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LPA/2927/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2927 of 2010
In
SPECIAL
CIVIL APPLICATION No. 7659 of 2010
=========================================================
IDRISH
GULAM MAHMMAD QURESHI - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SHALIN MEHTA with MS VIDHI J BHATT
for
Appellant(s) : 1,
MR NJ SHAL, AGP for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 31/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal
arises against the order dated 1/9/2010 passed by the Ld. Single
Judge in Special Civil Application No. 7659/2010, whereby the Ld.
Single Judge has dismissed the petition.
2. We have heard Mr.
Shalin Mehta, learned counsel appearing with Ms. Vidhi Bhatt for the
appellant.
3. The contention
raised on behalf of the appellant is that earlier Special Civil
Application No. 11051/2001 was not pressed with a view to make
representation and, therefore, the said ground should not disentitle
the petitioner to challenge the decision taken after the
representation. It was also submitted that the Ld. Single Judge ought
to have examined the merits of the matter as to whether the decision
of the authority was legal or not. When we called upon the learned
counsel appearing for the appellant to address us on the merits of
the main Special Civil Application, it was contended that as per the
Government Resolution dated 1/5/2007 representation was made to
absorb the petitioner as permanent and as the authority have
declined, the main Special Civil Application was preferred. It was
submitted that there are two grounds in the impugned order of the
authority to reject the representation, one is that no relaxation is
permissible and another is that the set-up is not available. He
submitted that as per the information obtained under the Rights To
Information Act, the posts were available. So far as the relaxation
in the resolution is concerned, it is submitted that the petitioner
is covered by the resolution and, therefore, there was no question of
relaxation and hence, on merits, the impugned order of the authority
could not stand in the eye of law.
4. On the merits of the
Special Civil Application, it appears to us that the basis of the
representation was Government Resolution dated 1/5/2007. As per the
said Resolution, copy whereof is produced in the compilation of the
Special Civil Application, the resolution was only by way of “one
time measure” and it was
not to operate continuously. The pertinent aspect is that at the time
when the Resolution dated 1/5/2007 was passed, the original
petitioner was not in service and he came to be terminated as back as
on 30/11/2001. Further there was no interim order in the earlier
Special Civil Application No. 11051/2001, pursuant to which the
petitioner continued in
service.
5. Apart from the
above, as per the Resolution, the requirement was that the person
concerned should have been in service as part timer on 10/2/2006 and
he should have completed 10 years of service as part timer. Even if
one considers service period of the petitioner as part timer from
3/7/1990 to 30/11/2001, the second condition in service on 10/2/2006
was not satisfied. Therefore, the authority rightly observed that the
relaxation in the resolution was not permissible. If the petitioner
was not fulfilling the requirements as per the Resolution for
absorption in the permanent post, the aspect of whether the post
was available or not would not be of much relevance. Under these
circumstances, we find that on merits, there was no case for
interference, in the petition.
6. In
view of the aforesaid observations, on merits of the main Special
Civil Application, we find
that no useful purpose would be served in interfering with the order
passed by the Ld. Single Judge, merely because the merits of the main
Special Civil Application were not considered, more particularly when
the ultimate decision for dismissal of the Special Civil Application
would stand even after the merits is considered.
7. In view of the
aforesaid, we find that no interference deserves to be made to the
ultimate decision taken by the Ld. Single Judge for dismissal of the
petition. Hence, the appeal is dismissed. No order as to costs.
[
JAYANT PATEL, J. ]
[
J.C. UPADHYAYA, J.]
*
Pansala.
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