The court ruled that the petitioner must comply with the new departmental examination rules for promotion, as the old rules do not apply retrospectively.

JUDGMENT :

VAIBHAVI D. NANAVATI, J.

1. Issue Rule, returnable forthwith. Ms.Nidhi Vyas, learned A.G.P. waives service of notice of Rule on behalf of the respondents.

2. Heard Mr.Rahul Rajhans, learned advocate appearing for Ms.Rajvi Patel, learned advocate for the petitioner and Ms.Nidhi Vyas, learned A.G.P. for the respondent nos.1 to 5.

3. By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

“A. YOUR LORDSHIPS may be pleased to admit and allow this petition, and

B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other writ, order or direction quashing and setting aside the action of the respondent authorities of subjecting the petitioner to appear in the departmental lower level examination to be conducted as per notification issued on 31.03.2015 and further be pleased to declare that the petitioner is exempted from the rule mandating the passing of lower level examination prescribed under Gujarat Civil Services (Conditions of Service relating to Departmental Examination) (General Rules), 2015.

C. Pending, hearing and/or final disposal of this petition this Hon’ble Court may be pleased to direct the respondents to grant exemption to the petitioner from passing the departmental examination prescribed under Gujarat Civil Services (Conditions of Service relating to Departmental Examination) (General Rules), 2015

D. Ad-interim relief in terms of Paragraph 7(C) may be granted.

E. Any other and further relief that may be deemed fit and proper may please be granted in the interest of justice.

4. The petitioner herein seeks exemption from appearing in the departmental examination for promotion from junior clerk to senior clerk.

5. Brief facts leading to filing of the present petition read thus:-

5.1. The petitioner herein came to be appointed on 07.12.2004 as junior clerk, Class-III, Gujarat Police Department, junior clerk with the respondent department. Pursuant to the said appointment, the petitioner in order to get the regular appointment, was required to pass pre-service training examination. The petitioner passed the pre-service examination and was given regular appointment. As per the appointment order, which is duly produced at page 13, the petitioner was required to pass the departmental examination within stipulated time as per condition no.7 of the appointment order.

5.2. Pursuant to the Rules of 2010, the petitioner appeared in the lower level examination, which was conducted by the Gujarat Police Department from 02.01.2012 to 05.01.2012 whereby the petitioner cleared the said examination and was declared pass on 09.04.2012.

5.3. The petitioner herein also appeared in the higher level departmental examination, which was conducted by the respondent from 04.03.2013 to 07.03.2013 whereby, pursuant to the notification dated 30.04.2011, the petitioner was exempted from Paper I (Service Matters) and Paper II (Accounts Matter) and therefore he attempted for Paper III (Miscellaneous) and Paper IV (Departmental Matters- Gujarat Police Manual).

5.4. On 19.09.2013, the result of the higher level examination was declared by the respondent authorities whereby, the petitioner appeared in the examination but was declared as ‘Fail’ since he could not clear Paper IV (Departmental Matters- Gujarat Police Manual). Hence, the petitioner passed the lower level examination for increment but, failed to pass the higher level examination for promotion.

5.5. On 31.03.2015, the respondent no.2 issued a notification whereby, Gujarat Civil Services (Conditions of Service relating to departmental examination)(General) Rules, 2015 (Hereinafter referred as ‘Rules 2015’) came in to force amending existing rules for departmental examination. Pursuant to the said Rules 2015, the Junior Clerk in order to get eligible to the promotional post of Senior Clerk is required to pass lower level examination and senior clerks in order to get eligible to the promotional po