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2010 DIGILAW 200 (GUJ)

STATE OF GUJARAT v. M. F. SAIYED

2010-04-13

M.D.SHAH, R.M.DOSHIT

body2010
JUDGMENT 1. This Appeal preferred under Clause 15 of the Letters Patent arises from the judgment and order dated 13th January 2006 passed by the learned Single Judge in above Special Civil Application No.3846/1999. 2. By order dated 21st February 1985 made by the Government Pleader, Gujarat High Court, the respondent no.1 Mr.M.F.Saiyed, the writ petitioner was appointed as a Clerk-cum-Typist on the terms and conditions mentioned in the order. The said conditions specifically provided that the writ petitioner would be required to undergo pre-service training and pass the post-training examination as provided under the Gujarat Non-Secretariat Clerks, Clerk-typists and Typists (Direct Recruitment Procedure) Rules, 1970. Pursuant to the said order, the petitioner joined the duty on 1st March 1985. Since his joining the duty, the petitioner did undergo pre-service training and passed the post-training examination in the month of April 1991 at the fourth trial. On his passing the examination on 29th April 1991, he was assigned seniority amongst the Clerks-cum-Typists as of 29th April 1991. It is this placement in the seniority list which was subject matter of dispute in the above writ petition. 3. According to the petitioner, he is entitled to seniority from the date of his appointment on the principle of continuous officiation. Several representations made by the petitioner time and again were rejected. The writ petitioner was, therefore, constrained to approach this Court under Article 226 of the Constitution of India. 4. The petition was contested by the respondents. Reliance was placed on the Gujarat Non-Secretariat Clerks and Clerk-Typists (Training and Examination) Rules, 1970 (hereinafter referred to as the Examination Rules ). According to the respondents, the clerks and the clerk-cum-typists appointed in the offices referred to in Rule 3 of the Examination Rules were required to take pre-service training and to pass the post-training examination within the time and chances specified in the Examination Rules. In the event, a person failed to pass the post-training examination within the specified time and chances, he loses right to seniority till he passes such examination. 5. As the petitioner, admittedly, did not pass the post-training examination within the specified time and chances, he forfeited his right to seniority on the principle of continuous officiation; he was assigned seniority from the date he passed the said examination i.e. 29th April 1991. The respondent had thus assigned proper seniority to the writ petitioner. 5. As the petitioner, admittedly, did not pass the post-training examination within the specified time and chances, he forfeited his right to seniority on the principle of continuous officiation; he was assigned seniority from the date he passed the said examination i.e. 29th April 1991. The respondent had thus assigned proper seniority to the writ petitioner. The writ petitioner could not have a legitimate grievance against such seniority. 6. The learned Single Judge, relying upon the judgment of this Court in the matter of Safimiya G.Malek and others v/s. State of Gujarat and others [ 1992(1) GLR 704 ], held that the proviso inserted in sub-rule (3) of Rule 8 of the Examination Rules was contrary to the law laid down by this Court in the matter of Safimiya G.Malek (supra). The insertion of that proviso was totally uncalled for and it was never contemplated while deciding the case (re Safimiya G.Malek). In view of the said finding, the learned Single Judge allowed the writ petition. The learned Single Judge was pleased to issue direction to the respondents authorities ...to assign the seniority to the petitioner in the cadre of Clerk-cum-Typist (English) from his initial date of appointment i.e. with effect from 1.3.1985. The respondents Nos.1 and 2 are further directed to determine the seniority in the cadre of Clerks and Clerk-cum-Typists, on the basis of the continuous officiation and to give further promotion to the petitioner from the cadre of Clerk-cum-Typists, considering the seniority determined on the basis of the continuous officiation. Feeling aggrieved, the respondents authorities have preferred the present Appeal. 7. Learned AGP Mr.Trivedi has appeared for the appellants. He has relied upon the Examination Rules as amended from time to time. He has submitted that the learned Single Judge has failed to appreciate the scope and ambit of the Examination Rules. He has submitted that the direction issued by the learned Single Judge is erroneous and is contrary to the statutory provisions made under the Examination Rules. In support of his submissions, Mr.Trivedi has relied upon the judgments of the Hon'ble Supreme Court in the matters of Sharad v/s. State of Maharashtra and another [ (2009)3 SCC 673 ] and of M.H.Patil v/s. State of Maharashtra and others [ (1999)1 SCC 249 ] and of this Court in the matter of Shrikrishna K.Yadav v/s. State of Gujarat and others [ 2002(3) GLR 2426 ]. 8. 8. The Appeal is contested by Mr.Sinha. He has taken us through the judgment in the matter of Safimiya G.Malek (supra). He has submitted that the Examination Rules cannot and do not govern the seniority of the Clerks or Clerk-cum-Typists. In support of this submissions, he has relied upon the judgments in the matters of M.H.Patil v/s. State of Maharashtra and others [ (1999)1 SCC 249 ]; of Saroj Rani and another v/s. State of Punjab and others [ (1999)6 SCC 637 ] and of Kumari Ushaben Joshi v/s. State of Gujarat [ 1993(1) GLR 100 ]. "93. In the year 1970, the State Government, in exercise of power conferred by proviso to Article 309 of the Constitution of India and in supersession of the existing rules on the subject, made the Gujarat Non-Secretariat Clerks and Clerk-Typists (Recruitment) Rules, 1970. The said Rules provide for appointment to the post of Clerks and Clerk-Typists either by direct selection or by promotion; for eligibility for appointment by direct selection and by promotion. The State Government has also framed the above referred Gujarat Non-Secretariat Clerks, Typists (Direct Recruitment Procedure) Rules, 1970 to provide for the procedure for recruitment of Clerks, Clerk-Typists and the Typists in the Government offices mentioned in appendix-B to the said Rules. The said Rules provide for constitution of selection committee; for procedure for holding typing test; for interview; for estimate of anticipated requirement of selected candidates and forwarding of such requirement to the respective district collector or the heads of the departments; for issuance of advertisement; for qualifying standard; for preparation of select list, etc. Rule 21 of the said Rules provides for seniority of Clerks and Clerk-Typists from the date they pass the post-training examination and the comparative rank in such examination. In other words, the said Rules do not provide only for the procedure for recruitment but also for seniority. A Clerk or Clerk-Typist would take his seniority from the date he passes the post-training examination. Amongst the candidates passing the post-training examination on the same date, the seniority would be arranged according to their rank in the examination." 10. The State Government, under its Notification dated 10th June 1970 made the Examination Rules. A Clerk or Clerk-Typist would take his seniority from the date he passes the post-training examination. Amongst the candidates passing the post-training examination on the same date, the seniority would be arranged according to their rank in the examination." 10. The State Government, under its Notification dated 10th June 1970 made the Examination Rules. The Examination Rules contemplate a training for one and a half months for candidates selected for appointment to the post of Clerk or Clerk-Typist; for passing the post-training examination in not more than three chances (four chances in case of a Scheduled Caste or Scheduled Tribe candidate); confer the power upon the State Government to allow one more chance to a selected candidate to pass the examination on payment of examination fee, if the State Government were satisfied that the candidate could not pass the examination at which he had his last chance for reasons beyond his control or that he failed to pass such examination by very narrow margin of marks ; that the selected candidate should be appointed only after he has received the prescribed training and passed the post-training examination; any candidate who has been appointed as a Clerk or Clerk-Typist as a stop-gap arrangement if fails to undergo the training or pass the post-training examination as required, his service shall be terminated; for syllabus of the training and the post-training examination; for passing standard at the post-training examination, etc. A major change was made when the Government, under its Notification dated 15th February 1985, inserted clause (3) in Rule 8 of the Examination Rules. The sub-rule (3) inserted on 15th February 1985 provided A candidate who is appointed as a Clerk or a Clerk-typist subject to undergoing training and/or passing the examination shall get seniority from the date of joining service, if he completes the post training and passes the examination as prescribed in Rule-7 within three chances (four chances in case of Scheduled Caste or Scheduled Tribe candidates). Provided that Seniority of a candidate as referred to above shall be counted from the date of passing the post training examination, if he fails to pass the examination as prescribed in rule-7 within three chances (four chances in case of a Scheduled Caste or Scheduled Tribe candidate). 11. Provided that Seniority of a candidate as referred to above shall be counted from the date of passing the post training examination, if he fails to pass the examination as prescribed in rule-7 within three chances (four chances in case of a Scheduled Caste or Scheduled Tribe candidate). 11. That was further amended under the Government Notification dated 30th March 1994 issued pursuant to the judgment of this Court in the matter of Safimiya Malek (supra). Under the said 1994 Notification, the State Government inserted the below mentioned sub-rule (3) below sub-rule (2) of rule (3) of the Examination Rules, with effect from 10th June 1970: "Notwithstanding anything contained in clause (a) of sub-rule (1) of rule 21 of the Gujarat Non-Secretariat Clerks, Clerk-Typists and Typists (Direct Recruitment Procedure) Rules, 1970, a candidate who is appointed as a Clerk or a Clerk-Typist subject to undergoing training and/or passing the examination shall get seniority from the date of joining service, if he completes the pre-training and passes the examination as prescribed in Rule 7 within three chances (four chances in case of Scheduled Caste or Scheduled Tribe candidate)." Provided that seniority of a candidate as referred to above shall be counted from the date of passing the post training examination, if he fails to pass the examination as prescribed in rules within three chances (four chances in case of a Scheduled Caste or Scheduled Tribe candidate). 12. The State Government has not made separate rules to govern the inter se seniority of Clerks or Clerk-Typists. However, it is apparent that the above referred Direct Recruitment Procedure Rules and the Examination Rules though are made to govern the procedure for recruitment and to govern the pre-service training and the post-training examination, do provide for the seniority also. Rule 21 of the Direct Recruitment Procedure Rules clearly governed the seniority of Clerks and Clerk-Typists in order of their passing the post training examination and the rank obtained at such examination. The Examination Rules as they were made in the year 1970 did not refer to the inter se seniority of the candidates. However, sub-rule (3) of Rule 8 inserted by the amendment dated 15th February 1985 did affect the seniority hitherto governed by the above referred Rule 21 of the Direct Recruitment Procedure Rules. The Examination Rules as they were made in the year 1970 did not refer to the inter se seniority of the candidates. However, sub-rule (3) of Rule 8 inserted by the amendment dated 15th February 1985 did affect the seniority hitherto governed by the above referred Rule 21 of the Direct Recruitment Procedure Rules. Now, under sub-rule (3) of Rule 8 of the Examination Rules, the Clerks and Clerk-Typists passing the post-training examination within three chances within the period specified in Rule 7 (four chances in case of Scheduled Caste and Scheduled Tribe candidate), the seniority was governed by the principle of continuous officiation i.e. from the date of joining the service. Proviso thereof clarifies that this concession is not available to the Clerks and Clerk-Typists who fail to pass the examination within three chances (four chances in case of Scheduled Caste and Scheduled Tribe candidate) within the specified period. The said Rule was, however, further diluted by extending concession made in sub-rule (3) to every Clerk and Clerk-Typist who was appointed on or after 10th June 1970. In other words, the said amendment made on 15th June 1985 has been made retrospective in operation by the amendment of 30th March 1994. 13. In the backdrop of these rules, learned advocate Mr.Mukul Sinha is not right in submitting that these rules could not and do not govern the seniority. These rules do govern the seniority and that should apply to the appellant also. 14. As to the seniority on the principle of continuous officiation, we do agree that that is the normal rule of seniority. In absence of any rule to the contrary, the principle of continuous officiation will apply. But, as discussed hereinabove, in the present case, the seniority of the appellant is governed by the specific rules made in that behalf. The appellant's claim for seniority on the principle of continuous officiation, contrary to the rules of seniority, needs to be rejected. 15. In the matter of M.H.Patil (supra), the Hon'ble Supreme Court upheld the long standing practice of assigning seniority on the principle of continuous officiation in the cadre of Sub-Inspectors of Prohibition and Excise and held that the date of passing the departmental examination was relevant for confirmation alone and that the promotion would be governed by the principle of continuous officiation. In our opinion, that was the pragmatic approach adopted by the Hon'ble Supreme Court and does not govern the situation before us. 16. In the matter of Saroj Rani and another (supra), the dispute was in respect of promotion to the post of Assistant. The promotion which was hitherto made from amongst the qualified Clerks who had passed the departmental examination was thrown open for the unqualified Clerks who had completed 18 years' service as such. The promotion being granted on the basis of seniority-cum-merit, the unqualified candidates who had completed 18 years' service; who were obviously senior to the qualified Clerks, stole a march over the qualified Clerks almost blocking their promotional avenues. While considering the matter at issue, the Hon'ble Court observed ...It is not in dispute, the promotion to the post of Assistant from amongst the eligible candidates is seniority-cum-merit. Eligible candidate in this context means all those who passed the examination in less than or more than five chances. They constitute one group. There is no division among the qualifiers either under the rules or any order. This one cohesive group has to wait for promotion till vacancy arises....when the principle of seniority-cum-merit is to be applied, there cannot be any preference inter se among the said two groups. 17. In the matter of Kumari Ushaben Joshi (supra), this Court upheld the exemption granted to the Clerks who had completed two years' service, from passing the post-training examination. The Court upheld the said classification. The Court held ...I think the classification, that is sought to be made between the clerks/clerk-typists who have rendered services of two years or more as on April 1, 1976, and those who have put in less than two years of service as on April 1, 1976, must be said to have been based on rational principle which has nexus to the object sought to be achieved. 18. Similar rules of seniority prevalent in various cadres under the departments of the State have been subject matter of challenge before this Court time and again and have been upheld as constitutional. 18. Similar rules of seniority prevalent in various cadres under the departments of the State have been subject matter of challenge before this Court time and again and have been upheld as constitutional. The argument that such rule has the effect of making sub-classes within a class has not weighed with this Court or the Hon'ble Supreme Court [reference can be had to the judgment of this Court in the matter of N.M.Nayi v/s. The Collector, Mehsana District & others and other writ petitions (Special Civil Application No.2860/1983 decided on 16th December 1983 (Coram: P.S.Poti, C.J. and S.B.Majmudar, J. as he then was))]. While considering the effect of similar rule of seniority prevalent in the Revenue Department of the State and examining the validity of such rule, the Court held ...This sub-classification is seriously brought in challenge by the petitioners who have attacked the vires of the impugned proviso on the touch stone of Articles 14 and 16 of the Constitution.....It was contended that as per the scheme of this rules, all incumbents in clerical cadre which belonged to lower division of subordinate revenue service become eligible for promotion to the upper division viz. to the cadre of Deputy Mamlatdars moment they pass the concerned examination. Whether they pass within specified chances as laid down by rule 5 or within extra chances as provided by rule 7, they have to be treated as qualified persons.....It was, therefore, contended that once clerks passed the concerned examination within specified chances under rule 5 or within extra chances as per rule 7, they all would form the same class. That thereafter, there is no reason to make a sub-classification out of the members of the same class and to give more favourable treatment to those juniors who passed the examination earlier and got promoted earlier and to give a different treatment to those who passed later even though senior and who have not got actually promoted to the higher cadre on account of later passing of the examination. In the submission of the petitioners, such a classification is irrational and gives hostile discriminatory treatment to those senior incumbents in the lower division of subordinate revenue service who get qualified for promotion by passing the examination later and who are visited with severe adverse consequence of losing their seniority over their juniors who might have cleared the examination earlier and who might have been promoted on account thereof. It is vehemently contended that this sub-classification envisaged by the substituted proviso to rule 7 does not stand the test of Articles 14 and 16 of the Constitution. After a long discussion, the Court held ...Consequently, we do not decipher any vice in the impugned proviso on the touch stone of Articles 14 and 16. The first contention canvassed by the petitioners, therefore, must be repelled. The rule of seniority which has held the field since 1985, which has crystallized many a rights cannot now be declared unconstitutional or inapplicable. 19. In our opinion, the appellant is governed by the above referred rule of seniority and is binding to him. If he has failed to pass the post-training examination within three chances and within three years as specified in the Examination Rules, he must forfeit right to seniority on the principle of continuous officiation and shall take the seniority from the date he passed the post training examination. In our opinion, the respondent Government Pleader has rightly assigned the seniority to the appellant from the date he passed the post training examination. Besides, the challenge to the seniority assigned in the year 1991 in the year 1999 deserved to be rejected on the grounds of delay, laches and acquiescence also. It is well settled that making repeated representations for years on end does not save the limitation. 20. In the matter of Safimiya G.Malek (supra), the question was of inter se seniority amongst the Deputy Mamlatdars who were governed by a similar set of rules. The question was of seniority prior to the above referred amendment of 15th February 1985. As we have seen the first major change in the Rules of 1970 came on 15th February 1985 which operated prospectively. 21. The question was of seniority prior to the above referred amendment of 15th February 1985. As we have seen the first major change in the Rules of 1970 came on 15th February 1985 which operated prospectively. 21. In the matter of Safimiya G.Malek (supra), all that this Court held ...Apart from this, the very concept of seniority admits of it being reshuffled from time to time, according to the circumstances that might exist at a given point of time. Whatever may be the reason for bringing about the amendment, the effect thereof cannot be restricted only to the case contemplated. It was this decision which resulted into the amendment of Rule 8 by the Government Notification dated 30th March 1994. In compliance with the direction issued by this Court, the rule of seniority was given retrospective effect from 10th June 1970. 22. For the aforesaid reasons, we are of the opinion that the claim of the appellant for seniority on the basis of continuous officiation is in contravention of the rule of seniority contained in the above referred Rule 8(3) of the Examination Rules. The same cannot be countenanced. The learned Single Judge, in our opinion, has erred in holding that the proviso inserted under the Government Notification dated 30th March 1994 was contrary to the law laid down by this Court in Safimiya G.Malek's case. 23. We would wish that the rule of seniority which is sublime to the Government servants should have uniformity and continuity; the rules which govern the Clerks should be simple and unambiguous, easily understood by the Clerks. Instead, we have a set of rules which govern the Clerks but are complex enough to baffle the Courts, which leads to never ending litigations. We are unable to comprehend why a person who qualifies first should not have a first right to be considered for promotion. It is legal to consider the qualified candidates for further promotion in order of their seniority; it is equally legal to consider the qualified candidates for further promotion in order of the date of their acquiring eligibility. The rule as simple as this has been twisted and re-twisted and re-twisted to make the rule more and more complex and more and more difficult to operate. The rule as simple as this has been twisted and re-twisted and re-twisted to make the rule more and more complex and more and more difficult to operate. Should the Government be mindful, it is high time that the Government looks into the rules of seniority prevailing in the State of Gujarat and make them simple to understand and to operate. 24. The Appeal is allowed. The impugned judgment and order dated 13th January 2006 passed by the learned Single Judge in above Special Civil Application No.3846/1999 is quashed and set-aside. The Special Civil Application No.3846/1999 is dismissed. Civil Application stands disposed of. The parties will bear their own cost.