N B Mahida vs Commissioner Sales Tax

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1886 of 2011 For Approval and Signature:

HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

========================================================= N B MAHIDA - Petitioner(s) Versus COMMISSIONER - SALES TAX - Respondent(s) ========================================================= Appearance :

MR NK MAJMUDAR for Petitioner(s) : 1, MR. PRANAV DAVE, LEARNED AGP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI

Date : 21/06/2012

ORAL JUDGMENT

By way of this petition, the petitioner has prayed for following reliefs:­

B) Issue appropriate writ, order or direction and be pleased to quash and set aside the order dated 17.12.2009 as well as 21(22)/5/2009 and be pleased to direct the respondent authority to grant deemed date of 14/07/1982 to the petitioner in the cadre of Senior Clerk and further be pleased to direct the respondent to grant higher pay scale of the cadre of Senior Clerk to the petitioner with effect from 15.07.1991 and be pleased to further direct to grant benefit of stepping­up by bringing the pay of the petitioner at par with the pay of Junior employees Shri J.A.Vala in the cadre of Senior Clerk as well as in the cadre of Sales Tax Inspector and accordingly further consequential directions be issued to grant difference of salary, fixation of pension etc;

2. Brief facts, as narrated in the petition are as under:­

2.1 The petitioner came to be appointed on 28.03.1980 as a Clerk in the pay scale of Rs.260­400. The petitioner had passed Service Training Examination on 31.1.1980. The petitioner passed Departmental Examination for the Cadre of Clerk on 22.02.1984 and the petitioner was shown as Sr.No. 1763 in the Seniority List of the Clerk. The petitioner thereafter came to be promoted as Senior Clerk on 08.11.1988 in the pay scale of 1200­2040 and the initial pay was fixed as that on Rs.1200/­ p.m. Thereafter, the petitioner was granted higher pay scale on 08.11.1997 of the post of Sales Tax Inspector and he was considered for further promotion on the post of Sale Tax Inspector and he was promoted as Sales Tax Inspector on 08.10.2001 in the pay scale of 5500­9000. The petitioner has attained the age of superannuation.

3. Mr. N.K. Majmudar, learned Counsel for the petitioner contended that the petitioner has passed the examination within prescribed time and therefore in view of the Gujarat Non­Secretariat Clerks and Clerk Typists (Training and Examination) (Amendment) Amending Rules, 1994, sub­rule 3, the seniority should be granted from the date on which the petitioner was appointed and therefore, he should be granted seniority from the deemed date and higher pay scale of the cadre of Senior Clerk.

4. Mr. Pranav Dave, learned AGP, has supported the impugned order. He replied upon the two judgments one of this Court, in the case of Safimiya G. Malek, V/s. State of Gujarat, reported in, 1992 (o) GLHEL­HC 210740 and second of Apex Court, in the case of K.Balaram Raju V/s. V.

Subramanya­Sarma and others, reported in, (2011) 13 SCC 574. Para 13 of the former judgment reads as under:­ “13. Mrs. Mehta had pointed out the General Administration Department Notification dated 15.02.1985 which is at page 23 of Special Civil Application No. 7786 of 1990, whereby the Recruitment Examination Rules, 1970, Rule 8 thereof, came to be amended and after sub­rule2, sub­rule – came to be added which reads as under;­ “A Candidate who is appointed as a Clerk or a Clerk­Typist subject to undergoing training and/or passing the examination shall get seniority from the date of joining service, if he completes the post­Training and passes the examination as prescribed in Rule 7 within three chances (Four chances in cases of Scheduled Caste or Scheduled Tribe candidates) : Provided that Seniority of a candidate as referred to above shall be counted from the date of passing of the post­ training examination, if he fails to pass the examination as prescribed in Rule 7 within three chances (four chances in case of Scheduled Caste or Scheduled Tribe candidate).”

Corresponding change was made in Rule 21 of the Recruitment Examination Rules, 1970 and sub­rule 3 was inserted which reads as under;­ “The seniority of a candidate appointed as a Clerk or Clerk­Typist, subject to undergoing training and/or passing the examination, shall be determined as per the provisions of Rule 8(3) of the Gujarat Non­Secretariat Clerks and Clerk­Typist (Training and Examination) Rules, 1970.”

The aforesaid amendment to Rule 21 was as per Government Notification dated 15.02.1985. Afterwards, the Government came out with Circulars dated 19.06.1986 and 21.07.1986 respectively at pages 26 and 28 of the said petition no. 7786 of 1990. If conjoint reading of all these 4 documents clearly indicates that the date of joining will govern the fixation of seniority. This was required obviously because the candidates recruited as Typists were not required to undergo any training, nor were they required to pass the post­training Examination. When persons recruited as Clerks, Clerk­cum­Typists or Typists were sought to be equated for the purpose of future promotion and other incidental events of service life, the aforesaid difficulties were felt and therefore, amendments were made and further, it was clarified by the Government tint these amendments are to be given effect to prospectively and they will not operate retrospectively.

6. Heard learned counsel for the petitioner and Mr. Pranav Dave, learned AGP for the respondent.

7. Before proceeding with the matter, it is required to be mentioned that the petitioner has claimed seniority from deemed date inasmuch as the date when the petitioner has passed the examination. At this juncture, it shall be relevant to produce sub­rule­3 of Gujarat Non­Secretariat Clerks and Clerk Typists (Training and Examination) (Amendment) Amending Rules, 1994. which reads as under:­ “3. Notwithstanding anything contained in clause (a) of sub­rule (1) of Rule 21 of the Gujarat Non­Secretariat Clerk­ Typist and Typists (Direct Recruitment Procedure) Rules, 1970 a candidate who is appointed as a clerk or a Clerk­Typist subject to undergoing training and/or passing the extra examination shall get seniority from the date of joining service, if he completes the post training and passes the examination as prescribed in Rule ­7 within three chances (Four chances in case of Schedule Castes or Schedule Tribes candidate).”

8. It is required to be noted that the petitioner had not cleared the departmental examination before 14.07.1982. In the case of one Shri J.A.Vala, the higher pay scale was granted from 15.07.1991 considering the deemed date of 14.07.1982, while in the case of the petitioner, he was also granted higher pay scale from 08.11.1997 considering the date of actual promotion, which is just and proper. In view of the Government instruction issued vide Government Resolution dated 05.07.1999, wherein, it has been mentioned that if any changes in date of seniority occurs, all others may be granted benefits of deemed date who are equally entitled for promotion on that day, but in the case of petitioner as he was not cleared the departmental examination on or before 14.07.1982 he was not granted deemed date.

9. Para 32 of the K.Balaram Raju V/s. V. Subramanya­ Sarma and others (Supra), judgment of Apex Court, relied upon by Mr. Dave, learned AGP, reads as under:­ “32. The selection was done after a test and on the basis of merit. Possessing the necessary diploma certificate was part of the qualification and merit. The passing of examination required minimum 45 marks. Obviously those who had the qualification and who obtained 45 marks and above will have to be placed at the top of the list in seniority. Those who did not have the qualification at that time but obtained it later on, even if they had obtained higher marks in the test will have to be placed at the position lower than these candidates having qualification and necessary marks. As far as the first respondent is concerned, his probation having started earlier he will complete the same earlier to Appellants 1, 2 and 3 and will have to be reckoned senior to them. The governing rules will have to be read and applied meaningfully in this manner so that no prejudice will be done to a candidate who otherwise had the qualifications and who is appointed after passing the test. It is settled law that one should have the qualifications on the date when the applications are invited. Any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates. They can be taken into the service but cannot steal a march over the qualified and the selected candidates.”

10. In view of the above facts and circumstances of the case, the petition deserves to be dismissed. Notice is discharged.

[K.S.JHAVERI,J] siddharth//