Gujarat High Court
Chimanbhai Becharbhai Parmar And Ors. vs State Of Gujarat And Ors. on 19 December, 1995
Equivalent citations: (1996)3GLR54
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The petitioners challenge the order dated 26-5-1981 of the District Development Officer, District Panchayat, Kheda, under which respondents No. 4 and 5 were ordered to be promoted to the post of Deputy Accountant in Accounts Group II. The facts of the case which are necessary for the disposal of the writ petition briefly stated are as under.
2. The petitioners were appointed on the post of Computer-operator on 22-10-1972, 5-12-1972 and 15-3-1973 respectively in the office of the District Panchayat, Kheda, It is not in dispute that the recruitment and other service conditions of the servants of Kheda District Panchayat are regulated under the provisions of the Gujarat Panchayat Services (Classification and Recruitment) Rules, 1967 (hereinafter referred to as "Rules of 1967"). Under the provisions of the Rules of 1967 two cadres were to be constituted, namely, common clerical cadre and common accounts cadre. Accordingly, vide notification dated 13-5-1977 two cadres were constituted. The employees who were working in the office of the District Panchayat. Kheda. were directed to furnish their option to be absorbed in the cadre concerned. These options were invited, as stated by the petitioners, vide letter dated 14-7-1978 of the concerned officer. The petitioners submitted their option within the prescribed time-limit and had opted for their absorption in the common accounts cadre. Vide order dated 24-7-1979 of the District Panchayat, the seniority list of the accounts Group IV was published. It was a provisional seniority against which objections were invited. In this seniority list names of the petitioners were shown at serial No. 19. 20 and 21 respectively in the common cadre of accounts. In the said seniority list names of respondents No. 4 and 5 were placed at serial No. 22 and 25.
3. It has further been stated by the petitioners in the writ petition that many persons, including himself were not given promotion from the seniority list of the Accounts Group IV referred above and as such a joint writ petition, being Special Civil Application No. 3707 of 1980, was filed before this Court. In that writ petition the petitioners as well as respondents No. 4 and 5 were also joined as petitioners. During the course of hearing of the said writ petition, on behalf of the Government a statement was made that the petitioners in the petition will be considered for promotion to the post of senior accounts clerks in accordance with the Rules of 1967. In view of the aforesaid statement made by the respondent-Government, petitioners had not pressed that petition before this Court. After dismissal of the said writ petition the petitioners were promoted to the post of senior accounts clerks vide order dated 16-11-1981. A provisional seniority list of the post of Accounts Group 111, i.e., senior accounts clerks, was published by order dated 10-9-1984 by the District Panchayat. In the said list the petitioners' names were shown at serial No. 25 and 26 whereas respondents No. 4 and 5 were shown at serial No. 27 and 28. The channel of promotion from the cadre of senior accounts clerks is provided to the post of Deputy Accountant, Accounts Group II, on the criteria of seniority-cum-merit. Promotion was given to the post of Deputy Accountant to the persons whose names were there upto serial No. 23 in the said senority list on 10th September, 1984 and as such the petitioners were due to get promotion.
4. To the utter surprise of the petitioners, under order dated 25-6-1987, instead of promoting the petitioners who were senior in the seniority list, the District Panchayat has promoted respondents No. 4 and 5 to the post of Deputy Accountant, Accounts Group H. The order dated 26th May, 1987 contains the reasons for supersession or withholding of promotion of the petitioners. The reasons which have been given, briefly stated, are: (1) the petitioners were not entitled to submit their option for common accounts group; (2) the petitioners were initially appointed as Computer-operators and options were wrongly invited from them; and (3) the petitioners were required to be placed in common Clerical Cadre Group III. This is the order which is under challenge in the present writ petition.
5. Respondents No. 2 and 3 submitted detailed reply to the writ petition and denied the claim of the petitioners. Learned Counsel for the petitioners has contended that once the option of the petitioners for absorption in the cadre of Accounts Group IV were invited and those options have been given and accepted, and they have been assigned seniority in the cadre of Accounts Group IV, and that seniority has been acted upon by giving them promotion, it is not open to respondents now at this stage to conic up with the case that the options were wrongly called for from the petitioners. It has next been contended that it is now not open to the respondents to say that the petitioners were wrongly absorbed in the accounts cadre. It has also been contended that the respondents arc estopped from taking out the benefit which has been given to the petitioners as per the doctrine of promissory estoppel. In support of these contentions, learned Counsel for the petitioner placed reliance on the decision of the Supreme Court in the ease of Suryanarayan Yadav v. State of Bihar . It has next been contended that the earlier writ petition has been filed by the petitioner with other persons claiming promotion in the cadre of senior accounts clerk and during the course of hearing the Counsel who was appearing for the State Government did state that the State Government would act upon the said seniority list of Accounts Group IV and thereafter and relying on that undertaking the petitioner had withdrawn that writ petition. This is another circumstance which shows that the option which has been given by the petitioners for their absorption in the cadre of Accounts Group IV was finally accepted.
6. On the other hand, it is the case of the respondents that by mistake the petitioners were placed in the common accounts cadre. That mistake has come to the notice of the respondents at the subsequent stage and under order which is under challenge in this writ petition the mistake has been rectified. It has next been contended that the absorptions of the petitioners who were admittedly appointed on the post of Computer-operators were on account of clerical mistake. They were not eligible as per the Rules of 1967 for their absorption in the common accounts cadre.
7. I have given my thoughtful consideration to the submissions made by the parties. The recruitment and other service conditions of the Panchayat Services are regulated under the provisions of the Gujarat Panchayat (Classification and Recruitment) Rules, 1967 reference to which has been made above. It is not the case of the petitioners that these rules are not applicable to their cases. In the reply the defence which is taken by the respondents that due to clerical error the options were invited from the petitioners and they were absorbed in the accounts cadre has not been controverted. The petitioners have not filed any rejoinder to the reply and I do not find any such rejoinder on the record which has been placed before the Court for consideration. Rules of 1967 provide for two cadres which were to be constituted, namely, common clerical cadre and common accounts cadre. Rules of 1967 specify the posts which are to be included in the common clerical cadre and in the common accounts cadre. As per Rules of 1967 the persons appointed as Computer-operators were to be included in the common clerical cadre and there is no provision for inviting options from the Computer-operators. Reference has been made to the notification dated 13-5-1977 under which Computer-operators were declared as employees of common clerical cadre. Panchayat Service under the aforesaid notification has been divided into two groups, namely, common clerical cadre and common accounts cadre. Notification dated 17th May, 1977 which divides the Panchayat Service into two cadres is not in challenge in this writ petition at the instance of the petitioners. The petitioners have also not challenged the notification dated 13th May, 1977 whereunder Computer-operators were declared to be employees of common clerical cadre. In view of this legal postition as well as the factual averments made by the respondents in the reply which have not been controverted by the petitioners, I am in full agreement with the contentions of the respondents that it is a case of clerical mistake.
8. The petitioners were appointed as Computer-operators and when the posts of Computer-operators were classified to be post in the common clerical cadre way back on 17th May, 1977, there was no necessity of calling for options from the petitioners. By this notification the posts of Computer-operators automatically fell in the common clerical cadre and the petitioners have acquired the status of common clerical cadre. The petitioners were not eligible to any option. It was sheer clerical mistake on the part of the respondents to call options from the petitioners. That has not been noticed earlier, but at subsequent stage it has been noticed, and necessary orders for correction of the said mistake have been made. It is always open to the respondents to correct clerical mistake. It is not out of place to say here that inviting options from the petitioners to absorb them in the common accounts cadre was contrary to the statutory provisions and as such it is always open to the respondents to correct such mistake which was illegal since inception. Merely because in the earlier writ petition the State Government made statement to give promotion to the petitioners in the Accounts Cadre Group III and further that the petitioners have withdrawn the writ petition on that undertaking is of no consequence because sitting under Article 226 of the Constitution this Court will not ask the respondents to perpetuate an illegality or to act contrary to the statutory Rules of 1967.
9. There is no question of any promissory estoppel in the present case. The petitioners were admittedly appointed on the post of Computer and they are entitled to all the benefits which are to be given to them on the basis of their appointment on the said post included in the common clerical cadre. The post of Computer-operators, by notification, has been included in common clerical cadre and that notification partake the character of statutory provision and in the Schedule to the Rules of 1967 amendment has been made. The rule of promissory estoppel and estoppel by conduct cannot be invoked to alter or amend a specific provision of the statutory Rules nor can they be availed against statutory provisions. It is true that the petitioners were called upon to submit their options, their names were included in the seniority list in the common accounts cadre and they have been given promotion in that cadre. All that had happened due to clerical mistake. They were not eligible to be absorbed in the accounts cadre as they belonged to and were to be retained in the common clerical cadre. That would not confer any enforceable right on them only on this basis. The facts which have been brought on record by the respondents in the reply to the writ petition have not been controverted by the petitioners. Reference in this regard may be made to a decision of the Supreme Court in the case of Assistant Excise Commissioner v. Issac Peter reported in . The principles of promissory estoppel are not applicable where the petitioners have been given the benefits by mistake and they not entitled for the same under statutory Service Rules. The petitioners have failed to make out any case that they were entitled for such option to be included in the common accounts cadre under the provisions of Rules of 1967. In the earlier writ petition undertaking was given on the basis of the state of record as it stood and stated by the petitioners and this mistake has come to the notice of the respondents later on. It is always open to the respondents to correct such mistake and it has rightly been corrected in the present case. Absorption of the petitioners was contrary to the Rules of 1967 and in case the contention of the petitioners is accepted, on any ground, and the order dated 26-5-1987 is set aside then it will result in restoration of the order which is contrary to the provisions of Rules of 1967.
10. It is settled law that where issue of writ of Mandamus may have effect of restoration of an illegal order, the Court sitting under Article 226 of the Constitution should decline to issue such a writ. Reference in this respect may be made to the decision of the Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh ; decision of the Kerala High Court in the case of A.M. Mani v. Kerala Staw Electricity Board, AIR 1968 Kerala 76; decision of Patna High Court in the case of Devendra Prasad Gupta v. The State of Bihar and Ors. ; and decision of Rajasthan High Court in the case of Himmat Jain v. State of Rajasthan . Having considered all the aspects of the matter, I am satisfied that in the facts and circumstances as well as the legal position as discussed above, none of the legal or fundamental rights of the petitioners have been infringed by passing the order dated 26th May, 1987 by the respondents.
11. It cannot be said to be a case where the petitioners have been put into disadvantageous position. It is a case where the benefits for which the petitioners were not entitled have been given. In case the petitioners' contention is accepted and they are allowed to be retained in the common accounts cadre, then it will affect the rights of the persons who are in the common accounts cadre. As the petitioners have already been absorbed, the rights of two persons belonging to common accounts cadre have been jeopardised. They have been denied promotion in the cadre of senior accounts clerk and they would have been deprived of further promotion to the post of Deputy Accountant. On the other hand, the petitioners will be entitled to and should be given all the benefits of seniority, promotion, etc., in the common clerical cadre. In case this position was known, possibly the Government Advocate appearing in the earlier special civil applications would not have at that point of time made such statement. No decision has been given by this Court, but the petitioners have withdrawn the earlier writ petition. Even if decision was given by this Court in favour of the petitioners, then possibly that would not have conferred any right to the petitioners and the clerical error could have been rectified at a later point of time. If on mistaken facts some decision is given, I have my own reservation whether it will confer any right upon the petitioners. 1 do not want to go further this matter as the earlier writ pertition has been withdrawn, and I do not consider it to be proper to give any decision on this question.
11.1 Before parting with the judgment, it is made clear that the respondents shall assign the petitioners their proper seniority in the common clerical cadre on the basis of their date of appointment on the post of Computer-operators and in case any person junior to them has been given promotion or promotions, during the interregnum, then the petitioners shall be given all consequential benefits. This exercise shall be taken by the respondents within reasonable time, but not later than three months from today.
12. In the result, this writ petition fails and the same is dismissed. Subject to the aforesaid directions, rule discharged. In view of disposal of the writ petition the interim stay granted earlier does not survive. However, at the request of the learned Counsel for the petitioners it is hereby directed that the interim relief which has been granted by this Court in favour of the petitioners shall continue for one month.