B. M. PATEL v. STATE — 1993 DIGILAW 10 (GUJ)

C. K. THAKKAR, J. ( 1 ) THIS petition is filed by the petitioner for quashing and setting aside an order passed by the Manager Government Central Press Gandhinagar-respondent No. 3/07/1981 by treating the petitioner as senior to one K. H. Raval- respondent No. 4 and to grant deemed date of promotion consequent upon the refixation of seniority of the petitioner vis-a-vis respondent No. 4 to the post of Assistant Compose Foreman and that of Compose Foreman with all consequential benefits. ( 2 ) IT is the case of the petitioner that he was appointed as Compositor in the service of the respondent-State and posted at Bhavnagar on 14/11/1949 It was on daily wages basis and he was appointed on regular establishment as Compositor with effect from 1/01/1954 From the post of Compositor he was promoted to the post of Assistant Composing Foreman in December 1961 and to the post of Compose Foreman on 3/01/1964 The next promotional post was of Junior Assistant Manager. It is his case that since his seniority was not fixed in accordance with law prejudice was caused to him. According to him he was appointed in November 1949. while respondent No. 4 was appointed in June 1960 and respondent No. 6 was appointed in November 1969 and therefore his seniority was required to be fixed on the basis of length of service and continuous officiation in the original cadre and taking into account the date of appointment his case was required to be considered for promotion to the post of compose foreman compose overseer and higher posts. Since he was treated junior to the respondent Nos. 4 and 6 by wrong fixation of his seniority he was superseded and ignoring his legitimate claim respondent No. 4 was promoted. The said action was illegal contrary to law and require to be corrected by this Court. ( 3 ) MISS S. M. Thakkar for Mr. P. N. Thakkar submitted that it is not disputed by the respondents that initial entry of the petitioner in the Government Press was in November 1949 whereas respondent Nos. 4 and 6 entered the service subsequent to him. ( 3 ) MISS S. M. Thakkar for Mr. P. N. Thakkar submitted that it is not disputed by the respondents that initial entry of the petitioner in the Government Press was in November 1949 whereas respondent Nos. 4 and 6 entered the service subsequent to him. Miss Thakkar further submitted that in the year 1961 the petitioner was transferred and promoted to the post of Assistant Compose Foreman and even then for the purpose of fixing seniority the relevant date of entry in the original cadre was not considered Had that date been taken into account the authorities would not have taken the impugned decision at Annexure C by showing the petitioner junior to respondent Nos. 4 and 6 Miss Thakkar further submitted that the order was passed by the third respondent on 28/05/1980 and in that order also upholding the claim of the petitioner he was shown at Sr. No. 1 vis-a-vis all other persons promoted to the post of Assistant Compose Foreman at the Government Central Press Gandhinagar and respondent Nos. 4 and 5 were shown junior to the petitioner. Without issuing notice and without affording opportunity of hearing the impugned order came to be passed on 31/07/1981 disturbing the seniority of the petitioner and showing respondent Nos. 4 and 5 as senior to the petitioner which is contrary to law and violative of principles of natural justice. She therefore submitted that the petitioner requires to be allowed by granting all consequential benefits prayed for by the petitioner in the petition. ( 4 ) AN affidavit is filed by one K. H. Cherian Under Secretary to the Government of Gujarat Industries Mines and Power Department on behalf of the respondents inter alia disputing the claim of the petitioner on various grounds. It was conceded that the post of Assistant Compose Foreman was required to be filled in by promotion from amongst senior Compositors having 10 years services in the press on the basis of seniority and merit. It was however submitted that after bifurcation of the Bombay State in 1960 new press came to be established at Ahmedabad and then at Gandhinagar. It was further stated that the seniority of Class III Government Press Employees was maintained separately that is presswise and there was no common seniority of all employees working in various Government Presses. It was however submitted that after bifurcation of the Bombay State in 1960 new press came to be established at Ahmedabad and then at Gandhinagar. It was further stated that the seniority of Class III Government Press Employees was maintained separately that is presswise and there was no common seniority of all employees working in various Government Presses. It was then stated that at the initial stage no government employees to fill in the post of Assistant Compose Foreman were available at Ahmedabad since that office was newly established Consequently in September 1961 when some posts of Assistant Compose Foreman were required to be filled in at Government Central Press Ahmedabad there was no feeding cadre at that Press. Due to that and in view of the fact that posts of Assistant Compose Foreman were required to be filled in applications were invited from other Government Press and also from the open market. Eventually the provisions of the recruitment rules existing in the erstwhile Bombay State for filling the post of promotion could not be implemented and acted upon. The petitioner also applied for the post of Assistant Compose Foreman alonewith other eligible candidates None of them was working in the Government Press Ahmedabad. In all five candidates came to be selected out of 19 candidates interviewed. The petitioners name was shown in the merit list at Sr. No. 4 whereas other persons were shown above him including respondent Nos. 4 and 6. Respondent No. 4 was shown at Sr. No. 2 and respondent No. 5 was shown at Sr. No. 3 Even the date of joining is also mentioned in the affidavit-in-reply. The relevant extract reads as under : ( 5 ) RELYING upon the above column Miss Doshit submitted that according to the merit list respondent Nos. 4 and 5 were above the petitioner. Similarly looking to the date of joining as Assistant Compose Foreman also both the respondents were senior to the petitioner inasmuch as respondent No. 4 joined as Assistant Compose Foreman in October 1961 and respondent No. 6 joined in November 1961 while the petitioner joined in that cadre in December 1961. Miss Doshit further submitted that after the above appointment the respondents were further promoted to the higher post of Compose Foreman as well as Compose Oberseer before the petitioner. Miss Doshit further submitted that after the above appointment the respondents were further promoted to the higher post of Compose Foreman as well as Compose Oberseer before the petitioner. Every year seniority lists of the Assistant Compose Foreman and Compose Foreman were published wherein also seniority of the petitioner was fixed on the basis of selection made in 1961. The petitioner made representation to the Government and personal hearing was afforded to him by the Secretary Industries Mines and Powers Department and the claim of the petitioner was negatived by the Department. He was informed in 1974 that the Government did not see any reason to uphold the claim of the petitioner. Again in 1975 the Government reiterated its earlier order and held that the Government did not see any reason to review the decision already taken in October 1974. Miss Doshit submitted that the order dated 20/05/1980 on which reliance was placed by Miss Thakkar does not help the petitioner inasmuch as no final decision was taken by the said communication. It was in the nature of a notice issued to respondent Nos. 4 5 and other persons wherein it was mentioned that prima facie the claim put forward by the petitioner appeared to be well founded and therefore before taking any final decision those persons were called upon to show cause as to why the said decision should not be finally taken. Miss Doshit submitted that after considering the claim of contesting employees again a decision was taken on 31/07/1981 which was in accordance with law and no objection could be taken by the petitioner. ( 6 ) MISS Doshit further submitted that there was a gross delay and laches on the part of the petitioner in approaching the Court. On merits she submitted that for the purpose of fixing seniority to the cadre of Assistant Compose Foreman relevant date would be entry in service in that cadre and appointment in the lower cadre was altogether immaterial. She therefore submitted that there is no substance in any of the arguments advanced by Miss Thakkar and the petition requires to be dismissed. ( 7 ) HAVING heard the learned Counsel for the parties I am of the opinion that no case has been made out by the present petitioner to get any relief which is prayed for in the petition. ( 7 ) HAVING heard the learned Counsel for the parties I am of the opinion that no case has been made out by the present petitioner to get any relief which is prayed for in the petition. ( 8 ) MISS Doshit is right in contending that there is gross delay and laches on the part of the petitioner in approaching the Court. As is clear the petitioner came to be appointed to the post of Assistant Compose Foreman in 1961 and was shown junior to respondent Nos. 4 and 6 in various seniority lists that position reflected in 1974 as well as in 1975 the claim of the petitioner was negatived. Respondent No. 4 was promoted to the higher post on the basis of that seniority. In these circumstances it is not open to the petitioner to approach this Court after about two decades from the date of his appointment to the posts of Assistant Compose Foreman in the Government Press Ahmedabad and to unsettle matters. As observed by the Honourable Court in the case of P. B. Sadasivaswamy v. Stste of Tamilnadu reported in AIR 1974 SC 2271 a person aggrieved by an order promoting a junior over his head should approach the Court at least within six months or at the most within a year of such promotion. It is not that there is any period of limitation for a writ under Article 226 nor is it that there can never be a case where the Courts cannot interfere in matter after the passage of certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it extraordinarily for relief and the stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. (Emphasis supplied.) ( 9 ) ON merits also the contention of the petitioner cannot be upheld. As seen above the petitioner was appointed as Assistant Compose Foreman alongwith respondent Nos. 4 and 5. In the merit list he was at Sr. No. 4 i. e. junior to respondent No. 4 and 5. Thus considering the date of joining service also he was junior to the respondent Nos. As seen above the petitioner was appointed as Assistant Compose Foreman alongwith respondent Nos. 4 and 5. In the merit list he was at Sr. No. 4 i. e. junior to respondent No. 4 and 5. Thus considering the date of joining service also he was junior to the respondent Nos. 4 and 5 since both the respondents joined services in October and November 1961 respectively while the petitioner joined the service as Assistant Compose Foreman on 7/12/1961 In my judgment the service rendered by the petitioner in the lower cadre is not material for fixing seniority to the cadre of Assistant Foreman as the relevant date would be entry in that cadre by the petitioner as well as by other persons by way of direct recruitment. Therefore it is not necessary for me to decide whether a common seniority list of all the employees working in Government Press had been maintained by the respondents as contended by Miss Thakkar or separate seniority lists were maintained as asserted by Miss Doshit. It however clearly appears that the petitioner was not transferred and promoted to Government Press Ahmedabad from Government Press Bhavnagar. Miss Doshit is right in contending that when the office came to be established for the first time after 1/05/1960 at Ahmedabad certain posts of Assistant Compose Foreman were required to be filled in at Ahmedabad. Adhering to the rules those posts were required to be filled in by promotion from the lower cadre of Compositor but when the office came to be established for the first time in 1960 the feeding cadre was not available. In these circumstances the Government was obliged and complied to fill in posts by inviting applications from eligible candidates from open market and the petitioner was one of them. The petitioner also knew that the posts were to be filled in at Ahmedabad by way of direct recruitment. This is clear from the fact that one Mr. I. R. Parmaker who was selected and placed at Sr. No. 5 in the merit list was not serving in any government press and was taken from open market. The petitioner could not have been transferred from the Government Press Bhavnagar to the Government Central Press Ahmedabad since at the Government Press Bhavnagar he was working as Compositor while he was selected and appointed as Assistant (Compose Foreman at Ahmedabad. No. 5 in the merit list was not serving in any government press and was taken from open market. The petitioner could not have been transferred from the Government Press Bhavnagar to the Government Central Press Ahmedabad since at the Government Press Bhavnagar he was working as Compositor while he was selected and appointed as Assistant (Compose Foreman at Ahmedabad. Again Miss Doshit is right in submitting that the petitioner accepted the said order and joined duty. The petitioner was also aware that respondent Nos. 4 and 5 were senior to him. In various seniority lists they were shown senior to the petitioner and were also promoted to the higher post on that basis. The claim of the petitioner was rejected by the Government in 1974 as well as in 1975. Therefore when a notice came to be issued by the Government to other persons it would not be said that a decision was taken by the Government to uphold the claim of the petitioner and to treat the petitioner as senior to respondent Nos. 4 and 5 It may be stated that the claim of the petitioner was rejected after affording personal hearing and therefore also it was not necessary to give hearing once again. In my opinion therefore no case has been made out by the petitioner against the impugned section which is clearly in consonance with law. ( 10 ) IN the result I do not find any substance in any of the arguments raised by Miss Thakkar and the petition requires to be dismissed. The petition is dismissed. Rule 15 discharged however with no order as to costs. .