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SCA/7130/1991 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7130 of 1991
=========================================================
MOHANSING
R CHAUHAN - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
IS SUPEHIA for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/03/2010
ORAL
ORDER
1. The
petitioner has prayed to quash and set aside the letter dated 8th
March 1988 and direct the respondents to promote the petitioner to
the post of Jailor, Group II, w.e.f.. 27th September
1990, the date on which persons junior to the petitioner were
promoted, on the basis of his selection made on 21/28th
November 1985 with all consequential benefits.
2. The
petitioner was informed by the Superintendent, Central Jail in the
office of the respondent No. 2 before the Departmental Selection
Committee for interview for the post of Jailor, Group-II.
Accordingly the petitioner remained present for interview before
the departmental selection committee which consisted of two medical
officers, one IPS officer and two Superintendents of Jail. In all 12
persons came to be selected for promotion to the post of Jailors
Group-II. Out of the 12 selectees, 7 persons were promoted
immediately. Out of the remaining 5 persons, 4 persons including
the petitioner filed Special Civil Application No. 234 of 1987 to
quash and set aside the appointments of direct recruits to the post
of Jailor., Grade II since there was excess on that count.
3. Out
of the four petitioners in the aforesaid petition, the petitioner was
at the top of the select list. The petitioner came to be promoted
to the post of Jailor, Group II by the order dated 4th
March 1986 passed by the respondent No.2, in a leave vacancy. The
petitioner worked on that post from 4th March 1986 to 2nd
July 1986 when he came to be reverted for want of vacancy.
4. On
19th December 1986 Mr K.D Baria one of the petitioners
who was junior to the petitioner was promoted in the leave vacancy
to the post of Jailor Group II, and in that order it was made
clear that the seniority of the petitioner would not be affected.
The petitioner made an application enquiring about his promotion but
was informed by Section Officer, Home Department that since the
petitioner did not fulfill the requisite physical fitness, he was
not selected for the post of Jailor Group II , and therefore his
request for promotion could not be granted.
5. The
petitioner filed Civil Application No. 12 of 1991 in Special Civil
Application No. 12 of 1991 in Special Civil Application NO. 234 of
1987 claiming promotion which came to be withdrawn with a view to
file substantive petition. In the meanwhile the petitioner was
promoted to the post of Jailor, Group II along with other employees.
6.
As far as the petitioner was concerned, a complaint was received
regarding his eligibility and therefore he was physically
re-examined by the Civil Surgeon on 27th May 1987 and at
that time he was found short of physical standards prescribed under
the Rules, as his chest measurement was 81 to 84 cm. Hence this
petition.
6. Learned
advocate for the petitioner has contended that the petitioner was
once selected by the competent authority and cannot be denied
promotion on the ground that subsequently he was found to be short
of physical standards. It was stated that at the time of interview
the departmental selection committee found the petitioner fit. The
petitioner was re-examined by one Civil Surgeon in the presence
of Deputy Secretary on 27th May 1987 and was found
short of physical standard. It is submitted that there is no
provision of law authorising any person to re-examine a candidate
already selected and that too by any persons or two persons and
after a long lapse of time.
7. Affidavit
in reply has been filed by the respondent. In paras 6,7 and 8 and 9
it is held as under :
6. I
respectfully say that 12 persons were selected for the post of
Jailor Group- 2 out of which 7 persons who were appointed to the
vacant posts of Jailor Group-2 for a probation period of two years
with a condition to undergo such training as may be prescribed by
the Government and pass necessary post training examination.
7. I
respectfully say that petitioner came to be selected to the post of
Jailor group 2 vide dated 4th March 1986 in leave
vacancy wherein it was clarified that said appointment was for
temporary and on adhoc basis and the petitioner would without any
prior notice be reverted back to his original post.
8. I
respectfully say that some allegations were made to the State
Government against the petitioner’s inclusion in the select list.
The State Government, therefore directed for re-examination of the
petitioner for his eligibility for selection to the post of Jailor
Group-2. I further respectfully say that the petitioner was
re-examined by the Civil Surgeon in presence of Deputy Secretary to
the Government of Gujarat, Home Department on 27th May
1987 and on such examination the petitioner was found to be short of
the physical standard prescribed under the statutory rules. It was
found that that the petitioner’s chest measurement was 81-84 cms
respectively. I respectfully say that an inquiry was also
initiated at the relevant point of time against the petitioner’s
inclusion in the selection list.
9. I
respectfully say that selection of the petitioner under the select
list I was based on some illegality and/ or irregularity
committed at that relevant point of time pursuing to which by
mistake the petitioner came to be selected in the selection list. I
respectfully say that appointment of the petitioner was totally on
a temporary ad-hoc basis on leave vacancy. Merely because the
petitioner’s name was appearing in the selection list the same would
not create any right in the favour of the petitioner to be continued
in the said cadre. I respectfully say that due to oversight on
part of the Department Selection Committee his name was cleared for
the select list.
7.
Over and above the order passed by this Court on 8th
September 2000, during the intervening period the petitioner was
placed under suspension and he had preferred Civil Suit
challenging the order of suspension. But in my view, this part of
the submission being irrelevant does not require consideration.
8. As
a result of hearing and perusal of the record, I am of the opinion
that the petitioner’s chest measurement was 81-84 cms respectively
and hence he does not have the criteria required for the promotion.
Apart from that the appointment of the petitioner was totally on a
temporary ad-hoc basis on leave vacancy. Merely because the
petitioner’s name was appearing in the selection list the same would
not create any right in the favour of the petitioner to be continued
in the said cadre.
9. Looking
at the facts and circumstances of the case this petition deserves to
be rejected. Accordingly this petition is dismissed. Rule is
discharged with no order as to costs. Interim relief if any is
vacated.
(K.S.
Jhaveri,J.)
mary//
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