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LPA/261/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 261 of 2011
In
SPECIAL
CIVIL APPLICATION No. 1201 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ANAND
AGRICULTUREAL UNIVERSITYTHROUGH REGISTRAR & 3 - Appellant(s)
Versus
KIRITBHAI
H BHATT - Respondent(s)
=========================================================
Appearance
:
MR
DG CHAUHAN for
Appellant(s) : 1 - 4.
NOTICE SERVED BY DS for Respondent(s) :
1,
MR PR NANAVATI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 03/10/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Admit.
Mr. P.R. Nanavati waives notice for respondent.
The
present appeal is directed against the judgment and order dated 29th
June, 2010 passed by the learned Single Judge in Special Civil
Application No. 1201 of 1999, whereby the learned Single Judge has
ordered to grant all financial benefits available to the petitioner
as Assistant Librarian and the differences of the emoluments and
other financial benefits receivable by the petitioner, treating him
as regularly appointed Assistant Librarian.
The
short facts are that the respondent-original petitioner was
appointed as Junior Clerk on 1.10.1963 in the Institute of
Agriculture, Anand. In 1972, he was transferred to Gujarat
Agricultural University as Junior Clerk. On 23.5.1974, he was
promoted as Publication Assistant and on 17.4.1976, he was promoted
as Superintendent. On 22.6.1976, the respondent-original petitioner
was posted as Assistant Librarian. In 1984, the respondent-original
petitioner passed Bachelor Degree in Library and Information
Science. On 17.11.1986, without following any regular selection
process, the respondent-original petitioner was appointed as
Assistant Librarian on ad-hoc basis for a period of six months. On
19.5.1988, his appointment on ad-hoc basis was cancelled and he was
transferred to his original post. On 16.8.1989, Board of the
University rejected the claim of the respondent-original petitioner
for regularization of his services as Assistant Librarian and it was
resolved to fill up the post of Assistant Librarian through public
advertisement. On 1.1.1991, the respondent-original petitioner
obtained Master’s Degree in Library Science and Information Science,
which was requisite qualification for the post of Assistant
Librarian. On 12.3.1997, the respondent-original petitioner was
promoted to the post of Assistant Administrative Officer and on
15.2.1999, the respondent filed petition claiming his appointment
to the post of Assistant Librarian as regular appointment and prayed
for all consequential benefits including difference of salary etc.
On 31.8.2002, the respondent attained the age of superannuation and
retired as Assistant Administrative Officer. Thereafter, the
petition came up for hearing before the learned Single Judge on
29.6.2010 and the learned Single Judge found that all benefits must
be made available to the petitioner as that of Assistant Librarian
and directed accordingly for the reasons recorded in the judgment.
Under the circumstances, the present appeal before us.
We
have heard Mr. D.G. Chauhan, learned counsel appearing for the
appellants and Mr. P.R. Nanavati with Mr. Acharya, learned counsel
for the respondent.
It
is an admitted position that the learned counsel for the
respondent-original petitioner has not been able to show any
document whereby the original petitioner was selected as Assistant
Librarian and was regularly appointed as Assistant Librarian. It is
also not in dispute that requisite qualification for the post of
Assistant Librarian was Master’s Degree in Library Science and
Information Science which the respondent-original petitioner
acquired only on 1.1.1991. Therefore, the factum of the posting of
the petitioner as Assistant Librarian on 22.6.1976 whether should
enure benefit as that of Assistant Librarian for all purposes or not
is an aspect to be considered in the present appeal.
It
is hardly required to be stated that if any employee is selected by
undergoing regular selection process and thereafter if he is given
appointment on temporary basis and thereafter if he continues, such
may enure benefit as that of regular appointment, salary etc to such
person. But in a case where an employee has not undergone regular
selection process and is only holding the post by way of transfer or
otherwise, that too, when such person is not holding requisite
educational qualification for the post in question, in our view,
benefit cannot enure to such person as that of the post which he is
holding. It further appears that when the respondent-original
petitioner was posted for the first time in the year 1976, he was
holding the post of Superintendent and posted as Assistant
Librarian. At that time, he was not even holding the qualification
of Bachelor’s degree of Library Science and Information Science and
acquired it for the first time in the year 1984. Further, after he
was posted on ad-hoc basis on 19.5.1988, his appointment on ad-hoc
basis came to be cancelled and the Board of the University had
resolved for filling up the post of Assistant Librarian by regular
selection process. Further, it is only in the year 1991 that the
petitioner acquired the qualifying degree for the post in question.
Under these circumstances, mere factum of holding the post cannot be
considered as investing any additional right in favour of the
respondent-original petitioner as that of Assistant Librarian. Even
at the time when he retired, his post was that of the Assistant
Administrative Officer though he was working as Assistant Librarian.
In our view, if regular selection process is given a go bye and the
factum of holding the post is read to confer benefit of a regular
salary in favour of a person who was not holding qualification at
the relevant point of time when he was posted, such would not only
result into investing right in favour of the person who is legally
not entitled to it but would frustrate the basic settled norms to be
observed in public employment and the observance of regular
selection process and the conferment of the benefit to the persons
so entitled. We are more inclined to take this view because of two
peculiar circumstances in the present case, one is that the original
petitioner did not undergo regular selection process and another is
that when he was posted for the first time, he did not hold the
requisite qualification for the post in question. Under the
circumstances, we find that the petition was lacking merit and was
deserving dismissal. Hence, we find that the judgment and the order
passed by the learned Single Judge cannot be sustained.
In
the result, the appeal is allowed. The petition is dismissed.
Considering the facts and circumstances, no order as to costs.
[JAYANT
PATEL, J.]
[R.M.CHHAYA,
J.]
pirzada/-
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