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2009 DIGILAW 436 (GUJ)

State of Gujarat v. Kantilal M. Mashru

2009-07-06

R.M.DOSHIT, SHARAD D.DAVE

body2009
Judgment Ms. R.M. Doshit, J.—This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 14th August, 2008 passed by the learned Single Judge in above Special Civil Application No. 25060 of 2007. By impugned order, the learned Single Judge has directed the appellant-State of Gujarat to consider the promotion of the respondent-writ petitioner and that, “the ground of non-passing of LRQ Examination would not be a relevant consideration”. 2. In the year 1951, the respondent joined the service in Land Records Department of the then State of Saurashtra as a Surveyor. In 1956, he passed the sub-service departmental examination. On re-organization of the States - effective from 1st November, 1956, he was absorbed in service of the State of Bombay. In the year 1958, he was promoted as a Classer but was again reverted as a Surveyor in the year 1958. On bifurcation of the State of Bombay - effective from 1st May, 1960, he was allocated to the State of Gujarat. Since his allocation to the State of Gujarat, on 9th July, 1968 he was promoted as a Classer but was reverted to the post of Maintenance Surveyor on 31st January, 1971. In the year 1987, on reaching the age of superannuation, he retired from the service of the State of Gujarat in the cadre of Maintenance Surveyor. 3. In the year 1984, some employees of the Land Records Department - similarly situated as the petitioner [but not the petitioner] - approached this Court in Special Civil Application No. 5181 of 1984. According to the said writ petitioners, they were the employees of the erstwhile State of Saurashtra. They had passed the sub-service departmental examination prescribed by the then State of Saurashtra. Under the prevalent conditions of service in the State of Saurashtra, the said writ petitioners were not required to pass any other departmental examination for further promotion in the Land Records Department. They were, therefore, entitled to be considered for further promotion. The said writ petition came up before the learned Single Judge [Coram : S.K Keshote, J.]. The learned Single Judge, by his judgment and order dated 13th December, 1996 upheld the claim made by the said writ petitioners. They were, therefore, entitled to be considered for further promotion. The said writ petition came up before the learned Single Judge [Coram : S.K Keshote, J.]. The learned Single Judge, by his judgment and order dated 13th December, 1996 upheld the claim made by the said writ petitioners. The learned Single Judge considered Section 115 of the States Reorganization Act, 1956 and Section 81 of the Bombay Reorganization Act, 1960 to hold that, “..Rule regarding eligibility for promotion of the petitioners as it was there in the Princely State of Saurashtra could not have been changed to their disadvantage without prior approval of the Central Government. That approval was not taken admittedly and as such, the Rule which has been framed by the respondents of imposing condition of passing L.R.Q examination for promotion to the post carrying pay scale of Rs. 425-700 could not be given effect to in the case of petitioners.” In view of the said observation, the Court was pleased to issue direction to the State Government, “to consider the cases of the petitioners for promotion to the post carrying the pay scale of Rs. 425-700 at the relevant time with effect from the date on which their juniors were promoted.” 4. We are informed that the challenge to the aforesaid judgment before the Division Bench in Letters Patent Appeal and before the Hon’ble Supreme Court failed. Encouraged by the said judgment, the petitioner and some other similarly situated employees, filed Special Civil Application No. 9242 of 1999 for identical reliefs. The learned Single Judge [Coram : K.A Puj, J., by his judgment and order dated 5th December, 2005] placed reliance upon the Government Circular dated 18th November, 1977 to hold that the said writ petitioners were entitled to identical reliefs. In view of the said judgment, the State Government considered the case of each writ petitioner. In respect of the respondent, by Order dated 12th April, 2006, it was held that the respondent had not passed the Land Records Qualifying Examination. He was not eligible for promotion. Feeling aggrieved, the respondent preferred above Special Civil Application No. 25060 of 2007. Once again, the learned Single Judge has, by impugned judgment dated 14th August, 2008 held that the respondent was entitled to promotion irrespective of his failing to pass the LRQ Examination. Feeling aggrieved, the Government of Gujarat has preferred the present Appeal. 5. Learned AGP Ms. Feeling aggrieved, the respondent preferred above Special Civil Application No. 25060 of 2007. Once again, the learned Single Judge has, by impugned judgment dated 14th August, 2008 held that the respondent was entitled to promotion irrespective of his failing to pass the LRQ Examination. Feeling aggrieved, the Government of Gujarat has preferred the present Appeal. 5. Learned AGP Ms. Nair has appeared for the appellants. She has relied upon the Land Records Qualifying Examination Rules, 1970. She has submitted that under the said Rules every employee of the Land Records Department is required to pass the L.R.Q Examination as a condition precedent for promotion to the higher post in the department. She has submitted that the said rules will apply to every employee without any exception. Admittedly, the respondent had not passed the said examination, he was therefore, not eligible for promotion. She has also challenged the claim of the respondent on the ground of delay, latches and acquiescence. She has emphasized on the fact that the respondent did not challenge his non promotion at the relevant time. It was for the first time in the year 1999; 29 years after the cause of action and 12 years after his retirement from service that the respondent claimed promotion. The claim, therefore, requires to be rejected on the ground of delay, latches and acquiescence alone. 6. The Appeal is contested by learned advocate Ms. Raval. She has submitted that it is not open to the State Government to challenge the order of the learned Single Judge. All that the learned Single Judge has directed is to consider the earlier judgments of this Court. She has submitted that the judgment passed in Special Civil Application No. 5181 of 1984 has been confirmed by the Division Bench in Letters Patent Appeal as well as by the Hon’ble Supreme Court. The said judgment is, therefore, binding to the appellants. Further, the judgment of the learned Single Judge passed in Special Civil Application No. 9242 of 1999 where the respondent was also a petitioner, was not challenged by the appellants. In absence of any challenge to the said judgment, the said judgment was binding to the appellants. The appellants now, therefore, are not entitled to non-suit the respondent in the matter of promotion on the specious ground of delay, latches or acquiescence or that the respondent was not eligible for such promotion. In absence of any challenge to the said judgment, the said judgment was binding to the appellants. The appellants now, therefore, are not entitled to non-suit the respondent in the matter of promotion on the specious ground of delay, latches or acquiescence or that the respondent was not eligible for such promotion. She has also submitted that the reversion of the respondent from the post of Classer to that of Surveyor in the year 1958 and from the post of Classer to that of Maintenance Surveyor in the year 1971 were wrongful. Therefore also, the respondent was entitled to continue in service on the promotional post of Classer. In support of her submissions, she has relied upon the judgment of the Hon’ble Supreme Court in the matter of State of Haryana vs. Shamsher Jang Shukla & Ors. [ AIR 1972 SC 1546 ]. 7. It is not in dispute that the respondent was appointed as a Surveyor in the then State of Saurashtra; he was absored in the State of Bombay; he came to be allocated to the State of Gujarat. It is also not in dispute that the respondent had passed the sub-service departmental examination prevalent in the then State of Saurashtra. For further promotion in the Land Records Department in the State of Saurashtra, the respondent was not required to pass any other examination. It was in the year 1970 that the State of Gujarat, in exercise of the powers conferred by proviso to Article 309 of the Constitution of India, framed the above referred Land Records Qualifying Examination Rules, 1970 [hereinafter referred to as, “the said Rules”]. It was made applicable to all employees of the Land Records Department. Rule 4 of the said rules specifically provides that those who fail to pass the said examination would not be eligible for further promotion. Rule 8 of the said Rules provides for eligibility. It provides, inter alia, that the persons who have served the Land Records Department continuously for five years and who have passed the sub-service departmental examination would be eligible for appearing in the Land Records Qualifying Examination [hereinafter referred to as, “the LRQ Examination”]. Thus, passing of the LRQ Examination is condition precedent for further promotion in the Land Records Department is indisputable. 8. Thus, passing of the LRQ Examination is condition precedent for further promotion in the Land Records Department is indisputable. 8. The question, therefore, would be whether or not the respondent and such other employees who were appointed by the erstwhile State of Saurashtra and were allocated to the State of Gujarat on its formation were required to pass the LRQ Examination or in other words, whether or not the Rules of 1970 could be made applicable to such employees. The question was decided by the Hon’ble Supreme Court as early as in the year 1975 in the matter of J.K Vasavada & Ors. vs. Chandrakanta Chimanlal Bhavsar & Anr. [ AIR 1975 SC 2089 ]. 9. In the matter of J.K Vasavada & Ors. [Supra], the Hon’ble Supreme Court considered the provisions under the States Reorganization Act, 1956 and the Bombay Reorganization Act, 1960 and the rules made thereunder. The Hon’ble Supreme Court held that, “In respect of all Government servants who were allotted to the reorganized State of Bombay Section 115(7) of the States Reorganization Act applied. It was under the proviso to that section that the above mentioned circular of May 11, 1957 was issued by the Government of India. Under that circular it was open to the reorganized State of Bombay to make any rules for promotion of its servants which were not applicable to them before the formation of the reorganized State of Bombay. In other words the reorganized State of Bombay had the right to make rules regarding those Government servants including the parties in this case. The reorganized State of Bombay could have made rules making the G.D.C. & A. a necessary qualification for promotion even though there was no such rule earlier. Therefore the conditions of service of the servants of the reorganized State of Bombay before 1st of May, 1960 included a condition that they would be subject to any rule made by that State in respect of their promotion. The power granted to the reorganized State of Bombay should be deemed to accrue to the successor States, that is, the States of Maharashtra and Gujarat.” Thus, irrespective of the service conditions prevalent in the then State of Saurashtra, after their allocation to the State of Gujarat, the conditions of service prescribed by the State of Gujarat would apply. The power granted to the reorganized State of Bombay should be deemed to accrue to the successor States, that is, the States of Maharashtra and Gujarat.” Thus, irrespective of the service conditions prevalent in the then State of Saurashtra, after their allocation to the State of Gujarat, the conditions of service prescribed by the State of Gujarat would apply. If the said conditions required passing of a qualifying examination as condition precedent for promotion, the said condition did apply to the employees of the erstwhile State of Saurashtra allocated to the State of Gujarat including the respondent before us. 10. Evidently, the above judgment of the Hon’ble Supreme Court was not brought to the notice of the learned Single Judge in the matter of R.V Raijada and Ors. [1997 (2) GLKR 1530] nor was it brought to the notice of the Division Bench hearing the Letters Patent Appeal. In our opinion, the above referred judgment in the matter of R.V Raijada & Ors. is per incurrium. So is the judgment dated 5th December, 2005 passed in Special Civil Application No. 9242 of 1999. 11. It is an admitted fact that the respondent-writ petitioner had not passed the requisite Land Records Qualifying Examination. He was, therefore, not eligible for being considered for promotion to the higher post in the Land Records Department. The claim for promotion made by the writ petitioner was ex facie illegal and contrary to the statutory rules. The learned Single Judge has erred in holding that, “the ground of non passing of the L.R.Q Examination would not be a relevant consideration.” Besides, the claim was grossly belated. Though it is argued before us that the reversion of the respondent to the post of Surveyor in the year 1958 and to the post of Maintenance Surveyor in the year 1971 was bad and illegal, the said reversions were not challenged at the relevant time nor in the above referred Special Civil Application No. 9242 of 1999; nor in the above Special Civil Application No. 25060 of 2007. The claim for promotion made 29 years after the date of cause of action and 12 years after the date of retirement was also required to be rejected on the grounds of delay, latches and acquiescence. The claim for promotion made 29 years after the date of cause of action and 12 years after the date of retirement was also required to be rejected on the grounds of delay, latches and acquiescence. We are of the opinion that the learned Single Judge has failed to consider the aforesaid Rules of 1970; the above referred judgment of the Hon’ble Supreme Court in the matter of J.K Vasavada & Ors. and the question of delay, latches and acquiescence. Apply any one test, the respondent was not entitled to any relief. 12. Learned Advocate Ms. Rawal has also submitted that the persons similarly situated have been given the benefit of deemed promotion. She has particularly relied upon the submissions made in Paragraph 3.4 of the writ petition. 13. We have perused the averments and the relevant documents on record. It is evident that the order at Annexure-A to the petition was made in compliance with the direction issued in the above referred judgment in the matter of R.V Raijada & Ors. As held hereinabove, the said directions were contrary to the decision of the Hon’ble Supreme Court in the matter of J.K Vasavada & Ors. [Supra]. If an erroneous order is made in compliance with the direction of the Court, the respondent cannot be granted relief on the ground of parity nor the illegality can be perpetuated in the name of parity. 14 For the aforeaid reasons, we allow this Appeal. The impugned judgment and order dated 14th August, 2008 passed by the learned Single Judge in above Special Civil Application No. 25060 of 2007 is quashed and set-aside. Special Civil Application is dismissed. The parties will bear their own cost.