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LPA/1713/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1713 of 2009
In
SPECIAL
CIVIL APPLICATION No. 3359 of 2009
=========================================================
DR.
ASHABEN KANTILAL NIMBARK - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Appellant(s) : 1,
MS MOXA THAKKAR, AGP for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 14/06/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. By
this Letters Patent Appeal, the appellant original petitioner
challenges the judgment and order passed in Special Civil Application
No.3359 of 2009 dated 25th June 2009 whereby the petition
came to be dismissed.
2. The
petitioner came to be appointed as Medical Officer, Class-II on ad
hoc basis till regularly selected GPSC candidate became available.
At the relevant time, the petitioner did not pass any examination
conducted by the GPSC nor were she selected by the GPSC as per the
statutory requirement. The petitioner, however, cleared the
examination conducted by the GPSC at the 4th
attempt/chance, whereas the Rules prescribe that such examination is
required to be cleared in maximum three attempts. The petitioner
cleared GPSC examination in October 2005 and came to be regularly
appointed at District Leprosy Office at Valsad by order dated 1st
March 2006. The case of the petitioner is that she could not attend
to the examination as she did not receive communication in time on
second and third occasions and, therefore, she should be treated to
have passed the examination within three attempts and, therefore, she
made the following prayers in the petition.
(A) THIS
HONOURABLE COURT be pleased to admit the present petition;
(B) THIS
HONOURABLE COURT be pleased to issue appropriate writ, order or
direction and be further pleased to quash and set aside the illegal,
illogical and arbitrary action/s on the part of the concerned
respondent authorities in not extending the benefits of the First,
Second and Third Higher Pay Scales to the petitioner as per the
recommendations made by the Tikku Commission as well as as per
various Government Resolutions on completion of her 6, 13 and 19
years of service with effect from her initial date of appointment and
also further be pleased to hold that the petitioner is eligible for
and entitled to get the benefits of the First, Second and Third
Higher Pay Scales as per the recommendations made by the Tikku
Commission as well as as per various Government Resolutions on
completion of her 6, 13 and 19 years of service with effect from her
initial date of appointment;
(C) THIS
HONOURABLE COURT be pleased to issue appropriate writ, order or
direction directing the concerned respondent authorities to extend
the benefits of the First, Second and Third Higher Pay Scales to the
petitioner as per the recommendations made by the Tikku Commission as
well as as per various Government Resolutions on completion of her 6,
13 and 19 years of service with effect from her initial date of
appointment and the arrears thereof / difference may kindly be
ordered to be paid to the petitioner together with interest @ 12.00%
p.a. from the respective due dates;
(D) PENDING
admission, hearing and final hearing of this petition, this
Honourable Court be pleased to grant interim / ad-interim relief and
be further pleased to issue appropriate writ, order or direction
directing the concerned respondent authorities to consider the case
of the petitioner for extending her the benefits of the First, Second
and Third Higher Pay Scales as per the recommendations made by the
Tikku Commission as well as as per various Government Resolutions on
completion of her 6, 13 and 19 years of service with effect from her
initial date of appointment, by way of interim / ad-interim relief,
till the present petition is being finally heard and decided by this
Honourable Court;
(E) THIS
HONOURABLE COURT be pleased to pass any such other and/or further
order/s as deemed just and proper in the interest of justice.
3. It
appears that the second and third examinations where the petitioner
did not appear were conducted in the years 1991 and 1995 and the case
of the petitioner is that because she was serving at Limbdi
T.B.Center, she was not aware about the examinations and, therefore,
she did not appear. The petitioner has taken this stand for the
first time in her representation dated 19th January 2009.
Even in the petition, this aspect is brought by way of an amendment
permitted by the Court on 25th June 2009.
4. Indisputably,
as per the policy and Rules and Regulations, non-appearing at the
examination when it is conducted is to be treated as attempt or trial
and, therefore, when the petitioner did not appear at the second and
third attempts in 1991 and 1995, she is to be treated as having
failed in the examination and, therefore, her clearing the
examination thereafter cannot be treated as the petitioner having
passed the examination within stipulated three attempts. Learned
Judge has considered this aspect and has dismissed the petition.
5. We
are in agreement with the view taken by the learned Single Judge. We
do not find any merit in the appeal calling for any interference in
exercise of intra-Court appellate jurisdiction. The appeal,
therefore, must fail and stands dismissed.
(A.L.Dave,J)
(M.D.Shah,J)
pathan
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