Gujarat High Court
H.L. Rathod vs Gujarat Agricultural University And ... on 5 February, 1992
Equivalent citations: (1994)1GLR436
JUDGMENT A.N. Divecha, J.
1. By means of this petition under Article 226 of the Constitution of India, the petitioner has questioned the correctness of the award of the selection grade in the cadre of senior clerks to respondents Nos. 2 and 3 in supersession of his better and superior claims by virtue of his seniority over them in the cadre of junior clerks.
2. The facts giving rise to this petition may be summarised thus : Respondent No. 1 is the University established under a statute 'the University' for convenience). The petitioner was appointed as a junior clerk in the establishment of the University and he joined his services on and from 7th August, 1965. Respondents Nos. 2 and 3 joined services on the establishment of the University as junior clerks on 27th February, 1967 and 6th January, 1969 respectively. It appears that the University undertook the procedure for selection of suitable candidates to fill in the vacancies in the cadre of senior clerks from amongst the eligible candidates in the cadre of junior clerks. All the eligible candidates including the petitioner and respondents Nos. 2 and 3 were interviewed by the selection committee consisting of some five members with the Principal of the College as its Chairman. Pursuant to the list prepared by the selection committee, respondents Nos. 2 and 3 and later on the petitioner were promoted as senior clerks. The orders of promotion in the case of respondents Nos. 2 and 3 were issued on 21st June, 1972 whereas in the case of the petitioner on 26th June, 1972. Thereafter it appears that by one order passed on 19th January, 1981 respondents Nos. 2 and 3 were given the selection grade in the cadre of senior clerks with effect from November 1975. Thereupon the petitioner seems to have made some representations to the University, but to no avail. Thereafter the petitioner caused to serve to the University one notice through his Advocate, on 19th January, 1981 voicing his grievances against injustice done to him by allowing respondents Nos. 2 and 3 to supersede him and sought redressal thereof from the University. A copy of the notice of 19th January, 1981 is at Annexure 'A' to this petition. The University caused its reply thereto by its communication of 31st January/3rd February, 1981. Its copy is at Annexure 'B' to this petition. In the meantime, it appears that the University contemplated promotion of respondents Nos. 2 and 3 in the cadre of store-keepers. The petitioner apprehended that his better and superior claims for the promotional post would be bypassed. He thereupon approached this Court by way of this petition under Article 226 of the Constitution of India for redressal of his grievances against the University.
3. Shri Nanavati for respondent No. 1 has raised a preliminary objection against the maintainability of this petition on the ground of delay and laches on the part of the petitioner in approaching this Court by way of this petition. According to Shri Nanavati for respondent No. 1, the promotions in the cadre of senior clerks were effected way back in June, 1972 and it is too late in the day for the petitioner to voice his grievances there against after lapse of some nine years therefrom. As against this, Shri Anand for the petitioner has submitted that no such point has specifically been raised by respondent No. 1 in the affidavit-in-reply filed on its behalf in this case. If such objection was taken, runs the submission of Shri Anand for the petitioner, the petitioner could have very well explained the circumstances which led him to espouse his grievances against his supersession after about nine years. Even otherwise, according to Shri Anand for the petitioner, the University never circulated the seniority list of its employees till the date of the institution of this petition, and as such the petitioner had no occasion to believe that respondents Nos. 2 and 3 were placed above him in the cadre of senior clerks when all of them came to be promoted as a result of the process of selection undertaken at the same time.
4. The preliminary objection deserves not to be entertained at this stage for two reasons. In the first place, the petition has remained pending in this Court for more than a decade. After keeping this petition pending before this Court for 11 years, it would not be desirable on the part of this Court to tell the petitioner that his grievances cannot be redressed simply because he is guilty of delay and laches on his part in approaching this Court for redressal thereof. In the second place, no such case objecting to the maintainability of this petition on the ground of delay and laches on the part of the petitioner in approaching this Court is specifically taken in the affidavit-in-reply. Shri Anand for the petitioner is right in submitting that, if such objection was specifically raised in the reply-affidavit, the petitioner might have been able to satisfy the Court about the circumstances which caused delay in his approaching this Court by way of this petition for redressal of his grievances. Even otherwise, Shri Nanavati for respondent No. 1 has no answer to the factual position stated by Shri Anand for the petitioner at the time of bearing that no seniority list of its employees came to be circulated by the University till the institution of this petition. It is not in dispute that the petitioner and respondents Nos. 2 and 3 came to be promoted in the cadre of senior clerks by virtue of the same process of selection. It, therefore, stands to reason that the petitioner would think that his seniority in the cadre of senior clerks would be maintained by virtue of his seniority over respondents Nos. 2 and 3 in the cadre of junior clerks when all the three of them were promoted practically simultaneously in June 1972. In that view of the matter, the delay on the part of the petitioner in approaching this Court for redressal of his grievances is justifiable on the facts and in the circumstances of the case. The preliminary objection against the maintainability of this petition is, therefore, overruled.
5. It is not in dispute between the parties that in the cadre of junior clerks the petitioner was senior to both respondents Nos. 2 and 3. It is also not in dispute that the process of selection for their promotion in the cadre of senior clerks was done at the same time. It is also not in dispute that all the three of them came to be promoted in the cadre of senior clerks in June 1972. In the case of respondents Nos. 2 and 3 the orders of promotion were issued on 21st June, 1972 whereas in the case of the petitioner it was issued on 26th June, 1972.
6. Shri Nanavati for respondent No. 1 has placed before me the Seniority Rules sanctioned vide Governing Body Resolution No. 3 of 17th April, 1969 governing the conditions of service of the employees of the University ('the Rules' for brief). In the Rules are also found Standards of Promotion. It has been mentioned in Clause (1) appearing therebelow, promotion would be given on the seniority-cum-merit basis. In Clause (5) appearing below the caption "Seniority Rules", it has been stated that an employee will be promoted to a higher post on the seniority-cum-merit-cum-qualification basis. In that view of the matter, the criterion for promotion adopted by the University was seniority-cum-merit. Shri Nanavati for respondent No. 1 has fairly placed before me the report of the selection committee appointed to interview the candidates inter alia for the posts of senior clerks. It transpires therefrom that respondents Nos. 2 and 3 were given promotion strictly on merits and other persons including the petitioner were promoted on the basis of seniority-cum-merit. In view of the Rules governing conditions of service of its employees, it was not open to the University to bypass the Standards of Promotion prescribed therein and to adopt different methods for giving promotions to some of its employees. Promotion on the basis of merits alone was not contemplated under the Rules governing the conditions of service of its employees at the relevant time.
7. Adoption of such basis for promotion has resulted in meting out different and unequal treatment to the petitioner vis-a-vis respondents Nos. 2 and 3 in the matter of promotion in the cadre of senior clerks though all the three were similarly situated. It is an admitted position that respondent No. 1 is the University established under a statute. It will therefore, answer the definition of the term "State" contained in Article 12 of the Constitution of India in accordance with the well settled principles of law in that regard. It is not entitled to treat differently or unequally its similarly situated employees without any rhyme or reason. If respondent No. 1 discriminates any employee vis-a-vis other similarly situated employees, such action on its part would be violative of the guarantee of equality enshrined in Articles 14 and 16 of the Constitution of India. In the instant case, the petitioner has been meted out different and unequal treatment visa-vis respondents Nos. 2 and 3 in the matter of promotion in the cadre of senior clerks though all the three of them were similarly situated.
8. In view of my aforesaid discussion, I am of the opinion that the promotion given to respondents Nos. 2 and 3 in supersession of the better and superior claims of the petitioner by virtue of his seniority in the cadre of junior clerks was contrary to the rules of promotion prevalent at the relevant time. Since the petitioner has also come to be promoted in the cadre of senior clerks five days later, the question of upsetting the promotion given to respondents Nos. 2 and 3 does not arise. However, the petitioner deserves to be placed above respondents Nos. 2 and 3 in the cadre of senior clerks by virtue of his seniority over them in the cadre of junior clerks when all of them came to be promoted practically simultaneously through the process of selection undertaken at the same time.
8.1. If the petitioner is to be considered senior to respondents Nos. 2 and 3 in the cadre of senior clerks, the petitioner's case for award of the selection grade deserves to be considered earlier than those of respondents Nos. 2 and 3 collectively or severally. It is an admitted position that the petitioner's case for awarding the selection grade in the cadre of senior clerks was never considered. In that view of the matter, respondent No. 1 deserves to be directed to consider the case of the petitioner for award of the selection grade in the cadre of senior clerks. Ordinarily the selection grade is awarded on the basis of seniority. In that view of the matter, the petitioner should be found entitled to award of the selection grade with effect at least from the date it was given to respondents Nos. 2 and 3.
9. I am told at the Bar that, by virtue of the interim relief granted by this Court in the petition, me petitioner was not allowed to be superseded by respondents Nos. 2 and 3 in the cadre of store-keepers. It is an admitted position on record that all the three of them have come to be promoted as store-keepers during the pendency of this petition in this Court. It would, however, be necessary to place the petitioner above respondents Nos. 2 and 3 in the seniority list of storekeepers by virtue of his seniority over them in the cadre of junior clerks and consequentially in the cadre of senior clerks as pointed out herein-above.
10. In the result, this petition is accepted. Respondent No. 1 is directed to accord the proper place to the petitioner in the seniority list of senior clerks above respondents Nos. 2 and 3 and to consider his case for award of the selection grade in the cadre of senior clerks at least with effect from the date it was given to respondents Nos. 2 and 3, and to give to him consequential benefits arising therefrom. Respondent No. 1 is further directed to place the petitioner at the appropriate place in the seniority list of store-keepers above respondents Nos. 2 and 3. Respondent No. 1 is directed to comply with the directions given in this judgment as expeditiously as possible preferably by 30th June, 1992. Rule is accordingly made absolute, however, with no orders as to costs on the facts and in the circumstances of the case.