[Cites 3, Cited by 0]
Gujarat High Court
Nikunj Suryakant Shah vs State Of Gujarat on 19 January, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1508 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
✓
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NIKUNJ SURYAKANT SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JA ADESHRA(107) for the petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR SIDDHARTH RAMI, ASSISTANT 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 MAULIK J. SHELAT
Date : 19/01/2026
ORAL JUDGMENT
1. Heard Mr. J. A. Adeshra, learned Advocate for the petitioner
and Mr. Siddharth Rami, learned Assistant Government
Pleader.
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2. The present petition is filed under Articles 14, 16 and 226 of the
Constitution of India, seeking the following reliefs:
"(A) This Hon'ble Court be pleased to issue appropriate writ, order
or direction by quashing and setting aside impugned office order
No. 472 of 2017 dtd. 12.12.2017 passed by the respondent No.3 at
Annexure-A.
(B) Pending admission hearing and final disposal of this petition,
this Hon'ble Court be pleased to stay the further operation,
implementation and execution of the impugned office order No.472
of 2017 dtd. 12.12.2017 passed by the respondent No.3 at
Annexure-A.
(C) This Hon'ble Court be pleased to grant any such other & further
reliefs deemed just and proper in view of the facts and
circumstances of this case and in the interest of justice."
3. SHORT FACTS:
3.1. The petitioner, who was appointed as Daily Wager-time keeper
on 24th April, 1983 by the respondent. The petitioner was
promoted to the post of Work Charge Karkoon (Clerk) vide
office order dated 4th May, 1999 by the respondent No.2. It
appears that vide order dated 2nd April, 2008, the petitioner
was granted deemed date of promotion to the post of Work
Charge Karkoon (Clerk) w.e.f. 1st October, 1988. Thereafter,
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he was again promoted as Work Charge Work Assistant vide
order dated 2nd March, 2009, passed by the respondent No.2
and its given w.e.f. 1st October, 1998.
3.2. As per the case of the petitioner, on getting appointed to the
post of Work Charge Work Assistant, it was the duty of the
respondent to send the petitioner for training, whereby, he
could have cleared the departmental examination to continue
on the said promotional post. Nonetheless, for no default on
the part of the petitioner, he was not sent for training for about
5 years from the date of appointment to the post of Work
Charge Work Assistant on 2nd March, 2009.
3.3. For the first time, on 2nd March, 2015, the petitioner was sent
for training, which he had successfully completed, but due to
his poor health, he could not appear in the departmental
examination held in the month of March, 2016, albeit his
medical leave was duly sanctioned by the respondent authority.
3.4. It is also stated by the petitioner that, to his shock and surprise,
he received the impugned order of reversion dated 12th
December, 2017, issued by respondent No. 2, wherein, the only
reason cited was that, as the petitioner did not clear the
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departmental examination within one year from his
appointment to the promotional post of Work Charge Work
Assistant, his pay scale was downgraded. Nevertheless, later in
point of time, having cleared the departmental examination,
the benefit was restored back by the respondent. It is stated at
the bar that, during the pendency of this petition, the
petitioner, having attained the age of superannuation, retired
from service, thereby, entitled to get the difference of pay for
the interregnum period, as the impugned order dated 12th
December, 2017, is unsustainable in law.
4. SUBMISSIONS OF PETITIONER:
4.1. Mr. Adeshra, learned Advocate for the petitioner, would
submit that the petitioner was promoted to the post of Work
Charge Work Assistant on 2nd March, 2009 w.e.f. 1st October,
1998, and as per the Gujarat Work Assistant (Departmental
Examination) Rules, 2009 (hereinafter referred to as " Rules,
2009"), it was incumbent upon the respondent to send the
petitioner for training and also required to conduct the
examination twice in a year. It is submitted that none of the
aforesaid have been observed by the respondent, inasmuch as,
the petitioner was neither sent for training nor the
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departmental examination conducted twice a year after 2nd
March, 2009, as the case may be.
4.2. Mr. Adeshra, learned Advocate, would further submit that
when there is no default on the part of the petitioner in not
clearing the examination within the stipulated time as observed
in the impugned order, the petitioner could not have been
reverted from the promotional post and as such, the impugned
order suffers from total non-application of mind.
4.3. Mr. Adeshra, learned Advocate, would further submit that the
impugned order is erroneous, perverse, arbitrary and passed
without observing the principles of natural justice and requires
to be quashed and set aside by this Court. It is submitted that,
as per the Rules, 2009, the respondent could have sent the
petitioner for training in time, thereby, the petitioner had a
chance to clear the departmental examination within the
stipulated period and within permissible attempts. It is
submitted that as per Rule 7 of the Rules, 2009, there were
three chances available to the petitioner to clear the
examination within three years from the date of completion of
training and as such, the petitioner had cleared the examination
within the aforesaid period/time on completion of his training.
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4.4. Making the above submissions, Mr. Adeshra, learned
Advocate, would request this Court to allow the present
petition.
5. SUBMISSIONS OF THE RESPONDENT-STATE:
5.1. Per contra, Mr. Rami, learned AGP, would submit that there is
no error on the part of respondent No. 2 while issuing the
impugned order of reversion, inasmuch as, the petitioner did
not clear the departmental examination within one year from
the date of his appointment to the post of Work Charge Work
Assistant. It is submitted that the competent authority
observed that as the petitioner did not clear the departmental
examination within the stipulated period of time, then as per
the Rules, 2009, the petitioner cannot be allowed to continue
on the pay scale as available to the post of Work Charge Work
Assistant, being a promotional post, thus, the impugned order
came to be passed.
5.2. Mr. Rami, learned AGP, would further submit that the
appointment order of the petitioner dated 2nd March, 2009,
was a conditional one and on not clearing the departmental
examination within the stipulated period of time, the impugned
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order of reversion came to be passed by the competent
authority. It is submitted that when facts are not in dispute, the
petitioner cannot be allowed to assail the impugned order of
reversion on the ground that it is passed in violation of the
principles of natural justice.
5.3. Making the above submissions, Mr. Rami, learned AGP,
would request this Court to reject the present petition.
6. No other and further submissions are being made.
7. Having heard learned advocates appearing for the respective
parties and having perused the pleadings and documents made
available on record, it is not in dispute that the petitioner was
promoted/appointed to the post of Work Charge Work
Assistant on 2nd March, 2009, w.e.f. 1st October, 1998,
thereby, he was drawing higher pay scale as prescribed for the
post of Work Charge Work Assistant. It is further not in
dispute that for no fault on the part of the petitioner, he was
not sent by the respondent for training, which is sine qua non
to clear the departmental examination.
8. It requires to be noted here that as per paragraph No.8 of
affidavit-in-reply filed by respondent No. 3, wherein it is stated
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that the training of the concerned person being made in
accordance with the seniority list and in accordance with the
zone, whereby, the turn of the petitioner came around 1st
April, 2015 to 30th May, 2015. Prior thereto, due to
administrative and technical reasons and such as the petitioner
was engaged in flood-related work in the year 2014, he could
not be sent for training. There is no dispute between the parties
that the petitioner had successfully completed his training,
albeit later in point of time, then also cleared the departmental
examination. Nevertheless, the fact remains that the petitioner
could not complete his training and departmental examination
within one year from the date of his appointment to the post of
Work Charge Work Assistant, i.e., within one year from 2nd
March, 2009.
9. As observed in the impugned order of reversion, the petitioner,
having not cleared the departmental examination within one
year from his appointment, the petitioner was reverted back to
the pay scale as prescribed for Work Charge Karkoon (Clerk)
instead of the pay scale of Work Charge Work Assistant.
10. To appreciate the controversy germane in the matter, certain
provisions of the Rules, 2009, require to be noted, more
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particularly Rules 4, 6 and 7 of the said rules. As per Rule 4 of
the Rules, 2009, it was an obligation on part of the respondent
to conduct the departmental examination twice in a year. Rule
6(1) of the said Rules, 2009, also suggests that every eligible
person shall undergo the training and pass the examination
within three years of joining service. The person concerned
shall be eligible to attend the training and appear in the
examination after completion of one year of continuous service
in the feeder cadre in the office specified in sub-rule 2 of Rule 1
under the department. Rule 6(2) would also indicate that those
who have completed one year's longer service in the feeder
cadre shall pass the examination within two years from the
appointed date. Rule 7(1) would indicate that an eligible person
appointed in the feeder cadre shall be required to pass the
examination in not more than three chances within period of
three years from the date of completion of training.
11. A conjoint reading of the aforesaid Rules 4, 6 and 7 of the
Rules, 2009, clearly reveals that nowhere do the Rules prescribe
that a person concerned appointed to the post of Work Charge
Work Assistant is required to clear the departmental
examination within one year from the date of his appointment.
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The basis of the impugned order runs contrary to the aforesaid
Rules, 2009, warrants interference of this Court, apart from the
fact that it was passed without observing the principles of
natural justice.
12. At this stage, it would be appropriate to refer to one fact that
the aforesaid Rules, 2009 are applicable to the post of Work
Assistant, Class III, in the subordinate service under the offices
of the Superintending Engineer under Narmada Water
Resources, Water Supply and Kalpasar Department. Whereas,
the petitioner was promoted and appointed to the post of
Work Charge Work Assistant. As per the office order No.
21/2009 dated 2nd March, 2009 issued by the respondent,
whereby, the petitioner was appointed/promoted to the post of
Work Charge Work Assistant, would indicate that every Work
Charge Clerk (Karkoon) requires to undergo training for Work
Charge Work Assistant and the same shall have to be
completed successfully within one year. There is no reference
therein of appearing/clearing any departmental examination by
Work Charge Clerk (Karkoon) appointed/promoted to the
post of Work Charge Work Assistant.
13. As observed hereinabove and from the reply of the respondent,
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it would indicate that such training would be imparted to the
person concerned appointed to the post of Work Charge Work
Assistant as per seniority. Nonetheless, due to any
administrative or technical reasons, and since the petitioner
was engaged into flood-related work in the year 2014, he could
not be sent for training. If it be so, no fault could have been
found against the petitioner for not successfully completed the
training within one year.
14. Thus, after examining the facts and having analyzed the issue
germane in the matter from every angle, only irresistible
conclusion is that for no fault of the petitioner, he successfully
completed the training and examination, as the case may be,
within a year from his appointment to the post of Work Charge
Work Assistant. Furthermore, the principles of natural justice
were also not observed by respondent No. 2 when issued the
impugned reversion order.
15. Thus, in view of the aforesaid peculiar facts and circumstances
and the foregoing reasons, it is held that the impugned order of
reversion dated 12th December, 2017 passed by the respondent
No.2 is contrary to the Rules, 2009 as well as passed in
violation of the principles of natural justice, thus, it is hereby
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quashed and set aside.
16. Consequently, the respondent shall calculate and pay all
consequential benefits to the petitioner as if no impugned order
of reversion came to be passed by them.
17. The respondent shall have to pay the arrears amount of the
consequential benefits to the petitioner on or before 30th April,
2026, failing which the petitioner is entitled to receive the
arrears with 6% interest from 1st May, 2026, till its realization.
18. In view of the foregoing conclusion, the present petition is
allowed. Rule is made absolute, to the aforesaid extent. There
shall be no order as to costs.
(MAULIK J.SHELAT,J)
NILESH
