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1997 DIGILAW 379 (GUJ)

K. R. Shinde v. STATE

1997-07-22

S.K.KESHOTE

body1997
S. K. KESHOTE, J. ( 1 ) THE Special Civil Application No. 6324 of 1989 had come up for admission before this Court on 5. 9. 1989 and Court made the order, "rule. To be heard along with Special Civil Application No. 2400/84. " The counsel for the parties are in agreement that the matter in both these petitions are identical, and as such, the same may be taken together. Accordingly, the matter are taken together for hearing and are being disposed of by this common order. ( 2 ) HEARD the learned counsel for the parties. ( 3 ) IT is not in dispute that the petitioner in Special Civil Application No. 2400/84 has passed the Revenue Qualifying Examination as a necessary eligibility for promotion to the post of Mamlatdar in the year 1971 under the Rules, 1970. The petitioner in this special Civil Application has passed this examination beyond specified chances and specific period, and therefore, he has been placed at Sr. No. 482 in the seniority list of aval Karkuns (now Dy. Mamlatdar) as per the provisions of Rule-7 of the Rules, 1970. This seniority list has been published by the respondent vide order dated 8. 6. 1988 and the petitioner has not made any grievance against that seniority list as he has not challenged the same by filing a separate writ petition or by making an amendment in this Special civil Application. So, the petitioner has accepted his position at Sr. No. 482 in the category of the Deputy Mamlatdar and on the basis of that position the petitioner has been given promotion to the post of Mamlatdar from 17th June, 1982. Only after this promotion and having passed the qualifying examination under Rules, 1970, the petitioner has started to make claim for promotion under the erstwhile States Rules. ( 4 ) THE respondent in reply to this Special Civil Application has mentioned that the contention as raised by the petitioner that the ex-Saurashtra State servants are entitled to exemption from the provisions of fixing eligibility for being promoted to the cadre of aval Karkun (now Dy. Mamlatdar) from passing the Revenue Qualifying Examination and that their seniority should be fixed on the basis of the length of service in the cadre of aval Karkun (now Dy. Mamlatdar) from passing the Revenue Qualifying Examination and that their seniority should be fixed on the basis of the length of service in the cadre of aval Karkun (now Dy. Mamlatdar) irrespective of their passing of the Revenue qualifying Examination has been repealed by this Court under its judgment dated 16. 12. 1993 in Special Civil Application No. 2860/83 and other connected matters. It has further been stated that the said judgment was upheld by the Honble Supreme Court of india vide its judgment dated 2. 5. 1986 in C. A. No. 1675/84 and other connected matters. The ratio as laid down by the Supreme Court has been reproduced by the respondent in reply, which reads as under :"so far as the question of the employees of the erstwhile Saurashtra State are concerned, the High Court observed that on the facts of this case the saurashtra State employees have themselves appeared in examination pursuant to the present rules and have stated their claim for being promoted to the cadre of Dy. Mamlatdar as per Rule-7. Thus they have acquired the eligibility for promotion to the Higher post on the basis of Rule-7 they will have to follow the mandate of Ruls-7 and they cannot fall back upon the old historical position. "after going through the judgment of the Supreme Court as reproduced above, I am satisfied that the case of the petitioner is fully covered by the aforesaid decision. He has taken the benefit of the passing of the Revenue Qualifying Examination under Rules, 1970 and only on the passing of the said examination, he has been given the promotion. Once the petitioner has accepted that position and he has acquired the eligibility for promotion to the next higher post on the basis of Rule-7 of the Rules, 1970, he will have to follow the mandate of Rule-7 and now he cannot fall back upon the old historical position. The averments made by the respondent in reply as well as the reference made to the decision of this Court and the Honble Supreme Court, have not been controverted by the petitioner by filing reply. So, the matter of the petitioner is covered under the decision of this Court which has been confirmed by the Honble Supreme court as referred in the reply and nothing now survives in this Special Civil application. So, the matter of the petitioner is covered under the decision of this Court which has been confirmed by the Honble Supreme court as referred in the reply and nothing now survives in this Special Civil application. The Special Civil Application No. 2400/84 is devoid of any substance and the same is dismissed. ( 5 ) SO far as the Special Civil Application No. 6324/89 is concerned, it is also identical to the matter aforesaid. In this Special Civil Application also it comes out, though very specifically the petitioners have not mentioned that they have been given the promotion only after they have passed the Revenue Qualifying Examination under Rules, 1966 or Rules, 1970 and the petitioners have very convenientely avoided to give the dates of passing of the aforesaid examination, but from the averments made in the Special Civil application and the dates of promotion, it can conveniently be inferred that they have also passed the aforesaid examination under the Rules, 1970 or may be 1966. Now after their promotion on the post of Mamlatdar and to the next higher post of Dy. Collector on the basis of their passing of the Revenue Qualifying Examination they want to fall back on the old historical position. ( 6 ) IN view of the decision of this Court which has been confirmed by the Honble supreme Court, reference of which has been made above, this claim of the petitioners, is not sustainable. Otherwise, also, the petitioners have no case on the other grounds. Admittedly, all the petitioners have retired from the services in between 1980 to 1984. Till they retired from the services, they had not made any grievance in any legal forum. Only after their retirement, a grievance has been made claiming the benefits on the basis of the old historical position. This delay in filing of the Special Civil Application after retirement varies from 5 to 9 years in the case of petitioners. The petitioners are claiming the promotion with reference to the so called juniors as per their old historical position, but those junior persons have been promoted in the year 1961. This delay in filing of the Special Civil Application after retirement varies from 5 to 9 years in the case of petitioners. The petitioners are claiming the promotion with reference to the so called juniors as per their old historical position, but those junior persons have been promoted in the year 1961. In case the petitioners really felt aggrieved of the promotions of the juniors on the next higher post then they could have agitated that matter by filing the Special Civil Application or whatever legal forum available in the year 1961 itself, but they have not challenged that position. So, the petitioners now after 5 to 9 years of their retirement want to claim the benefits of promotion from 1961. That claim cannot be accepted at this stage as it suffers from delay and laches. The petitioners allowed to settle the position of those persons and on the basis of their promotions rightly those persons have further been given promotion on the next higher post earlier to the petitioners. So, the claim of the petitioners for promotion to the post of Mamlatdar and next higher post with reference to their juniors who have been promoted in the year 1961, is wholly misconceived. Otherwise also, those persons have not been impleaded as party. Now, in case the plea of the petitioners is accepted then the settled position will be unsettled, which is yet another ground on the basis of which this special Civil Application deserves to be dismissed. ( 7 ) IN the result, this Special Civil Application fails and the same is dismissed. ( 8 ) RULE in both the Special Civil Application is discharged. Interim relief, if any, granted by this Court stands vacated. No order as to costs. .