Gujarat High Court
Rajeshkumar Thakorbhai Desai & Ors vs State Of Gujarat & Ors on 11 January, 2017
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/4800/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4800 of 2015
With
SPECIAL CIVIL APPLICATION NO. 4801 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6096 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6093 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6097 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10469 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10471 of 2015
==========================================================
RAJESHKUMAR THAKORBHAI DESAI & ORS ....Petitioners
Versus
STATE OF GUJARAT & ORS ....Respondents
==========================================================
Appearance:
SPECIAL CIVIL APPLICATION NO. 4800 of 2015
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR DIPEN DESAI, ADVOCATE for the Petitioners
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with
MR RASHESH RINDANI, AGP for the Respondent - Authorities
MR. HARSH K THAKAR, ADVOCATE for the Private Respondents
SPECIAL CIVIL APPLICATION NOS. 4801, 6096, 6093 & 6097 of 2015
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR SATYAM CHHAYA, ADVOCATE for the Petitioners
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with
MS SNUSHA JOSHI, AGP for the Respondent - Authorities
Page 1 of 16
HC-NIC Page 1 of 16 Created On Thu Jan 12 01:50:14 IST 2017
C/SCA/4800/2015 CAV JUDGMENT
MR. HARSH K THAKAR, ADVOCATE for the Private Respondents
SPECIAL CIVIL APPLICATION NOS. 10469 & 10471 of 2015
MR VIJAY N RAVAL, ADVOCATE for the Petitioners
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with
MR RASHESH RINDANI, AGP, for the Respondent - Authorities
MR. HARSH K THAKAR, ADVOCATE for the Private Respondents
==========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 11/01/2017
CAV JUDGMENT
1. Challenge in this group of petitions is made to the seniority list of the cadre of Deputy Mamlatdar dated 07.02.2015, published by the Revenue Department of the Government of Gujarat. For the purpose of promotion on the post of Mamlatdar, the seniority position in the feeder cadre i.e. as the Deputy Mamlatdar is the first consideration, to be followed by other parameters like merits, pendency of departmental inquiry, if any etc. The dispute is regarding the said seniority position.
2. Learned advocates for the respective parties are heard at length. On behalf of the petitioners Mr.Shalin Mehta, learned Senior Advocate has led the team. Other learned advocates have also addressed the Court at length on behalf of the petitioners. They are Mr.Dipen Desai, Mr.Satyam Chhaya and Mr.Vijay N Raval. On the other hand, on behalf of the State, Page 2 of 16 HC-NIC Page 2 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT Ms.Manisha Shah, learned Government Pleader has made the submissions.
3. Learned advocates for the petitioners have made the following submissions.
3.1 Mr.Shalin Mehta, learned senior advocate for the petitioners has submitted that the impugned seniority list is illegal for more than one reasons. It is submitted that for the purpose of promotion on the post of Mamlatdar, consideration has to be made on the basis of the seniority position in the cadre of Deputy Mamlatdar. The appointment on the post of Deputy Mamlatdar was made by two modes. One by way of direct recruitment and second by way of promotion from amongst the persons working as clerk on the establishment of the respective District Collectorates. It is submitted that in the year 1993, one more mode of appointment is introduced by the Government which is commonly known as Semi Direct, however that does not change the complexion of the present matters. It is submitted that the dispute is not between the direct recruits and promotees but is between the promotees inter-se. It is submitted that the persons who are appointed earlier in point of time as clerk and who are even promoted as Deputy Mamlatdar earlier are shown junior to those, who are not only appointed as clerk subsequently but are also promoted as Deputy Mamlatdar subsequent in point of time. Learned advocate for the petitioners has, on the basis of the statements placed on record, shown these factual aspects. It is submitted that, had it been the case of placing direct recruits above the petitioners, even if they are appointed subsequent in point of time, that would have been different matter, Page 3 of 16 HC-NIC Page 3 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT however in the present case the Government is placing those persons above the petitioners, who are subsequently promoted as Deputy Mamlatdars. It is submitted that this is impermissible and the same needs to be interfered with. Learned advocate for the petitioners has taken this Court through the material on record and has contended that the Government did not adhere to the quota rule for years and decades and thus the quota rule had completely broken down. It is further submitted that the petitioners have been working continuously as Deputy Mamlatdars since years and in some cases since decades. It is submitted that in this situation, the State can not be permitted to contend that the persons like the petitioners might be working as Deputy Mamlatdar since long but for the purpose of assigning seniority, they will be given subsequent dates, which according to the State is a readjusted date. It is submitted that there is no question of pushing down the promotees when there is no competing claim by any direct recruit. It is submitted that the petitioners who are promotee Deputy Mamlatdars can not be pushed down by subsequently promoted Deputy Mamlatdars. It is vehemently submitted that the facts of the case are so glaring that even the direct recruit could not have been placed above the petitioners who are working continuously since years, it is the Government which did not adhere the quota rule and thereby the quota rule had broken down. It is submitted that, the push down of the petitioners by direct recruits was also legally unsustainable in the present case, and the worst is that the Government has pushed down the petitioners by other promotees. It is submitted that the impugned seniority list suffers from all these vices and therefore, the same needs to be quashed and set aside. Reliance is placed on the decisions of the Supreme Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT Court of India in the case of (i) Direct Recruit Class II Engg. Officers Association Vs. State of Maharashtra reported in (1990) 2 SCC 715 and (ii) State of West Bengal Versus Aghore Nath Dey and others reported in (1993) 3 SCC 371.
3.2 Mr.Satyam Chhaya and Mr.Dipen Desai, learned advocates for the petitioners have, while adopting the submissions made by Mr.Shalin Mehta, learned senior advocate, further submitted that, though some of the petitioners are working in the cadre of Deputy Mamlatdar since years, their names are not included in the seniority list at all. It is submitted that, as against that, the persons who are promoted subsequently are shown in the seniority list. It is submitted that the impugned seniority list therefore needs to be quashed and set aside.
3.3 Mr.Vijay Raval, learned advocate for the petitioners (of Special Civil Application Nos. 10469 of 2015 and 10471 of 2015) has adopted the submissions made by Mr.Shalin Mehta, learned senior advocate.
4. Ms.Manisha Shah, learned Government Pleader has contested these petitions. It is submitted that the impugned seniority list is prepared strictly in accordance with law. She has referred to the contents of the affidavits in reply which are on record, including the last affidavit dated 17.12.2016. Attention of this Court is invited to the Recruitment Rules for the cadre of Deputy Mamlatdar, as amended from time to time, copies of which are placed on record. By referring to the said Rules, it is submitted that, the appointment on the post of Deputy Mamlatdars was to be made by Direct Recruitment and Page 5 of 16 HC-NIC Page 5 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT Promotion both. It is submitted that the promotees were excess in quota and therefore they need to be pushed down appropriately in view of the decision of the Supreme Court of India in the case of N.K. Chauhan Vs. State of Gujarat reported in (1977) 1 SCC 308 and the consequential policy of the State on that line. It is submitted that the State has not done anything wrong by giving readjusted date to the promotees like the petitioners and therefore no interference be made by this Court, qua the impugned seniority list. It is submitted that there was no break down of quota rule. It is also submitted that the respective District Collectorates had prepared seniority lists from time to time and no objection is taken by the petitioners. Learned Government Pleader has taken this Court through the pleadings on record to contend that the case of the petitioners is not well founded. It is submitted that these petitions be dismissed. In support of her submissions, learned Government Pleader has relied on the following decisions.
1. N.K. Chauhan Vs. State of Gujarat reported in (1977) 1 SCC 308.
2. Direct Recruit Class II Engg. Officers Association Vs. State of Maharashtra reported in (1990) 2 SCC 715.
3. Keshav Chandra Joshi & Ors Vs. Union of India & Ors. reported in 1992 Supp(1) SCC 272.
4. Suraj Prakash Gupta Vs. State of J & K reported in (2000) 7 SCC 561.
5. D.Ganesh Rao Patnaik & Ors Vs. State of Jharkhand & Ors.reported in (2005) 8 SCC 454.
6. P.Sudhakar Rao & Others Vs. U Govinda reported in (2013) 8 SCC 693.
Page 6 of 16HC-NIC Page 6 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT
7. R.J.Patel & Ors. Vs. State of Gujarat & Ors. passed by this Court in Special Civil Application No.833 of 2000.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
5.1 The Recruitment Rules for the cadre of Deputy Mamlatdar (as amended from time to time) indicate that, for the period between the years 1966 to 1979, the ratio was 1:2 i.e. one Direct Recruitment and two Promotions. The said ratio changed to 1:3 in the year 1979 i.e. one Direct Recruitment and three Promotions. It continued upto the year 1993. In the year 1993, there is an amendment in the Recruitment Rules by introducing one more mode, commonly known as Semi Direct, which would be from the Departmental candidates. The ratio prescribed is 1:2:1 i.e. one Direct Recruitment, two Promotions and one Semi Direct. Thus, the share of Promotees (three) got bifurcated amongst the Promotees (two) and Semi Direct (one). The share of Direct Recruits remained as it is.
5.2 It is not in dispute that no direct recruitment is made by the State, in the cadre of Deputy Mamlatdar, for more than two decades. It has come on record, by way of affidavit of the State dated 17.12.2016 that, the last direct recruitment on the post of Deputy Mamlatdar was in the year 1992, thereafter some appointments are made as late as in the year 2012, however even those appointees are also not treated to be in the regular cadre of Deputy Mamlatdar, since according to the State that can be done only after completion of their five years of service.
Page 7 of 16HC-NIC Page 7 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT (The service conditions of those persons is not the subject matter of this petition.) The net result is that, after the year 1992 there is nobody, who is appointed as a direct recruit in the cadre of Deputy Mamlatdar, who can be included in the seniority list even now, against the quota of direct recruit. As a matter of fact also, there is not even one direct recruit in the impugned seniority list.
5.3 The bone contention of the State is that the petitioners were excess in quota. In other words, it is the case of the State that the petitioners can not get seniority from the date of their continuous officiation, since they were occupying the posts which were otherwise to be filled in by direct recruits. At this stage it needs to be noted that the dispute in this group of petitions is not between the Promotees and the Direct Recruits, but the dispute is between the Promotees inter-se i.e. the Promotees and Promotees only. In the event, the dispute was between two different modes of recruitment i.e. the Promotees like the petitioners on one side and the Direct Recruits on the other side, the stand of the State might have some force, however as noted above, even after more than twenty five years, there is not even one person in the entire State who can be included in the seniority list and can be assigned seniority against the slot which can otherwise go to a direct recruit. It is under these circumstances, the stand of the State needs to be examined as to whether the promotee Deputy Mamlatdars should get seniority from the date of their promotion or would get pushed down to some subsequent date. This situation is answered by the Supreme Court in the case of Direct Recruit Class-II Enginerring Officers Association (Supra) in the following terms.
Page 8 of 16HC-NIC Page 8 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT "47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than
one source, it is permissible to fix the
ratio for recruitment from the different
sources, and if rules are framed in this
regard they must ordinarily be followed
strictly.
(D) If it becomes impossible to adhere to the
existing quota rule, it should be
substituted by an appropriate rule to meet
the needs of the situation. In case,
Page 9 of 16
HC-NIC Page 9 of 16 Created On Thu Jan 12 01:50:14 IST 2017
C/SCA/4800/2015 CAV JUDGMENT
however, the quota rule is not followed
continuously for a number of years because
it was impossible to do so the inference is
irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule."
5.4 The facts of the present case indicate that the present situation would be covered in favour of the petitioners, by the above quoted proposition of law. It would not lie in the mouth of the State to contend that, as per rules there has to be direct recruitment, which we have not made, and we have not made it for more than two decades and even now we do not have even one direct recruit whose name can be included in the seniority list and still the promotees need to be pushed down. This stand of the State is unsustainable and therefore the same needs to be rejected.
5.5 The push down theory, as envisaged in the case of N. K. Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT Chauhan (supra), which is heavily relied by the State, pre- supposes that the promotee are excess in quota vis-a-vis direct recruits and therefore the promotees would be pushed down by the direct recruits, though the direct recruits might have been recruited subsequently. The reliance by the State on the decision of N. K. Chauhan is misconceived in the present case, because as noted above, the dispute in this group of petitions is not between the Promotees and the Direct Recruits, but the dispute is between the Promotees inter-se i.e. the Promotees and Promotees only and the State intends to push down a senior promotee by a junior promotee.
5.6 It is not in dispute that the cadre of Deputy Mamlatdar is a State level cadre. It is also not in dispute that the status of both the contesting sets of persons is of 'Promotee'. The effect of the State's action is that, a person who is promoted as Deputy Mamlatdar earlier is shown below in the seniority, list vis-a-vis a person who is promoted as Deputy Mamlatdar subsequently. When the mode of recruitment is the same, which in the present case is the promotion, the date of continuous officiation as Deputy Mamlatdar, should be accepted as the guiding factor, to assign the seniority to these, otherwise similarly situated persons. Once a clerk is promoted as a Deputy Mamlatdar, his status is of a Promotee Deputy Mamlatdar. The comparison between this group of employees can not be on any other parameter than the date of promotion in the said cadre i.e. the Deputy Mamlatdar.
5.7 The stand of the State can be accepted only to the limited extend that when for administrative exigency some promotions are made on the post of Deputy Mamlatdar and Page 11 of 16 HC-NIC Page 11 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT subsequently they are reverted back as Clerk, and again that is done for administrative reasons, the date of the first ad-hoc promotion can not be accepted as the date of continuous officiation. It is noted that petitioners of Special Civil Application No.9251 of 2015 have claimed such date also, which is being rejected by this Court by a separately written order today. However the case of the State can not be accepted to the extend that though a person is continuously working as a Deputy Mamlatdar from a particular date, and now years and decades have passed and he is not to be reverted, then also he shall not be given seniority from the date of continuous officiation. It is this demarcation line which needs to be kept in view. Further the State intends to do this in the name of the Direct Recruits, who are not there at all.
5.8 There is one more factor which would tilt balance against the Government. The promotions of the petitioners can not be said to be not in accordance with rules. It is not in dispute that at the time of giving such promotions, those against whom departmental inquiry was pending - they are not given promotions. Specific reference can be made to the case of one Mr.Dinesh D. Shrimali who is the petitioner of Special Civil Application No.6566 of 2015, which is heard and decided with this group of petitions. (The decision in the said matter is separate but of todays date.) Similarly, passing of departmental examination, annual confidential reports - all parameters are also taken into consideration by the State at the relevant time. On the face of this, the law declared by the Supreme Court of India in the case of Direct Recruit Class II Engg. Officers Association (supra), as quoted above, would squarely apply in favour of the petitioners and against the Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT State.
5.9 There is still one more factor against the respondent Authorities. The impugned seniority list is showing position of the Deputy Mamlatdars for the period between 01.01.1997 to 31.03.2000. From the record it transpires that the cadre of Deputy Mamlatdar was a District level cadre upto the year 2012. On and from 29.03.2012 the said cadre is treated to be a State level cadre. The cadre of Mamlatdar was State level cadre all throughout. Now in the year 2017, when the promotions are to be given on the post of Mamlatdar, on the basis of the seniority position of the cadre of Deputy Mamlatdar and when both these cadres are State level cadres, at least from the year 2012, why the State intends to give such promotions on the basis of the seniority list showing position between the year 1997 to 2000. Apart from the time gap of about two decades, even the basis of the seniority may also have different dimension in view of the fact that the cadre of Deputy Mamlatdar is no more a District level cadre from the year 2012. Further there are standing instructions of the Government to prepare and publish seniority list periodically. Exclusion of number of persons from the list itself is an aspect of concern. The impugned seniority list is such that if a Promotee Deputy Mamlatdar is working for more than 15 years continuously, then also his name will not be included at all, since the list shows position upto year 2000 only. There is no rational for doing so. Thus, the impugned seniority list is not only unsustainable on various grounds which are noted in above paragraphs but is improper on this additional count as well.
Page 13 of 16HC-NIC Page 13 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT 5.10 Learned Government Pleader has relied on number of other authorities which are noted above, however all those authorities ultimately centers around the decision in the case of Direct Recruit Class II Engg. Officers Association (supra), and once this Court finds, on facts, that it is this decision - in the case of Direct Recruit Class II Engg. Officers Association (supra), which would apply in this case, other decisions would not take the case of the State any further. It is also noted that the said decision in the case of Direct Recruit Class II Engg. Officers Association (supra) is subsequently interpreted by the Supreme Court in the case of State of West Bangal Vs. Aghore Nath Dey (supra) and it would add further strength in the case of the petitioners.
5.11 On conjoint consideration of above, this Court arrives at the conclusion that the impugned seniority list is unsustainable and the same needs to be quashed and set aside.
6. For the reasons recorded above, the following order is passed.
6.1 These petitions are allowed.
6.2 The impugned seniority list of the cadre of Deputy Mamlatdar dated 07.02.2015 published by the Revenue Department of the Government of Gujarat, is quashed and set aside.
6.3 Government is required to prepare the fresh seniority list of the cadre of the Deputy Mamlatdar, in accordance with law.
Page 14 of 16HC-NIC Page 14 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT 6.4.1 Before the next seniority list is prepared and published, if it becomes necessary for the State to give promotion on the post of Mamlatdar to meet with the administrative exigency, there has to be some parameter and for that purpose, it is directed that consideration for such promotion may be made on the basis of continuous officiation. In other words, the date on which the concerned persons is promoted on the post of Deputy Mamlatdar and thereafter he has been continuously working on that post, that date will be accepted as the effective date for the purpose of counting his seniority in the cadre of Deputy Mamlatdar. A person who is promoted as Deputy Mamlatdar subsequently, will be placed below in the seniority list.
6.4.2 By applying the above parameter, if the concerned Deputy Mamlatdar comes within the zone of consideration, all other parameters like suitability on the basis of his annual confidential reports, the effect of the pendency of departmental inquiry and / or criminal investigation / trial if any, passing of the departmental examination and all other parameters, as per the rules and policy of the Government, be also taken into consideration.
6.4.3 The said promotions may be made, subject to the next seniority list of the cadre of Deputy Mamlatdar that may be prepared and published by the State.
6.5 Rule is made absolute in each petition, in above terms.
(PARESH UPADHYAY, J.) Page 15 of 16 HC-NIC Page 15 of 16 Created On Thu Jan 12 01:50:14 IST 2017 C/SCA/4800/2015 CAV JUDGMENT M O Bhati/01 Page 16 of 16 HC-NIC Page 16 of 16 Created On Thu Jan 12 01:50:14 IST 2017