1. This petition is filed under Article 226 of the Constitution of India for following prayers in para 17 of the petition :-
"17(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.1 to promote the petitioner forthwith to the post of Clerk in Class-III immediately after Shri Gulabbhai Himatbhai Chaudhari with all consequential and incidental benefits.
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the seniority of Shri Vasantlal Ambalal Patel respondent No.4 herein from serial No.235-A and further directing the respondent No.2 to place him immediately after serial No.282 in the seniority list.
(C) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents, their agents and servants to promote the petitioner forthwith to the post of Clerk in Class-III.
(D) Be pleased to grant any other appropriate relief as the facts and circumstances the case may require."
2. It is the case of the petitioner that the petitioner was appointed as Beat Guard on Class-IV on and from 11.1.1982, that he was working in the office of the Executive Engineer, Valod Division, which was directly under respondent No.1, that the petitioner came to be promoted as a Clerk on Class-III post along with seven other persons by order dated 4.6.1998, that by virtue of order dated 16.6.1998, earlier order dated 4.6.1998 came to be cancelled and two persons came to be promoted as against seven persons, that proposal for promotion for filling 18 posts of Clerks was sent to respondent No.3, that the post of Clerk can be filled in either by direct recruit or by way of promotion from Class-IV employee under the Gujarat (Non-Secretariat Clerks and Clerk-cum-Typists) Recruitment Rules, 1990, that ratio laid down among direct recruits and promotees is 8:2 and not 9:1, pursuant to an amendment made by virtue of notification dated 11.2.1998, if 18 posts were to be filled in, 5 vacancies can be filled in from Class-IV and 13 posts can be filled in by direct recruits, that respondent No.1 committed an error in passing order dated 16.6.1998 inasmuch as, he took ratio of 9:1 and decided to give promotion to only two persons, that the petitioner stood at serial No.276 in the seniority list prepared by respondent No.2 of Class-IV employees as on 1.1.1992, that the persons lower in seniority have been promoted by virtue of orders dated 4.6.1998 and 16.6.1998 and without considering the case of the petitioner, another order of promotion for two persons, i.e. Shri P.M. Chaudhary and Shri V.A. Patel from Class-IV employees came to be issued on 1.7.1998, that one Shri M.Z. Patel and Shri V.A. Patel, though were juniors to the petitioner, came to be promoted, that one Mr. V.A. Patel- respondent No.4, stood in the seniority list at Serial No.235-A and his seniority was wrongly fixed at the said place and on that basis, he was also promoted, that seniority list of Shri V.A. Patel was fixed on the basis of his wrong date of appointment, that if appointment of Shri Patel is taken to be 19.2.1982 as Beat Chowkidar in Class-IV, then appointment of the petitioner from 11.1.1982, being prior in time, Shri V.A. Patel would obviously be junior to the petitioner. However, since the mistake has not still been corrected, the petitioner has filed this petition seeking direction to correct such mistake in the seniority list so as to correct placement of the seniority of Shri V.A. Patel and to show Shri V.A. Patel in the seniority list after serial No.282, that one Shri P.N. Patel, who was working as Beat Chowkidar stood at serial No.278-D in the seniority list came to be promoted, who was junior to the petitioner, that about five persons, juniors to the petitioner, came to be promoted, that the petitioner made representation dated 17.8.1998 to the respondents pointing out that he has been superseded in the matter of promotion and that as per the Rules, ratio of 8:2 has to be followed in the matter of promotion to Class-III post and not the ratio of 9:1 as has been done by respondent No.1, that respondent No.1 replied by letter dated 2.11.1998 informing the petitioner that the petitioner could not be promoted in view of the Circular date 6.4.1995 issued by the General Administration Department, that since the petitioner has not been given benefit of promotion and since the petitioner has been continued to be shown at wrong place in the seniority list, since the correct ratio has not been followed and since the petitioner has passed requisite pre-service training examination in Class-IV post, the respondents ought to have considered the case of the petitioner for promotion and to give him the consequential benefits.
3. This petition is opposed by the respondent authorities by filing reply. The petitioner has filed rejoinder thereto.
4. Learned advocate Mr. Mehta for the petitioner has made the following submissions:-
(1) The seniority of the petitioner was wrongly fixed in the cadre of Class IV employees. The seniority in the Class-IV cadre is required to be fixed by considering the date of appointment and continuous service and it should not be on the basis of passing of pre-service training examination.
(2) The requirement of passing the examination is for the purpose of appointment to the post of Clerk/ Clerk-cum-Typist, i.e. Class-III cadre. However, so far as the seniority of Class-IV employee is concerned, it has nothing to do with passing of examination and therefore, the petitioner has been done with injustice by placing him below his junior in the seniority list of Class-IV employees.
(3) The date of appointment of the petitioner is prior in time than respondent No.4 and still the petitioner is placed below respondent No.4 in the seniority list of Class-IV employees.
(4) Even apart from placement of the petitioner in the seniority list below his junior, the petitioner has also been done with injustice in the matter of promotion to the post of Class-III cadre.
(5) The petitioner had passed pre-service training examination on 28.11.1986, as shown at page 33, and therefore, he was required to be given promotion immediately after Shri G.H. Chaudhary because there is no other person before the petitioner who has passed the pre-service training examination. It was, therefore, not proper on the part of the respondent authorities not to consider the case of the petitioner for promotion to the post of Clerk in Class-III cadre immediately after Shri G.H. Chaudhary.
(6) The Recruitment Rules for Class-III cadre provide for passing of pre-service training examination by a candidate who opts to get direct selection. An employee cannot be denied seniority and promotion on the ground that under the Recruitment Rules for the post of Clerk, Clerk-cum-Typist and Typist, passing of requisite examination prescribed for the post of Clerk is 'must'.
(7) Though the petitioner was entitled to be promoted to the post of Clerk in Class-III cadre, his case was never considered and he has been done with great injustice in the matter of promotion to the post of Clerk in Class-III cadre.
5. As against the above-said arguments of learned advocate Mr. Mehta, learned Assistant Government Pleader Mr. Pranav Dave for the respondents has vehemently argued that :-
(1) The petitioner is not justified to make his grievance about the wrong placement in the seniority list of Class-IV.
(2) The seniority list prepared for Class-IV employees clearly reveals that the seniority of Class-IV employees was counted on the basis of passing of pre-service training examination for the purpose of promotion to the post of Clerk in Class-III cadre.
(3) When the promotion to Class-III cadre is claimed by any Class-IV employee, who has passed the requisite examination prior in time, such employee is thus required to be considered for promotion and is placed above the other employees who have not passed the requisite examination.
(4) There is no logic in preparing the seniority list on the basis of the date of appointment in Class-IV cadre ignoring the Rules of Recruitment for the post of Clerk in Class-III cadre. When the Recruitment Rules specifically provide for passing of requisite examination, for promotion from Class-IV cadre to Class-III cadre, then it is always necessary to prepare seniority list on the basis of passing of examination so that recruitment to the post of Clerk, as per the Recruitment Rules in Class-III cadre can be made according to the Recruitment Rules.
(5) Undisputably, the petitioner has not passed pre-service training examination prior to respondent No.4 and he was rightly placed below respondent No.4 in the seniority list of Class-IV employees, which was prepared for the purpose of promotion to Class-III cadre.
(6) The petitioner was otherwise also not entitled to get promotion immediately after Shri G.H. Chaudhary. The case of Shri G.H. Chaudhary and Shri G.H. Tadvi was considered for promotion according to the then prevailing Government Resolution, and under the Rules. The petitioner cannot compare his case with that of case of Shri Chaudhary.
(7) Since the petitioner has failed to make out any case for grant of the reliefs as prayed for by him in para 17 of the petition, the petition is not required to be accepted and is required to be rejected.
6. I have heard learned advocate Mr. Mehta for the petitioner as also learned Assistant Government Pleader Mr. Pranav Dave for the respondents. I have also perused the record of the petition. I do not find any substance in the claim of the petitioner that the petitioner was wrongly placed in the seniority below Shri V.A. Patel- respondent No.4. The reference to the date of passing of pre-service training examination in the seniority of Class-IV employees would go to suggest that the list was prepared obviously for the purpose of considering the case of Class-IV employees for promotion to Class-III post. As per the prevailing Rules, an employee of Class-IV post is entitled to promotion to the post of Class-III only on passing of requisite examination, under the Rules, within the prescribed chances. Therefore, for the purpose of promotion to the post of Class-III, if an employee, though junior to another employee in Class-IV cadre, passes out requisite examination, prior in point of time and in prescribed chances, then such employee would be eligible to promotion to the post in Class-III cadre prior in time than the employee senior to him, who does not pass the requisite examination within prescribed chances. Therefore, the claim of the petitioner against respondent No.4 cannot be accepted as the seniority of respondent No.4 was fixed considering the date of his passing the pre-service training examination which was undisputedly prior to the date of passing the examination by the petitioner. However, as regards the grievance of the petitioner that the claim of the petitioner was required to be considered for promotion to the post in Class-III cadre immediately after Shri Gulabbhai Himmatbhai Choudhary is concerned, it appears that the petitioner had passed pre-service training examination on 28.11.1986, as could be seen at page No.33 and therefore, in seniority list, for the purpose of promotion to the post in Class-III cadre, the petitioner could have been shown after Shri G.H. Chaudhary but that by itself would not have been sufficient to give the relief of promotion because the respondent authorities were required to act according to the prevailing Government Resolution for considering the case of the petitioner for promotion. It appears that when Shri G.H. Chaudhary and Shri M.Z. Patel were granted promotion after cancelling the earlier promotion, it was on the basis of the Government Resolution and the promotion was granted according to the ratio for promotion. However, it cannot be that the petitioner would not be then entitled to promotion, though he had already passed the requisite examination. The Rules for passing the requisite examination for the purpose of promotion to the post in Class-III cadre, specifically provide that if an employee is senior in Class-IV cadre and is promoted later than his junior who has already been promoted on passing the requisite examination prior in point of time, such employee later on passes requisite examination and gets promotion in Class-III cadre, he shall be placed above his junior employee in Class-III cadre. Thus, the seniority of such employee who does not get promotion because of non-passing of the examination is not affected in Class-III cadre. It appears that the case of the petitioner was not at all considered for promotion though he had already passed pre-service training examination probably because of the Circular about maintaining of the ratio between the direct recruits and promotees. However, the prayer in this petition at this stage cannot be granted. However, it was for the respondents to decide as to from which date, the petitioner was in fact entitled to promotion as per the provisions of the Government Resolutions and the Rules prevailing then. This petition is, therefore, not accepted for the prayers which are made in this petition because it is not possible to give the relief prayed for in this petition at this stage but, at the same time, the respondents are directed to look into the matter afresh and to decide as to whether the petitioner was in fact entitled to promotion subsequently. It is open to the petitioner also to place all the material before the concerned authorities to satisfy the authorities that he was also entitled to to get promotion under the Government Resolution even while maintaining the ratio between the direct recruits and the promotees.
7. Under the above-mentioned facts and circumstances of the case, the relief prayed for in this petition is not granted. However, the respondents are directed to consider the case of the petitioner afresh keeping in view the then prevailing Government Resolution in the matter of granting promotion to the cadre of Class-III posts and decide whether the petitioner had become entitled for promotion or not. It is open to the petitioner to place all the material available with him, to satisfy the concerned authorities in support of his claim for promotion at the relevant time to the cadre of Class-III post and for the consequential benefits.
8. With the above directions, the petition is disposed of. Rule is discharged. No costs.
Sd/-
(C.L.
SONI, J.) omkar Top