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2003 DIGILAW 35 (GUJ)

N. C. BANAWALA v. DISTRICT JUDGE,palanpur

2003-01-23

K.R.VYAS, SHARAD D.DAVE

body2003
KSHITIJ R. VYAS, J. ( 1 ) THE petitioner, in this petition under Article 226 of the Constitution of India, challenges the action on the part of the respondents by which he has been denied the benefits of retrospective seniority and promotion to the post of Junior Clerk and Head Clerk in the relevant cadre. He challenges the aforesaid action on the ground that the same is unjust, unfair, unreasonable, discriminatory and arbitrary and violative of Articles 14 and 16 of the Constitution of India and also violative of Amended Rules of Subordinate Judicial Services Recruitment Rules dated 16. 7. 1976. As can be seen from the petition, the petitioner challenges the order passed by the District Judge, Banaskantha, at Palanpur, dated 16. 9. 1981 with order dated 8. 1. 1982, rejecting the application/representation dated 6. 6. 1981 of the petitioner, for seniority retrospectively from 1969. The petitioner also challenges the order dated 22nd March 1982 passed in Appeal by the High Court (Administrative Side) preferred against the order passed by the District Judge. In substance, the petitioner challenges both the aforesaid orders at Annexures. A and B to the petition so far as they relate to the rejection of the prayer for retrospective seniority. ( 2 ) THE petitioner was initially recruited as English Section Writer by the District Judge, Banaskantha at Palanpur on 26. 12. 1961. On 22. 8. 1963, he was temporarily promoted to the post of Junior Clerk. For confirmation as Junior Clerk, the petitioner was required to pass the Lower Standard Departmental Examination (in short, "lsd Examination") under the existing Rule 15 of the Recruitment Rules of Class-III and Class-IV servants in the Subordinate Judicial Services (in short, "the Recruitment Rules"), as amended from time to time, by availing three chances and within three years. According to the petitioner, the time was extended by the District Judge and therefore, he applied for permission to appear in the LSD Examination in 1968 which was not granted to him. In 1969, the petitioner was reverted to his original post of English Section Writer on the ground that he did not appear and clear the LSD Examination. The petitioner was confirmed on the post of Section Writer in the year 1969. In 1969, the petitioner again sought permission of the District Judge to allow him appear in the LSD Examination. In 1969, the petitioner was reverted to his original post of English Section Writer on the ground that he did not appear and clear the LSD Examination. The petitioner was confirmed on the post of Section Writer in the year 1969. In 1969, the petitioner again sought permission of the District Judge to allow him appear in the LSD Examination. However, the said request was rejected by the District Judge, Banaskantha by his order dated 4. 8. 1970 on the ground that the same is against the relevant rules. On 11. 5. 1975, the Recruitment Rules came to be amended. In pursuance to the amendment in the Recruitment Rules, the petitioner was given permission in June 1975 to appear in the LSD Examination to be held in July 1975 on payment of requisite fees. The petitioner passed the said examination and was promoted as Junior Clerk on 31. 1. 1976. The petitioner was confirmed as Junior Clerk with effect from 1. 2. 1977. It is the grievance of the petitioner that he should have been promoted from 1969 and that he is entitled to get the benefit of seniority and promotion and other consequential benefits as per the newly amended Rules. On 8. 9. 1980, the Gradation List came to be prepared. According to the petitioner, his name was not shown as per the relevant Rules with regard to the seniority and promotion. He, accordingly challenged the same by making an application to the District Judge, Banaskantha at Palanpur on 26. 2. 1981. The said application was amended on 6. 7. 1981. Annexures. H and I respectively are the copies of the said application as well as the amendment, attached with the petition. The said application/representation was rejected on 16. 9. 1981 vide order dated 8. 1. 1982 by the District Judge, which is produced at Annexure. A collectively to the petition. The High Court rejected the appeal on 18. 11. 1986, a copy of which has been annexed with the petition at Annexure. B. As stated above, both the orders are under challenge in this petition. ( 3 ) BEFORE we deal with the submissions advanced before us by learned Counsel appearing for the parties, it is necessary to reproduce the relevant rules as well as certain correspondence. 11. 1986, a copy of which has been annexed with the petition at Annexure. B. As stated above, both the orders are under challenge in this petition. ( 3 ) BEFORE we deal with the submissions advanced before us by learned Counsel appearing for the parties, it is necessary to reproduce the relevant rules as well as certain correspondence. On 12th May 1975, the State Government, by issuing a Notification, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with the order by the President published in the Govt. of India, Ministry of Home Affairs, Order No. G. S. R. /35/e dated 9th February 1974 amended the Rules for Recruitment to Class-III and Class-IV Services in the Subordinate Judicial Services contained in Appendix to Government of Bombay, Home Department, Resolution No. MIS/1055/62546/iii dated 26th December 1957. Since we are concerned with Rule 15 of the Recruitment Rules, the same is reproduced as under:"15 (1) In order to be eligible for confirmation to the post of a clerk, a person shall be required; (A) To have experience of office work for a period of one year; (B) To pass the Lower Standard Examination prescribed by High Court in three chances and within a period of three years from the date of his regular appointment as a clerk,provided that a person belonging to the Schedules Castes and Scheduled Tribes shall be allowed one additional chance which shall have to be availed for within a period of one year from the date of the expiry of the period mentioned in Clause (b ). (2) If a person fails to pass the examination within the chances and the period specified sub-rule (1), his increments shall, after the expiry of the specified chances and specified period be withheld until he passes these examinations, and he shall lose seniority to his juniors who may have passed the examination earlier than him, within the specified period and the specified chances. (3) Any increment withheld under sub-rule (2) shall become payable to him from the date on which he passes the examination and all further increments shall accrue to him as if no increments had been withheld ;provided that such persons shall not be entitled to claim the arrears of pay which were lost to him by reason of the increments having been so withheld;explanation: For the purpose of releasing the withheld increments, "the date of passing the examination" means the date following the date on which the examination ends. (4) If a person fails to pass the examination within specified chances and the specified period he shall, not-withstanding such failure, be eligible to appear at any time in such examination on payment of an examination fee of Rs. 15. 00 and if he passes the examination, his increments shall be released as provided in rule (3 ). "immediately after the amendment of the Rules, the Registrar of the High Court of Gujarat, issued a circular to all District Judges of the State. The said letters is produced by the petitioner at Annexure. E to the petition. After referring to the amendment made in Rules 12, 13 and 15, it is stated that the latter part of sub-rule (2) of Rule 15 provides that the person who fails to pass the examination within the chances and the period specified in sub-rule (1) shall lose seniority to his juniors who may have passed the examination earlier than him within specified period and the specified chances. As Government is moved to delete the said provision from sub-rule (2), it was requested not to disturb the seniority of those clerks who have so far failed to pass the LSD Examination or fail to pass the exam. to be held in July 1975. The remaining part of the letter pertains to the increments and therefore, it is not necessary for us to reproduce the same. The Registrar, by his another letter dated 11th July 1975 at Annexure. F, informed all District Judges by giving the following directions: (1) The permanently reverted section writer who appears at the Lower Standard Examination before or after the appointment as clerk will have to pay the examination fee of Rs. 15. 00. The Registrar, by his another letter dated 11th July 1975 at Annexure. F, informed all District Judges by giving the following directions: (1) The permanently reverted section writer who appears at the Lower Standard Examination before or after the appointment as clerk will have to pay the examination fee of Rs. 15. 00. (2) While appointing the permanently reverted section writer to the post of clerk as per the directions contained in the High Court letter No. B. 1502/ii/67 dated 11. 6. 75, he is to be taken as the junior most clerk. If he has not passed the Lower Standard Deptt. Examination by the time he is taken as clerk, his increments due after the date of the appointment as clerk are to be withheld as per rule 16 of the Recruitment Rules. The State Government, by issuing Notification dated 17th July 1976, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with the order of the Ministry of Home Affairs Order No. GSR/1246 dated 12th March 1976 further amended the Rules for Recruitment to Class-III and Class-IV services in the Subordinate Judicial Services contained in Appendix to the Govt. of Bombay, Home Department, Resolution No. MIS-1055/52546-III dated 26th December 1957 and the following substitute was effected in Rule 15:"15 (1) Unless a clerk has experience of office work for a period of one year and has passed the Lower Standard Departmental Examination prescribed by the High Court, he shall not be eligible for confirmation to the post of clerk. (2) Every person who is appointed as a clerk shall be required to pass the Lower Standard Departmental Examination prescribed by the High Court in three chances and within a period of three years from the date of his regular appointment as a clerk,provided that person belonging to the Scheduled Castes and the Scheduled Tribes shall be allowed one additional chance which shall have to be availed of within a period of one year from the date of the expiry of the period mentioned in sub-rule (2 ). (3) If a person fails to pass the examination within the chances and the period specified in sub-rule (2), his increments shall after the expiry of the specified chances and the specified period, be withheld until he passes the examination. (3) If a person fails to pass the examination within the chances and the period specified in sub-rule (2), his increments shall after the expiry of the specified chances and the specified period, be withheld until he passes the examination. (4) Any increment withheld under sub-rule (3) shall become payable to him from the date on future increments shall accrue to him as if no increments had been withheld;provided that such person shall not be entitled to claim the arrears of pay which were lost to him by reason of the increments having been so withheld. EXPLANATION: For the purpose of releasing the withheld increments, the date of passing the examination means the date following the date on which the examination ends. (5) If a person fails to pass the examination within specified chances and the specified period, he shall, notwithstanding such failure, be eligible to appear at any time in such examination on payment of an examination fee of Rs. 15. 00 and if he passes the examination, his increments shall be released as provided in sub-rule (4 ). " ( 4 ) MR. SHIVANG Shukla, learned Counsel for Mr. Y. N. Oza, learned Senior Counsel appearing for the petitioner places reliance on the amended Rules of 1976 and submits that if a person fails to pass the examination within the chances and the period specified in sub-rule (2), his increment shall be withheld till he passes the examination. Learned Counsel submits that there is no mention about the loss of seniority or promotions by not clearing the examination within the specified period. Therefore, the newly amended Rules provide benefits to the petitioner even though he had not cleared the examination within the specified time and chances and the petitioner would not lose seniority. Learned Counsel, therefore, submits that the petitioner is entitled to get the benefits of seniority and promotion and other consequential benefits as per the newly amended Rules of 1976. Learned Counsel, while developing his submissions, claims seniority and promotion from the year when the petitioner was not allowed to appear in the examination and from the year in which he was reverted, i. e. 1969. Learned Counsel further submits that the petitioner is also entitled to count the period in between 1963 and 1969 when he was working as Junior Clerk on ad-hoc basis for the purpose of seniority and promotion to the higher post. Learned Counsel further submits that the petitioner is also entitled to count the period in between 1963 and 1969 when he was working as Junior Clerk on ad-hoc basis for the purpose of seniority and promotion to the higher post. He has relied upon certain decisions in support of his submission. We will refer to those decisions at appropriate stage. ( 5 ) MR. J. B. PARDIWALA, learned Counsel appearing for respondents Nos. 1 and 2, on the other hand, submits that the seniority of the petitioner can be considered only from the date of his regular appointment and confirmation on the post of Junior Clerk, i. e. 31st January 1976. He submits that though the petitioner passed the LSD Examination in 1975, he was promoted on 31st January 1976 because during that period, there was no permanent post of Clerk. He further submits that the petitioners officiating period as temporary employee cannot be considered for the purpose of considering seniority and promotion. According to the submission of learned Counsel, the period between 1963 and 1969 during which the petitioner served as temporary Junior Clerk was on certain conditions, mainly that he has to pass the LSD Examination, failing which he is liable to be reverted, admittedly, the petitioner could not fulfill those conditions and therefore, he was reverted in the year 1969 as Section Writer and the said order was not challenged and he worked as Section Writer till he cleared the examination in the year 1975 held in pursuance of the amended Rules and was subsequently promoted on 31st January 1976. Therefore, according to learned Counsel, the period in between 1969 and 1976 cannot be considered for determining the seniority and/or grant of retrospective seniority. Alternatively, he submits that even if his reversion in 1969 is declared bad in law, there is no justification in granting retrospective seniority, because admittedly, at the time of his reversion, he has not passed the LSD Examination and he was not holding a substantive post. Our attention is invited to many authorities to substantiate his submissions. Mr. Premal Joshi, learned AGP appearing on behalf of respondent No. 3-State, submits that he supports the submissions advanced on behalf of respondents Nos. 1 and 2 by Mr. Pardiwala. Our attention is invited to many authorities to substantiate his submissions. Mr. Premal Joshi, learned AGP appearing on behalf of respondent No. 3-State, submits that he supports the submissions advanced on behalf of respondents Nos. 1 and 2 by Mr. Pardiwala. ( 6 ) IN view of the submissions advanced before us, the questions arise for our consideration are, whether the period between 1963 and 1969 during which the petitioner served as temporary clerk on certain conditions, could be considered for determining the seniority or for grant of seniority or seniority with retrospective effect or not; and assuming that on reversion in 1969 to the post of Section Writer once again, is bad in law, can that period of 1969 to 1976 be considered for determining the seniority i. e. retrospective seniority. Rule 15 of the Recruitment Rules, 1957 (unamended) provides that a clerk should pass the Lower Standard Departmental Examination within three chances and within three years (4 years for Backward Class), and if the clerk fails to pass the said examination, in accordance with the Rules, his services are liable to be terminated. These unamended rules were in force when the petitioner was reverted to the post of Section Writer, as he had not cleared the LSD Examination in accordance with then existing rules. Admittedly, the petitioner has not challenged the order of his reversion, taken place in 1969. As per the amendment made in the Recruitment Rules by the Notification dated 12. 5. 1975 it is provided in Rule 15 (1) that in order to be eligible for confirmation to the post of Clerk, a person shall be required (a) to have experience of office work for a period of one year and (b) to pass the Lower Standard Examination prescribed by High Court in three chances and within a period of three years from the date of his regular appointment as a Clerk. Reading the remaining clauses of the said Notification, it is clear that a clerk can continue in service even if he has not passed the LSD Examination, but the only penalty which is provided is withholding of increment and loss of seniority. The conjoint effect of Rule 15 (1) and Rule 15 (5) of the substituted Rules of the notification dated 16. 7. The conjoint effect of Rule 15 (1) and Rule 15 (5) of the substituted Rules of the notification dated 16. 7. 1976 makes it clear that unless a Clerk passes the LSD Examination, he cannot be confirmed and if he is not confirmed, the clerk who has passed the said examination earlier will consequently be confirmed and will become senior to such clerks who has not passed the examination. Admittedly, the petitioner was not a Clerk when he cleared the LSD Examination held in 1975 and was only a Section Writer. Thus, the petitioner who remained as a Section Writer during the period in between 1969 and 1976 cannot claim seniority over the Clerks who have already cleared the LSD Examination and have been promoted, in pursuance thereof. 29th January 2003: admittedly, the petitioner could pass the LSD Examination only in 1976 and was promoted to the post of Clerk as soon as the vacancy occurred on 31. 1. 1976, and therefore, he cannot claim the seniority over the Clerks who had passed the said examination earlier and got confirmed on the post. The Supreme Court in the case of S. K. Saha v. Prem Prakash Agarwal and ors. , reported in 1994 (1) SCC 431 , has observed that, "any officiation on the post when it was a non-gazetted post cannot be held to be a continuous officiation on the post so as to entitle the appellant to count that period towards his seniority. Notional seniority cannot be given from a retrospective date, especially when this process affects the seniority of those who have already entered into service. The appellant cannot therefore be made senior to those who have already entered into service, by taking into account his past service. " in State of Bihar and ors. v. Akhouri Sachindra Nath and ors. , reported in AIR 1991 SC 1244 , the Apex Court observed that it is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. This Court in the case of Dr. Sunil Kumar and ors. v. Oil and Natural Gas Commission and ors. , reported in 1996 (2) GLR 781 , after relying upon the aforesaid decisions of the Apex Court, held that promotion with retrospective effect which adversely affects others is impermissible. This Court in the case of Dr. Sunil Kumar and ors. v. Oil and Natural Gas Commission and ors. , reported in 1996 (2) GLR 781 , after relying upon the aforesaid decisions of the Apex Court, held that promotion with retrospective effect which adversely affects others is impermissible. Similarly, giving notional seniority from a retrospective date when it affects seniority of others who joined service earlier would also not be permissible. In the case of R. R. Vohra v. State of Gujarat and anr. , reported in 1998 (1) GCD 689 , the learned Single Judge of this Court was considering the case whether the petitioner failed to pass the qualifying test in permissible attempts or not and it has been held that the claim for seniority vis-a-vis others is not maintainable. It is observed and held in the said decision that:"the petitioner has come up before this Court challenging seniority after more than five years. From the facts which have come on record, it appears that seniority list would have been framed though very conveniently the petitioner has not given date, earlier to 24th February 1980, the day on which the petitioner was promoted to the next higher post. The rights accrued to the person in the list have been crystallized and that seniority has been acted upon and promotions have been made. Now if the prayer of the petitioner is accepted, then the persons who have already been made senior to him will be made junior. That is sought to be prayed by petitioner without impleading those persons who are likely to be affected in case the petitioners prayer is accepted. This is another reason for which the claim of the petitioner does not stand to any merit. " ( 7 ) THUS, the law on the question of seniority and promotion with retrospective effect is well settled. For claiming the benefit of seniority, and that too, with retrospective effect, a person is required to hold substantive post of Junior Clerk and is further required to pass the LSD Examination by availing three chances and within three years as per the existing Rules. Having not cleared the examination with the specified chances and period, the petitioner was reverted to the post of Section Writer. Having not cleared the examination with the specified chances and period, the petitioner was reverted to the post of Section Writer. Admittedly, the petitioner did not challenge the order of reversion any time and has thus, virtually accepted the reversion and has remained on the post of Section Writer till 1976 when he was promoted to the post of Clerk, on his clearing the LSD Examination the petitioner is not justified in claiming promotion on the basis of his clearing the examination in 1975. As stated above, even the amended Rules require that unless a Clerk passes the LSD Examination, he cannot be confirmed and if he is not confirmed, the Clerks who had passed the said examination earlier will consequently be confirmed and will become senior to such Clerk who has not passed the examination. In view of the provisions of the statutory Rule, the petitioner who, admittedly, passed the LSD Examination much much later, cannot claim seniority over the Clerks who passed the said examination earlier and got confirmed on the post. We, therefore, see no merit in the submission advanced on behalf of the petitioner. Similarly, the period between 1963 and 1969 during which the petitioner was officiating as Junior Clerk cannot be taken into consideration to decide the seniority as the petitioner was holding the said post on temporary basis, subject to clearing the LSD Examination. Having not cleared the said examination within the period specified, in our opinion, the petitioner was rightly reverted to the post of Section Writer. We are being supported in this behalf by the decision rendered in the case of D. N. Agrawal and anr. v. State of Madhya Pradesh and ors. , reported in AIR 1990 SC 1311 wherein it was held that regular appointment cannot relate back to the date of ad-hoc appointment and the employee is not entitled to claim the period of officiation from the date of ad-hoc appointment for being counted for the purpose of seniority. The Constitution Bench of the Apex Court in the case of Direct Recruit Class-II Engineering Officers Association and ors. v. State of Maharashtra and ors. , reported in AIR 1990 SC 1607 has also observed that where the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. v. State of Maharashtra and ors. , reported in AIR 1990 SC 1607 has also observed that where the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The Supreme Court in the case of Excise Commissioner, Karnataka and anr. v. V. Sreekanta, reported in AIR 1993 SC 1546 reiterated the same view by observing that the respondent was not entitled to claim seniority from the date of his initial appointment on ad-hoc basis but he was only entitled to claim seniority from the date of his subsequent appointment or regularisation under the special rules of Recruitment in 1970. In Swapan Kumar Pal and ors. v. Samitabhar Chakraborty and ors. , reported in AIR 2001 SC 2353 , the Apex Court has held that the appointment of the appellants and the respondents in the cadre of Senior Clerk was by way of promotion from the cadre of Office Clerk. The inter se seniority, therefore, of these two category of personnel in the cadre of Senior Clerk, would be from the date on which each one of them were promoted after their regular selection by due process of selection. In other words, when promotion is given after holding the suitability test, on adjudging, the suitability of the employee, then the promotion can be held to be a regular promotion and not earlier. As such the ad-hoc services rendered by the respondents till they were regularly absorbed on adjudging their suitability by holding test, cannot be reckoned for the purposes of their seniority in the cadre of Senior Clerk. The aforesaid decisions give clear answer to the submissions advanced on behalf of the petitioner. Therefore, no further discussion is necessary. ( 8 ) WE, now, however, deal with the authorities cited by learned Counsel appearing on behalf of the petitioner to substantiate his submissions. In N. Chandrakishore Singh v. State of Manipur and ors. , reported in (1999) 8 SCC 287 , the Apex Court while considering the criteria for determination of seniority of probation or officiating appointment followed by confirmation, has held that, unless there is a contrary rule, service rendered on probation or on officiating appointment cannot be ignored. We respectfully agree with the principle laid down by the apex Court. , reported in (1999) 8 SCC 287 , the Apex Court while considering the criteria for determination of seniority of probation or officiating appointment followed by confirmation, has held that, unless there is a contrary rule, service rendered on probation or on officiating appointment cannot be ignored. We respectfully agree with the principle laid down by the apex Court. However, considering the facts of the case on hand, as observed earlier, the Recruitment Rules specifically provide that unless a Clerk passes the LSD Examination, he cannot be confirmed and if he is not confirmed, the Clerks who had passed the said examination earlier consequently be confirmed and will become senior to such Clerk who has not passed the examination. Therefore, the decision rendered by the Apex Court in the case of L. Chandrakishore Singh (supra) will be of no assistance to the petitioner. Similarly, the decision in the case of O. P. Garg and ors. v. State of U. P. and ors. , reported in AIR 1991 SC 1202 is not applicable to the facts of the present case. The Apex Court was considering the inter se seniority of the members of the U. P. Higher Judicial services. That was a case where 236 promotee officers working as Additional District Judges on the date on which the Rules came into force against 236 posts. Considering this fact, the Apex Court held that all the said officers shall be deemed to be existing members of the Higher Judicial Service as constituted under the Rules and they shall be treated as en-bloc rank senior to all other officers appointed to the service thereafter from the three sources in accordance with their quota under the 1975 Rules. The Court further observed that continuous officiation/service by a promotee appointed under the Rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made available in his quota under the 1975 Rules. There cannot be any dispute with respect to the principle laid down in the said decision. However, the same is not applicable to the facts of the present case. The reliance placed on the decision in the case of Direct Recruit Class-II Engineering Officers Association and ors. v. State of Maharashtra and ors. There cannot be any dispute with respect to the principle laid down in the said decision. However, the same is not applicable to the facts of the present case. The reliance placed on the decision in the case of Direct Recruit Class-II Engineering Officers Association and ors. v. State of Maharashtra and ors. ( AIR 1990 SC 1607 ) to which the reference is made earlier, in our opinion, will apply to the case of the respondents rather than that of the petitioner. The Apex Court in paragraph 44 of the judgment has summed up its conclusion. It is held that," (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. " ( 9 ) WE have held that the petitioner was working as ad-hoc Junior Clerk between 1963 and 1969 and was required to clear the LSD Examination during that period. Having failed to do the same, his officiation in such post cannot be taken into consideration for considering his seniority. In our considered opinion, none of the authorities cited by learned Counsel for the petitioner is applicable to the facts of the present case. ( 10 ) IN the result, we see no substance in this petition. It is accordingly rejected. Rule is discharged. There shall be no order as to costs. .