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CA/2026/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 2026 of 2010
In
LETTERS PATENT APPEAL (STAMP) No. 324 of 2010
In
SPECIAL CIVIL APPLICATION No. 5332 of 1996
with
CIVIL
APPLICATION (STAMP) No. 2269 of 2010
In
LETTERS PATENT APPEAL (STAMP) No. 324 of 2010
=========================================================
V
G PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
GUNVANT R THAKAR for
Applicant(s) : 1,
MR PRANAV TRIVEDI, AGP for Opponent(s) :
1,
Opponent : 2
SERVED,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 25/03/2010
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This
Application under Section 5 of the Limitation Act is filed by the
appellant for condonation of delay of 718 days occurred in filing the
above Letters Patent Appeal.
The
impugned judgment was delivered by the learned Single Judge on 4th
February 2008. On 21st January 2009, the appellant applied
for certified copy of the judgment. It was notified on 31st
January 2009. The appellant took the delivery on 20th
February 2009. The Appeal was filed on 18th February 2010.
It
is the case of the appellant that while dismissing the writ petition,
the learned Single Judge did observe that the appellant may approach
the concerned authority to retain promotion on the post of senior
clerk. The appellant, therefore, first approached the concerned
authority to retain his promotion. After the said representation was
rejected on 19th September 2008, the appellant took steps
for filing the Appeal. Some time was spent for arranging for the
fees, for receipt of the certified copy of the judgment, for transfer
of papers and for preparation of the appeal memo.
We
are not at all satisfied. First, the appellant, having availed of the
benefit of the observations made by the learned Single Judge in
respect of the promotion of the appellant as senior clerk, filing of
the Appeal is an afterthought. Besides, after the rejection of the
representation in the month of September 2008, the Appeal was not
filed for another 16 months until the month of February 2010. The
said delay of 16 months is not explained.
Learned
advocate Mr.Thakar has addressed the Court also on merits. Mr.Thakar
has submitted that the appellant was promoted as Deputy Chitnis in
the office of the Development Commissioner in the year 1980. Having
continued as Deputy Chitnis for more than 14 years, he was called
upon to pass the departmental examination as envisaged by the Deputy
Chitnis (Departmental Examination) Rules, 1994 (hereinafter referred
to as the Rules of 1994 )
. He has submitted that the Rules of 1994 cannot govern the
service condition of the appellant who had already been promoted as
Deputy Chitnis. The Rules of 1994 are prospective in nature. They
apply to the persons who were yet to be appointed as Deputy Chitnis.
He has also submitted that the appellant did take the departmental
examination twice but could not clear the examination.
Prima
facie, we do not agree with Mr.Thakar. Sub rule (3) of rule 1 of the
Rules of 1994 make the rules specifically applicable …to the
persons appointed as Deputy Chitnis (State Service) in the
office of the Development Commissioner and as Deputy Chitnis in the
office of the Gujarat Panchayat Service Selection Board.
Further, the learned Single Judge has also noted that the appellant
was promoted as Deputy Chitnis on adhoc basis subject to
passing of the examination which is prescribed…. such promotions
are to be governed by condition of passing the departmental
examination. Learned
advocate Mr.Thakar has not been able to refute the conditions of the
promotion of the appellant.
In
answer to the representation made by the appellant, the Development
Commissioner has observed that the appellant had been granted
promotion as Deputy Chitnis from the post of Gujarati Typist on
condition that the appellant had to pass the departmental examination
for promotion to the post of Deputy Chitnis. Admittedly, the
appellant failed to pass the departmental examination for promotion
to the post of Deputy Chitnis.
On
merits also, we agree with the learned Single Judge that the
appellant was required to pass the departmental
examination for promotion to the post of Deputy Chitnis as envisaged
by the Rules of 1994.
As
the appellant has failed to explain the delay satisfactorily and also
to make out a prima facie case on merits, this Application is
rejected. Rule is discharged. Registration of the Letters Patent
Appeal (Stamp) No.324/2010 and the Civil Application (Stamp)
No.2269/2010 is refused.
(M.D.Shah,
J.) (Ms.R.M.Doshit, J.)
/moin
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