Gujarat High Court
Jitendra Vrajlal Mehta vs Gujarat Electricity Board & 2 on 3 February, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/8244/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8244 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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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JITENDRA VRAJLAL MEHTA....Petitioner(s)
Versus
GUJARAT ELECTRICITY BOARD & 2....Respondent(s)
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Appearance:
MS JIRGA D JHAVERI, ADVOCATE for the Petitioner(s) No. 1
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 03/02/2016
JUDGMENT
1. The petitioner has prayed for a direction to grant promotions to the petitioner w.e.f. 03.05.1980 and 07.01.1984 as per the judgement of the learned Single Judge dated 10.10.1996 in Page 1 of 7 HC-NIC Page 1 of 7 Created On Fri Feb 05 02:15:59 IST 2016 C/SCA/8244/1998 JUDGMENT Special Civil Application No. 2090 of 1985.
2. Brief facts are as under:
Petitioner was initially employed in Bhavnagar Electricity Company. When the Gujarat Electricity Board was constituted, the services of the petitioner and other similarly situated employees were to be absorbed in the Board. The Gujarat Electricity Board passed separate order in October 1978 appointing the petitioner and other similarly situated employees to the post of Fitter Cader, Grade-II in the pay scale of Rs. 265-
509. The offer of appointment clarified that it was a fresh appointment and the appointee would be on probation for a period of six months.
3. When the Board published the seniority list of various posts on the board, names of the petitioner and other employees were not mentioned. This was, on the premise that, according to the Board, the petitioner and other similarly situated employees were not engaged against regular establishment. To appoint them, supernumerary posts were created. As and when vacancies in the regular establishment were either available or created, they were absorbed in regular service. According to the Board, in case of the petitioner, this happened sometime in the year 1984. He was, therefore, treated as regular employee of the Board from such date.
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4. The petitioner and other similarly situated employees approached the High Court by filing Special Civil Application No. 2090 of 1985 raising grievances about the treatment of the Board in considering them regular employees only from the year 1984. They, in fact, suggested that their past services should also be reckoned for seniority. Learned Single Judge, by his judgement dated 10.10.1996, held that the Board cannot deny the benefit of regular employment to the petitioner from the date of the entry even if it was on supernumerary post. On such basis, following directions were issued:
"10. The Board shall therefore, have to work out seniority of the petitioners on and from the date that they entered into Board's services in the year 1978. The details in this regard are given at Annexure C page 15 and about this. There is no dispute between the parties. On the basis of the date which is given in Annexure C, seniority has to be worked out. Therefore, promotional and other benefits have to be given by resorting to process of deeming date and as a consequential benefits whatever they are entitled according to prevalent rules from time to time shall have to be computed, worked out and paid to the petitioners. The respondent employees are not to be adversely affected by this exercise. If necessary to meet with exigency, there shall be created an adequate number of supernumerary posts till by regularly absorption in course of time this device becomes redundant."
5. Pursuant to such directions, the Board issued an office order dated 27.03.1997 granting deemed date of promotion to the petitioner from the cader of Fitter Grade-II to Technician Grade-III and, thereafter, to P.A. Grade-I as under:
Page 3 of 7HC-NIC Page 3 of 7 Created On Fri Feb 05 02:15:59 IST 2016 C/SCA/8244/1998 JUDGMENT "In pursuance of the H.O. Letter No. IPC (P)/IV/S/SCA-2C DVN/464 dtd. 18/12/96 & as per the Hon'ble High Court's final order dtd. 10/10/96, in SCA No. 2090 of 1985, the petitioner Shri J.V.Mehta, P.A.Gr.I is given the benefits of the promotion and connected pay scales and is deemed to have been promoted from the said date shown as follows:-
Sr. EMP Name & Absorbed/ Pay Dt. Remarks
No No Designation Promoted Scale w.e.f.
to the post
1 794 J.V.Mehta Fitter Gr.II 290-733 11/10/78
P.A.Gr.I Tech.Gr.III 315-877 18/12/80
P.A. Gr.I 340-992 07/01/84
His seniority has been considered as regular employee of the Board from the date, he entered in the Board's service i.e.11/10/78. His pay fixation order will be issued separately."
6. The petitioner was, however, not fully satisfied. He complained of non-implementation of the directions of the High Court and filed contempt petition being Special Civil Application No. 2020 of 1997, which came to be disposed of by an order dated 23.02.1998, in which, the Division Bench made following observations:
"When find that at page 13, the officer order dated 3-4-1997 indicating that the pay of the applicant has been fixed in view of the order passed by the High Court in the aforesaid Special Civil Application. It specifically stated that he has been deemed to have been promoted under the office order dated 27-3-1997. Learned advocate states that as per the direction given by the Court, the Officer has to carry out the order. Order at page 13 dated 27-3-1997 gives details of benefits given, i.e. promotion and connected pay scales. It also gives the date of deemed Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Feb 05 02:15:59 IST 2016 C/SCA/8244/1998 JUDGMENT promotion and absorption or promotion to the post (i.e. Fitter Grade II, Technician Grade III, Grade II, Grade I and Sr.Technician). Cases with other applicants are also considered. Applicant R.G.Gohel, as per Annexure C entered the department on 11-10-1978 and he was appointed on supernumerary post on 3-11-1978 in the scale of Rs. 4377/- with next available increment on 1-10-1980. Regarding Annexure B at page 12, it is clear that, in view of the direction, he was placed to the grade of Fitter Grade II in the scale of Rs. 290-733/- w.e.f. 11-10-1978 and his pay has been fixed at Rs. 497/- as per letter dated 3-4-1997. In case of applicant A.I.Dave, pay has been fixed at Rs. 589/-. Thus, reading Annexure C with Annexure B collectively, it is clear that, as per order passed by this Court, necessary orders have been issued. However, if the same are not as per calculation of the applicants, they must point out and must approach appropriate forum. Once it is shown that order is carried out, there is no question for issuance of process. Nothing is placed on record for justifying the claims made in para 3.4 of the application, i.e. applicant No. 1 was entitled to get benefit w.e.f. 3rd May, 1980 instead of 7th January,1904."
7. The petitioner, therefore, filed the present petition, in which, he has contended that, he was not granted promotion to Technician Grade-II in June 1989 and thereafter, further promotion in January 1984, though he was fully qualified. According to the petitioner, thus, the Board had not correctly implemented the directions of the learned Single Judge.
8. Having heard learned counsel for the parties, I do not find that the petitioner had made out any case for interference. The High Court upheld the petitioner's contention that the Board having appointed the petitioner in the year 1978 cannot deny benefits of regular service on the premise that between 1978 and 1984 Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Feb 05 02:15:59 IST 2016 C/SCA/8244/1998 JUDGMENT he was discharging the duties on supernumerary post. The learned Single Judge, therefore, directed the board to consider the service of the petitioner regular for all purposes from the date of his entry in the service. It was, on this count, that the Board passed its order on 27.03.1997, considered the petitioner regular employee of the Board from 11.10.1978, granted deemed date of promotion to Technician Grade-II on 18.12.1980 and of PA Grade-I on 07.01.1984.
9. If the case of the petitioner was that any junior was promoted in the either of the two grades, Technician Grade-III or PA Grade I in preference of the petitioner, he had to make out such a case. Except for general statements, no specific dates, details or names have been mentioned in the petition. More importantly, the averments made in the petition are that though the petitioner was qualified for such promotions he was not granted. Merely being qualified for promotion would not automatically entitle the government servant to promotion. It would depend upon the availability of vacancies and consideration by the employer. Unless the petitioner could point out that persons junior to him were promoted ignoring his claim, only on the strength of being qualified, he cannot seek promotion.
Petition is dismissed.
(AKIL KURESHI, J.)
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Jyoti
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