Gujarat High Court
Dineshbhai Kanaiyalal Vyas vs Additional Chief Secretary, General ... on 8 August, 2023
NEUTRAL CITATION
C/SCA/13500/2023 ORDER DATED: 08/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13500 of 2023
==========================================================
DINESHBHAI KANAIYALAL VYAS
Versus
ADDITIONAL CHIEF SECRETARY, GENERAL ADMINISTRATIVE
DEPARTMENT, STATE OF GUJARAT
==========================================================
Appearance:
MR HIMANISH J JAPEE(11295) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ADITYA PATHAK, AGP for the Respondent - State
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/08/2023
ORAL ORDER
1. This petition is filed with the following prayers:-
a. Your Lordships may be pleased to admit and allow this petition.
b. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and further be pleased to direct the respondent authorities for modification of seniority list for Class-II employees and place the petitioner accordingly in view of the deemed date of promotion to Class-II which has been granted to him w.e.f. 17.05.1989 by an order passed by the respondent no. 3 on Page 1 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined 15.03.2017.
c. Your Lordships may be pleased to direct the respondent authorities to grant him all the consequential benefits, seniority, promotion and revision of pension on account of his deemed date of promotion to Class-II w.e.f. 17.05.1989 on 15.03.2017.
d. Your Lordships may be pleased to grant any other relief/s as may deem fit proper, in the interest of justice.
2. The facts referred in the petition are as under: -
2.1. The petitioner was appointed as Extension Officer Co- operation Class-III in Taluka Panchayat, Gariyadhar on 03.06.1981. Thereafter, the petitioner passed Vikas Seva Cadre Examination for promotion to Class-II, in Gujarat Development Service. It is case of the petitioner that though he had cleared Vikas Seva Cadre Examination for promotion to Class-II on 05.08.1986, within the specified chances, he was not granted seniority and promotion accordingly and therefore, he preferred Special Civil Application No. 6037 of 1986 before this Court, wherein this Court on 22.12.2008 passed following order:-
"I. It is necessary that in each of the districts, the District Collector concerned should prepare the seniority list on the Page 2 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined following principles:
[1] Those clerks who have passed the qualifying examination i.e. LRDE within specified period and specified chances are entitled to rearrangement of seniority inter-se with the persons of their own class on the basis of seniority (Rule 9) those who are seniors to them but who passed subsequently and beyond specified period and specified chances, cannot have any claim over those who fail under rule 9. Those who fall under rule 9 become eligible for promotion when they acquire qualification by passing the examination and that day should determine their eligibility in the matter of promotion. There is no question of readjustment as between persons of their class and persons who may be seniors to them but who passed he examinations subsequently beyond the specified period and specified chances.
[2] Next comes the class of persons who have passed beyond specified period and specified chances. As between them, seniority will depend on the date of eligibility that in turn being the date of their acquiring the examination qualification. Therefore first they have to be ranked on that basis and thereafter adjustment has to be made by providing for seniors in the clerical cadre who have passed Page 3 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined the examination later over their juniors in the same class subject to the rule that they would not get that seniority as against those juniors who have not only passed but have actually been promoted. In other words, though as between persons who fall under rule 7 seniority in the clerical cadre will be relevant for ranking for promotion to the post of Deputy Mamlatdar, that will be subject to the condition that juniors who had been actually promoted before their seniors became eligible will not yield to seniors. Keeping in mind this rule The Deputy Mamlatdars belonging to the second class will have to be ranked for promotion and promotions affected earlier must be re- adjusted accordingly.
[3] Then comes the third class of
persons, those who have not passed
the examination. Though they might have been promoted earlier and might have been continuing they would haven o claim to be in the list and, therefore, they need not be ranked and that is the class of persons whose reversion could be affected even before preparation of a final list.
II. In the light of the aforesaid final directions, the petitions listed in categories, I, II, III and IV will have to be allowed to the limited extent as mentioned in this judgement, with no order as to costs. The Page 4 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined concerned Collectors will have to arrange seniority in the case of Deputy Mamlatdars of the concerned petitioners and other eligible persons under their respective Collectorates in the light of these directions and having arranged seniority of the concerned employees accordingly, proper orders of reversion will have to be passed by the concerned authorities.
III. The seniority of the concerned employees working as Deputy Mamlatdars and of those who are eligible to be promoted as Deputy Mamlatdars will have to be fixed by the concerned collectors for their respective collectorates in the light of the present decision, within a period of three months from the receipt of writ by respondent Government. It is clarified that with reference to the Deputy Mamlatdars whose cases are covered by final directions I (1) and (2), the status quo as existing today will have to be maintained till their inter-se seniority is decided by the concerned Collectors in the light of this judgement. So far as Deputy Mamlatdars covered by third category envisaged by our directions 1(3) are concerned, it would be open to the concerned Collectors to revert them in accordance with law, if at all, any need for reversion of any Deputy Mamlatdar arises.Page 5 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023
NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined 2.2 Consequently, the petitioner was granted deemed date of promotion by order dated 15.03.2017, wherein the petitioner has been promoted in the cadre of Class-II w.e.f. 17.05.1989. It is case of the petitioner that since he had cleared the examination of Vikas Seva Cadre Examination, he is required to be considered for promotion upon passing the examination and accordingly he is eligible to be considered for promotion in Class-II from 05.08.1986 (the date on which the petitioner cleared the examination). Thereafter, the petitioner retired in the year 2010 and made several representation seeking deemed date of promotion which has not been considered and therefore, present petition is filed.
3. Heard learned advocate Mr. Himanish Japee for the petitioner. He submitted that admittedly the petitioner cleared Vikas Seva Cadre Examination on 05.08.1986. Thereafter, he was promoted to Class-II by an order dated 24.05.2001. Since, he was not granted the promotion upon passing the examination he filed a petition and accordingly an order dated 15.03.2017 was passed giving him deemed date of promotion in Class-II w.e.f. 17.05.1989. He submitted that since the seniority was not rearranged, he could not be considered for promotion in Class-I cadre from the date of passing departmental examination and therefore, respondent authorities Page 6 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined may be directed to rearrange the seniority and to grant petitioner deemed date of promotion. Learned Advocate submitted that the petitioner being meritorious and having passed the Vikas Seva Cadre Examination on 05.08.1986, if his seniority is rearranged, he would be entitled for deemed date of promotion as prayed for.
3.1. Further, several representations for grant of deemed date of promotion from the date of passing of Vikas Seva Cadre Examination has not been considered and therefore, appropriate directions may be issued to the respondent authorities to rearrange the seniority of the petitioner.
4. On the other hand, learned Assistant Government Pleader Mr. Aditya Pathak made the following submissions: -
4.1. The petitioner was appointed as Extension Officer Co- operation, Class-III in Taluka Panchayat, Gariyadhar on 03.06.1981. The petitioner thereafter, cleared Vikas Seva Cadre Examination for promotion to the cadre of Class-II in Gujarat Development Service. The petition challenging his non-
promotion in Class-II from the date on which he had cleared the examination was preferred wherein, this Court directed to consider the case and accordingly the petitioner was promoted to Class-II w.e.f. 17.05.1989. The petitioner retired from Page 7 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined service on 31.10.2010 after attaining the age of superannuation.
4.2. Learned Assistant Government Pleader submitted that the petitioner filed this petition after a delay of more than 10 years. Filing of representation would not absolve him from delay occasioned in filing this petition. If seniority as prayed for is directed to be rearranged, then it would unsettle the settled position of seniority, and grant of such relief is contrary to the settled position of law. Moreover, as prayed if promotion is to be given effect after rearrangement of seniority and to consider the case for deemed date of promotion, the same would amount to, the case of the petitioner being considered without there being evaluation by Departmental Promotion Committee (DPC) and after following the due process of promotion. He therefore, submitted that the petition being meritless deserves to be dismissed.
In support of his submissions, learned Assistant Government Pleader relied upon the following decisions: -
P. S. Sadasivaswamy V/s. State of Tamil Nadu reported in (1975) 1 SCC 152 Page 8 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023 NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined Chennai Metropolitan Water Supply and Sewerage Board and Ors V/s. T. T. Murali Babu reported in 2014 4 SCC 108
5. Considered the submissions. Re-visitation of the facts suggests that the petitioner had superannuated in the year 2010 and thereafter present petition is filed in the year 2022 seeking benefit of deemed date of promotion upon his entitlement of clearing the Vikas Seva Cadre Examination on 05.08.1986. It is also not in dispute that pursuant to this Court's direction vide judgment dated 22.12.2008 passed in Special Civil Application No. 6037 of 1986 and allied matters, the petitioner by an order dated 15.03.2017 was given deemed date of promotion to Class-II w.e.f. 17.05.1989. Even 6 years have passed after the order passed in the year 2017. If the prayer as prayed for in the petition is accepted for re- arrangement of seniority it would unsettle the settled legal position of seniority which is not permissible in law.
6. In the decision of Hon'ble Supreme Court in the case of High Court of Judicature of Patna V/s Madan Mohan Prasad and Ors reported in 2011 9 SCC 65 the court has relied upon the decision in the case P. S. Sadasivaswamy V/s State of Tamil Nadu reported in (1975) 1 SCC 152 and has held as under:-
Page 9 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023NEUTRAL CITATION C/SCA/13500/2023 ORDER DATED: 08/08/2023 undefined "In P.S. Sadasivaswamy Vs. State of Tamil Nadu (1975) 1 SCC 152, this court has laid down a firm proposition of law that a person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion and the High Court can refuse to exercise its extraordinary powers under Article 226 in case the person aggrieved does not approach the Court expeditiously for appropriate relief and puts forward stale claim and tries to unsettle settled matters. Therefore, C.W.J.C. No. 6538 of 1990 in which stale claim of promotion was made by the respondent No.1 was liable to be dismissed."
7. Moreover, this Court is mindful of the fact that granting the payer of deemed date of promotion would amount to consideration of the case of the petitioner without there being evaluation by the DPC for promotion in the said cadre.
8. In view of above, considering the delay which has occurred and there being no justification for the same, this Court deems it appropriate not to entertain the petition and the same is hereby rejected.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 10 of 10 Downloaded on : Sun Sep 17 00:43:33 IST 2023