Gujarat High Court
A.R.Parmar vs State Of Gujarat & 2 on 26 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10589/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10589 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
==========================================================
A.R.PARMAR....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
NOTICE UNSERVED for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR GM AMIN, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/08/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a retired employee of Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Aug 27 08:14:36 IST 2016 C/SCA/10589/2003 JUDGMENT the Junagadh District Panchayat, has prayed for the following reliefs :
"(A) Allow this petition.
(B) Quash and set-aside the communication dated 24th March, 2003 and 15th November, 2002 as illegal and violative of Article 14, 15 & 16 of the Constitution of India.
(C) Declare that the petitioner please entitled to deemed promotion to the post of Deputy Chitnis on the basis of the date of promotion as 17.3.81 as senior clerk in the alternative.
(D) Declare that the petitioner is entitled to the scale consequential benefits such as pay Fixation, Seniority, Revision of pay and Pension on the basis of his deemed date of 17.3.81 as senior clerk as if the petitioner was entitled for promotion as Deputy Chitnis.
(E) Direct the Respondents, particularly the Respondent No. 2 refix his pay in cadre of senior clerk as if the petitioner secured the benefits of Higher Grade; Revision of Pay and Pension on the same terms as granted to his junior Shri M.D.Pandya.
(F) Pending admission; and final hearing of the petition direct the respondents to compute and re-fix the pensionary benefits on the basis of revise pay-fixation and last pay drawn of Rs. 6.550/- in the scale of Rs.
5,500- 9000.
(G) Pass such order or further orders as may deemed necessary and proper in the facts and circumstances of the case. "
It appears that the writ-applicant was being represented by Mr.Biren A.Vaishnav, the learned counsel, at the relevant point of time. Since the learned counsel came to be elevated to this Bench, an administrative notice was issued in this Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Aug 27 08:14:36 IST 2016 C/SCA/10589/2003 JUDGMENT regard to the writ-applicant. The report of the Bailiff indicates that the notice could not be served as the writ-applicant is no longer residing at the address given in the cause-title of the petition.
In such circumstances, I am left with no other option but to look into the petition and the two affidavits-in-reply for the purpose of deciding the issue.
On 28th July 2003, the following order was passed :
"Heard learned advocate Mr.B.A.Vaishnav for the petitioner. Issue notice to the respondents returnable on 22.8.2003. Meanwhile, it is open for the respondents to consider the representation of the petitioner irrespective of pendency of Civil suit which has been filed by Mr. M.D.Pandya and, to pass appropriate orders in accordance with law."
On 1st December 2004, the following order was passed :
"No reply is filed by any of the respondents. Learned AGP also frankly states that she has not received any instructions in this matter.
Hence, RULE, returnable in third week of July 2005.
In the meanwhile, the respondent is directed to consider the case of the petitioner as per the order passed by this Court [Coram: H.K. Rathod, J.] on 28.07.2003 and copy of such decision is directed to be placed on record on the returnable date."
The case of the writ-applicant is that he had joined the services of the Junagadh District Panchayat as a Junior Clerk on 20th October 1968. One Shri M.D.Pandya had joined on 7 th April 1969.
Page 3 of 9
HC-NIC Page 3 of 9 Created On Sat Aug 27 08:14:36 IST 2016
C/SCA/10589/2003 JUDGMENT
Having passed the pre-service training examination within the prescribing period and chances, the writ-applicant was placed at serial no.151 on the seniority list and Shri M.D.Pandya was placed at serial no.180 on the seniority list.
It is the case of the writ-applicant that Shri Pandya got the benefit of reservation and was promoted as Senior Clerk on 12th October 1979, whereas the petitioner, although falling within the reserved category, yet was promoted only on 6 th March 1983.
It is his case that he had preferred several representations in that regard but of no avail. Hence, this writ- application.
On behalf of the respondent nos.2 and 3, an affidavit-in- reply has been filed, inter alia, stating as under :
"3. I say that the petition is not maintainable and is otherwise misconceived for several reasons, namely :
(a) The petitioner is not entitled to any of the reliefs prayed for in this petition;
(b) The petition is barred by delay and laches and is otherwise barred because of non-joinder of necessary parties;
(c)The petitioners has not disclosed true and complete facts as stated hereinafter.
Accordingly, the petition requires to be rejected on all or any of these grounds.
4. Without prejudice to what has been stated above, I say that the petitioner is already given the benefits in the matter of seniority and fixation of pay as was permissible under the rules. Accordingly the petitioner Shri Parmar Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Aug 27 08:14:36 IST 2016 C/SCA/10589/2003 JUDGMENT was given deemed date of promotion of 17.3.1981 in the cadre OF Senior Clerk and he got promotion on 7.5.1983. Accordingly, the petitioner has got all the benefits available as Senior Clerk and, therefore, no grievance survives so far as that cadre is concerned. However, the petitioner wants promotion to the post of Assistant Taluka Development Officer as per the seniority list of Deputy Chitnis (cadre equivalent to Deputy Mamlatdar) and higher grade scale of Rs. 5500-9000 on that basis as was granted to Shri M.D.Pandya. However, the higher grade scale given to Shri M.D.Pandya is withdrawn by order dated 21.4.1997 and being aggrieved, Shri M.D.Pandya had filed a Civil Suit being Civil Suit No. 6/97 in the Court of Civil Judge (JD), Kutiyana which came to be dismissed on 12.2.1998 against which judgment and decree a Regular Civil Appeal No. 20/98 is pending in the Appellate Court at Porbandar, which, to our information, is yet not finally decided. Accordingly, the petitioner cannot make comparison with the case of Shri M.D.Pandya. Further, the petitioner is not entitled to the promotion as he has failed to pass the qualifying examination required for promotion in the cadre of Deputy Chitnis at the relevant time. Accordingly, the petitioner is not entitled to any of the reliefs prayed for in this petition.
5. Without prejudice to what has been stated above, I say that the petition is barred by delay and laches in as much as the petitioner challenges the orders passed in favour of Shri M.D.Pandya in 1996-97 and basis his case on the reply given by the District Panchayat to a legal notice served by the Advocate of the petitioner, which is not permissible in law since Shri Pandya was given benefits as far back as in 1996-97 and the necessary consequential correction in seniority was made in 1998. If the petitioner was aggrieved by the deemed date given by the said communication, Annexure-O, page 99, he should have approached the Hon'ble Court at that time and cannot rely upon --- reply now given in 2003. I say that the petitioner is seeking the benefits as were given to Shti M.D.Pandya by filing the petition in 2003 after Shri Pandya expired on 7.2.2002. I say as soon as it was found by the Panchayat that the petitioner was entitled to higher seniority in the cadre of Junior Clerk and Senior Clerk, he has been assigned necessary consequential seniority and, therefore, the present petition seeking Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Aug 27 08:14:36 IST 2016 C/SCA/10589/2003 JUDGMENT those benefits over Shri M.D.Pandya cannot now be granted to the petitioner, more particularly, when the basis on which he claims the benefits of higher grade scale as were granted to Shri Pandya, is subjudice in a court of law as the said benefit is already withdrawn by th Panchayat as far back as in 1997 and the Civil Suit and the said issue is pending adjudication before the Appellate Court at Porbandar. I crave leave to refer and rely upon all the documents including the judgment of the learned Civil Judge by which the said question is pending adjudication before the Appellate Court. I say, therefore, the communications which are challenged in the present petition in para 7 (B) are legal and valid and are not in any way violative of Articles 14 and 16 of the Constitution of India.
6. I say that so far as the petitioner is concerned, he is not entitled to deemed date of promotion to the post of Deputy Chitnis on the basis of the date of promotion of 17.3.1981 in senior clerks cadre the reasons stated in the communications dated 15.11.2002 and 24.3.2003 and consequently he is not entitled to revision of pay fixation in those cadres. I say that the petitioner is already given seniority in the cadre of Junior Clerk and Senior Clerk over Shri M.D.Pandya as can be seen from the order dated 8.1.1996, a copy of which is produced at Annexure- D, page 32 by the petitioner. The necessary reasons are given in the said detailed order and I crave leave to refer and rely upon the same. The petitioner has accepted the said order and he cannot now content that he was not given the due benefits. I say even otherwise the promotion to the post of Deputy Chitnis (the post of Assistant Taluka Development Officer) cannot be claimed as a matter of right and cannot be given by the District Panchayat unless approved by the Competent Authority in consultation with the Panchayat Service Selection Board. I say that the petitioner is not entitled to any further benefits in the matter of promotion to the post or Deputy Chitnis or on nay higher post at this length of time. I am filing this Affidavit in reply in view of the order of this Hon'ble Court and the respondent no. 3 will file a detailed affidavit being head of the department of the Education Branch of the District Panchayat and I crave leave to refer and rely upon the said affidavit in reply."
Page 6 of 9
HC-NIC Page 6 of 9 Created On Sat Aug 27 08:14:36 IST 2016
C/SCA/10589/2003 JUDGMENT
On behalf of the respondent no.3, an affidavit-in-reply has been filed, inter alia, stating as under :
"2. I say that the petitioner at one time was working in our Education Branch and, therefore, I am joined as a party respondent. I, however, say that the communication sent by me was in the form, of a submission to the competent authority, namely, the District Panchayat to decide about the grievances then made by the present petitioner. I say that at that time the petitioner was working as a Senior Clerk whose application was forwarded along with the said communication dated 23.10.1996 by my office. I say that a part of the grievances of the petitioner so far as his seniority is concerned was redressed by giving him deemed date of promotion in the cadre of Senior Clerk from 8.3.1983 to 14.12.1981. However, the petitioner's claim for deemed date of promotion as Deputy Chitnis is within the competence of the District Panchayat subject to the approval of the Gujarat Panchayat Services Selection Board. I, however, say that the higher grade scale given yo Shir Pandya was withdrawn in 1997 and a civil litigation is going on in the Court at Kutiyana and/or Porbandar and, therefore, the petitioner cannot claim the said benefit of higher grade scale as he is claiming in the petition.
3. Without prejudice to what has been stated above, I say that the petitioner has voluntarily retired in the year 2002 and was relieved on 30.09.2002 on sanction being granted. He was also given all permissible benefits at that time. The petitioner now seeks a deemed date of promotion and/or higher grade scale of the said higher post as was granted to Shri M.D.Pandya. However, as submitted above, the benefit of higher grade scale of Rs. 5500-9000 given to Shri Pandya has already been withdrawn by the District Panchayat, for which a civil litigation initiated by Shri Pandya is pending in appeal and Shri Pandya was actually not promoted as Deputy Chitnis because before his turn of promotion became available he had expired, though Shri Pandya was promoted as Assistant Taluka Development Officer (a post equivalent to Deputy Chitnis) as per Seniority List of 1977. I say, therefore, the claim of the petitioner to get higher grade scale of Deputy Chitnis while working as Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Aug 27 08:14:36 IST 2016 C/SCA/10589/2003 JUDGMENT Senior Clerk cannot be granted particularly when the said benefit given to Shri Panadya was withdrawn in the year 1997. All this controversy regarding promotion between the petitioner and Shri Pandya was because of the Govt. Resolutions dated 29.7.1976 and 31.7.1976 issued by the General Administration Department of the Government of Gujarat. I crave leave to refer and rely upon the reply dated 16.4.2003 of the District Panchayat, a copy of which is produced at Annexure - T, page 120 of the petition.
4. I say that the petition is otherwise barred by gross delay and latches in as much as the petitioner after his voluntary retirement and after the death of Shri M.D.Pandya is challenging the orders of 1996-97 when the promotion and higher grade scale were given to Shri Pandya, as stated in the petition. I crave leave to refer and rely upon the list of grievances stated in the statement annexed to the application dated 1.1.1996 (Annexure- C to the petition) and the other documents. Even otherwise, as soon as the seniority in the cadre of Senior Clerk was corrected by the Panchayat and the consequential pay fixation was ordered to be made by order dated 16.8.1998 from 1983 to 1981 the petitioner seeks further benefits flowing therefrom after his retirement by filing the petition in 2002 and after Shri Pandya expired by filing the present petition in 2003."
It appears that the entire claim put forward by the writ- applicant is on the premise that Shri M.D.Pandya, although junior to him, yet received the higher pay-scale much before the writ-applicant was given. In the affidavit-in-reply, it has been clarified that higher grade scale given to Shri M.D.Pandya came to be withdrawn by order dated 24th April 1997. Being dissatisfied, Shri Pandya preferred civil suit being Civil Suit No.6 of 1997 in the Court of the learned Civil Judge (J.D.), Kutiyana, which came to be dismissed on 12th February 1998. Shri Pandya, being dissatisfied, preferred a Regular Civil Appeal No.20 of 1998 in the District Court at Porbandar, which appears to be still pending.
Page 8 of 9
HC-NIC Page 8 of 9 Created On Sat Aug 27 08:14:36 IST 2016
C/SCA/10589/2003 JUDGMENT
Be that as it may, I take notice of the fact that this writ- application was filed at a very belated stage. The respondents are justified in contending that this writ-application should not be entertained considering the gross delay in filing the same. Even otherwise, considering the stance of the respondents as reflected from the affidavits-in-reply, no case is made out for grant of any relief as prayed for by the writ-applicant.
As a result, this writ-application fails and is hereby rejected. Rule discharged.
(J.B.PARDIWALA, J.) MOIN Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Aug 27 08:14:36 IST 2016