Gujarat High Court
Rajesh Ramabhai Makwana vs State Of Gujarat on 24 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3805 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 or any order made thereunder ?
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RAJESH RAMABHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,4,5
UNSERVED REFUSED (N) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 24/03/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Meet M. Thakkar, learned Assistant Government Pleader waives service of notice of Rule for the respondents-State.
2. With the consent of the learned advocates for the respective Page 1 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 parties, the petition is taken up for final hearing today.
3. Heard Mr. Vaibhav A. Vyas, learned counsel for the petitioners and Mr. Meet M. Thakkar, learned Assistant Government Pleader for the respondents. Perused the record.
4. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for a direction that order dated 8.12.2020 affirming the order of 8.4.2019 be quashed and set aside.
5. The facts in brief would indicate that the petitioner was appointed as Forest Guard after undergoing a recruitment process through the respondent - Gujarat Subordinate Service Selection Board at Gandhinagar. An appointment order was issued on 7.3.2008. The petitioner joined service on 17.3.2008. He was posted at Bhavnagar Forest Division under the Administrative Control of the Junagadh Forest Circle. On completion of five years of service in fixed pay, the petitioner was issued a regular appointment order on 3.7.2014. Page 2 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022
6. Considering the family circumstances, inasmuch as the father of the petitioner was aged 76 years and was suffering from a heart ailment, having come to know that the post of Forest Guard was vacant at GEER Foundation, Gandhinagar, which was a post on deputation, the petitioner on 1.9.2016 made a request for transfer. By an order dated 22.11.2016, the petitioner was so transferred and placed at GEER Foundation.
7. A provisional seniority list was published on 1.1.2018 of the cadre of the Forest Guards at the Junagadh Forest Circle. The petitioner found his name missing. Therefore, he made representations to the authorities on 24.9.2018 and 23.10.2018 requesting the authorities to do the needful because, according to the petitioner he was placed at foundation on deputation and his original lien continued under the administrative control of the Junagadh circle at Bhavnagar Forest Division. Juniors to the petitioner were issued orders of promotion on 1.1.2019 as Foresters (Vanapaal). The petitioner made a representation for being considered for promotion based on his placement in the Page 3 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 seniority list at Bhavnagar. According to the petitioner, even the GEER Foundation opined that his placement at the foundation was on deputation, his lien continued under the administrative control of the Bhavnagar division and his seniority should accordingly be reflected under the Bhavnagar Division.
8. Mr. Vaibhav Vyas, learned counsel for the petitioner made the following submissions:
8.1. Drawing the attention of the Court to the annual administrative report of 2016-17 of the GEER Foundation, he submitted that the post of Forest Guard at Indroda and Aarnya Udhyan respectively were shown as posts on deputation. 8.2. Reading the order of transfer dated 22.11.2016, Mr. Vyas would submit that one Officer Shri D.K. Vankar was also transferred from Gandhinagar to Dholka on request. He was made to sign an undertaking that he would forego his seniority on mutual transfer. This undertaking was not taken Page 4 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 from the petitioner nor did the order of transfer specifically mention filing of such undertaking and, therefore, the petitioner was right in his perception that his posting was on deputation and not on request transfer which would warrant losing his seniority in the original division at Bhavnagar. He would rely on orders of transfer of 16.6.2020 and 5.7.2010 wherein in case of orders on request transfer, there was a specific mention of the incumbent of transfer losing his seniority on he filing an undertaking.
8.3. According to Mr. Vyas, the order impugned dated 8.4.2019 affirmed in appeal on 8.12.2020 holding that the petitioner on being transferred on request and not being placed on deputation would entail losing of his seniority is bad. He was placed on deputation. Therefore, he retained his lien as a Forest Guard under the Bhavnagar division and could not be placed in the list of the Forest Guard under the Gandhinagar division.
9. Mr. Meet M. Thakkar, learned Assistant Government Pleader Page 5 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 for the State would rely on the reply filed and specifically rely on the guidelines dated 15.1.2009 of the General Administration Department, Gandhinagar in context of transfers made on request. Pressing into service Clauses 15 and 17 of the guidelines, he would submit that when transfers were made on requests, in accordance with Clauses 15 and 17 of the policy, the incumbent would lose his seniority.
9.1 Reading the affidavit, Mr. Thakkar would contend that as per the prevailing Rules, it was, in fact a transfer on request and not deputation and, therefore it was with a clear understanding that the petitioner would lose his seniority in the parent division. Having chosen to avail the benefit of inter district transfer, the petitioner will have to forego the benefit of the seniority in the parent division.
9.2. According to Mr. Thakkar, the contention raised by the petitioner that he was on deputation is misconceived and seniority will therefore, will have to be shown at the Gandhinagar Forest Division in relation to Clauses 15 and 17 Page 6 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 of the policy of request transfer. The GEER foundation had ignored the binding prescriptions of GAD resolution.
10. Having considered the submissions made by the learned advocates for the respective parties, the submission of Mr.Vaibhav Vyas, learned counsel for the petitioner that the petitioner was posted at the GEER Foundation on deputation deserves to be accepted on the following grounds:
(i) Based on the annual administrative report of 2016-
17, what is indicated in the setup at Aarnya Udhyan and at Indroda Udhyan that the post of Foresters have to be filled in on deputation.
(ii) Even accepting the fact of the department that the petitioner was transferred and even so admitted by the petitioner on request, the order of transfer dated 22.11.2016 when compared with the orders of request transfer (at Page Nos.94 and 95 of the Paper Book) stipulated a specific condition that when transfers are made pursuant to the request Page 7 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 of the incumbents, they will be expected to give an undertaking that they will lose seniority in their respective cadres. The author of these orders on which reliance is placed of Mr. Vyas is the same designated authority as the one, who passed the order of 22.11.2016 in case of the petitioner. No such mention of the petitioner losing seniority on filing of such undertaking has been made in the order of transfer.
11. Pursuant to the assertion made by Mr. Vyas, learned counsel for the petitioner that the other incumbent who was transferred by way of a request transfer namely; Shri Vankar who was made to give an undertaking, is established by a communication dated 9.10.2020, by which, the petitioner had made a representation to the Additional Chief Conservator of Forest, wherein, he had specifically pointed out that Shri Vankar had given an undertaking to forego his seniority and such an undertaking was not taken from the petitioner.
12. Even the communications of the GEER Foundation addressed to the Superiors on 4.1.2019 and 19.1.2019 indicate that the Page 8 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 stand of the foundation was that the petitioner continued to maintain his lien under the Forest Division at Bhavnagar.
13. These circumstances when compared to in context of the orders of transfer relied upon by Mr. Vyas dated 16.6.2020 where mutual request transfer was made, there was a specific mention of an incumbent filing an undertaking to for-go seniority which clause was missing in the order by which the petitioner was transferred on deputation.
14. Accordingly, the communication dated 8.12.2020 and 8.4.2019 are hereby quashed and set aside. The respondents are directed to include the name of the petitioner at an appropriate place in the seniority list of the Cadre of Forest Guard at Bhavnagar Forest Division under Junagadh Forest Circle considering his initial date of appointment. Consequential orders of promotion to the post of Forest Officer with deemed date of promotion from 1.1.2019 with all consequential benefits including arrears of pay and allowance be granted to the petitioner. Such exercise shall be carried out Page 9 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022 C/SCA/3805/2021 JUDGMENT DATED: 24/03/2022 within ten weeks from the date of receipt of copy of this order.
15. The petition is allowed in above terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.
[ BIREN VAISHNAV, J. ] VATSAL Page 10 of 10 Downloaded on : Sun Mar 27 00:12:03 IST 2022