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2012 Supreme(Guj) 142
2012 (3) GCD 1896 (Guj)
Hon’ble Mr. Justice Akil Kureshi
Gujarat University
Versus
S. C. Shah & Ors.
Special Civil Application No. 225 of 20001—Decided on 16/03/2012
Appearance :
Mrs. V.D. Nanavati, for the Petitioner No. 1.
Mr. J.J. Yajnik, for the Respondents No. 1 - 6.
Point in Issue :
Whether the respondents Typists are entitled to promotion to the post of senior clerk inspite of not having education qualification of graduation.
Headnote:Head Note :
Service and Employment — Promotion — Post of senior clerk — Clerk typists one of the feeder cadres — Promotion to them denied unless they possession qualification of graduation — Sustainability — Finding of — Admittedly clerk typist is one of the feeder cadre for promotion to senior clerk — The promotion Rules do not provide that only those typists who are graduated can seek promotion to the post of senior clerk — To read such a requirement in the Rules as suggested by university is wholly impermissible and can not be sustained — University therefore can not consider only those typists eligible for promotion to the post of senior clerk who hold education qualification of graduate — The distinction so drawn by university can not be accepted — As a result Judgment of Tribunal is confirmed.
Held :
The Rules never provided that only those Typists, who have graduated can seek promotion to the post of Senior Clerk. To read such a requirement in the Rules, as is suggested by the Counsel for the University, in Court opinion, is wholly impermissible. The minimum educational qualification of graduation is prescribed for recruiting Junior Clerks. Such Junior Clerk hold independent right to be considered for promotion to the post of Senior Clerk. The Typist whose minimum educational qualification was HSC with minimum prescribed typing speeding was also considering eligible for promotion to the post of Senior Clerk. One cannot import the educational qualification for the post of Junior Clerk in the post of Typist for considering his eligibility for promotion to the post of Senior Clerk. [Para 11(3)]
In case of Typist no such distinction has been drawn. A Typist is held eligible to be promoted to the post of Senior Typist. He also forms part of the feeder cadre for promotion to the post of Senior Clerk alongwith other cadres. In my view, therefore, the University cannot consider those Typists, who did not hold educational qualification of graduate as ineligibility for promotion to the post of Senior Clerk. The distinction sought to be drawn, therefore, cannot be accepted. [Para 13]
Law Laid Down :
To read a requirement for promotion in a rule not provided there is not permissible.
Akil Kureshi, J.—These petitions have been filed by the Gujarat University challenging a common judgment and order dated 04.11.1999 passed by the Gujarat Universities Services Tribunal (‘Tribunal’ for short) in Applications No. 38 of 1999 and 39 of 1999.
2. The brief facts may be noted at the out set:—
1. Two sets of employees of the University, who are respondents in this petition had filed two separate applications being Application Nos. 38 of 1999 and 39 of 1999 before the Tribunal. These respondents belongs to the cadre of Typist. Their case in their applications before the Tribunal was that as per the Rules of the University, they were eligible for being considered for promotion for the post of Senior Clerk alongwith other employees of the University, belonging to other cadres which together formed feeder cadre for promotion to the post of Senior Clerk. Since the University was not considering them eligible for promotion to the post, the respondents filed above mentioned applications before the Tribunal. In the application, they prayed for direction to consider their cases for promotion on the basis of their seniority. They also prayed for permanent injunction against promotion of their, ignoring them.
2. The applicants before the Tribunal based their case primarily on the strength of a resolution of the University dated 16/24.06.1979, under which for promotion to the post of Senior Clerk, the employees belonging to the cadre of Junior Clerk, Clerk-Typist, Typist and Laboratory Assistant were held eligible.
3. The University opposed such applications before the Tribunal. Their main case was that all the applicants belong to the cadre of Typist. They were recruited after 16.06.1979 and they were not eligible for being considered for promotion to the post of Senior Clerk, since they held the post of Typist. They were not designated as Assistant (Type). The University also urged that the posts of the Junior Clerk and Typist are not interchangeable. The contention of the University was, merely because both the posts carry identical pay-scale, Typists cannot seek promotion to the post of Senior Clerk without any reference to educational qualification.
4. The Tribunal, however, by the impugned judgment repelled all the contentions, raised by the University. The Tribunal was of the opinion that as per the Rules of the University, Typists were eligible for promotion to the post of Senior Clerk. The Tribunal, therefore, directed that cases of the applicants, who were holding the post of the Typist be considered for promotion to the post of Senior Clerk, if otherwise eligible. The Tribunal, further directed the University to prepare a common seniority list of Junior Clerks and Typists on the basis of their continuous officiation and considering the length of their services in the respective posts of Junior Clerk or Typist as the case may be and to finalize the same in accordance with law. After doing so, cases of the applicants would be considered for promotion to the post of Senior Clerk. The University has challenged this judgment in these petitions.
5. At the outset, I record that the University had questioned the very eligibility of the Typist to seek promotion to the post of Senior Clerk before me. Learned senior Counsel Mr. S.N. Shelat appearing with learned Counsel Ms. Nanavaty for the University focused his arguments, mainly on the requirements of educational qualifications for a Typist to seek such promotion to the post of Senior Clerk. Learned Counsel invited my attention to the eligibility criteria, laid down by the University for the post of Junior Clerk and Typist from time to time. It was pointed out that previously educational qualification, required for appointment to the post of Junior Clerk was SSC. In case of Typist also, it was SSC, but with additional requirement of having typing speed of 30 w.p.m. Such eligibility criteria were provided in the resolution dated 03.06.1961. Subsequently, in the resolution date
