Gujarat High Court
As Dabhi vs State Of Gujarat on 29 November, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/10643/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10643 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ?
No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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AS DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR IS SUPEHIA(874) for the PETITIONER(s) No. 1,2,3,4,5,6
MS HARSHAL N PANDYA(3141) for the PETITIONER(s) No. 4,6
APPEARANCE DELETED(23) for the RESPONDENT(s) No. 3
MR BHARGAV PANDYA AGP for the RESPONDENT(s) No. 1,2
NOTICE SERVED(4) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 29/11/2018
ORAL JUDGMENT
1. The present petition under Article 226 of the Constitution is filed for the purpose of seeking the following reliefs : Page 1 of 8 C/SCA/10643/2003 JUDGMENT "18(A) quashing and setting aside the final seniority list dated 21.12.2002 of the Deputy Mamlatdars in so far as the petitioners are concerned, and further direct the respondents to assign seniority to the petitioners on the posts of Clerks/Typists from the date of joining revenue department and not from the dates of joining Patan District.
(B) Quashing and setting aside the order dated 01.05.99 (Annexure"F") and to restore order dated 26.11.1998 (Annexure"A").
(C ) During the pendency and final disposal of this petition respondents may be restrained from reverting the petitioners from the posts of Deputy Mamlatdars to the posts of Clerks/Typists.
(D) To grant such and further reliefs as may be deemed fit."
2. The case of the petitioners is that they were originally appointed as Clerks, except petitioner no. 3 who has been appointed as Typist in the districts other than the Mehsana or Patan districts, petitioner no. 1 was appointed in Ahmedabad, petitioner no. 2 was appointed in Panchmahals, petitioners nos. 3 and 4 were appointed in Kutch district, whereas petitioners nos. 5 and 6 were appointed in Kheda district. All the petitioners were appointed in the above districts for more than 15 years back. By virtue of Notification dated 02.04.1997, the State Government constituted a new district of Patan by by dividing some portions of Mehsana and Banaskantha Districts. Accordingly, the order was passed on 26.11.1998 laying down the criteria for allocation/absorption of staff, procedure thereof, conditions of service, etc., for the newly constituted district. It is the case of the petitioner that at the relevant point of time, para 2(b) (I) of the above order inter alia have stated that in case of those employees like the petitioners, who have come from other district of Mehsana, their original seniority would be maintained on the basis of the continuous officiation in the revenue department. According to the petitioners they were given their seniority benefits from the date of Page 2 of 8 C/SCA/10643/2003 JUDGMENT their respective appointment as Clerks or the Typists, as the case may be in the respective districts. However, the petitioners were put at par as if their transfers were in public interest.
2.1. It is further the case of the petitioners that by virtue of letter dated 19.05.1998, the State Government has informed all the respective Collectors of the Districts of Gujarat that option would be given to those employees working in other districts who were the native of undivided districts for appointment/absorption in Patan District. Pursuant thereto, options were given by the petitioners to get themselves absorbed in Patan District. The Collector, Mehsana also issued Circular dated 26.05.1998 to this effect and accordingly, the petitioners opted for the same. By way of specific letter dated 19.01.1999, a request was made to the Deputy Secretary, Revenue Department to the Collector, Patan as well to the effect that in case those employees like the petitioners who have been absorbed from other districts their seniority would be counted from the date of joining their duties in Patan district. Accordingly, consent letters were invited from the concerned employees. The case of the petitioners is that the consent letters were required to be given immediately on the same day and this is clear from a bare perusal of the letter dated 21.01.1999. As per the say of the petitioners, unilaterally the State Government by virtue of order dated 01.05.1999 has stated that para 2(b)(1) of the order dated 26.11.1998 would stand amended and the employees like the petitioners would get their seniority from the date of their joining the said district and accordingly, on this basis the consent letters have been obtained from the petitioners. Though objections were raised by way of representation, but when the final seniority position came on 01.01.2002 which has been circulated on 21.12.2002, it was noticed that the petitioners have been assigned their seniority from the date of joining the Patan district and, Page 3 of 8 C/SCA/10643/2003 JUDGMENT therefore, earlier seniority and the length of service is not taken into consideration which has constrained the petitioners to approach this Court by way of the present petition.
3. Learned advocate Ms. Harshal Pandya appearing for the petitioners has vehemently contended that there was a specific assertion given by virtue of communication dated 26.11.1998 that their seniority list would be taken care of and as a result of that only the options were invited and accordingly, the petitioner shall given. However, later on, this position has been altered to the disadvantage of the petitioners which as discriminated the petitioners from other class of employees who were belonging and coming from the districts of Mehsana and Patan and, therefore, the action on the part of the respondent authority is not only unjust, arbitrary but tilted with mala fides as well as hostile discrimination which violates Article 14 and 16 of the Constitution of India. It has further been submitted that though consent letters have been given by the petitioners, the same were the conditional letters and cannot be termed as having acquiesced their right of agitation. As a result of this, since this is apparently discriminatory to the petitioners, the petitioners are left with no other alternative but to challenge the same by way of present petition. The action on the part of the respondent authority is arbitrary and cannot be said to be just and proper. As a result of this, the reliefs prayed for may kindly be granted. No other submissions have been made.
4. Learned AGP Mr. Bhargav Pandya appearing for the respondent authority has taken the Court to the detailed affidavitinreply which has been filed by the authority in which it has been clearly asserted that pursuant to the subsequent communication/decision, the petitioners have undisputedly given their consent letters in specific terms and, therefore, accordingly, the authority has acted which Page 4 of 8 C/SCA/10643/2003 JUDGMENT cannot be said to be just and proper. On the contrary, by giving the consent letters, with options, the petitioners have acquiesced their right of making any grievance and, their seniority issue. For the purpose of strengthening this submission, learned AGP Mr. Pandya has invited attention of one of such consent letter which is reflecting on page 55 and has stated clearly that in no uncertain terms the consent has been given with respect to the seniority to be maintained and prepared and, therefore, no case is made out by the petitioner and the petitioners cannot accept the position and then make a grievance even after giving consent which were invited. Learned AGP Mr. Pandya has submitted that subsequent to this even finalization of the seniority list dated 21.12.2002 is also maintained and the same has not been made the subject matter of challenge. As a result of this, no case is made out by the petitioners. By referring to para 5, 6 and 7 an attention is drawn of the Court that whatsoever orders have been passed of placing the petitioners at appropriate stage, cannot be said to be unjust. As a result of this, on merit, no case is made out and the petition deserves to be dismissed. It has further been invited attention of this Court that from the further affidavitinreply in para 6 which has been referred, it was notice specifically that considering this set of circumstance, the petitioners have acquiesced the right of making the grievance. Resultantly, no plea of discrimination of any nature is made out by the petitioners. Learned AGP Mr. Pandya has further submitted that subsequent position which has been altered is very much well within the knowledge of the petitioners and it is not the case that the petitioners have been deprived of the benefits which were earlier promised in the year 1998. Since the subsequent clarification has been made in specific terms and the circular is never under challenge, there is hardly any case made out by the petitioners to make any grievance. As a result of this, the petition deserves to be dismissed.
Page 5 of 8C/SCA/10643/2003 JUDGMENT
5. Having heard the learned advocates for the respective parties and having gone through the contents of the record which is placed before the Court, no doubt on earlier occasion in the month of November, 1998 in Clause (2) after constitution of new district Patan, options were invited of the concerned employees with original seniority, but this very Resolution has been later on specifically altered and in that context the consent letters of the concerned persons were invited. Now such is the case reflecting on page 17, the Circular dated 25.06.1998 and in response thereto, it is clearly visible from the record that the petitioners have undisputedly given their consent letters and accepted the seniority to be maintained pursuant to it. As a result of this, the petitioners since have submitted the consent letters subsequent to the altered situation, now it is not open for them to make any grievance about it. Additionally, it is also visible from the record that such action which is a center of controversy is well being explained by the authority by making specific assertion in the affidavitinreply filed by respondent no. 2. Since the Court has considered the same, deserve to be quoted hereinafter.
"5. With respect to the averments made in para 11 the same are denied. It is submitted that a notification dated 26.11.1998 is published. In the said notification in para 2(B)(1) provides how to decide the seniority of the employees. The seniority is prepared districtwise. The claim of the petitioner that they should be given seniority to their parent district is not proper. The seniority is prepared keeping in mind the policy of the Government, the order dated 1.5.99 passed by the Revenue Department is legal, just and proper which is not challenged till date by the petitioners. By the said order the administrative structure of the respondents department is prepared. The said administrative structure is indirectly challenged after 7 years by filing this petition. After the new districts were formulated the order was passed dated 21.12.2002 whereby the final seniority list of the employees of Class III was published. Against these there is no litigation pending. It is submitted that before 21.12.2002 the work was taken by giving ad hoc promotion to the clerks. As a part of this Page 6 of 8 C/SCA/10643/2003 JUDGMENT administrative measure the applicants were given such ad hoc promotion in the post of Deputy Mamlatdar. The fact of giving ad hoc promotion to the post of Deputy Mamlatdar is administrative function and it is totally different and distinct from the seniority of their parent district. The fact of ad hoc promotion cannot in any way help the petitioners in getting seniority benefit of parent district. Such ad hoc promotion was given as a stop gap arrangement looking to the work. It is made clear that it is ad hoc promotion which can be seen from the order dated 5.4.2002 and thereafter all the administrative actions are taken accordingly. The petitioner has suppressed this fact in this petition.
6. With respect to the averments made in para 12 and13 the same are denied. It is denied that the Fundamental Rights guaranteed under the Constitution of India is violated. It is submitted that the principles of seniority from the date of appointment is not applicable in the present case. This case is different from the general principles in the matter of seniority. The Revenue Department has passed order dated 1.5.99 which cannot be challenged after lapse of seven years on the alleged ground of its ambiguity. The contention of the petitioner that before passing the order dated 1.5.99 the petitioners were not given an opportunity of being heard in the matter. There was clear understanding and consent was given by the employees those who did not given consent remained with their parent districts, now after accepting the position at the time of reversion the petitioners have approached the Hon'ble High Court to challenge the order dated 1.5.99 which cannot be permitted.
7. With respect to the averments made in para 14 the same are denied. It is submitted that as per the direct recruit procedure rules 1970 and as per the Clerk/Typist Recruitment Rules & Training an Examination Rules 1970 the seniority is to be fixed after passing the examination. It is submitted that this is not applicable in this case. It is made clear that the seniority is not from the date of the passing the examination but from joining the service. The case of the petitioner is altogether under a different policy in view of the division of district. On such eventuality the petitioners gave consent and they were transferred interdistrict. The principle of promissory estopple is applicable in the case of the present petitioners. Now the petitioners cannot backout from their consent and the petitioners cannot get the relief as prayed for by them.
8. With respect to the averments made in rest of the paras, the same are denied. It is submitted that the final seniority list Page 7 of 8 C/SCA/10643/2003 JUDGMENT dated 21.12.2002 is strictlyfollowed. Because of this, the petitioners nos. 5 and 6 were given reversion by the order dated 2.3.2003. They were placed to their original post by the order dated 7.2.2003. It is an administrative matter. This arrangement is not violation of the seniority list. They have not raised any grievance against such order of reversion, it means they have accepted the seniority list, therefore, the matter of promotion and reversion is not consistent."
5.1. Yet another circumstance which is not possible to be unnoticed by the Court is additional affidavit filed by respondent no. 2. The said affidavit has also clarified the position and along with that several consent letters have been attached to the said affidavit, which act is not in dispute. As a result of this, the plea of discrimination or the plea of any grievance whatsoever about this seniority, the Court is of the considered opinion that the same is not possible to be assailed by the petitioner. Hence, no case is made out. The petition is accordingly dismissed. Rule is discharged.
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