Research › Search › Judgment

Gujarat High Court · body

2004 DIGILAW 803 (GUJ)

N. D. PATEL (N. D. PARMAR) v. STATE OF GUJARAT

2004-12-09

ANANT S.DAVE

body2004
ANANT S. DAVE, J. ( 1 ) BEING aggrieved by the decision of the respondents-Authorities, the petitioner has filed this writ petition under Article 226 of the Constitution of india, seeking directions against the respondents-Authorities to place the petitioner at Sr. No. 473-A in the seniority list of Assistants dated 18th september 1979, with all consequential benefits such as deemed date of promotion in the cadres of Section Officer and Under Secretary and further promotional post that may be available to the petitioner. ( 2 ) ACCORDING to the petitioner, the case of the petitioner was required to be considered by the respondents-Authorities in its true spirit as per the directions and observations made by this Court in the oral Judgement dated 9th April 1986 delivered in Special civil Application No. 3540 of 1983 with regard to fixation of his seniority in the cadre of Assistant in the secretariate service in view of the fact that petitioner had served as assistant continuously with effect from 12th September 1971. ( 3 ) IT is the case of the petitioner that, initially, the petitioner was appointed as clerk in the Gujarat public Service Commission (gpsc for short) and, thereafter, the petitioner came to be confirmed as clerk by order dated 28th January 1968 in the GPSC itself. By order dated 9th September 1971, the petitioner was promoted as Assistant in the GPSC and the same was regularised by the GPSC by order dated 15th October 1977 and the petitioner continued to serve as Assistant as such. It is the case of the petitioner that, pursuant to the offer made, along with five direct recruit Assistants of the GPSC, the petitioner had also expressed his willingness to join the Secretariate service in sachivalaya as Assistant with a specific rider that his seniority in the cadre of Assistant is to be maintained with effect from 12th September 1971 though the petitioner was a promotee assistant, and other five assistants of the GPSC who had also expressed their willingness to join the Secretariate as assistants along with the petitioner were taken up in the establishment of the Secretariate as assistant. The petitioner was posted in the Secretariate by order dated 11th July 1978. Thereafter, the respondents had fixed seniority of the petitioner not as assistant but as clerk at Sr. The petitioner was posted in the Secretariate by order dated 11th July 1978. Thereafter, the respondents had fixed seniority of the petitioner not as assistant but as clerk at Sr. No. 314-A in the case of clerk-cum-typists in Sachivalaya seniority list dated 18th September 1980 by order dated 17th May 1982. ( 4 ) THE petitioner had challenged the said order dated 17th May 1982 fixing his seniority not as assistant but as clerk in the cadre of clerk-cum-typist in sachivalaya by filing Special Civil Application No. 3540 of 1983, and prayed for appropriate seniority in the cadre of assistants in the Secretariate with effect from 12th September 1971, on the basis of his continuous officiation, and for all consequential benefits of promotion and seniority. 4. 1 the claim of the petitioner to fix his seniority as assistant on the basis of continuous officiation as assistant with effect from 12th September 1971, was opposed by the respondents by filing affidavit-in-reply. It was submitted before the Court that the petitioner was a promotee assistant and his seniority in the cadre of clerk cum typist in the Secretariate service was fixed in accordance with law by the Authority. It was further contended that the assistants who were direct recruits formed a separate class, as compared to the petitioner who was directly recruited clerk and he got promotion as assistant by passage of time and, therefore, the case of the petitioner cannot be equated with the case of other assistants in the office of the respondents who were directly recruited as assistants and, hence, the seniority of the assistants, as maintained by the respondents, when they were sent by the office of the gpsc to the Secretariate had to be separately treated and, therefore, the petitioner cannot be given the same treatment as directly recruited assistant in the office of the GPSC who also along with the petitioner came to sachivalaya set-up in 1978. 4. 2. 4. 2. HOWEVER, this Court negatived both the contentions of the respondents and upheld the claim of the petitioner on the basis of well settled principles of law enunciated in the case of S. M. Pandit vs. State of gujarat, reported in AIR 1972 Supreme Court 252, in the case of Marvyn Continhe vs. Collector of Customs, bombay, reported in AIR 1967 Supreme Court 52, and in the case of Roshanlal vs. Union of India, reported in AIR 1967 Supreme Court 1889. As per the clear findings arrived at by this Court on the basis of the discussion on the evidence on record, it was held that the petitioner was promoted as assistant in the office of the gpsc from 12th September 1971. His promotion as assistant was cleared by the General Administration department and, thereafter, the petitioner continuously worked as assistant and also in 1978 when the petitioner had exercised option subject to the conditions imposed by him. After acceptance of such conditions, the petitioner was taken to the establishment of Secretariate by the respondent-State Government. Since 12th September 1971, the petitioner had worked as assistant and, therefore, on the basis of continuous officiation as assistant, the petitioner was entitled to his claim for seniority as assistant. This court, after elaborate discussions, further held that, at the time of giving his option for being drafted to any of the establishments of the sachivalaya, the petitioner had made it clear that his future chance of promotion from the cadre of assistant wherein he was working to the higher post of Section officer should not be affected. Therefore, having accepted the conditions as proposed by the petitioner, it was not open to the respondents to back track or to take a shelter under any other recruitment rules governing the field for determining the seniority of assistant in the secretariate cadre and, therefore, this Court observed that it is impossible to take a view as contended by the learned advocate for the respondents that the period of continuous officiation as assistant spent by the petitioner from 12th September 1971 in the office of the gpsc till 1978, when he went to Sachivalaya as assistant should not be considered for the purpose of seniority as assistant. According to this Court, the only reason given by the respondents at that point of time for justifying their action was that the petitioner originally was a clerk and he was promoted as assistant while others were directly recruited assistants in the office of the GPSC and, therefore, this differential treatment was meted out to the petitioner vis-a-vis his erstwhile colleagues who were assistants in the office of the GPSC. This reason, according to the Court, was not tenable and it exposed utter hollowness of the case of the respondents. Merely because the petitioner was promoted from the clerks cadre as assistant with other assistants who were directly recruited, when all of them were working as assistants in the same office of the GPSC and discharging some type of duties, their original birth marks were totally irrelevant. This Court further observed that, on the basis of their sources of entry, no difference or distinction could be made for the purpose of the further promotion or seniority so far as similarly situated persons were concerned. The Court, further, observed that, if directly recruited assistants are given seniority on the basis of their continuous officiation from the date of their respective entries in the office of the second respondent, as far as the petitioner is concerned, no different yardstick can be employed in his case and he has also to be treated as assistant and the basis of continuous officiation from the date on which he actually got promoted as assistant in the office of the gpsc. Finally, in the penultimate and final paragraphs, after relying upon the case laws of the Apex Court, this court observed and, thereafter, issued directions as under: "in that connection, it was held that both directly recruited Mamlatdars and promotee mamlatdars were completely fused into and common cadre of Mamlatdars and they were required to be given equal treatment for the purpose of future promotion. In the facts of the present case, it must be held that directly recruited assistants in the office of the second respondent as well as promotee assistants like the petitioner once they got into the same class of assistants, they had to be treated as one cadre. In the facts of the present case, it must be held that directly recruited assistants in the office of the second respondent as well as promotee assistants like the petitioner once they got into the same class of assistants, they had to be treated as one cadre. The respondents treated the directly recruited assistants in the office of the second respondent separately for the purpose of reckoning their seniority on the principle of continuous officiation as compared to the petitioner who was also similarly situated with them and hence, the action of the first respondent has to be treated as violative of guarantee of articles 14 and 16 of the Constitution so far as the petitioner is concerned. Consequently, the second contention of Mr. Hathi has also to be accepted. In the result, this petition succeeds. Rule issued in the petition is made absolute by quashing and setting aside the order dated 17. 5. 1982 at Annexure "e" passed by the first respondent assigning the petitioners seniority in the clerks cadre. The first respondent is also directed to assign seniority to the petitioner in the case of Assistants in the Secretariate service with effect from 12. 9. 1971 on the basis of continuous officiation. The first respondent is also directed to grant all consequential benefits of promotion to the higher post of Section officer, seniority etc. , to the petitioner as a result of fixation of seniority in the cadre of assistants from 12. 9. 1971, and to consider the petitioners case for further promotion to the higher post of Section Officer according to relevant rules and in case, the petitioner is found eligible for being granted deemed date of promotion as Section Officer, then in that case, to give all permissible arrears of pay as Section officer to the petitioner on the basis of such deemed date of promotion as Section Officer if at all granted to the petitioner on that basis. In the facts and circumstances of the case, there will be no order as to costs. At the request of mr. Hathi, respondent No. 1 is directed to carry out the aforesaid directions as expeditiously as possible and preferably within a period of eight weeks from the receipt of the writ of this Court at its end. "4. In the facts and circumstances of the case, there will be no order as to costs. At the request of mr. Hathi, respondent No. 1 is directed to carry out the aforesaid directions as expeditiously as possible and preferably within a period of eight weeks from the receipt of the writ of this Court at its end. "4. 3 against the order of the learned single Judge of this Court in Special Civil Application No. 3540 of 1983, the State of Gujarat filed Letters Patent Appeal No. 185 of 1986, which was dismissed by the Division Bench, by its order dated 27th June 1986, by observing as under: "we do not find any merits within Letters Patent appeal. It is now well settled that once direct recruits and a promotee get fused into one cadre and once they discharge similar type of functions, the historical facts of their respective sources of entry in the common cadre would pale into insignificance and their birth marks have to be treated as only of historical significance and have to be ignored for the purpose of deciding interse rights of such persons working in the same cadre. The above said observation has been correctly made by the learned single judge of our High Court while disposing of the matter. We are in complete agreement with the reasoning and finding of he learned single judge in respect of the respondent herein and accordingly the Letters patent appeal is dismissed. " ( 5 ) IT is submitted that, accordingly, the case of the petitioner was not to be treated separately and no discriminatory or differential treatment was to be given to the petitioner for determination of seniority in the cadre of assistant and further promotion that may accrue to the petitioner in accordance with law. However, the respondents, in spite of representations made by the petitioners on various occasions, specifically, on 3rd january 1987 and 16th January 1987, did not comply with the judgment and order dated 9th April 1986 passed in special Civil Application No. 3540 of 1983, and, therefore, the petitioner had to take recourse to filing a contempt petition, being Misc. Civil Application no. 1045 of 1986, and the respondents, thereafter, included the petitioners name in the seniority list of assistants promoted in excess of quota at Sr. Civil Application no. 1045 of 1986, and the respondents, thereafter, included the petitioners name in the seniority list of assistants promoted in excess of quota at Sr. No. 860 (A) by an order dated 31st December 1986, in stead of placing the petitioner at Sr. No. 752 (A) of the seniority list of regular assistants. However, the respondents, thereafter, by another order dated 30th August 1987, placed the petitioner at Sr. No. 752 (A) in the same list and the contempt petition was, finally, withdrawn on 7th march 1988. ( 6 ) THEREAFTER, it seems that on 8th February 1993, the petitioner preferred a representation to the respondents, when the petitioner found that his placement in the seniority list of assistant was not correctly fixed and requested the Authority that his name be placed at Sr. No. 474-A above the name of Shri H. J. Kavitiya who was appointed on 6th November 1971 as assistant, since the petitioner was working as assistant continuously from 12th September 1971. Again, the petitioner made a request to the Chief Secretary of the state of Gujarat by another representation dated 3rd september 1993 which was finally turned down by order dated 4th May 1993 passed by the Section Officer of the general Administration Department of the State of gujarat, and the claim of the petitioner was not accepted. 6. 1 Ultimately, the petitioner has filed the present writ petition under Article 226 of the Constitution of india against incorrect interpretation of the directions of this Court in the judgment and order dated 9th April 1986 in Special Civil Application No. 3540 of 1983, by the respondents, and has also prayed for refixing his seniority in the cadre of regular assistants in sachivalaya, at Sr. No. 473-A, just above the name of shri H. J. Kavihia, and to grant other consequential benefits of promotion to the post of Section Officer, under Secretary onwards, with other relevant consequential benefits. ( 7 ) THIS Court has admitted this matter and, by an interim order dated 11th July 1994, the respondent-Authority was once again directed to reconsider the case of the petitioner and to place the decision on the record of the petition. ( 7 ) THIS Court has admitted this matter and, by an interim order dated 11th July 1994, the respondent-Authority was once again directed to reconsider the case of the petitioner and to place the decision on the record of the petition. Accordingly, the deputy Secretary of the General Administration department, State of Gujarat, has passed a detailed order dated 1st August 1994, and rejected the claim of the petitioner on the ground that the placement of the petitioner in the seniority list of assistant in the service of Secretariate is just, proper and correct and the same is based on the Recruitment and Promotion Rules for the post of Assistant, as prevalent vide Government notification dated 31st August 1977. By and large, the respondent-Authority has justified its case on the ground that the petitioner is a promotee assistant and, therefore, he is rightly placed in the seniority list of assistant of the Secretariate with effect from 12th september 1971. It is further submitted that the action of the petitioner is an after thought and pursuant to closure of contempt proceeding, the petitioner had accepted his seniority at Sr. No. 752-A and the petitioner had rightly withdrawn the contempt petition. ( 8 ) AFFIDAVIT-IN-REPLY is filed by Shri A. K. Vora, under Secretary to the Government of Gujarat, General administration Department, setting out various details to oppose the claim of the petitioner. The claim of the petitioner is opposed on the ground that the decision of the Authority is based as per the directions given in the judgment and order dated 9th April 1986 passed by this court in Special Civil Application No. 3540 of 1983 and the case of the petitioner was considered separately and his seniority in the cadre of clerk was already ignored and his date of continuous officiation, namely, 12th september 1971, was taken into consideration for fixing his seniority along with en-bloc promotee assistants. In doing so, the petitioner has gained seniority over 108 promotee assistants and this was a major concession given to the petitioner. In doing so, the petitioner has gained seniority over 108 promotee assistants and this was a major concession given to the petitioner. Not only that, the deponent has stated that the decision of the respondent-Authority is also based on the basis of the fact that the promotion of the petitioner on the post of assistant was subsequently regularised by the GPSC vide order dated 15th October 1977 and his case cannot be equated with other five directly recruited assistants of the GPSC who opted to join the services of Secretariate as Assistant along with the petitioner. Therefore, according to the deponent, the decision of the respondent-Authority was not required to be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India. ( 9 ) AFFIDAVIT-IN-REJOINDER is filed by the petitioner wherein he has mainly relied upon the observations made in the judgment and order dated 9th April 1986 by this court in Special Civil Application No. 3540 of 1983, more particularly, paragraphs 15, 16 and 17, whereby, it is stated that, when the issue about seniority of the petitioner as assistant was already settled in the said judgment and confirmed subsequently by the Division Bench by order dated 27th June 1986 in Letters Patent Appeal no. 185 of 1986, the action of the respondent-Authority to resurrect the very issue and to treat the petitioner as promotee assistant is not proper and is required to be set right by this Court in exercise of its powers under article 226 of the Constitution of India. ( 10 ) FINALLY, affidavit-in-sur-rejoinder is also filed by M. Y. A. Mirza, Under Secretary to the Government of gujarat, General Administration Department, reiterating the contentions raised in the affidavit-in-reply and justifying the stand taken by the respondent-Authority by relying upon regularisation of ad-hoc promotion to the petitioner by the GPSC by order dated 15th October 1977, where, it was specifically mentioned that the service of the petitioner was regularised as per the conditions laid down in Government Notification of GAD dated 26th december 1974 and, therefore, it was submitted that fixation of seniority of the petitioner at Sr. No. 752-A along with the promotee assistant in the Secretariate was regularised vide Government Notification dated 26th december 1974. No. 752-A along with the promotee assistant in the Secretariate was regularised vide Government Notification dated 26th december 1974. Not only that, it is also stated that the government has acceded to the demand of the petitioner to fix his seniority with promotee assistants in the secretariate taking into consideration his continuous officiation with effect from 12th September 1971. 10. 1 in paragraph 3 of the affidavit-in-rejoinder, it is stated that the decision of the respondent-Authority is in accordance with the Government Notification dated 31st August 1977 and the seniority list, which was prepared on the basis of seniority rules as contained in the said notification. An apprehension is shown by the respondents in the affidavit-in-rejoinder that, if the petitioner is placed at Sr. No. 473-A in the cadre of assistant, about 150 promotee assistants promoted in the secretariate before the petitioner who was promoted on 12th September 1971 in the GPSC would become his juniors and rights of such promotee assistants cannot be overlooked by the Government. It is also stated that, when such promottees, whose rights will be affected, are not joined as parties in this writ petition, no benefit can be extended to the petitioner as claimed by him. ( 11 ) LEARNED advocate, Mr. Paresh Upadhyay, for the petitioner, has submitted that the decision of the respondent-Authority of not conferring due place in the seniority list of the assistant published by the respondents as per the clear directions given by this court in the judgment and order dated 9th April 1986 in special Civil Application No. 3540 of 1983, is a case of arbitrary and unreasonable exercise of power by the authority discriminating the petitioner in violation of articles 14 and 16 of the Constitution of India and, therefore, the decision of the respondent-Authority to place the petitioner at Sr. No. 752-A of the seniority list of the assistant in stead of placing the petitioner at Sr. No. 473-A, requires to be quashed and set aside and the respondent-Authority may be directed to strictly act in accordance with the directions given by this Court in its earlier decision confirmed in Letters Patent appeal No. 185 of 1986 by this Court. 11. 1 according to Mr. No. 473-A, requires to be quashed and set aside and the respondent-Authority may be directed to strictly act in accordance with the directions given by this Court in its earlier decision confirmed in Letters Patent appeal No. 185 of 1986 by this Court. 11. 1 according to Mr. Paresh Upadhyay, learned advocate for the petitioner, the very issue of branding the petitioner as promotee is no more in existence after the findings of this Court in Special Civil Application no. 3540 of 1983 since this Court had clearly upheld the contention of the petitioner on earlier occasion negativing the defence advanced by the respondents and, for all purposes, the petitioner was to be treated on par with other assistants in the Secretariate services with effect from 12th September 1971. That, even though the petitioner is to be treated and to be given seniority on the basis of continuous officiation, the case of the petitioner was required to be considered on par with the similarly situated direct recruit promotees who were taken up on the establishment of Secretariate by exercising the option from the GPSC along with the petitioner. That, the very same issue was dealt with by this Court and, thereafter, suitable directions were given to the respondents. According to Mr. That, the very same issue was dealt with by this Court and, thereafter, suitable directions were given to the respondents. According to Mr. Paresh upadhyay, learned advocate for the petitioner, for all purposes, the respondents-Authorities were directed to assign seniority to the petitioner in the cadre of assistants in the Secretariate service with effect from 12th September 1971 on the basis of continuous officiation and particularly when the service of the petitioner as assistant was already regularised by the gpsc vide order dated 15th October 1977, the respondents-Authorities were duty bound to grant all consequential benefits of promotion including promotion to the post of Section Officer, Under Secretary and so on, with appropriate seniority, and, various Government notifications, particularly Government Notification dated 31st August 1977, as stated by the deponent in the affidavit-in-reply, have no application at all and, therefore, the decision, which is based on the Government notification dated 31st August 1977 and particularly Rule 4 (iv) of the Gujarat Subordinate Secretariate Service (Seniority of Assistants) Rules, 1977, which states about fixation of seniority of promotee assistants and directly recruited assistants, which shall have no bearing, is illegal and unlawful, and, since the petitioner was already accepted by the respondents-Authorities in the establishment of the secretariate service in the cadre of assistant, as per the condition laid down by the petitioner that his seniority in the cadre of assistant is to be maintained with effect from 12th September 1971 and, therefore, not granting any benefits by the respondents to the petitioner as claimed by him itself is a case of arbitrary, unreasonable, and discriminatory exercise of power by the Authority in violation of Articles 14 and 16 of the Constitution of India and, therefore, the impugned decision of the respondents-Authorities is required to be quashed and set aside. 11. 2 learned advocate, Mr. Paresh Upadhyay, for the petitioner, has submitted that, by applying the rational and logic reasoning, the earlier decision of the respondent-Authority dated 17th May 1982 of assigning seniority to the petitioner in the cadre of clerk-cum-typist was quashed and set aside by this Court, and, on the same rational and logic reasoning, the petitioner is to be given benefits and to be assigned seniority in the cadre of assistant in the Secretariate service with effect from 12th September 1971 on the basis of continuous officiation. That, treating the petitioner and discriminating him and placing him on par with promotee assistants is not justified in view of the fact that this Court had clearly observed that the directly recruited assistants in the office of the second respondent as well as promotee assistants like the petitioner once they got entry in the same class of assistants, they had to be treated as one cadre only and, therefore, to treat the petitioner separately by reckoning his seniority on the principle of continuous officiation, branding him as promotee assistant by the respondent-Authority itself is an act, which is contrary to law. Not only that, but, even the order passed in letters Patent Appeal No. 185 of 1986 dismissing the appeal of the State of Gujarat, the Division Bench of this Court has also observed that it is now well settled that once direct recruits and a promotee get fused into one cadre and once they discharge similar type of functions, the historical facts of their respective sources of entry in the common cadre would pale into insignificance and their birth marks have to be treated as only of historical significance and have to be ignored for the purpose of deciding interse rights of such persons working in the same cadre. Therefore, according to Mr. Paresh Upadhyay, learned advocate for the petitioner, the reliance placed by the deponent in the affidavit-in-reply on various Government Notifications qua fixation of seniority of promotee assistants and direct recruit assistants and Recruitment Rules, particularly Rule 4 (iv), have to be ignored in the facts and circumstances of the case of the petitioner, which was solely based on the directions given by this Court in the judgment and order dated 9th April 1986 in Special civil Application No. 3540 of 1983. ( 12 ) LEARNED Assistant Government Pleader, Mr. K. T. Dave, for the respondents, has submitted that the claim of the petitioner as determined by the respondents-Authorities is just and proper and as per the prevalent Rules governing the seniority of assistants in the Secretariate service. He has drawn the attention of this Court to the affidavit-in-reply and the affidavit-in-sur-rejoinder filed by the respondents-Authorities and contended that the case of the petitioner of refixing his seniority at Sr. No. 473-A which is the above the name of Shri H. J. Kavihia is an after thought and, once, he had accepted his placement at sr. He has drawn the attention of this Court to the affidavit-in-reply and the affidavit-in-sur-rejoinder filed by the respondents-Authorities and contended that the case of the petitioner of refixing his seniority at Sr. No. 473-A which is the above the name of Shri H. J. Kavihia is an after thought and, once, he had accepted his placement at sr. No. 752-A in the seniority list of the Assistants in the cadre of Sachivalaya, and had withdrawn the contempt proceeding on his satisfaction about the said placement, the issue cannot be allowed to be agitated again, which can disturb more than 150 promotee assistants who are not joined as party-respondents in the present proceeding and, therefore also, the petition does not require any consideration by this Court. 12. 1 learned Assistant Government Pleader, Mr. K. T. Dave, for the respondents, has further submitted that, during pendency of the petition, the direction given by this Court by order dated 11th July 1994 to reconsider the case of the petitioner is also complied with and the order dated 1st August 1994, produced at Annexure VIII with the affidavit-in-reply, has elaborately answered the contentions of the petitioner and, according to Mr. Dave, learned AGP, the detailed reasonings have also been given for not accepting the claim of the petitioner and, particularly, it is clearly stated in the said order that due and correct compliance has taken place of the order dated 9th April 1986 passed in Special Civil Application no. 3540 of 1983 and the decision of the Authority is based as per the prevalent Rules and particularly Rule 4 (iv) of the Gujarat Subordinate Secretariate Services (Seniority of Assistant) Rules, 1977, governing the field in determining the seniority of promotee assistants and directly recruited assistants and the same is taken by considering the fact that the petitioner was working as assistant with effect from 12th September 1971 on continuous officiation. ( 13 ) NO case law was cited by the learned Assistant government Pleader, Mr. K. T. Dave, for the respondents, in support of his submissions or to strengthen the same as defence in the affidavit-in-reply and the affidavit-in-sur-rejoinder, whereas the learned advocate, mr. ( 13 ) NO case law was cited by the learned Assistant government Pleader, Mr. K. T. Dave, for the respondents, in support of his submissions or to strengthen the same as defence in the affidavit-in-reply and the affidavit-in-sur-rejoinder, whereas the learned advocate, mr. Paresh Upadhyay, for the petitioner, has relied upon the judgments of the Apex Court in the case of S. M. Pandit vs. State of Gujarat, reported in AIR 1972 supreme Court 252, in the case of Marvyn Continhe vs. Collector of Customs, Bombay, reported in AIR 1967 supreme Court 52, and in the case of Roshanlal vs. Union of India, reported in AIR 1967 Supreme Court 1889. He has, further, submitted that it was, conclusively, decided about the right of the petitioner in the cadre of assistant as per the judgment dated 9th April 1986 delivered in Special Civil Application No. 3540 of 1983. According to Mr. Upadhyay, no other room is left for any other interpretation, except compliance of the same in stricto-senso by the respondents-Authorities. 13. 1 so far as the consequential reliefs are concerned, according to Mr. Upadhyay, the petitioner retired on attaining his age of superannuation with effect from 30th June 2004, and, he submits that, the petitioner is entitled for consequential reliefs available to the petitioner including the arrears of salary and refixation of pension and other retiral benefits. For this purpose, learned advocate, Mr. Upadhyay, has relied upon the decision of this Court (Coram: H. K. Rathod, J.), in Special Civil Application no. 5940 of 1999, decided on 17th September 2003, as confirmed in Letters Patent Appeal No. 695 of 2004, by order dated 22nd September 2004. In the facts and circumstances of the said case, while allowing the petition, the respondent-Department was directed to give deemed date to the petitioner on the post of Director with all consequential benefits arising out of the said deemed date of promotion including benefit of arrears of pay, etc. including revision or refixation of pension and other retiral benefits. ( 14 ) I have heard the learned advocates for the parties. It is unfortunate that the petitioner has to take resort of this Court for ventilating his grievance, which had already been settled by this Court (Coram: s. B. Majmudar, J. as His Lordship then was ) by its decision dated 9th April 1986 rendered in Special Civil application No. 3540 of 1983. It is unfortunate that the petitioner has to take resort of this Court for ventilating his grievance, which had already been settled by this Court (Coram: s. B. Majmudar, J. as His Lordship then was ) by its decision dated 9th April 1986 rendered in Special Civil application No. 3540 of 1983. In the said judgment, this court had quashed and set aside the order dated 17th May 1982 passed by the respondents, whereby, seniority assigned to the petitioner in the cadre of clerk was quashed and set aside. Not only that, but, in no uncertain terms, it was propounded by this Court that directly recruited assistants in the office of the second respondent as well as the promotee assistants like the petitioner, once they get into the same class of assistants, they had to be treated as one cadre. The respondents treated direct recruit assistants in the office of the second respondent separately for the purpose of reckoning their seniority on the principle of continuous officiation as compared to the petitioner who was also similarly situated like them and, therefore, the court had quashed and set aside the impugned action of the first respondent as violative of Articles 14 and 16 of the Constitutions of India, so far as the petitioner is concerned. ( 15 ) THIS was the declaration of law on the basis of peculiar facts of the petitioner about his service tenure, where, the petitioner was initially promoted as assistant in the office of the Gujarat Public Service commission on 12th September 1971, and regularised as such by order dated 15th October 1977 and, subject to the terms and conditions laid down by the petitioner by categorically stating that the petitioner was willing to go to Sachivalaya only if his seniority in the cadre of assistant is protected with effect from 12th September 1971, which were accepted, the petitioner was appointed in the Sachivalaya as Assistant by the order of the general Administration Department of Government of gujarat dated 11th July 1978. 15. 1 therefore, this Court, looking to the peculiar facts of the case, had given specific directions to the respondents-Authorities in Special Civil Application no. 15. 1 therefore, this Court, looking to the peculiar facts of the case, had given specific directions to the respondents-Authorities in Special Civil Application no. 3540 of 1983 to assign seniority to the petitioner in the case of Assistant in the Secretariate service with effect from 12th September 1971 on the basis of continuous officiation including further benefits available for higher post of Section Officer and so on. 15. 2 even the said judgment dated 9th April 1986 in special Civil Application No. 3540 of 1983 was carried in appeal by the respondents on the ground that the order of the learned single Judge was contrary to law by filing letters Patent Appeal No. 185 of 1986, and the Division bench consisting of Shri P. R. Gokulakrishnan, C. J. and a. H. Ahmadi, J, (as they then were), had made it explicitly clear that, once direct recruits and a promotee get fused into one cadre and once they discharge similar type of functions, the historical facts of their respective sources of entry in the common cadre would pale into insignificance and their birth marks have to be treated as only of historical significance and have to be ignored for the purpose of deciding interse rights of such persons working in the same cadre. Therefore, in the present case, when the birth mark of the petitioner as a promotee was already obliterated by this Court in the abovereferred proceedings, the respondent-Authority was not justified in conferring seniority to the petitioner on the basis of promotee assistant. Therefore, in the present case, when the birth mark of the petitioner as a promotee was already obliterated by this Court in the abovereferred proceedings, the respondent-Authority was not justified in conferring seniority to the petitioner on the basis of promotee assistant. Since the petitioner was discharging duty as assistant and joined the Secretariate service as assistant as per the terms and conditions laid down by him as per his letter dated 9th January 1997, to protect his seniority in the cadre of assistant as maintained with effect from 12th september 1971 on par with other direct recruits taken along with the petitioner from the office of the GPSC, the stand of the respondents to determine the seniority of the petitioner on the basis of the recruitment rules framed by the respondent-Authority vide GAD Notification dated 31st August 1997 of Gujarat Subordinate secretariate Service (Seniority of Assistant) Rules, 1977, and particularly sub-rule (iv) of Rule 4, of fixation of seniority of assistants, is unjust, unreasonable, arbitrary, and violative of Article 14 of the Constitution of India, and also against the directions given by this Court in the judgment and order dated 9th April 1986 rendered in Special Civil application No. 3540 of 1983, and confirmed by the division Bench in Letters Patent Appeal No. 185 of 1986, by its order dated 27th June 1986. 15. 3 therefore, the petitioner is entitled to seniority as claimed by the petitioner at Sr. No. 473 (A) in the seniority list prepared by the respondents-Authorities vide Circular dated 18th september 1979 by the General Administration Department at Annexure "i" to the affidavit-in-sur-rejoinder, above the name of Shri H. J. Kavikia, whose date of appointment as Assistant on the basis of continuous officiation is shown as 6th November 1971, while the date of appointment of the petitioner is 12th September 1971. 15. 4 on this ground alone, the claim of the petitioner requires to be allowed and the fixation of seniority of the petitioner at Sr. No. 752 (A) by order dated 30th august 1987 requires to be quashed and set aside. 15. 4 on this ground alone, the claim of the petitioner requires to be allowed and the fixation of seniority of the petitioner at Sr. No. 752 (A) by order dated 30th august 1987 requires to be quashed and set aside. ( 16 ) HOWEVER, certain contentions raised by the learned Assistant Government Pleader, as stated in the affidavit-in-reply and the affidavit-in-sur-rejoinder, for determination of the petitioners claim on the basis of Gujarat Subordinate Secretariate Service (Seniority of assistants) Rules, 1977, vide notification dated 31st august 1977, under sub-rule (iv) of Rule 4 of the said rules, that the combined seniority of the promotee assistants and the directly recruited assistants shall then be fixed after adjusting the directly recruited assistants in such list in accordance with the rules relating to the quota or proportion between these two classes of assistants which may be in force, from time to time and in so fixing the seniority, regard shall be paid to the date of regular officiation as assistant in the case of promotee assistant and the date of regular appointment in the case of directly recruited assistants, will have to be dealt with and interpreted in light of directions given by this Court in the judgment and order dated 9th April 1986 rendered in Special Civil application No. 3540 of 1983, and confirmed by the division Bench in Letters Patent Appeal No. 185 of 1986, by its order dated 27th June 1986. This Court, in the penultimate paragraph of the said judgment dated 9th april 1986, clearly stated that, in the facts of the present case, it must be held that directly recruited assistants in the office of the second respondent as well as promotee assistants like the petitioner once they got into the same class of assistants, they had to be treated as one cadre and treating directly recruited assistants in the office of the second respondent separately for the purpose of reckoning their seniority on the principle of continuous officiation as compared to the petitioner who was also similarly situated with them and, hence, the action of the respondents-Authorities was held to be unjustified. Meaning thereby, to take resort, once again, as advanced by the respondents in the earlier petition and to treat once again the petitioner differently, discriminating him on the ground of his birth mark into the service, is nothing, but a case of unreasonable and arbitrary exercise of power and violative of Articles 14 and 16 of the Constitution of india and, therefore, sub-rule (iv) Rule 4 of the said notification of 1977 is not applicable in view of the peculiar case of the petitioner. ( 17 ) THE contention of the learned Assistant government Pleader with regard to acceptance of seniority by the petitioner in a contempt proceeding and the proprietary of action of the respondents-Authorities to grant seniority to the petitioner at Sr. No. 752 (A) by order dated 30th August 1987, does not come in the way of grant of relief to the petitioner, in view of the fact that the contempt proceedings were taken out by the petitioner when the judgment and order dated 9th April 1986 rendered in Special Civil Application No. 3540 of 1983, and confirmed by the Division Bench in Letters patent Appeal No. 185 of 1986, by its order dated 27th june 1986, was not complied with. The rights, which have been crystalized in favour of the petitioner by virtue of the judgment and order dated 9th April 1986 rendered in special Civil Application No. 3540 of 1983, and confirmed by the Division Bench in Letters Patent Appeal No. 185 of 1986, by its order dated 27th June 1986, cannot be taken away on the ground that the petitioner had withdrawn the contempt proceedings by order dated 7th March 1988. Admittedly, on realizing the correctness of the facts, as per the directions of this Court in the judgment and order dated 9th April 1986 rendered in Special Civil application No. 3540 of 1983, and confirmed by the division Bench in Letters Patent Appeal No. 185 of 1986, by its order dated 27th June 1986, and after making a detailed representation and sending subsequent reminders, which, ultimately were not accepted and rejected by the respondents-Authorities by order dated 4th May 1993, the petitioner has resorted to the proceedings of the present special Civil Application. ( 18 ) IT is pertinent to note that, while admitting this petition, by order dated 11th July 1994, the Court had given direction to the respondents-Authorities to take a decision on the representation pending before them and, thereafter, by order dated 1st August 1994, produced at Annexure VIII, at page 90, to the affidavit-in-reply filed by the Under Secretary to the Government of gujarat, General Administration Department, the claim of the petitioner was rejected, where also, the respondents had taken the defence of different cadre of the petitioner being the birth mark of promotee and the directly recruited assistants a different cadre existing in Sachivalaya. It is pertinent to note that the said order dated 1st August 1994 of deciding the representation of the petitioner by the Deputy Secretary of the General Administration Department, clearly states that they have taken into consideration services rendered by the petitioner as assistant on the basis of continuous officiation and after regularisation of promotion of the petitioner as assistant in the GPSC by order dated 15th october 1977 and passing of the departmental examination for promotion to the post of Section Officer by the petitioner on 31st August 1976. Under the circumstances, and coupled with the fact that this Court had given clear directions to treat the petitioner as assistant in one cadre only and to give consequential effect, but, treating the petitioner on different footing by relying upon the basis of entry of the petitioner into the service and as per the birth mark of the petitioner, is nothing, but a classic case of discriminatory treatment given to the petitioner and, when the terms and conditions of the petitioner were accepted by the respondents-Authorities as back as in the year 1978, along with other five assistants (direct recruits) who were working in the GPSC, and taken up in the establishment of the Secretariate, no discriminatory treatment can be meted out to the petitioner on the ground of initial birth mark, as held by various decisions of the Supreme Court, and rightly relied upon by the learned advocate, Mr. Upadhyay, for the petitioner, in the case of S. M. Pandit vs. State of gujarat, reported in AIR 1972 Supreme Court 252, in the case of Marvyn Continhe vs. Collector of Customs, bombay, reported in AIR 1967 Supreme Court 52, and in the case of Roshanlal Tanden vs. Union of India, reported in air 1987 Supreme Court 1889, wherein, in paragraph 5, the apex Court held as under:"both the directly recruited Mamlatdars as well as the promotee Mamlatdars are designated as Mamlatdars. They have the same pay-scale. They discharge same functions. The posts held by them are interchangeable. There is nothing to show that the two groups are kept apart. "in that connection, it was held that both directly recruited Mamlatdars and promotee Mamlatdars were completely fused into common cadre of Mamlatdars and they were required to be given equal treatment for the purpose of future promotion. Under the circumstances, the facts of the aforementioned cases are identical with the present one and once the petitioner was fused into the cadre of assistant, he ought not to have been treated differently by the respondents-Authorities and, therefore, the action of the respondents-Authorities is unjust, unreasonable, and requires to be quashed and set aside and, therefore, the order dated 30th August 1987, by which the petitioner was placed at Sr. no. 752 (A) of the seniority list of the assistants is quashed and set aside and it is held that the petitioner is entitled for his placement in the seniority list above the name of shri H. J. Kavihia, at Sr. No. 473 (A ). ( 19 ) SO far as the consequential directions as prayed for by the petitioner are concerned, the petitioner is entitled for being considered to the higher post of section Officer, Under Secretary, or even Deputy secretary, as available to the petitioner in accordance with the prevalent Rules and Regulations with regard to promotion and appointment to the said posts and in light of the judgment and order dated 9th April 1986 rendered in Special Civil Application No. 3540 of 1983, and confirmed by the Division Bench in Letters Patent Appeal no. 185 of 1986, by its order dated 27th June 1986, the petitioner is entitled to be considered for promotion to the higher post on the basis of fixation of his seniority at Sr. 185 of 1986, by its order dated 27th June 1986, the petitioner is entitled to be considered for promotion to the higher post on the basis of fixation of his seniority at Sr. No. 473 (A) in the seniority list of assistants prepared by the respondents-Authorities and the petitioner is found eligible for being granted deemed date of promotion as section officer, if found eligible for further promotion to the post of Under Secretary and deputy Secretary accordingly, and the respondents-Authorities are directed to undertake the said exercise as early as possible, preferably within three months from the date of receipt of writ of the order of this Court. ( 20 ) A reliance is placed by the learned advocate, Mr. Upadhyay, for the petitioner, on the Oral Judgment dated 17th September 2003 passed by the Court (Coram: H. K. Rathod, J.), in Special Civil Application No. 5940 of 1999 [h. B. Thakkar vs. State of Gujarat], confirmed in letters Patent Appeal No. 995 of 2004 by order dated 22nd september 2004, for arrears of salary, refixation of pension and other retiral pension. In my view, the respondents-Authorities cannot be fastened with the liability for the interregnum period of the date of withdrawal of the contempt proceedings by the petitioner filed before this Court being Misc. Civil Application no. 1045 of 1986, on 7th March 1988 and the date of the first representation submitted by the petitioner on 8th february 1993. It is, hereby, declared that the petitioner is entitled to refixation of pay-scale and difference of arrears of salary of the respective posts on he being found eligible for promotion to further and higher posts of Sections Officer, Under Secretary and deputy Secretary, respectively, in accordance with the prevalent Rules and Regulations in this regard. The outstanding amount of arrears of salary and different thereof shall be paid to the petitioner. Consequently, the petitioner is entitled to refixation of his pension and arrears thereto. The respondents-Authorities are directed to undertake the entire exercise as early as possible, preferably within three months from the date of receipt of writ of the order of this Court, and the payment shall be made to the petitioner within three months thereafter. ( 21 ) IN the result, the petition is allowed. Rule is made absolute with no order as to costs. .