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2013 Supreme(Guj) 515
Gujarat High Court
Hon’ble Mr. Justice Ravi R. Tripathi
T.J. Patel
Versus
State of Gujarat & Ors.
Special Civil Application No. 2981 of 1995—Decided on 21/12/2013
Appearance :
Mr. B.P. Tanna, Advocate, for the Petitioner(s) No. 1.
Mr. Vaibhav A. Vyas, Advocate, for the Petitioner(s) No. 1.
Mr. Rindani, AGP, for the Respondent(s) No. 1.
Mr. H.S. Munshaw, Advocate, for the Respondent(s) No. 2 – 3.
Rule Served by DS, for the Respondent(s) No. 2 – 3.
Point in Issue :
Whether in the facts petitioner who is a Junior Engineer is entitled to direct promotion to the post of Deputy Executive Engineer.
Headnote:Head Note :
Service and Employment — Promotion — Post of Deputy Executive Engineer — Petitioner Junior Engineer appointed in 1979 — Scope of — Considering limitation and in action when denied first promotion earlier — Finding of — Court held petition is thoroughly misconceived more particularly because the petition is filed with all vagueness and with all possible delay seeking directly promotion to the post of Deputy Executive Engineer — The petitioner was appointed Junior Engineer in year 1979 hence by any standard this petition is barred by limitation — Besides promotion directly from the post of Junior Engineer can not lie to the post of Deputy Executive Engineer — He has not approach the Court when he was denied the promotion to the next higher post — It is only in the year 1995 that he filed a petition directly praying for promotion to the post of Deputy Executive Engineer — Besides petitioner has not set out any Rules or channel of promotion — He has also not stated when he became due for first promotion–In light of that this Court having no substance in petition dismissed the same.
Held :
This petition is thoroughly misconceived more particularly because the petition is filed with all possible vagueness and with all possible delay seeking promotion directly to the post of Deputy Executive Engineer. The petitioner was appointed as Junior Engineer in the year 1979 hence by any standard this petition is barred by limitation. The promotion directly from the post of Junior Engineer cannot lie to the Deputy Executive Engineer. This makes it clear that the petitioner has not approached the Court at the relevant time when he was denied the promotion to the next higher post. It is only in the year 1995 that he filed a petition directly praying for promotion to the post of Deputy Executive Engineer. Besides the petitioner has not set out any ‘Rules’ about the promotion. He has also not set out the channel of promotion. He is also not able to satisfy about his confirmation in service. He has not stated when did he became due for first promotion, to which post. [Para 13]
Law Laid Down :
In absence of any Rules and Channel of promotion a Junior Engineer cannot be directly promoted to the post of Deputy Executive Engineer.
Ravi R. Tripathi, J.—True it is that it is a petition of 1995 and there is no error committed in mentioning the number. The petition is having a checkered history. The petitioner appeared for GPSC examination and cleared the same in the year 1975. Thereafter, he was given appointment order dated 23.12.1977. It is the case of the petitioner that all other persons, whose names are mentioned in that order dated 23.12.1977 as many as 62 including the petitioner, received further orders except the petitioner.
2. The petitioner did not do anything until the District Development Officer, Banaskantha District, issued an order dated 27.2.1979 giving a fresh temporary and adhoc appointment making it subject to clearing the GPSC examination. The petitioner having received that order made a request to the Authorities that as he has already passed GPSC examination in the year 1975, he should be exempted from passing GPSC examination. This request was rejected as back as on 29.7.1980. The petitioner did not do anything. Thereafter his services came to be terminated on 13.4.1981 that made the petitioner to approach this Court by filing Special Civil Application No. 1482 of 1981 in which interim relief was granted. By virtue of that, he remained in service. The petition remained pending before this Court for long 13 years. On one fine morning, i.e. on 23.9.1994, when the matter came up for consideration, the learned advocate for the petitioner produced a Xerox copy of the confirmation order dated 1.6.1985. Look at the irony, though the order of confirmation as claimed by the petitioner is dated 1.6.1985 the learned advocate for the petitioner did not place the same before the Court. It was only in the year 1994, when the matter reached consideration before this Court, the same was produced (emphasis supplied).
3. Learned AGP, Mr. Rindani, states that as per the instructions available to him from the Government Authorities, no such order was ever passed. The learned Assistant Government Pleader submitted that in Misc. Civil Application No. 252 of 2012 filed by the petitioner for revival of the petition, an affidavit-in-reply is filed. Along with that affidavit, a copy of order dated 9.8.2010 is produced on record; wherein, it is stated that, “your appointment in the year 1979 was on ad-hoc basis and as you were on temporary and ad-hoc basis, your services were terminated but you continue in the service by virtue of the order of the High Court. As your appointment was on temporary and on ad-hoc basis, you are not entitled to seniority, promotion, etc.”.
4. Learned advocate appearing for the petitioner in Special Civil Application No. 1482 of 1981 produced that order and sought permission to withdraw the petition. The Court granted that permission and rule issued in the matter was discharged and interim relief granted earlier was vacated.
5. Interestingly, a copy of confirmation order is not produced in this petition. The petitioner has produced in this petition that:
“21-(A) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, directing the respondents to promote the petitioner to the post of Deputy Executive Engineer and further be pleased to direct the respondents to permit the petitioner to work without any disturbance or obstruction”.
What does it mean only learned advocate for the petitioner can explain to the Court.
6. It so happened that this Special Civil Application No. 2981 of 1995 came up for consideration on 15.4.2010 only after one and half decade. The learned advocate appearing for the petitioner deemed it proper to rest contended with the order passed by the Court which reads as under:
“2. This Court on 25.4.1995 had passed the following order:
“Notice returnable on 02.05.1995. Status-quo with regard to petitioner’s service to be continued till then”.
3. As the aforesaid order has continued till date, it will not be proper to disturb the said position at this stage. Hen
