Gujarat High Court
M.V vs State on 18 February, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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LPA/30/1998 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1628 of 1997
In
SPECIAL
CIVIL APPLICATION No. 10426 of 1996
With
LETTERS
PATENT APPEAL No. 30 of 1998
In
SPECIAL
CIVIL APPLICATION No. 7035 of 1997
With
CIVIL
APPLICATION No. 30 of 1998
In
LETTERS PATENT APPEAL No. 1628 of 1997
With
CIVIL
APPLICATION No. 408 of 1998
In
LETTERS PATENT APPEAL No. 30 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
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 ?
======================================
M.V.
KAILA & ANOTHER
Versus
STATE
OF GUJARAT & OTHERS
======================================
Appearance :
Letters
Patent Appeal No.1628 of 1997
Mr
Paresh Upadhyay for the appellant
Mr
NJ Shah, Assistant Government Pleader for Respondents Nos.1 to 3
Mr
VD Parghi with Mr Anand L Sharma for Respondents Nos.4 to 14
Letters
Patent Appeal No.30 of 1998
Mr
Paresh Upadhyay for the appellant
Mr
NJ Shah, Assistant
Government Pleader
for the State
RULE SERVED for
Respondent(s) : 2 4.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 18/02/2010
COMMON
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These two appeals being Letters Patent Appeals Nos.1628 of 1997 and 30 of 1998 arise out of decisions of the learned Single Judge in Special Civil Application No.10426 of 1996 and Special Civil Application No.7035 of 1997 respectively and they are disposed of by way of this common judgment.
For the purpose of facts, we take the facts of Special Civil Application No.10426 of 2006. The dispute raised in these appeals is in relation to seniority. The appellant belongs to general category candidate and he was working with the State Secretariat. He was promoted to the post of Under Secretary on 16th April 1991 whereas Respondents Nos.4 to 14, who were junior to him as Section Officers, were promoted as Under Secretary, on the post reserved for Scheduled Tribe candidates. Promotion of said juniors were between November 1989 to May 1990. When the question of promotion of these Under Secretaries was to be considered for further promotion on the post of Deputy Secretary, the case of the appellant before us is that he being senior to respondents Nos.4 to 14 in the feeder cadre as Section Officer, he should have been first considered to be appointed as Deputy Secretary. His case was that accelerated promotion on roster point to the candidates belonging to the Scheduled Tribe community was permissible, but once being promoted, the original seniority, in the present case of the cadre of Section Officer, should have been countenanced. He placed reliance on two Supreme Court decisions viz. Ajit Singh Januja v. State of Punjab, AIR 1996 SC 1189 and Joginder Sing Sethi v. Punjab Government, (1982 (2) SLR
307. The learned Single Judge did not agree with the claim raised by the appellant and held that the law laid down by the Honourable Supreme Court in the matter of Jagdish Lal and others v. State of Haryana, AIR 1997 SC 2366 will govern the facts of the case and the ratio of the case in the matter of Ajit Singh Januja (supra) would be inapplicable. Learned counsel appearing for the appellants has pressed before us that the Honourable Supreme Court has considered two cases i.e. Ajit Singh (supra) and Jagdish Lal (supra) in a subsequent decision of the Supreme Court reported in the case of Ajit Singh & Ors. v. State of Punjab, AIR 1999 SC 3471 and held as under in paragraph 76:
76.
We, therefore, hold that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post,
- vis- a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate-he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdishlal is not correctly decided. Point 1 and 2 are decided accordingly.
Mr NJ Shah, learned Assistant Government Pleader for the State submitted that subsequent to the decision of Ajit Singh v. State of Punjab AIR 1999 SC 3471, the Honourable Supreme Court has decided the controversy in M Nagaraj v. Union of India (2006) 8 SCC 212. He was fair enough to submit that this case was decided by the Honourable Supreme Court considering the implication of insertion of Article 16(4-A) in the Constitution by way of the Constitution (Seventy-Seventh Amendment) Act, 1995. The constitutional amendment, as made in Article 16(4-A), permitted the State Governments to bring in such legislation, which would settle the controversy in between the accelerated promotees and regular promotees. But, this is an admitted fact that when the question of promotion of the present appellant and respondents Nos.4 to 14 were germane in the year 1991, there was no law enacted on this question by the State Government, which has settled the dispute.
We have considered the rival submissions and perused the relevant record. Since insertion of Article 16(4-A) has been made subsequent to the date of the controversy and in the year 1991, in view of the law laid down by the Honourable Supreme Court in the case of Ajit Singh & Ors. v. State of Punjab, AIR 1999 SC 3471 that the rule of reservation would give accelerated promotion but it would not give accelerated consequential seniority, the reserved category candidates could not have got precedence over the general category candidates and their original seniority, in the present case, of the cadre of Section Officer, was required to be maintained and the reliance placed by the learned Single Judge upon the decision of Jagdish Lal (supra) was not a good law. In that view of the matter, the appellant was entitled to seniority over respondents Nos.4 to 14 and he deserves promotion on the post of Deputy Secretary before them. In that view of the matter, after so much lapse of time we have to see what kind of relief can be granted to the appellant. We cannot grant relief of setting aside of promotion of respondents Nos.4 to 14 at this stage and on that count we non-suit the appellant. Since, Shri M.V. Kaila, appellant of Letters Patent Appeal No.1628 of 1997 has retired, in his case only notional promotion and fixation of pension would be made and accordingly his pension will be altered according to the pay which he would have been entitled to considering his promotion on the post of Deputy Secretary with effect from the date on which his immediate junior was promoted as Deputy Secretary i.e. 8th November 1996. It is clarified that he shall be entitled to the actual increase in his pension from the date of this judgment.
So far as appellant of Letters Patent Appeal No.30 of 1998, Shri FS Pathan, is concerned, he is working in Police Department. Persons junior to him as Police Sub Inspectors were being considered for promotion on the post of Deputy Superintendent of Police before the case of this appellant was considered because, those reserved category PSIs were promoted as PI earlier in point of time than the appellant, since they belong to reserved category. His petition was dismissed by the learned Single Judge vide judgment dated 8.12.1997 only in view of the reasons recorded in support of the rejection of Special Civil Application No.10426 of 1996. The said judgment is already dealt with in earlier part of this judgment (being Letters Patent Appeal No.1628 of 1997). In that view of the matter, no separate reasons are recorded by us.
We are informed that subsequently the appellant Shri Pathan is already promoted as Deputy Superintendent of Police and he is still in service. Under these circumstances, he shall be given notional deemed date of promotion on the post of Deputy Superintendent of Police on the date on which his immediate junior was so promoted. However, based on this notional promotion, he shall be entitled to receive the enhanced salary and consequential benefits only with effect from the date of this judgment.
In view of the aforesaid observations and findings, the appeals are allowed as delineated hereinabove.
In view of the disposal of the main appeals, no orders are required to be passed on Civil Applications and the same are disposed of accordingly.
(Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd Top