nor
could the seniority etc. of the employee be tinkered with.
7. This Court would refer to observations of the Hon'ble
Division Bench of this Court in decision dated 20.07.2021 in
Letters Patent Appeal No.376/2021. Paragraph Nos.27 and
28 of the said decision being relevant for the present purpose,
are quoted hereinbelow for benefit:-
"27. On conjoint reading of Notification dated
23.10.2015 which has amended Rule 9A by inserting
words "or within a period of two years thereafter"
after the words "contractual basis" under Sub-rule(3)
of Rule 9A of Rules, 1967 and Government Resolution
dated 23.10.2015 which has substituted conditions
no.11(2) and 12(2) of the terms and condition for
appointment prescribed in Annexure-I of the
Government Resolution dated 4.6.2009 for
appointment on the posts of class-III and IV posts on
contract basis with fixed pay would mean that Rule
9A(3) is amended to the effect that the employee who
is appointed on contractual basis, is required to pass
CCC/CCC+ examination for computer knowledge
within a period of two years after contractual period
is over and on basis of such amendment which has
come into effect from 4.6.2009, clause 11(2) and
12(2) of the terms and conditions for appointment on
contractual basis in Annexure-I of the Government
Resolution dated 04.06.2009 have been substituted
by Government Resolution dated 23.10.2015.
Therefore, it cannot be said that Government
Resolution dated 23.10.2015 substituting clauses
11(2) and 12(2) of the terms and conditions for
appointment on contractual basis for fixed pay would
be applicable with effect from 4.6.2009 making it
compulsory for the employees who are appointed on
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regular basis prior to coming into force of
Government Resolution dated 23.10.2015 to pass
CCC/CCC+ examination within two years from the
date of their regular appointment failing which
service of such employee would be terminated.
28. As the terms and conditions of appointment
on contractual basis stipulated in Government
Resolution dated 4.6.2009 have been substituted by
Government Resolution dated 23.10.2015, the
Learned Single Judge rightly held that Government
Resolution dated 23.10.2015 would be applicable
prospectively i.e. from 23.10.2015 and not
retrospectively and the concerned employee whose
service is regularised as per Government Resolution
dated 4.6.2009 as per Rule 9A(3)of the Rules,1967
which is amended by Notification dated 23.10.2015,
period of two years is to be considered from the date
of Government Resolution dated 23.10.2015 and not
from the date of regularisation of such employee."
7.1. Considering the observations made by the Hon'ble
Division Bench, it would clearly appear that the Hon'ble
Division Bench has laid down that the provisions of the
Government Resolution dated 23.10.2015 could not be applied
retrospectively prior to the date in question. In other words,
what is laid down by the Hon'ble Division Bench being that in
2 years' period during which the employee was required to
clear the CCC examination, could have been for appointments
after 23.10.2015 and not for appointments which were given
prior to 23.10.2015. Thus, it would appear that the basis on
which the services of the petitioner had been terminated and
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later on his seniority position had been modified to his
detriment being based upon Government Resolution dated
23.10.2015, could not be countenanced.
7.2. Furthermore, the Hon'ble Division Bench has also held
that as per the terms of the Government Resolution dated
23.10.2015, the employee is required to clear the CCC
examination within a period of 2 years from the date of
completion of his contractual period i.e. from the date of
regularization.
8. Having regard to the law laid down by the Hon'ble
Division Bench in the proposition as reproduced hereinabove,
it would clearly appear that the services of the petitioner
ought not to have been terminated and whereas, in any case,
upon his reinstatement upon clearing the CCC examination
for a second time, upon reinstatement, the seniority of the
petitioner ought to have been restored from the date of
appointment i.e. 10.09.2009.
9. Having regard to the above discussion, observations and
conclusions, the following directions, to this Court, would
meet with the ends of justice:-
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(i) The decision of the respondents to grant prospective
seniority to the petitioner w.e.f. 09.11.2016 is declared to be
bad in law. The petitioner is declared to be entitled for
seniority to be counted from the date of appointment i.e.
10.09.2009 in the post of Forest Guard.
(ii) In other words, the seniority position of the petitioner
shall be restored as if termination order dated 11.09.2016 and
consequent reinstatement order dated 10.11.2016 had not
been passed at all.
(iii) The above exercise to be completed by the State and
appropriate placement be given in the seniority list and
further consequential actions based upon the seniority,
including promotion shall be done within a period of six (06)
weeks from the date of receipt of this order.
10. With the above observations and directions, the present
petition stand disposed of.
(NIKHIL S. KARIEL,J)
Bhoomi
