SCA/3167/1983 of GIRJASHANKER MAYASHANKER PANDYA Vs STATE OF GUJARAT on 16 December 1995

ORAL JUDGMENT:

Heard the learned counsel for the parties.

State of Saurashtra, on the merger of the said State in thebi-lingual State of Bombay, was absorbed in the service ofState of Bombay. The present petition has been filedpraying therein that the respondents may be directed byissue of writ of mandamus or any appropriate writ order ordirection to regularise the services of the petitioner byfixing his seniority in the parent department and promotingthe petitioner as per his legitimate right.

2. The facts of the case which are relevant for thepurpose of deciding the controversy which is arising in thewrit petition need to be briefly stated. The petitioner wasappointed on 1-2-1951 as English Typist in the office of theDirector of Food Supplies of the former Saurashtra State.On 1-5-1951 the petitioner was transferred to the office ofthe Chief Excise Inspector in Saurashtra. Later on thepetitioner was confirmed on the post of typist in the ExciseDepartment of the said State. These facts are given outfrom the affidavit-in-reply filed by respondent No.3, whichhas not been controverted by the petitioner by filing anyrejoinder. Integration of the former State of Saurashtra inthe bi-lingual State of Bombay has taken place from 31stJanuary, 1957. The services of the petitioner were allottedto the Commissioner, Rajkot Division, and not in the Exciseand Prohibition Department. The petitioner's seniority hasalso been fixed in the final seniority list of JuniorClerks/Typists of Saurashtra and Kutch Zone as on 31-3-1968,vide office order dated 30th May, 1970 which wassubsequently revised vide office order dated 3-8-1973wherein his name has been shown at serial No.48A. Thepetitioner, after accepting his allotment , and havingsettled in the said Department at one point of time, haschosen to be repatriated to the Prohibition and ExciseDepartment. As it transpires from annexure-A at page 10 ofthe writ petition, he submitted application on 17-2-1975 tothe Prohibition and Excise Department praying therein totake him in the said department and assign him appropriateseniority and promotion. This application of the petitionerhas been decided vide letter dated 23rd June, 1975annexure-A. This request of the petitioner was turned downby the Excise and Prohibition Department on the ground thatin case he was interested in absorption in Prohibition andExcise Department he should have represented immediately onhis allocation to other department which has taken place on1-2-1957. Even though, the Prohibition and ExciseDepartment of the State of Gujarat has given the option tothe petitioner, if he was willing to be repatriated to thesaid Department, that he could be considered for appointmentas English Typist which post he held substantively in theformer State of Saurashtra. His request for absorption inthe higher post on the basis of service on the post of

typist was declined, as in the Department seniority for thepurpose of promotion is counted from the date of passing thedepartmental examination for the clerks. This order of 1975has not been challenged by the petitioner in any way priorto the filing of the writ petition. The present writpetition before this Court was filed by the petitioner on5th July, 1983, that is, about eight years thereafter, andabout sixteen years from the date of assignment of seniorityto him in the Department in which he has been absorbed orallotted.

3. Two-fold contentions have been raised by the learnedcounsel for the petitioner. Firstly it has been contendedthat the condition of passing departmental examination bythe allocated Government Servants of erstwhile SaurashtraState was relaxed. In this respect reference has been madeto Circular dated June 23, 1975. It is true that thecircular dated 20th March, 1970 grants exemption in regardto the condition of passing of departmental examination bythe allocated Government servants. But the respondents havecome up with the case in the reply which has not beencontroverted by the petitioner that the Government Circulardated 20th March, 1970 had subsequently been amended videGovernment Circular dated 17th March, 1980 wherein it hasbeen specifically clarified that so far as promotion isconcerned, the Government servants shall have to pass theprescribed departmental examination. That subsequentcircular has not been challenged by the petitioner in thiswrit petition. Not only this, even the petitioner has notmade reference to the said circular. The petitioner hasalso not disclosed the fact that he has been assignedseniority already in the other Department. The respondentshave also come up with the case that the petitioner hasconveniently concealed to mention an important fact.Respondent No.3 has come up with the case that annexure-Awas written to the petitioner with a view to consider hiscase sympathetically to which he had not agreed. Thepetitioner conveniently omitted to annex a copy of officememorandum No.MKM/9-3/78/KH/112 dated 17-6-1978 whereunderhe was also informed of the above facts. At this stage,though I consider it to be of vital concern, I do notconsider it to be proper to dismiss this petition on thisground.

4. The first contention of the of the learned counsel forthe petitioner is not acceptable for three reasons. Firstlythe circular on which reliance has been placed wassubsequently changed and that circular has not beenchallenged by the petitioner. Secondly it is not the caseof the petitioner that any of the person junior to him hasbeen given promotion in any of the department and has been

given promotion without passing the departmental examinationfor promotion. Lastly the petitioner has not raised anyvoice against the letter annexure-A for considerably longtime. In fact, by his conduct of not approaching this courtin time has allowed the things to further settle. Muchinsistence has been placed by the learned counsel for thepetitioner that many persons as enumerated in para 7(a) ofthe writ petition which has been inserted by way ofamendment have been given promotion without passingdepartmental examination. I have gone through the contentsof para 7(a) of the writ petition. I do not find a singlename, in the list given out in the said para, from theProhibition and Excise Department. Not only this, all othernecessary and relevant facts have not been given out. Thesepersons may have been given promotion without passing thedepartmental examination on peculiar facts. It is also notthe case of the petitioner that these persons are junior tohim. Lastly, the learned counsel for the petitionercontended that the petitioner has already attained the ageof 45 years in the year 1979 and as such there is noquestion of passing departmental examination for promotionby the persons of this category. I do not find anysubstance in this contention too. The petitioner has failedto point out any statutory rule or any other GovernmentCircular or Resolution whereunder such exemption has beengranted to the employees of Prohibition and ExciseDepartment. Exemption is not as of right. It has to bethere by some statutory rule or by some resolution orCircular of the Government. It is also not the case of thepetitioner that any person who has attained the age of 45years has been given exemption from passing departmentalexamination for promotion in the Prohibition and ExciseDepartment. The writ petition has no merits whatsoever, andthe claim made by the petitioner therein cannot be accepted.

5. In the result this writ petition fails and the sameis dismissed. Rule discharged, with no order as to costs.

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