Gujarat High Court
State Of Gujarat vs V.S.Parmar on 7 July, 2025
NEUTRAL CITATION
C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5110 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
V.S.PARMAR & ANR.
==========================================================
Appearance:
MS SURBHI BHATI, AGP for the Petitioner(s) No. 1
MR MP PRAJAPATI(677) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/07/2025
ORAL JUDGMENT
1. This petition is filed the following prayers:
"13(A) YOUR LORDSHIPS may be pleased to admit and allow the present petition;
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside.
(C) YOUR LORDSHIPS may be pleased to quash and set aside the impugned order dated 03.10.2016 passed by Gujarat Civil Tribunal in Appeal No.171 of 2014.Page 1 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025
NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined (D) Pending, admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the effect and operation of the impugned order dated 03.10.2016 passed by Gujarat Civil Tribunal in Appeal no.171 of 2014. (E) xxxx"
2. The petitioner, State of Gujarat, has filed this petition on the facts that the respondent no.1 was appointed as Clerk in the office of the Collector, Jamnagar in the year 1979 and retired as Deputy Mamlatdar with effect from 30.9.2012; that the respondent no.1 appeared in the examination in the month of June, 1998 and the result was declared in the month of October, 1988; that during the tenure as a Clerk in the office of the Collector, Jamnagar, the respondent no.1 appeared in the examination for the post of Deputy Mamlatdar conducted in the month of June, 1988 for which the result was declared in October, 1988; the respondent no.1 retired on 30.9.2012; that till then no grievance was raised by the respondent no.1 about the date of promotion till 2005; after the delay of 16 years, the respondent no.1 had made communication of the Collector vide communication dated 23.8.2005 to give the deemed date of promotion; pursuant to the said communication dated 23.8.2005, the Collector, Jamnagar had considered the claim of the respondent no.1 as partly right and instead of giving Page 2 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined the promotional benefit with effect from 26.10.1988, it was rectified from 1.11.1988; that the said order dated 4.8.2006 was challenged before the Gujarat Civil Services Tribunal, wherein the impugned order dated 3.10.2016 was passed and the respondents therein-petitioner herein was ordered to be given deemed date of promotion from 1.7.1988. Therefore, this petition is filed.
3. Heard learned advocates for the parties. 3.1 Learned AGP Ms.Bhati has submitted that the respondent no.1 retired as Deputy Mamlatdar on 30.9.2012; he did not raise any grievance about his date of promotion till 2014 and after delay of 16 years, the respondent no.1 wrote to the Collector, Jamnagar on 23.8.2005 to give him deemed date of promotion. She has further submitted that the Collector, Jamnagar, vide order dated 4.8.2006, modified the promotion order and granted the deemed date of promotion with effect from 26.10.1988 and it was rectified from 1.11.1988. Thus, she has submitted that there is only one month's difference in granting the deemed date of promotion.
3.2 She has further submitted that therefore the order passed by the learned Services Tribunal is ex-facie without Page 3 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined proper consideration of the material available on the record and erroneously considering the government resolution passed by the General Administrative Department dated 26.3.2003. She has submitted that such resolution is prospective in nature and government resolution dated 26.3.2003 is explanation of the earlier government resolution dated 9.2.1953, 10.10.1969 and 16.7.1973 and the government had clarified and held that the date of examination is not relevant. The only relevant date is the date of result/passing the examination. Therefore, the observation of the learned Tribunal that the government resolution dated 26.3.2003 is not applicable to the case of the respondent no.1 is erroneous and bad in law. It was specifically stated that there were various questions arising for the qualifying date for promotion and that this government resolution has no prospective effect but retrospective effect. This government resolution is applicable to all the pending issues. Therefore, the learned Tribunal has erred in modifying the order passed by the learned Collector.
3.3 Learned AGP has further submitted that the Tribunal has wrongly considered the date of examination. The government resolution dated 9.2.1953 and 10.10.1969 are not applicable to the case of the respondent no.1. She has lastly contended that the respondent was already getting the benefit Page 4 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined of promotion for the post of Deputy Mamlatdar with effect from 26.10.1998 and reason for filing of the appeal in the year 2014 before the Tribunal is to get benefits of promotion with effect from 1.7.1988. The claim of the respondent no.1 is belated and barred by principle of limitation. The petitioner has already got the benefits of promotion by way of order dated 24.10.1989 and respondent no.1, for the first time made representation to the Collector in the year 2005 and the Collector had partly allowed the representation by the order dated 4.8.2006. The respondent no.1 has challenged the order passed in the year 2006 by way of appeal in the year 2014 before the Gujarat Civil Services Tribunal. Therefore, there is more than 25 years delay in challenging the order of 1989. Even from the date of the order passed by the Collector, there is delay of more than 8 years which is not explained by the respondent no.1 and on that count also, the learned Tribunal has committed error in considering the case of the respondent. She, therefore, prayed to allow this petition. 3.4 In support of her submissions, learned AGP has relied on the following judgments of the Hon'ble Apex Court:
(1) Government of West Bengal & Ors. V/s Dr.Amal Satpathi & Ors., a non-reportable judgment published in 2024 INSC 906. Page 5 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined (2) Bihar State Electricity Board and Others V/s Dharamdeo Das, a reportable judgment published in 2024 INSC 549.
4. Per contra, learned advocate Ms.Prajapati appearing for the respondent has referred to the affidavit-in- reply filed by the respondent no.1 and has contended that as per the government resolution passed by the erstwhile Mumbai Provincial Political and Services Department dated 9.2.1953 and government resolution issued by the General Administrative Department dated 10.10.1969 which were in force at the time of promotion of the present respondent no.1, the deemed date for promotion shall be the day next to the completion of examination. Therefore, as in the case of respondent no.1 as the examination completed on 30.6.1988 the deemed date shall be considered with effect from 1.7.1988. She has submitted that the deemed date of promotion is revised by the Collector in the year 2006 and the benefit which is required to be given as per the above mentioned government resolution are not given to the respondent no.1. That the respondent no.1 has made several representations but the government has time and again declined to accept the request made stating that the deemed date of promotion can only be considered from the date of result i.e. 26.10.1988, considering the government resolution dated 26.3.2003 and government resolution dated 12.8.2009 Page 6 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined which is not permissible. She has submitted that those government resolutions cannot be given retrospective effect and therefore the government resolution date 10.10.1969 was in force when the respondent no.1 has passed departmental examination, the same must be implemented in the case of the present respondent no.1. She has further submitted that the order passed by the Tribunal is just and proper as the same is passed after taking into consideration the government resolutions which were in force at the relevant point of time. The government resolution of 1953 and 1969 and the learned Tribunal has rightly come to the conclusion that government resolution of 2003 cannot be applied retrospectively and therefore she has submitted that the petition is required to be dismissed.
5. I have considered the rival submissions and perused the impugned order passed by the Services Tribunal. Prima facie, it transpires that there is no dispute that the respondent no.1 has retired as Deputy Mamlatdar on 30.9.2012 and he did not raise any grievance before the Services Tribunal about his date of promotion till 2014 and therefore there is a huge delay of more than 26 years from the date of promotion and about 8 years from the date of order passed by the Collector by which the date is modified by the Collector. It is also not in dispute that the dispute is Page 7 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined surrounding whether the government resolution of 2003 is required to be considered or the earlier government resolutions of 1953 and 1969 are to be taken into account. It is not in dispute that normally government resolution should be having prospective effect and not retrospective effect.
6. It also transpires that from the government resolution dated 2003 which is as such clarificatory in nature, the earlier government resolutions are also still in existence and therefore when the petitioner has not raised any grievance till he approached the Collector in the year 2004 from 1988 about the deemed date of promotion, more particularly, after considering the government resolution which is existing in the year 2003, the Collector has considered the same by giving some modification in the date of consideration of promotion. It cannot be said that the government resolution dated 2003 is an independent government resolution as the language of the said government resolution clearly indicates that it is clarification of the earlier government resolution and therefore the said government resolution is required to be considered while considering the case of the petitioner as the petitioner has raised the grievance in the year 2004 though he has passed the examination in 1988. Moreover, considering the aspect of delay, it is apparent from the record that the petitioner has Page 8 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined challenged the order of the Collector after eight years and the order granting promotion which is granted in the year 1989 by filing appeal before the Services Tribunal in the year 2014 and therefore, the delay of almost 26 years is there.
7. In the judgment of Dr.Amal Satpathi & Ors. (supra), it is held in paragraph nos.19 and 20, as under:
"19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharam deo Das9, wherein it was observed as follows:
"18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we Page 9 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined may profitably cite a recent decision in Ajay Kumar Shukla v.Arvind Rai10 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty 11and Ajit Singh v. State of Punjab12, a three-Judge Bench observed thus:
41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:
'4....... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.'
42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of Page 10 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27:
'Articles 14 and 16(1) : is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the 'State shall not deny to any person equality before the law or the equal protection of the laws'. Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be Page 11 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion" based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).
* * *
27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.13, and followed in Jagdish Lal [Jagdish Lal v. State of Haryana14, and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.' "20. In State of Bihar v. Akhouri Sachindra Nath, it was held that retrospective seniority cannot be given to an Page 12 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India16, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P17, in the following words:
'37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits......
38. This Court has consistently held that no retrospective Page 13 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime."
(emphasis supplied)
20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision."
8. In the judgment of Dharamdeo Das (supra), it is held in paragraphs 21 and 24 as under:
"21. In Nani Sha and Others vs. State of Arunachal Pradesh and Others, it was observed that mere existence of a vacancy is not sufficient for an employee to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure. In Dinesh Kumar Sharma (supra), the following pertinent observations were made :
"34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance Page 14 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996, he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa."
24. In Pawan Pratap Singh vs. Reevan Singh, this Court had taken note of the earlier decision in Pravat Kiran Mohanty (supra) and summarised the position in the following words :
45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade.
This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra23. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath17 and State of Uttaranchal v. Page 15 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025
NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined Dinesh Kumar Sharma16 In Pawan Pratap Singh v. Reevan Singh24, this Court revisited the precedents on the subject and observed :
'45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively Page 16 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.' This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao26 ."
(emphasis added)
9. In view of the above, though the courts have recognized that the right to be considered for promotion being a facet of the right to equal opportunity in employment and appointment, would have to be treated as a fundamental right guaranteed under Articles 14 and 16(1) of the Constitution of India but such a right cannot translate into a vested right of the employee for being necessarily promoted to the promotional post, unless the rules expressly provide for such a situation, in the present case, there is a huge delay in agitating the grievance before the appropriate forum i.e. from 1989 to 2014.
10. The learned Tribunal has committed error in giving the findings on the applicability of the government resolution by relying on government resolutions dated 9.2.1953 Page 17 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined and 10.10.1969 instead of referring to the government resolution dated 2003. The learned Tribunal has also not properly considered the aspect of delay for approaching the services tribunal by the petitioner by way of said proceeding. Further, even if the case of the petitioner is considered, then also there is a difference of hardly one month of the date as claimed of the petitioner. Therefore also, such aspect cannot be considered at such a belated stage. The petitioner has waited till he has attained the age of superannuation in 2012 and agitated the grievance of promotion which he has received in the year 1989 and has not preferred any proceeding during his service tenure and has preferred proceeding after much delay in the year 2014. All these aspects are also required to be taken into consideration as also the conduct of the petitioner
11. Considering the above facts and the fact that in view of the government resolution of the year 2003, the Collector has rightly modified the date and no further relief ought to have been granted by the Tribunal and therefore this petition deserves to be allowed by quashing and setting aside the impugned order passed by the Services Tribunal.
12. This petition is allowed. The impugned order dated 3.10.2016 passed by the Gujarat Civil Tribunal in Appeal Page 18 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025 NEUTRAL CITATION C/SCA/5110/2018 JUDGMENT DATED: 07/07/2025 undefined No.171 of 2014 is quashed and set aside. Rule is made absolute. Consequential order will follow accordingly.
(SANDEEP N. BHATT,J) SRILATHA Page 19 of 19 Uploaded by U. SRILATHA(HC00185) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:05:14 IST 2025