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State Of Gujarat & 1 vs N D Patel N D Parmar

High Court Of Gujarat|30 September, 2013
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1186 of 2005 In SPECIAL CIVIL APPLICATION NO. 6557 of 1994 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE A.G.URAIZEE ===============================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the judgment ?
NO
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 ? NO
5 Whether it is to be circulated to the civil judge ?
NO =============================================== STATE OF GUJARAT & 1 Appellant(s) Versus N D PATEL ( N D PARMAR). Respondent(s) =============================================== Appearance:
Ms Monali Bhatt, Assistant Government Pleader for the Appellants MS HARSHAL N PANDYA, ADVOCATE for the Respondent(s) No. 1 =============================================== CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 30/09/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE A.G.URAIZEE) This Letters Patent Appeal is a classic example, which demonstrates the highhanded, discriminatory and stubborn attitude of the appellant-State whereby every effort is made to thwart the implementation of the directives given by this Court for redressal of the grievances of the respondent, who has been made to run from pillar to post to get his legitimate right of seniority and consequential benefits of promotion, etc. granted to him by this Court.
2 The appellant has challenged judgment dated 9th December 2004 passed by the learned Single Judge in Special Civil Application No.6557 of 1994 whereby the prayer of the respondent for his placement in the seniority list at Sr.No.473A above the name of Shri H.J. Kavithia is granted and for rest of the reliefs direction is given to the appellant to consider the case of the respondent – original petitioner in view of the prevalent rules and regulations.
3 The facts giving rise to this appeal are that the respondent herein was appointed as Clerk in the Gujarat Public Service Commission (‘GPSC’, for short) and was confirmed as such by order dated 28th January 1968. He came to be promoted as Assistant vide order dated 4th September 1971 in the GPSC. The respondent took over the charge of his higher assignment of Assistant on 12th September 1971. The promotion was regularised by order dated 15th October 1997. The respondent along with other direct recruit Assistants of GPSC were offered the post of Assistant in the Secretariat. The respondent expressed his willingness and joined the Secretariat Service in Sachivalaya as Assistant with a specific rider that his seniority in the cadre of Assistant was to be maintained with effect from 1971. The appellants, instead of fixing the seniority of the respondent in the cadre of the Assistant, fixed the seniority of the respondent as a Clerk at Sr.No.314A in Secretariat Seniority List dated 18th September 1980. The respondent challenged this fixation of seniority in this Court by filing Special Civil Application No.3540 of 1983 and also prayed for consequential benefits of promotion, etc. The said petition came to be allowed and order dated 17th May 1982 fixing the seniority of the respondent in the cadre of Clerk was quashed and set aside and the appellant was directed to assign the seniority to the respondent in the cadre of Assistant in the Secretariat Service with effect from 12th September 1971 on the basis of continuous officiation with other consequential benefits of promotions to the higher post of Section Officer, seniority, etc. as a result of fixation of his seniority in the cadre of Assistant wef 12th September 1971 according to the relevant Rules.
4 The appellant challenged this order by filing Letters Patent Appeal No.185 of 1986, which came to be dismissed by order dated 27th June 1986. The respondent made various representations to the appellant to comply with above order of this Court, but to no avail. Therefore, the respondent was constrained to file a contempt petition being Misc. Civil Application No.1045 of 1986. Upon filing of the contempt petition the appellants put the respondent at Sr.No.752A in the seniority list and the contempt petition came to be withdrawn. The respondent made yet another representation dated 8th February 1993 for placing him at Serial No.474A instead of at Sr.No.752A, above the name of Shri Kavithia in the seniority list. The appellant did not accept the representation of the respondent and therefore the respondent filed Special Civil Application No.6557 of 1994 praying for the following reliefs:
“A. to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to the respondents to consider the case of the petitioner for seniority as the decision of the Gujarat High Court (Annexure-A colly) and further be pleased to direct the respondent to place the name of the petitioner at sr. no.473(A) in the seniority list of Assistants of regular promotees and further direct the respondents to give to the petitioner all the benefits regarding deemed date and promotion to the cadre of Section Officer and Under Secretary.
B. Pending hearing admission and final disposal of this petition, be pleased to direct the respondents to consider the case of the petitioner for seniority as per the decision of the Gujarat High Court (Annexure-A Colly) and further be pleased to direct the respondents to place the case of the petitioner at sr.no.473(A) in the seniority list of Assistants of regular promotees and further direct the respondents to give to the petitioner all the benefits regarding deemed date and promotion to the cadre of Section Officer and Under Secretary.
C. pending hearing admission and final disposal of this petition, be pleased to direct the respondent no.1 to reconsider the case of the petitioner as per the decision of the Hon’ble High Court at Annexure-A colly. and pass the order and place it on the record of the Hon’ble High Court.”
5 The learned Single Judge has, by the impugned judgment, held that the respondent is entitled for his placement in the seniority list above the name of Shri Kavithia at Sr.No.473A and for consequential directions, the appellants were directed to consider the case of the respondent.
6 We have heard Ms Monali Bhatt, learned Assistant Government Pleader for the appellants and Ms Harshal N Pandya, learned counsel for the respondent.
7 Ms Monali Bhatt, learned Assistant Government Pleader has vehemently attempted to assail the judgment of the learned Single Judge by contending that if the seniority as prayed for by the respondent is granted, it would affect 150 promotee Assistants promoted in the Secretariat before the respondent would become his juniors. She has further argued that the rights of such promotee Assistants would be jeopardised behind their back as they are not impleaded as party respondents in the writ proceedings. She, therefore, urged that the appeal may be granted.
8 On the other hand, Ms Harshal Pandya has submitted that all the contentions were finally decided by this Court in the previous round of litigation i.e. Special Civil Application No.3540 of 1983, as confirmed by the Division Bench of this Court in Letters Patent Appeal No.185 of 1986. Therefore, according to her, the judgment of the learned Single Judge does not require any interference in this appeal.
9 The appellant and the respondent are not at conflict so far as the aspect that the respondent was appointed as Clerk in Gujarat Public Service Commission (GPSC) where he came to be confirmed as such by order dated 28th January 1968. There is also no dispute that the respondent came to be promoted as Assistant in GPSC and was regularised as such by order dated 15th October 1977. The respondent along with other five direct recruit Assistants chose to migrate to the Secretariat service in Sachivalaya as Assistant with a specific rider that their seniority in the cadre of Assistant would be maintained with effect from 12th September 1971 on which date the respondent assumed his duties as Assistant in GPSC pursuant to his promotion order dated 9th September 1971. This Court, by a judgment dated 9th April 1986 passed in Special Civil Application No.3540 of 1983 accepted the prayer of the respondent for grant of seniority and quashed and set aside the placement of the respondent in the seniority of cadre of Clerk in the Secretariat and directed the appellants to assign the seniority in the cadre of Assistant in the Secretariat service with effect from 12th September 1971 on the basis of continuous officiation and also to grant consequential benefit of promotion to the higher post, etc. The appellant unsuccessfully challenged this judgment in appeal being Letters Patent Appeal No.185 of 1986. Thereafter, it was incumbent upon and obligatory on the part of the appellants to have implemented the judgment of this Court in Special Civil Application No.3540 of 1983, as confirmed in Letters Patent Appeal No.185 of 1986. The appellants did not implement the judgment of this Court and exhibited the stoic and uncared for attitude compelling the respondent to file a contempt petition being Misc. Civil Application No.1045 of 1986. The appellants, to escape from the rigors of contempt proceedings, reshuffled the seniority list of the Assistant and put the respondent at Sr.No.752A instead of placing him at Sr. No.474A, above the name of Shri H.J. Kavitia. The respondent was compelled to filing Special Civil Application No.6557 of 1994 for his proper placement in the seniority list of Assistants in the Secretariat list and the consequential service benefits. The learned Single Judge has, by the impugned judgment, after considering the elaborate arguments on either side has negatived the contentions raised on behalf of the appellants by a well considered and well reasoned judgment. The prayer of the respondent for refixation of his seniority by placing him at Sr.No.413A above Shri H.J. Kavitia is granted and for rest of the reliefs it is held that the respondent is entitled to refixation of pay scale and difference of arrears of salary on the respective post on being found eligible for permission and further higher post of Section Officer, Under Secretary and Deputy Secretary respectively in accordance with the prevalent rules and regulations in this regard.
10 The respondent along with others had migrated to the Secretariat Service along with other Assistants. The appellant had already been promoted to the post of the Assistant before his migration to Secretariat Service. It was not necessary for the respondent to have put a rider for maintaining his seniority in the cadre of the Assistant upon his absorption in the Secretariat service, because, as noted in the foregoing, he had already been promoted and confirmed as Assistant in his parent department (GPSC). Without any rhyme or reason, the appellants included the respondent as a Clerk at Sr.No.374A in the Secretariat Seniority List dated 18th September 1980. The act on the part of the appellants in including the respondent in the seniority list of Clerks amounted to demotion of the respondent from the post of the Assistant to the post of Clerk. The appellants could not have done so without valid, legal reason or ground. The action of the appellants in making the respondents to knock the doors of this Court for his proper placement in the seniority list of the Assistants has caused much anguish and trauma to the respondent without any fault on his part. The collective result of the foregoing discussion is that the action of the appellant in not placing the respondent at a proper place in the seniority list of the Assistant requires to be deprecated.
11 For the foregoing reasons, we are in complete agreement with the reasons assigned by the learned Single Judge and we do not find any reason to interfere with the judgment of the learned Single Judge, who has directed the appellants to carry out the exercise as aforesaid on respondent being found eligible. The appellant lacks merits and therefore it is hereby dismissed. In the facts of the case, there shall be no order as costs.
Sd/-
(V.M.SAHAI, J.) *mohd Sd/-
(A.G.URAIZEE, J.)
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  • Vijay Manohar Sahai
  • A G Uraizee
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