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2015 DIGILAW 954 (GUJ)

C. K. Gadhvi v. State of Gujarat

2015-09-29

ABHILASHA KUMARI

body2015
JUDGMENT : Abhilasha Kumari, J. The challenge in this petition under Article 226 of the Constitution of India, is to the action of the respondents in not giving effect to the Government Resolution dated 04.05.1992, whereby it has been resolved that for the purpose of seniority, the date of appointment of the petitioner in the Gujarat Medical Services, Class I, is to be considered as 30.11.1972, after taking into consideration the period of three years, one month and twenty five days of service rendered by the petitioner in the Army Medical Service. 2. It has been stated by Mr.B.D.Karia, learned advocate for the petitioner, at the very outset, that the petitioner is not seeking any service benefits but is only seeking notional seniority for the purpose of pensionary benefits. 3. Briefly stated, the facts of the case are to the following effect: The petitioner rendered service in the Army Medical Services with effect from 15.05.1971 to 09.07.1974. On 20.01.1976, the petitioner joined the Gujarat Medical Services on a Class I post after being selected by the Public Service Commission. On 13.12.1988, the petitioner was promoted to the post of Regional Deputy Director, Health and Family Welfare Department, Ahmedabad Region, on temporary basis. The petitioner did not join on the promotional post. The petitioner's promotion was cancelled by an order dated 27.01.1989, passed by respondent No.1. Being aggrieved by the said order, the petitioner preferred Regular Civil Suit No.271 of 1989 in the Court of learned Civil Judge (S.D.), Junagadh. The petitioner also preferred Regular Civil Suit No.578 of 1989, for the refixation of his seniority, wherein he filed an application at Ex.16, praying for a direction to the defendants to fix his seniority as per the Government Resolutions dated 08.10.1964 and 30.11.1963. By an order dated 27.07.1990, passed below the application at Ex.16, the Trial Court directed the defendants to consider the double seniority of the petitioner as per the Government Resolutions mentioned herein above, while taking into consideration the services rendered by the petitioner in the Army Medical Service. Being aggrieved by the order dated 27.07.1990, passed below the application at Ex.16, the respondents preferred Civil Miscellaneous Appeal No.81 of 1991, in the District Court, Junagadh. The appeal was partly-allowed by an order dated 05.05.1992. Thereafter, vide order dated 21.01.1992, the petitioner was promoted on adhoc basis to the post of Regional Deputy Director, Ahmedabad. Being aggrieved by the order dated 27.07.1990, passed below the application at Ex.16, the respondents preferred Civil Miscellaneous Appeal No.81 of 1991, in the District Court, Junagadh. The appeal was partly-allowed by an order dated 05.05.1992. Thereafter, vide order dated 21.01.1992, the petitioner was promoted on adhoc basis to the post of Regional Deputy Director, Ahmedabad. Respondent No.1 thereafter passed the Government Resolution ("GR" for short) dated 04.05.1992, whereby it was resolved to fix the seniority of the petitioner after taking into consideration the service rendered by him in the Army Medical Service, totalling to three years one month and twenty-five days. The petitioner preferred an application for voluntary retirement and, vide order dated 23.02.1993, the petitioner was permitted to retire from service voluntarily. Vide Circular dated 21.05.1996, the provisional seniority list was declared by the respondents. Pursuant thereto, the final seniority list dated 10.07.1998 was published by the respondents wherein the petitioner was placed at Sr.No.3. After the circulation of the final seniority list dated 10.07.1998, the respondents came out with another provisional seniority list dated 31.12.1998, reflecting the seniority of Deputy Directors as on 01.01.1998. In this provisional seniority list, the petitioner was placed at Sr.No.4. The specific grievance of the petitioner is regarding the provisional seniority list dated 31.12.1998, as, in the said seniority list, the seniority allotted to the petitioner as per the GR dated 04.05.1992, which is from 30.11.1972, has not been reflected. Instead, the date given to the petitioner has been shown as 02.01.1992, which is the date on which the petitioner was promoted as Deputy Director. Further, the petitioner has been placed at Sr.No.4 in the said seniority list, below three persons who are junior to him in the service. Aggrieved thereby, the petitioner made a representation to respondent No.1, which was rejected by communication dated 17.01.2002. The petitioner made other representations on 29.01.2002, 31.01.2002 and 07.07.2004, for the refixation of his seniority and revision of his pensionary benefits as per the notional seniority accorded to him by the GR date 04.05.1992. The request of the petitioner was again turned down by respondent No.1 vide communication dated 04.09.2004. The petitioner preferred an application before the Permanent Lok Adalat, Ahmedabad, numbered as Pre-litigation Case No.82/2004. The respondents contested this application and the matter could not be resolved. Hence, the petitioner was constrained to file the present petition. 4. The request of the petitioner was again turned down by respondent No.1 vide communication dated 04.09.2004. The petitioner preferred an application before the Permanent Lok Adalat, Ahmedabad, numbered as Pre-litigation Case No.82/2004. The respondents contested this application and the matter could not be resolved. Hence, the petitioner was constrained to file the present petition. 4. Mr.B.D.Karia, learned advocate for the petitioner, has submitted that once the Government has taken a policy decision to count the service rendered by the petitioner in the Army Medical Services and has fixed the seniority of the petitioner in the Gujarat Medical Services as Class I officer as 30.11.1972, the said date cannot be subsequently ignored, altered or modified to the detriment of the petitioner. In the final seniority list dated 10.07.1998, which reflects the seniority as it stood on 01.01.1994, the petitioner has rightly been shown at Sr.No.3 and his date of joining has rightly been considered as 30.11.1972. This is in accordance with the Government Resolution dated 04.05.1992. However, after publishing the final seniority list, the respondents have come out with a provisional seniority list of Deputy Directors in which the petitioner has been shown at Sr.No.4 and his seniority has been shown with effect from 02.01.1992. It is submitted that this act is contrary to the Government Resolution dated 04.05.1992 and is, therefore, contrary to the policy decision of the State Government. It is, therefore, unsustainable in law. 5. It is submitted that the three persons who are shown senior to the petitioner, namely Dr.N.K.Patel, Dr.M.Y.Khan and Dr.(Smt.) P.M. Trivedi, are undisputedly junior to him, having entered the service after him. 6. It is submitted that once the Government has taken a decision to fix the seniority of the petitioner in the Gujarat Medical Service, Class I, as 30.11.1972, the petitioner cannot be denied seniority by counting the date of his promotion as a Deputy Director. The petitioner ought to have been placed at Sr.No.1 in the provisional seniority list dated 31.12.1998, above Dr.N.K.Patel, who, admittedly has joined the service on 20.01.1976. 7. It is next submitted that the petitioner has made repeated representations to the concerned respondents. The last representation made by the petitioner was rejected on 04.09.2004. Thereafter, the petitioner approached the Lok Adalat and, as the matter could not be successfully resolved, he approached this Court by way of this petition 28.02.2005. 7. It is next submitted that the petitioner has made repeated representations to the concerned respondents. The last representation made by the petitioner was rejected on 04.09.2004. Thereafter, the petitioner approached the Lok Adalat and, as the matter could not be successfully resolved, he approached this Court by way of this petition 28.02.2005. It is submitted that this sequence of events clearly shows that the petitioner has never given up the cause and there is no delay in approaching the Court. 8. Learned advocate for the petitioner has placed reliance upon the judgment of the Supreme Court in Amarjeet Singh And Others v. Devi Ratan And Others - (2010)1 SCC 417 , in support of the submissions advanced by him. 9. On the other hand, Mr.Tirthraj Pandya, learned Assistant Government Pleader, has contested the petition by submitting that the petitioner was promoted as Regional Deputy Director, Health and Family Welfare Department, on 13.12.1988. He did not join the promotional post, therefore, the promotion was cancelled, by an order dated 27.01.1989. It is further submitted that the petitioner was again promoted as Deputy Director by an order dated 02.01.1992. This time, he joined the promotional post on 02.01.1992. Hence, in the provisional seniority list dated 31.12.1998, the seniority of the petitioner is reflected from the date of his joining as Deputy Director on 02.01.1992. It is submitted that this seniority list was published on 31.12.1998, but the petitioner did not raise any objection to it. Instead, he has approached the Court in the year 2005, after an inordinate delay of about seven years. It is submitted that, as the petitioner did not join on his promotional post in the year 1988, the said promotion was cancelled. Thereafter, he was given promotion as Deputy Director on 02.01.1992, at which point of time, the names of Dr.N.K.Patel, Dr.M.Y.Khan and Dr.(Smt.) P.M.Trivedi appeared in the provisional seniority list of Deputy Directors dated 31.12.1998, above the name of the petitioner, as they had joined as Deputy Directors before the petitioner. 10. On the above grounds, it is submitted by the learned Assistant Government Pleader that the petition, being devoid of merit, may be rejected. 11. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition as well as the documents on record. 12. 10. On the above grounds, it is submitted by the learned Assistant Government Pleader that the petition, being devoid of merit, may be rejected. 11. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition as well as the documents on record. 12. It is an undisputed fact, which is admitted by respondent No.1 in the affidavit-in-reply, that the seniority of the petitioner in the Gujarat Medical Services, Class I, has been fixed as 30.11.1972, vide the Government Resolution dated 04.05.1992. Having admitted that, the said respondent is seeking to justify its action of ignoring the said date and, in effect modifying it in the provisional seniority list dated 31.12.1998. In this provisional seniority list, the date 02.01.1992 has been reflected against the name of the petitioner, being the date on which the petitioner joined the promotional post of Deputy Director, Gujarat Medical Services. In the view of this Court, the date of joining on the promotional post cannot be confused with the seniority allotted to the petitioner by the GR dated 04.05.1992, as is sought to be done by the respondents. 13. The Government Resolution dated 04.05.1992 reflects the policy decision taken by the State Government in the matter of the fixation of the seniority of the petitioner by counting the period of three years one month and twenty five days rendered by him in the Army Medical Services. Once a policy decision has been taken by the State Government to count the services rendered by the petitioner in the Army and his seniority has been fixed as 30.11.1972, the respondents cannot act contrary to the said decision by substituting the date of joining on the promotional post as his seniority. The respondents are required to follow their own GR for all intents and purposes. The GR dated 04.05.1992 still holds the field as it has neither been cancelled nor modified. There is no justification, whatsoever, in the action of the respondents in depriving the petitioner of his seniority with effect from 30.11.1972, in contravention of the GR dated 04.05.1992, and that too by publishing a provisional seniority list. 14. It is significant to note that before coming out with the provisional seniority list dated 31.12.1998, the respondents had published the final seniority list dated 10.07.1998, reflecting the seniority as it stood on 01.01.1994. 14. It is significant to note that before coming out with the provisional seniority list dated 31.12.1998, the respondents had published the final seniority list dated 10.07.1998, reflecting the seniority as it stood on 01.01.1994. In that seniority list, the name of the petitioner figured at Sr.No.3 and his date of seniority was correctly reflected as 30.11.1972. It appears that after the publication of this final seniority list, the respondents have attempted to segregate the Deputy Directors into a separate cadre by preparing a provisional seniority list of only Deputy Directors. It is in this seniority list that the mischief has crept in, as it does not count the seniority of the petitioner from 30.11.1972, but reflects the date of the petitioner's joining as Deputy Director. 15. The date of joining in the promotional post of Deputy Director cannot, by any stretch of imagination, be taken as his seniority in the Gujarat Medical Services, Class I, contrary to the decision of the State Government in GR dated 04.05.1992. In doing so, the respondents have not only acted in violation of their own GR and policy decision, but have illegally wiped out nearly two decades of service from the seniority of the petitioner by an arbitrary stroke of the pen. 16. An attempt has been made by the learned Assistant Government Pleader to submit that the petitioner has approached this Court belatedly and had not filed any objections to the provisional seniority list. From the record, it is evident that at every stage, the petitioner had taken recourse to either a legal remedy such as filing of the civil suits, or to making repeated representations. The petitioner had also approached the Lok Adalat for the resolution of the dispute, though unsuccessfully. The last representation made by the petitioner is on 07.07.2004, which was rejected by the respondents on 04.09.2004. As such, it cannot be said that the petitioner has was sleeping over his rights and has approached the Court belatedly. When all remedies, including the resolution of the dispute in the Lok Adalat, failed, the petitioner had no other option but to approach this Court. 17. The petitioner is a senior citizen who has taken voluntary retirement with effect from 12.02.1993. When all remedies, including the resolution of the dispute in the Lok Adalat, failed, the petitioner had no other option but to approach this Court. 17. The petitioner is a senior citizen who has taken voluntary retirement with effect from 12.02.1993. As stated by the learned advocate for the petitioner, the petitioner is not claiming any pay or service benefit but is only praying for the refixation of his pension on a notional basis, as per the seniority allotted to him by the GR dated 04.05.1992. 18. As admittedly, the petitioner has been granted seniority with effect from 30.11.1972, a person who has entered the service after him, such as Dr.N.K.Patel, who joined the Gujarat Medical Service, Class I, on 20.01.1976, cannot be shown senior to the petitioner, as has been done by the respondents by publishing the provisional seniority list dated 31.12.1998. As already stated herein above, the correct date of seniority of the petitioner as per the GR dated 04.05.1992, has not been reflected in this seniority list. Instead, the date on which the petitioner joined the promotional post on 02.01.1992, has been reflected which cannot be taken to be his date of seniority. The action of the respondents in this regard cannot be sustained by any provision of law or service jurisprudence. 19. It is a settled position of law that an employee cannot be granted seniority prior to his date of entry in a cadre, adversely affecting the seniority of other employees appointed prior to him. This proposition of law has been propounded by the Supreme Court in Amarjeet Singh And Others v. Devi Ratan And Others (supra). The relevant extract is quoted herein below: "27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officer who had been appointed prior to him. "The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue" (Vide S.P. Kapoor (Dr.) v. State of HP AIR 1981 SC 2181 ; Shitla Prasad Shukla v. State of U.P., AIR 1986 SC 1859 ; and Uttaranchal Forest Rangers' Assn. (Direct Recruit) & Ors. v. State of U.P., (2006) 10 SCC 346 )." 20. (Direct Recruit) & Ors. v. State of U.P., (2006) 10 SCC 346 )." 20. Taking into consideration the above aspects of the matter, and in view of the policy decision of the State Government reflected in the Government Resolution dated 04.05.1992, the respondents are bound to consider the seniority of the petitioner with effect from 30.11.1972. Having so concluded, it stands to reason that the petitioner deserves to be granted the consequential pensionary benefits flowing from his seniority. The petitioner has retired voluntarily with effect from 23.02.1993. In view of the conclusion arrived at by this Court, the pensionary benefits of the petitioner deserve to be refixed in consonance with the date of seniority given to him by GR dated 04.05.1992, which is 30.11.1972. The action of the respondents in depriving the petitioner of his seniority is unjustified, arbitrary and illegal. 21. Hence, the following order: The respondents are directed to consider 30.11.1972 as the date for the purpose of counting service and seniority of the petitioner as per the Government Resolution dated 04.05.1992 and to refix the pension of the petitioner as per the said date. After doing so, the arrears of pension to which the petitioner is entitled shall be paid to him, within a period of three months from the date of receipt of a copy of this judgment. 22. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. Petition Allowed.