1. Heard Mr. P.Y. Divyeshwar, learned advocate for the petitioner, Ms. Chandarana, learned AGP for respondent authorities and Ms. Srushti Thula, learned advocate for respondent no.3.
2. The matter pertains to the seniority position in the cadre of Superintendent (Class-I) in the Prohibition and Excise Department of the Government of Gujarat and the dispute is with regard to placement of petitioner vis-a-vis respondent no.3 in the said cadre. Reference in this regard is made to seniority list dated 5th February, 1987, Annexure-B to this petition, wherein respondent no.3 Mr. G.M. Pargi is shown at serial no.4 and the present petitioner Mr. M.L.Soni is show at serial no.5. The date of joining of respondent no.3 is 28.09.1983 as direct recruit and that of the petitioner Mr. Soni is 26.08.1983 as a promotee from the feeder cadre.
3. Learned advocate for the petitioner Mr. Divyeshwar has pointed out that respondent no.3, after joining as direct recruit Class-I officer in the Prohibition and Excise Department in the year 1987, on his subsequent selection as direct recruit on next recruit occasion, got appointment as direct recruit Class-I officer in Gujarat Administrative Service Class-I and he was so appointed vide order dated 22.12.1989, Annexure F to the petition. Respondent no.3 was to join on 26.12.1989 on the said post. Respondent no.3 was accordingly relieved by the authorities, and he accordingly joined the said post. Thereafter, Respondent no.3 opted to come back to his original post of Superintendent in Prohibition and Excise Department, leaving his appointment in Gujarat Administrative Service. He moved the Government in this regard and at his request, respondent no.3 was permitted to resume his duties as Superintendent, Prohibition and Excise Department vide order dated 05.06.1992, Annexure- J to this petition. The said order further stipulated that respondent no.3 shall join back with his original seniority.
4. Learned advocate for the petitioner Mr. Divyeshwar has raised the only contention that, having left the department once, respondent no.3 could not have been permitted to get his seniority back on his joining back the department. Various prayers are made in the petition, however it is this principal grievance which is harped the most by the petitioner. Learned advocate for the petitioner concedes to the situation that, if his argument that respondent no.3 could not have been assigned his original seniority on his joining back the Prohibition and Excise Department, pursuant to the order dated 05.06.1992, he (respondent No:3) will have to be accepted as senior to the petitioner and other reliefs, which are in effect consequential, can not legitimately be claimed by the petitioner. Thus, the only point for consideration before this Court in this petition is as to whether Government was justified in permitting respondent no. 3 to get his original seniority in the cadre of Superintendent, on his joining back the Prohibition and Excise Department.
5. Learned AGP Ms. Chandarana has supported the action of the Government by stating that the appointment of respondent no.3 was as probationer in the cadre of Gujarat Administrative Service. The respondent no.3 had sent his application for the said recruitment through proper channel. Respondent no.3 had not tendered resignation to join the Gujarat Administrative Service, but on his selection he was relieved from the post of Superintendent of Prohibition and Excise Department, for his joining Gujarat Administrative Service on probation. It is also pointed out that it is the policy of the Government that an employee who is not continued on the post on which he was appointed as probationer, he shall be permitted to come back on his original post, with his original seniority. It is pointed out that this position has been even notified in the form of Government Resolution dated 04.04.1994, which is in continuation of Government resolution dated 08.11.1989 and 24.02.1993. The said Government resolution dated 04.04.1994 is taken on record.
6. In my view, it is the right of the Government, not to confirm a probationer on the new post for valid reason, same way, it is open to the employee concerned as well, to opt to come back to his original post, within stipulated period. Under both the circumstances, it would be unjust and unfair to ask the said probationer to start his service in his earlier department/ cadre afresh.
7. Having heard learned counsels for the respective parties and having gone through the record, I find that no exception needs to be made to the impugned decision of the Government of permitting respondent no.3 to come back to his original post, with his original seniority, in Prohibition and Excise Department. So far this aspect of permitting respondent no.3 to come back to his original post is concerned, it is not challenged by the petitioner and rightly so since he will not have locus to do so. If respondent no.3 can legitimately claim to come back to his original post, he will come back on the said post with his original seniority, is the necessary consequence and it can not be said that respondent no.3 be permitted to come back, but he will have to start his service afresh in that department. This could not have been told to respondent no:3 by the authorities and certainly not by the petitioner. This, as a matter of fact, has not been told to respondent no:3 by the authorities and challenge to this by the petitioner can not and does not have any force and the same needs to be rejected. Therefore I hold that there is no illegality in the action of the respondent authorities of permitting respondent no.3 to join back his original position in the cadre of Superintendent in Prohibition and Excise Department with original seniority. The said decision which even otherwise is just and proper is also in consonance with the policy of the Government which is in the form of Government Resolution dated 04.04.1994. The argument of learned advocate for the petitioner that the said Government Resolution is subsequent in point of time, would not take the case of the petitioner any further since the very decision is just and proper and the same policy is notified by the Government in the form of Government Resolution subsequently. Thus the only contention which is raised before the Court by learned advocate for the petitioner is rejected. The petition, therefore, fails and same needs to be rejected.
8. It is further recorded that, on respondent no.3 having been accepted senior to the petitioner in the cadre of Superintendent Class-I in Prohibition and Excise Department, further promotion on the post of Deputy Director in that department would be governed by the said seniority position. The petitioner is aggrieved that it is he, who should get promotion on the post of Deputy Director. The petitioner had already got himself pushed up by one number, on respondent no:3 joining the Gujarat Administrative Service, resulting into his (petitioner's) promotion on the post of Deputy Director. Had respondent no.3 not opted to come back to Prohibition and Excise Department, that might have benefited the petitioner, but respondent no.3 can not be directed to be out of department against his wish and will. Respondent authorities could not have done so and as a matter of fact it is not done so, and challenge to that action can not be accepted and the same is rejected.
9. For the reasons recorded above, the petiitioner is not entitled to any relief, the petition deserves to be dismissed and is dismissed. Rule is discharged.
(Paresh Upadhyay, J.) mandora/