Kodiyatar Manda Amarabhai vs State Of Gujarat & 3

1. Since the issues raised in all the captioned petitions are more or less the same, those were heard analogously and are being disposed of by this common order.

2. By this writ applications under Article 226 Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER of the Constitution of India, the petitioners serving as the Junior Clerks in the office of the Assistant Commissioner of Commercial Tax Office have prayed for the following reliefs:-

" 0(B) Be pleased to issue the writ of certiorari/mandamus or any other appropriate writ, order or direction, directing the respondent authorities to not to terminate the services of the petitioner without following the due process of procedure of law and in violation of principles of natural justice solely on the basis of the Government Resolution dated 23.10.2015;

(C) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondents authorities not to terminate the services of the petitioner on the basis of the Government Resolution dated 23.10.2015 without giving any opportunity of hearing to the petitioner;

(C) Pending admission, hearing and final disposal of the present petition, be pleased to stay the execution, operation and implementation of the Government Resolution dated 23.10.2015 has been violative of Article 14 of the Constitution of India;

10(C) (ii) Pending admission, hearing and final disposal of the present petition, be pleased to stay the execution, operation and implementation of the termination order dated 21.04.2016 passed subsequently after filing of this petition by the respondent no.4 for terminating the services of the petitioner and be pleased to allow the petitioner to continue his services till the final disposal of this petition.

10(C) (iii) Be pleased to issue the writ of certiorari / mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the termination order dated Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER 21.04.2016 which is passed subsequently after filing of this petition on dated 21.04.2016 by the respondent no.4 and direct the respondents to reinstate the petitioner back in service as a continuous service."

3. On 26.04.2016, the following order was passed:-

"The draft amendment is allowed. The amendment be carried out and a copy of the amended petition be given to the learned AGP, to enable him to file appropriate reply in the matter.

The petitioner was appointed on the post of Assistant Clerk, Class-III in the office of the Commissioner of Commercial Tax, Porbandar on fixed pay basis. The appointment order is dated 1.3.2009. It appears that at the relevant point of time i.e. at the time of appointment, he has produced the CCC Examination Certificate issued by the DOEACC Society, an Autonomous Scientific Society of the Department of Information Technology, Ministry of Communications and Information Technology, Government of India.

It appears that by order dated 21.4.2016, the services of the petitioner have been terminated on the premise that the petitioner was supposed to pass the CCC Examination within two years from the date of his appointment. Two questions are begging for consideration.

1. Is it the case of the Authority that the Certificate issued by the DOEACC Society should not be considered?

2. Why should a Certificate of CCC issued by an Autonomous Scientific Society of the Department of Information Technology, Ministry of Communications and Information Technology, Government of India, should not be accepted by the State Government?

The very same certificate was produced by the Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER petitioner at the time of his appointment. The respondents owe an explanation in this regard.

Let an appropriate reply be filed. In the reply, the respondents shall explain the Government Resolution dated 17.12.2007, which is at page 61 (Annexure "F"), wherein it has been stated that the Certificate issued by DOEACC will be accepted. Till the next date of hearing, the order of termination shall not take effect. Direct service permitted.

Post this matter on 4.5.2016 on top of the Board."

4. Mr.Goutam, the learned AGP has drawn my attention to the affidavit in reply filed and duly affirmed by the Under Secretary, Finance Department, inter alia, stating that:-

"6. I am filing this affidavit in reply in compliance of the order passed by this Hon'ble Court dated 26.04.2016 wherein this Hon'ble Court had directed the State Government to clarify two pertinent questions:

(I) Is it the case of the authority that the certificate issued by the DOEACC society should not be considered?

(II) Why the certificate of CCC issued by an Autonomous Scientific Society of the department of Information and Technology, Ministry of Communication and Information Technology, Government of India should not be accepted by the State Government?"

7.I respectfully say and submit that before dealing with the factual matrix, content of issues, contentions, allegations raised by the petitioner in the present petition, the deponent office response to the two pertaining queries raised by the Hon'ble Court. The answering respondent respectfully submits that in respect of first Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER query it is most obsequiously submitted that certificate issued by DOEACC society is considered by the department, and therefore, it is not the case that the authority is not considered the said certificate issued by the DOEACC society. The answering respondent respectfully submits in respect to second query it is most respectfully submitted that as per the policy of the Government it is prescribed in circular dated 17.12.2007, that the State Government accepts the certificate issued by the DOEACC society recognized by the Central Government as per the requirements and definition as per the clause 8 of the circular. The certificate issued by the Central Government certificate issued by the DOEACC society recognized by the Central Government is accepted.

8. I say and submit that the petitioner has submitted the certificate issued by the Autonomous Scientific Society of the department of Information and Technology, Ministry of Communication and Information Technology, Government of India which is issued on 01.12.2008 is acceptable but the said certificate is issued prior to the petitioner entering into service. The petitioner entered into services by order dated 02.03.2009. The bare reading of the order itself in the condition clause clearly delineates that the petitioner shall mandatory follow the conditions mentioned therein. The Government Resolution dated 23.10.2015 issued by the General Administration Department governs the employees appointed as Class-3 and Class-4 on fixed pay. The aforesaid Government Resolution vide para-2 clearly provides that that the CCC (Computer Competency Certificate) examination is required to be passed/cleared by each employee within 2 years after regular appointment. In other words after completion of fixed pay service period if any employee fails to clear the said examination within the said stipulated time, he shall be relieved from the service with immediate effect. And as and when such employee clears the said examination, he shall be taken back into the service without protection of seniority.

9. I respectfully say and submit that circular dated 17.12.2007 deals with computer proficiency Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER examination and their explanation categorically and emphatically provides in its clause-4 it provides that ' prior entering in to the Government Job', it is prior requirement to possess a CCC certificate'. As a part of department training and/during the probation period it is compulsory for each employee/officer to clear CCC or CCC+ examination, as the case may be, from the examination centers recognized by the Government.

10. I respectfully say and submit that in the instance case, the petitioner has passed the CCC examination prior to entering into the service. However, it is noteworthy to emphasize the date of issuance of that certificate i.e. 01.12.2008 meaning thereby the petitioner has obtained said certificate prior to his appointment in the post of clerk. But the petitioner had not passed/cleared the CCC examination and not obtained CCC certificate as required vide Government circular referred to in para-9 above. The Government Resolution dated 23.10.2015 issued by the General Administration Department governs the employees appointed as Class-3 and Class-4 on fixed pay. The said Government Resolution vide para-2 clearly provides that the CCC (Computer Competency Certificate) examination is required to be passed/cleared by each employee within 2 years after regular appointment or within fixed pay service period of 5 years as prescribed in circular dated 17.12.2007 as well as the Government Resolution dated 23.02.2015. The petitioner had failed to obtain the certificate after entering into the employment. Therefore, the order in question dated 21.04.2016 passed by the deponent office is just and proper."

5. From the affidavit in reply, it is manifest that the certificate issued by the DOEACC Society is valid. However, it is a policy of the State Government that the certificate as regards the proficiency in computer has to be proved at two Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER levels. First at the entry level of the service and later on while in service once again a fresh certificate is to be submitted. The petitioners are in service since 2009. They are now sought to be terminated on the ground that although the certificate produced by them of the DOEACC Society is valid yet they have not been able to produce an additional certificate of a recognized institute in accordance with the policy of the State Government.

6. I am of the view of that the petitioners should be given an opportunity to comply with the Government Resolution dated 23.10.2015. Within 2 years from now the petitioners shall produce the requisite certificate of a recognized institute so far as competency in computer is concerned.

7. In the result, all these writ applications succeed and are allowed. The impugned orders of termination are quashed subject to production of Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri May 06 01:07:18 IST 2016 C/SCA/6692/2016 ORDER fresh certificates within a period of two years in accordance with the Government policy laid down vide Government Resolution dated 23.10.2016 including the circular dated 17.12.2007.

Direct service is permitted.

This common order may not be cited as a precedent and is to be treated to have been passed in the peculiar facts of the case.

(J.B.PARDIWALA, J.) Girish Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri May 06 01:07:18 IST 2016