Takhatsinhji Chhatrasinhji Chauhan v. Divisional Controller
2016-06-10
A.S.SUPEHIA
body2016
DigiLaw.ai
JUDGMENT : A.S. Supehia, J. 1. Present petition is filed under Article 226 of the Constitution of India for quashing and setting aside the Order dated 23.12.2002, passed by respondent No. 1, whereby the petitioners are reverted from the post of Assistant Traffic Inspector/Traffic Instructors (ATS/TI) to the post of Traffic Controller. 2. The facts enumerated from the memo of the petition are that the petitioners are the permanent employees working in respondent No. 1-Corporation. Petitioners were working on the post of Traffic Inspector (TI)/Assistant Traffic Inspector (ATI) at their respective places till the date of passing of the impugned order. It is the case of the petitioners that they have been working under the Respondent-Corporation since last 30 years. Initially, the petitioners were appointed as Conductors. Thereafter they were promoted to the post of Traffic Controller after following the due procedure of law. 3. The petitioners were assigned the work of Assistant Traffic Inspector and in fact the respondents were taking work of ATI from the petitioners since last about 6-7 years on temporary basis. The post of Traffic Controller is the feeder cadre post for promotional post of Assistant Traffic Controller. 4. Learned Advocate Mr. Vora appearing on behalf of the petitioners has submitted that the petitioners were given work on temporary basis because they had not passed examination of A.T.I. He has contended that the respondent-Corporation has not conducted any departmental examination for promotion/appointment to the post of A.T.I. regularly. The first examination was conducted in the year 1973 and the last examination for the post of ATI was conducted in the year 2002. 5. He has further submitted that despite the fact that all the petitioners have passed the examination for the post of ATI, to their great shock and surprise of the petitioners, respondent No. 1 vide order dated 23.12.2002 has reverted the petitioners from the post of Assistant Traffic Inspector (ATI)/Traffic Inspector (TI) to the post of Traffic Controller. In other words, petitioner Nos. 1 to 4, who were promoted to the post of Traffic Inspector on temporary basis, are reverted to the post of Traffic Controller by the impugned order. Similarly, petitioner Nos. 2, 3 and 5, who were given the post of Assistant Traffic Inspector on temporary basis, are reverted to the post of Traffic Controller by the impugned order. 6. The pay-scale fixed for the post of Driver is Rs. 2650-7005.
Similarly, petitioner Nos. 2, 3 and 5, who were given the post of Assistant Traffic Inspector on temporary basis, are reverted to the post of Traffic Controller by the impugned order. 6. The pay-scale fixed for the post of Driver is Rs. 2650-7005. Pay-scale fixed for the post of Traffic Controller is Rs. 3100-7995. The pay-scale fixed for the post of ATI is Rs. 3400-8835. Pay-scale fixed for the post of Driver is Rs. 4500-11015. Petitioners were paid the pay-scale of Assistant Traffic Inspector/Traffic Inspector before passing the examination of ATI. However, after passing the examination of ATI, the petitioners have been denied their lawful right of promotion to the post of ATI by passing the impugned order and, therefore, the petitioners are constrained to prefer the present petition. He has also relied on the Circular dated 22.06.2001, particularly Clause (b), which states that any candidate who fails in the examination should be allowed to appear in the departmental examination within six months. He has stated that it was incumbent on the Corporation to hold the examination of the petitioners for the post of Traffic Inspector within six months on being declared failed. 7. In the Affidavit-in-reply filed on behalf of the respondent authorities, it is stated that a Conductor is promoted to the post of Traffic Controller on clearing the departmental examination, and he is placed ahead in the seniority list. At the time of filling the regular post of Traffic Controller, the ratio of 75% by way of departmental examination and 25% from direct recruitment is to be maintained. 8. The Respondent-Authority has relied on Clause 55 of the GSO No. 503 which is reproduced hereinbelow: "Clause-55 The waiting list of the qualified persons for promotions to the higher post shall remain valid even though incumbents are not regularly promoted to the higher post, for which they are qualified for want of clear vacancies in the departmental sector as per the ratio." 9. Reliance is also placed on GSO Nos. 503 of 1959 and 116 of 1996, which state that the employee-driver and Traffic Controller who have completed one year of service on a promotional post are entitled to appear in the departmental examination.
Reliance is also placed on GSO Nos. 503 of 1959 and 116 of 1996, which state that the employee-driver and Traffic Controller who have completed one year of service on a promotional post are entitled to appear in the departmental examination. In subsequent GSO No. 1101/2001 it is stated that if an employee has completed one year of service on ad-hoc basis on the promotional post, then also he is entitled to appear in departmental examination meant for the promotional post. Accordingly the petitioners were permitted to appear in the departmental examination of Assistant Traffic Inspector. It is the say of the Respondents that for the post of Assistant Traffic Inspector, common seniority of Driver vis-a-vis vacant permanent post of Assistant Traffic Inspector has to be taken into consideration. 10. Learned Advocate Mr. Hardik Raval has further elucidated his arguments that on clearing the departmental examination the petitioners prayer to grant permanent promotion cannot be accepted since the same violates the Rules and Regulations of the Corporation and also violates the seniority of the other persons. All the petitioners appeared in departmental examination on the post of Traffic Inspector and they failed. He has further stated that their seniority is also being maintained on their original post of Conductor, and as the petitioners are not found ahead in the seniority for the permanent promotion on the post of Driver/Traffic Controller the order of reversion is passed. 11. Having given thoughtful consideration to the entire controversy, perusing the record and the impugned order, I am of the opinion that the petitioners were rightly reverted from the post of Assistant Traffic Inspector/Traffic Instructors (ATS/TI) to the post of Traffic Controller. The genesis of their reversion lies in the judgment dated 16-18.01.2003 passed in Special Civil Application No. 5914/01 and allied matters. It is required to be noted that in common judgment dated 16-18.01.2003 this Court has extensively dealt with the issue of promotions/seniority and holding of departmental examination to the posts of Conductors, drivers, Assistant Traffic Inspector and Junior Clerks, Junior Accountants and Junior Assistants working under the Respondent-Corporation. After thorough examination of the regulations of the respondent-Corporation, this Court laid down number of conditions for regulating the promotion and seniority of such cadres. Paragraph Nos.
After thorough examination of the regulations of the respondent-Corporation, this Court laid down number of conditions for regulating the promotion and seniority of such cadres. Paragraph Nos. 12(c) (ii) and (iii) of the said judgment are reproduced as under: "(ii) Concerned petitioners who have been promoted prior to 1990 as Traffic Controllers and subsequently from the post of Traffic Controller to the post of Asst. Inspector or from the post of Asst. Inspector to the post of Traffic Inspector shall be given opportunity to appear in the requisite departmental examination as may be held by the corporation and if they successfully pass the said examination and if regular vacancies of promotees are available they may be absorbed by way of regular selection keeping in view the inter se seniority in the respective cadre. (iii) The requisite examination for the cadres of Conductor, Traffic Controller, Asst. Traffic Inspector or for the cadre of Traffic Inspector shall be held by the ST Corporation within six months from the date of receipt of writ of this court and within three months thereafter or in any case within one month after the declaration of the result, the aforesaid exercise shall be completed by the corporation." 12. The only distinctive feature is that the controversy in the earlier petition pertained to those employees who were appointed prior to 1990 to the post of Traffic Controller whereas the petitioners are appointed after 1990. This is evident from Paragraph No. 12(c) of the said judgment. In the present case, the petitioners were appointed as Conductor between 1969 to 1971. The details of the petitioners are produced in the statement annexed to the affidavit-in-reply filed by the respondent authority. Perusal of the statement will clarify passing of the examination by the petitioners. 13. The petitioners cleared the departmental examination of Assistant Traffic Inspector (ATI) in the year 2002, whereas in the examination held for promotion to the post of Traffic Inspector all of them have failed. After the common judgment of this Court rendered in the case of Special Civil Application No. 5914/01 and allied matters, the respondent-Corporation has re-arranged the seniority as per Clause-II as reproduced hereinabove. It was specifically stated that the absorption of promotees to the posts of Traffic Controller or Assistant Inspector shall be governed in view of inter se seniority in respective cadre. 14.
It was specifically stated that the absorption of promotees to the posts of Traffic Controller or Assistant Inspector shall be governed in view of inter se seniority in respective cadre. 14. In compliance of the aforesaid order, the respondent-Corporation re-arraigned the seniority of the employees wherein the petitioners were assigned seniority Nos. 1152, 84, 77, 25, 49 and 66 respectively. 15. Learned advocate appearing for the respondent-Corporation has specifically stated that no persons junior to the petitioners were granted promotion. The said statement is not contradicted by the learned advocate appearing for the petitioners. 16. In my view, the petitioners were rightly reverted from their respective posts on readjustment of the seniority of their respective cadres pursuant to the common judgment of this Court. The contention of the petitioners that they were not allowed to appear in the examination as per the circular dated 22.06.2001, particularly Clause (b), which states that any candidate who fails in the examination should be allowed to appear in the departmental examination within six months cannot come to their rescue. The aforesaid contention will not qualify the petitioners for promotion, or the reversion order cannot be set aside on the said ground as they are not reverted on the ground of non-passing of departmental examination but due to readjustment of inter se seniority done pursuant to the common judgment of this Court. The non holding the examination has nothing to do with their reversion. They had also failed in the examination of the promotional post of Traffic Inspector. 17. It deserves to be noted that the petitioners have not challenged their seniority position in the present petition. Subsequently, all the petitioners have retired between 2003-2007. In my view, in absence of any challenge to their seniority position, which was the prime cause for their reversion, the petition cannot be entertained. Moreover, perusal of the order appointing them to their respective posts of Traffic Inspector/Assistant Traffic Inspectors will clarify that they were appointed on absolutely ad hoc basis with a condition that their promotion will not affect the seniority, and their ad hoc promotion cannot give any right or claim for regular promotion de hors the seniority of the employees. The petitioners while accepting the ad hoc promotions were fully conscious of the conditions stated in the Orders promoting them.
The petitioners while accepting the ad hoc promotions were fully conscious of the conditions stated in the Orders promoting them. Having accepted the same, the petitioners cannot challenge their reversion, as the ad hoc promotion cannot procreate a legal right of regular promotion in absence of any Rules or Regulations permitting the same de hors seniority. 18. In my view the common judgment rendered by this Court was accepted by the similarly situated employees to the petitioners. Having accepted the seniority position in compliance with the said common judgment, the petitioners, who belong to same class, cannot adopt a reversal stand making a grievance that the reversion was illegal, and they were liable to be promoted on further posts of Assistant Traffic Controllers and Traffic Inspectors. Hence, the petition is dismissed. RULE is discharged. Interim relief, if any, granted earlier stands vacated. No costs. 19. Accordingly, the connected civil application does not survive and the same stands dismissed.