1.0 By way of this petition, the petitioner has prayed to quash and set aside the impugned decision dated 19.12.1997 passed by the Additional Development Commissioner for and on behalf of the respondent No.2 in Appeal No. 47 of 1996 and also prayed to direct the respondents to fix the seniority of the petitioner at serial number above serial no. 23 in the seniority list of Senior Clerks, published by the respondents as on 13.12.1993 vide circular dated 13.12.1993 keeping in mind the deemed date of promotion being 18.04.1982 accorded to the petitioner while promoting the petitioner to the office of the Senior Clerk as on 28.07.1992.
2.0 The facts in nutshell are as under:
2.1 The petitioner was appointed as Junior Clerk in the District Panchayat, Panchmahals on 17.01.1973. The petitioner cleared pre service Training Examination on 26.02.1974. Thereafter, on her request, on 31.01.1981 the petitioner was transferred as Junior Clerk to District Panchayat, Gandhinagar. On 17.05.1984 a provisional seniority list was prepared in the District Panchayat, Gandhinagar showing the petitioner at serial No. 35. The petitioner requested that she should have been placed at serial no. 14 but Mrs. RP Mehta, another similarly transferred Junior Clerk was given placement at serial no. 14.
2.2 On 19.1.1988, another provisional seniority list was prepared wherein also petitioner remained at serial no. 35. On 18.02.1989, the petitioner's objection was considered and she was placed at serial no. 18.
2.3 On 26.4.1991 pursuant to the order in Special Civil Application No.
1511 of 1989 challenging the aforesaid placement of the petitioner parties were relegated to the appellate forum. By order passed in Appeal No. 1 of 1989, pursuant to the relegation, as aforesaid, to the appellate authority petitioner's placement at serial no. 18 was reversed and she was placed at serial no.35 as per the provisional seniority list dated 19.1.1988 which was ordered to be treated as final seniority list. The petitioner preferred Appeal No. 105 of 1991 before the appellate authority which came to be allowed and the petitioner was placed at serial no. 15. The said order was challenged by way of Special Civil Application No. 2548 of 1992 wherein the matter was remanded for affording an opportunity of hearing to the parties who were not heard while passing the order at Exh. B. On 09.07.1992, the Additional Development Commissioner passed a fresh order placing the petitioner at serial No. 15(1) of the seniority list which order has attained finality in view of the fact that the same remained unchallenged by any of the parties. On 28.07.1992, subsequent to the order at Exh. C, the petitioner was promoted as Senior Clerk with deemed date of promotion as on 18.04.1982. On 13.12.1993, in the provisional seniority list of Senior Clerks, petitioner was shown at serial No. 41.
3.0 On 13.01.1994, aggrieved by Exh. E, petitioner submitted a representation praying that petitioner should have been placed at serial No. 23 of the provisional seniority list of Senior Clerks. On 30.10.1995, the petitioner's representation was rejected and the provisional seniority list was made the final seniority list of Senior Clerks. The said decision was taken based on the Circular dated 07.04.1995. On 19.12.1987, petitioner's appeal, being Appeal No. 47 of 1996, against Exh. G came to be rejected by the Additional Development Commissioner, which is challenged by preferring the present petition.
4.0 Learned advocate for the petitioner submitted that order dated 09.07.1992 placing the petitioner at Serial No. 15(1) of Seniority List, has attained finality because it still remains unchallenged. Based on the same, the petitioner also got promotion to the post of Senior Clerk. He further submitted that the decision dated 09.07.1992 which has attained finality cannot be upset by giving retrospective operation to the Resolution dated 07.04.1995.
5.0 Learned advocate for the petitioner further submitted that the petitioner was required to be considered as junior to those junior clerks, who were in the service of District Panchayat, Gandhinagar on 31.01.1981 being the date on which the petitioner came to be transferred to District Panchayat, Gandhinagar from Devagadhbariya, Panchmahal as junior clerk and who had as on 31.01.1988 cleared the said Pre Service Training Examination which the petitioner has cleared prior to her transfer to Gandhinagar.
5.1 Learned advocate for the petitioner further submitted that in appeal No. 1 of 1989, an order came to be passed by the respondent No.1 on 11.09.1991 whereunder the decision of Deputy District Development Officer, placing the petitioner at serial No. 18 vide his order dated 18.02.1989 came to be reversed with a further direction to treat the provisional seniority list of Junior Clerks prepared on 19.01.1988 showing their inter se seniority as on 01.01.1988 as Final Seniority List. Accordingly, the petitioner came to be placed at Serial No.35 in the said Final Seniority List. The said list was challenged by the petitioner by way of Appeal before the Additional Development Commissioner which came to be allowed and the petitioner was placed at serial no. 15 in the said seniority list of Junior Clerks in the set up of District Panchayat, Gandhinagar.
6.0 Learned advocate for the petitioner further submitted that the petitioner was promoted as Senior Clerk on adhoc basis vide order dated 26.10.1981 by District Development Officer considering deemed date as on 18.04.1982. He further submitted that when a provisional list of seniority for senior clerks in the set up of District Panchayat, Gandhinagar came to be prepared fixing their seniority as on 01.01.1993, the petitioner came to be shown at serial no.41.
7.0 Mr. Munshaw, learned advocate for the respondent supported the impugned order and submitted that the petition deserves to be dismissed.
8.0 Heard learned advocates for the respective parties. The petitioner was appointed as Junior Clerk on 17.01.1973 in the District Panchayat, Panchmahal and joined her duty at Devgadhbariya. She cleared Pre service training examination in the year 1974. Thereafter on her request for interdistrict transfer, she was transferred to Gandhinagar and she resumed duty at District Panchayat, Gandhinagar on 31.01.1981. On 17.05.1984 a provisional seniority list was prepared in the District Panchayat, Gandhinagar showing the petitioner at serial no. 35. The petitioner therefore, preferred Appeal No. 105 of 1991 which came to be allowed by the Additional Development Officer on 09.07.1992 holding that the petitioner is required to be accorded placement at Serial No. 15. The said order was challenged before this Court and the matter was remanded. On remand the Additional Development Commissioner passed a fresh order placing the petitioner at serial No.15(1) of the seniority list which order has attained finality in view of the fact that the said order was not challenged by any parties. Subsequently the petitioner was promoted as Senior Clerk with deemed date of promotion.
9.0 Thus, admittedly a deemed date of promotion being 18.04.1982 was accorded to the petitioner as on 28.07.1992. While promoting the petitioner to the office of Senior Clerk, though the said deemed date of promotion was required to be taken into consideration for the purpose of fixing the seniority of the petitioner in the cadre of Senior Clerk, the impugned decision failed to recognize the said deemed date of promotion for the purpose of fixing the seniority of the petitioner for all practical purposes. If the impugned decision is permitted to hold the field, it would have the effect of setting at naught the order of Additional Development Commissioner which has become final on account of the same being not challenged before any appropriate forum. It is required to be noted that the said deemed date of promotion has its genesis in the said order dated 09.07.1992 passed by the Additional Development Commissioner for and on behalf of the respondent no.2 in exercise of powers conferred upon under the provisions of Gujarat Panchayat (Discipline and Appeal) Rules, 1964. Therefore it is to be considered that the said order would have the status of an order passed by a quasi judicial authority after hearing all concerned and keeping in mind the position which was prevailing at the relevant point of time for the purpose of deciding the seniority of the petitioner in the cadre of Junior Clerk. The order passed by the quasi judicial authority settling the position should not be ignored.
10.0 It is also relevant to note that the Resolution dated 07.04.1995 has seen the light of the day in the year 1995 and therefore the same cannot be permitted to replace what was given to the petitioner in the year 1992 on the basis of the relevant rules and regulations which were holding the field at the relevant time. The modus prescribed by the said Circular of 1995 for the purpose of fixing the seniority of the Senior Clerks and Junior Clerks in the set up of District Panchayats cannot be made applicable retrospectively. It is a cardinal principle of service jurisprudence that the policy, which is in vogue at the relevant time, is required to be applied and the policy which comes into force at a later stage, cannot be made applicable to upset what has been crystallized on the basis of the policy which was in vogue at the relevant time. If the said principle is applied to the case of the petitioner it becomes clear that in the first place, the seniority of the petitioner in the cadre of Junior Clerk came to be crystallized at serial No.15(1). The petitioner came to be promoted with the deemed date of promotion. In these circumstances this Court is of the view that if the petitioner is to be denied her seniority in the set up of Senior Clerk, based upon her deemed date of promotion, it would tantamount to upsetting the things which came to be crystallized in the past.
11.0 It is also required to be noted that the petitioner came to be transferred as Junior Clerk as on 31.01.1981 in the set up of District Panchayat, Gandhingar. At that time the petitioner had cleared the Pre Service Training examination and therefore the petitioner was required to be considered as a Junior Clerk having passed PreService Training examination in the set up of District Panchayat, Gandhinagar and therefore entitled to claim seniority. Based upon these facts the seniority of the petitioner came to be fixed. It therefore appears that discriminatory treatment was meted out to the petitioner.
12.0 In the premises aforesaid the petition is allowed. The impugned decision dated 19.12.1997 passed by the Additional Development Commissioner for and on behalf of the respondent no.2 in Appeal No.47 of 1996 is hereby quashed and set aside and the respondent authorities are hereby directed to fix the seniority of the petitioner at serial number above serial no.23 in the seniority list of Senior Clerks published by the respondents as on 13.12.1993, keeping in mind the fact that the petitioner was given deemed date of promotion. The necessary benefits thereof will be paid to the petitioner within a period of six months from the date of receipt of the order of this Court. Rule is made absolute to the aforesaid extent.
(K.S.JHAVERI, J.) niru*