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2016 DIGILAW 1981 (GUJ)

G. R Thakar v. State of Gujarat

2016-09-06

J.B.PARDIWALA

body2016
JUDGMENT : J.B PARDIWALA, J. By this writ-application under Article 226 of the Constitution of India, the writ-applicant - a retired Government Servant, has prayed for the following reliefs:- 10(A) quash and set aside the communications of the Government dated 15.5.2002 and 28.5.2002 Annexure-O and Annexure-P respectively, to this petition and (B) quash and set aside the final seniority list of the cadre of Assistant (now known as Deputy Section Officer) in the Legal Department of Government of Gujarat dated 27.5.2002, Annexure-M to this petition, so far as it reflects the petitioner as junior to Shri H.M Raval, and (C) quash and set aside the final seniority list of the cadre of Section Officer in the Legal Department of Government of Gujarat dated 30.5.2002, Annexure-N to this petition, so far as it reflects the petitioner as junior to Shri H.M Raval, and (D) quash and set aside the Government Resolution of the Government of Gujarat Administration Department dated 18.5.1999 Annexure-Q to this petition, being illegal, arbitrary and unconstitutional, and (E) quash and set aside the Government Resolution of the Government of Gujarat, Legal Department dated 14.10.1999 Annexure-R to this petition, being illegal, arbitrary and unconstitutional, and (F) direct the respondent authorities to restore the seniority position of the petitioner vis-a-vis Shri H.M Rawal in the cadre of Legal Assistant as well as Section Officer, and (G) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (H) award the cost of the petition, and (I) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities not to promote Shri H.M Rawal on the post of Deputy Secretary to the Government of Gujarat, without considering the case of the petitioner for the same, and/or (J) grant any other relief in the nature of interim relief or pass any other order in the nature of interim order which the Honourable Court may consider as just and proper in the facts and circumstances of the case. 2. The writ-applicant was appointed as a Junior Clerk in the office of the Director of Prohibition and Excise, State of Gujarat, Ahmedabad on 23/06/1972. He worked as a Junior Clerk upto 28/07/1980. 2. The writ-applicant was appointed as a Junior Clerk in the office of the Director of Prohibition and Excise, State of Gujarat, Ahmedabad on 23/06/1972. He worked as a Junior Clerk upto 28/07/1980. The writ-applicant, thereafter, worked on the post of Searcher between 29/08/1980 and 20/04/1981 in the office of the Additional Inspector General of Police, Police Computer Centre, Finger Print Bureau, Ahmedabad. 3. In the year 1980, the Gujarat Public Service Commission invited applications for the post of Assistant in the State Secretariat. Pursuant to such invitation, the writ-applicant preferred an application and appeared in the examination conducted by the G.P.S.C The writ-applicant got selected through the G.P.S.C and was recommended for the appointment to the post of Assistant in the State of Gujarat. 4. The writ-applicant was accordingly appointed as the Supernumerary Assistant in the Legal Department of the State of Government vide order dated 15/04/1981. 5. According to the Scheme of the Government, the appointees were supposed to undergo training at the Sardar Patel Institute of Public Administration (SPIPA - for short) and pass the necessary examination on completion of such training. 6. The writ-applicant had participated in the training programme conducted between 14/08/1981 and 01/01/1982 and also, cleared the necessary examination at the end of the training. 7. On passing the examination, the writ-applicant was appointed as the Legal Assistant on regular basis in the Legal Department w.e.f 02/01/1982. 8. It is the case of the writ-applicant that the respondent no. 3 viz. Shri H.M Rawal for some reason did not participate in the training programme and also, did not clear the training examination. Shri Rawal appeared in the examination at a later stage and was appointed on the regular basis w.e.f 07/07/1982. According to the writ-applicant the Clause-(x) of the Government Resolution dated 25/03/1965 is relevant for the purpose of resolving the controversy. The same reads as under:- “Supernumerary Assistant who passed the post training examination earlier will become senior to those who passed it later. Inter-se seniority of those who passed this examination on the same day will be determined according to their rank in competitive examination held by the Gujarat Public Service Commission.” 9. The Clause-(x) came to be amended vide the Government Resolution dated 21/03/1966. Inter-se seniority of those who passed this examination on the same day will be determined according to their rank in competitive examination held by the Gujarat Public Service Commission.” 9. The Clause-(x) came to be amended vide the Government Resolution dated 21/03/1966. The amended Clause-(x) reads as under:- “Supernumerary Assistants who pass the post training examination earlier will become senior to those who pass it later, provided that if the result of a previous examination is not declared before the next examination is held, the candidates of the previous batch who pass at the second attempt should take their seniority over those of the subsequent batches even though the latter pass either. In such cases atleast a period of 30 days should be available to the repeaters for appearing at the next examination. Inter-se seniority of those who pass the examination on the same day will be determined according to their rank in competitive examination held by Public Service Commission.” 10. According to the writ-applicant, the amended Clause-(x) referred to above stipulates that the candidate who passed the post training examination earlier would be considered senior to all those, who passed at a later stage. In such circumstances, the writ-applicant should have been considered senior to the respondent no. 3 in the cadre of the Legal Assistant and was rightly considered so by the Government all throughout. 11. For a Legal Assistant, the promotional post is the Section Officer in the Legal Department. The writ-applicant was promoted as the Section Officer in the Legal Department w.e.f 30/09/1988. The respondent no. 3 was promoted as the Section Officer w.e.f 07/04/1992. 12. On 05/07/1996 the Legal Department of the Government issued the final seniority-list showing the position of the cadre of the Section Officer as on 01/01/1992, wherein, the name of the writ-applicant figured at Sr. No. 36 and the respondent no. 3 was not included in the seniority-list at all. The reason why the respondent no. 3 was not included in the seniority-list was he being not in the cadre of the Section Officer as on 01/01/1992. 13. On 06/04/1999, the final seniority-list of the cadre of Legal Assistant showing the position as on 01/01/1999 was published wherein the writ-applicant figured at the Sr. No. 31 while the respondent no. 3 figured at the Sr. No. 36. 14. 13. On 06/04/1999, the final seniority-list of the cadre of Legal Assistant showing the position as on 01/01/1999 was published wherein the writ-applicant figured at the Sr. No. 31 while the respondent no. 3 figured at the Sr. No. 36. 14. The authorities thereafter issued a provisional seniority-list for the cadre of the Assistant in the Legal Department as on 01/01/2000. In the said list, the respondent no. 3 was shown senior to the writ-applicant. The respondent no. 3 figured at the Sr. No. 33, whereas the writ-applicant figured at the Sr. No. 34. 15. On 14/02/2000, the authorities issued a provisional seniority-list for the cadre of the Section Officer in the Legal Department of the State Government showing the position as on 01/01/2000. In the said list also, the respondent no. 3 figured at the Sr. No. 31, whereas, the writ-applicant figured at the Sr. No. 32. 16. The writ-applicant filed objections against both the seniority-lists. It also appears that during the period when the representations of the writ-applicant were under consideration, both i.e. the writ-applicant as well as the respondent no. 3 were appointed on the higher post of Under Secretary vide order dated 20/12/2001. The authorities issued the final seniority-list of the cadre of the Assistant (now known as the Deputy Section Officer) in the Legal Department on 27/05/2002 showing the writ-applicant junior to the respondent no. 3. 17. It is the case of the writ-applicant that his representations were turned down relying on the Government Resolution dated 18/05/1999 issued by the General Administration Department. According to the writ-applicant, an accrued right could not have been taken away by a resolution. It is his case that the Government Resolution dated 18/05/1999 had the effect of reshuffling the seniority of the writ-applicant with retrospective effect thereby nullifying the accrued right of the seniority and promotion already earned. 18. Hence, this writ-application. 19. Ms. Pandya, the learned counsel appearing for the writ-applicant vehemently submitted that the action on the part of the State Government could be termed as illegal and arbitrary. She would submit that the Government Resolution dated 18/05/1999 in so far as it affects the seniority of her client retrospectively is arbitrary. 18. Hence, this writ-application. 19. Ms. Pandya, the learned counsel appearing for the writ-applicant vehemently submitted that the action on the part of the State Government could be termed as illegal and arbitrary. She would submit that the Government Resolution dated 18/05/1999 in so far as it affects the seniority of her client retrospectively is arbitrary. She would submit that in the first instance, such resolution could not have been made applicable so far as her client is concerned and even if at all the same could have been made applicable, the same deserves to be quashed. 20. On the other-hand this writ-application has been vehemently opposed by Mr. Prakash Jani, the learned Additional Advocate General appearing for the State. Mr. Jani would submit that the provisional/final seniority-list for the post of the Assistant (now known as the Deputy Section Officer) and Section Officer of the Legal Department was published prior to the resolution of the General Administration Department dated 18/05/1999. Vide the said resolution, it was decided that the Clerk/Assistant of the Secretariat who passes the Pre-service Training Examination would be given seniority from the date of their original appointment. This resolution was implemented by the Legal Department vide its Resolution dated 14/10/1999. Mr. Jani explained that the writ-applicant cleared the Pre-service Training Examination in the first attempt, whereas, the respondent no. 3 passed the Pre-service Training Examination in the second attempt and therefore, the writ-applicant was shown as senior to the respondent no. 3, but the effect of the two resolutions referred to above affected the seniority and the respondent no. 3 was given seniority from the date of his original appointment. Mr. Jani submits that indisputably the respondent no. 3 was appointed before the writ-applicant as the Assistant in the Legal Department. 21. According to Mr. Jani, the resolutions are in no manner unconstitutional or violative of any of the provisions of any Rules or Regulations. Mr. Jani has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondent no. 2 2. I most respectfully say and submit that the petitioner's challenge to the State Government's G.R dated 18-05-1999, issued through the General Administration Department, is absolutely not tenable in law. As a matter of fact, the impugned G.R came to be issued in the following backdrop of the situation. 2 2. I most respectfully say and submit that the petitioner's challenge to the State Government's G.R dated 18-05-1999, issued through the General Administration Department, is absolutely not tenable in law. As a matter of fact, the impugned G.R came to be issued in the following backdrop of the situation. The direct recruit Clerks and Assistants were as signed seniority from the date of passing Pre-service Training Examination, as per G.R, G.A.D No. CTG-10640K, for Clerks and JTG-1064-K for Assistants (now designated as Deputy Section Officer) dated 25-03-1965. The period of untrained services and the pre-service training was not considered for the purpose of seniority. Thereafter, the State Government had issued the G.R to the effect that the direct recruit non Secretariat Clerk would be assigned seniority from the date of actual/initial appointment, if they have cleared the pre-service training examination within the prescribed number of chances/attempts vide Notifications dated 30-03-1994 and 05-07-1995. The Sachivalaya Staff Association made a demand for determination/assignment of seniority on the said lines from the date of appointment as in the cadres of Clerks and Assistants. The Government had issued a G.R, G.A.D Dated 13-03-1996 to the effect that the seniority of the direct recruit Clerks/Assistants who passes pre-service training examination within the prescribed chances/attempts, would also be fixed from the date of their being sent to the pre-service training. This G.R was given effect to from 01-01-1996. The Sachivalaya Staff Association again represented that the direct recruit Clerks/Assistants recruited during the year 1973-1982 had been given ad hoc appointments instead of sending them to pre-service training directly and that such ad hoc appointment had been given for the period of six to twelve months approx. which in turn adversely affected their seniority for no fault of theirs. Moreover, in the cadre of Section Officer in the Secretariat, direct recruit Section Officers are given seniority from the date of their initial appointment. On these grounds, considering the submission of Sachivalaya Staff Association for giving retrospective effect to the said G.R with effect from 01-01-1973 instead of 01-01-1996. 3. Moreover, in the cadre of Section Officer in the Secretariat, direct recruit Section Officers are given seniority from the date of their initial appointment. On these grounds, considering the submission of Sachivalaya Staff Association for giving retrospective effect to the said G.R with effect from 01-01-1973 instead of 01-01-1996. 3. In the aforesaid circumstances, the State Government had considered the issue and accordingly issued the impugned G.R, G.A.D, dated 18-05-1999 to the effect that the direct recruit Clerks/Assistants would be assigned seniority from the date of their being sent to the pre-service training or from the date of untrained appointment as Clerk or Assistant, as the case may be, if such Clerks/Assistant have cleared the pre-service training examination within the prescribed chances/attempts. I further say and submit that the said impugned G.R, dated 18-05-1999 after duly considering the representations of the Sachivalaya Staff Association which, it is pertinent to note, is the recognized Association of the Class III employees of the State Government. I deny and do not admit that the said G.R dated 18-05-1999 is violative of the Articles 14 and 16 of the Constitution of India. 4. I further say and submit that the recruitment and the seniority rules to the post of Legal Assistants on the legal side of the Legal Department are distinct and separate. The said G.R, G.A.D, dated 18-05-1999 is applicable only to the Clerks and Assistants on the non-legal side of the Secretariat of the State Government and the said G.R has only limited purpose and it is not of general policy in nature. This G.R does not cover the cadre of Legal Assistant. It is/was not compulsory or even obligatory for the Legal Department to adopt the impugned G.R, dated 18-05-1999. As such, the Legal Department has not adopted directly the impugned G.R, dated 18-05-1999. The Legal Department has issued a G.R, dated 14-10-1999 on the lines of G.R, dated 18-05-1999 and accordingly the seniority of legal assistants was assigned/determined taking into considerations the said G.R, dated 14-10-1999 of the Legal Department. 22. It is well-settled that it is open for the State Government to laid down any criteria, which it thinks appropriate for determining the seniority in service and ordinarily, the Court should not strike down any resolution or rule or regulation except on the ground that the same is arbitrary and violative of Article 14 and 16 of the Constitution. 22. It is well-settled that it is open for the State Government to laid down any criteria, which it thinks appropriate for determining the seniority in service and ordinarily, the Court should not strike down any resolution or rule or regulation except on the ground that the same is arbitrary and violative of Article 14 and 16 of the Constitution. What should be the criteria or the basis of seniority is a matter of Policy. If there are any service rules they can be suitably altered 23. In the case of P. Mohan Reddy v. E.A.A Charles; (2001) 4 SCC 433 : AIR 2001 SC 1210 , the Supreme Court has explained the position of law so far as the question of re-determination of seniority any cadre is concerned. The discussion in paragraphs-7 To 17 is relevant. The same is elicited as under:- 7. Let us now examine different authorities cited at the Bar in respect of their respective contentions. In the case of Union of India v. M. Ravi Varma, (1972) 1 SCC 379 : (1972) 2 SCR 992 : ( AIR 1972 SC 670 : 1972 Lab IC 345), on which Mr. Rao relied upon, the question for consideration was as to how the seniority of appointees prior to December 22, 1959 will have to be determined. Referring to Office Memorandum dated 22nd June, 1949 under which the seniority was required to be determined on the basis of length of service the Court held that the appointees prior to the Office Memorandum dated 22nd December, 1959 would get their seniority determined according to the earlier Office Memorandum of 22nd June, 1949 i.e. in accordance with the Rules in force when the appointment had been made. In this case the Court relied upon the earlier decision in Mervyn Continho v. Collector of Customs, (1966) 3 SCR 600 : ( AIR 1967 SC 52 ) and this decision, to a great extent supports Mr. Rao's contention. In D.P Sharma v. Union of India, 1989 Supp (1) SCC 244: ( AIR 1989 SC 1071 : 1989 Lab IC 1294), it has been held by this Court that it is the General Rule that if seniority is to be regulated in a particular manner in a given period, then the same shall be given effect to and not be varied to disadvantage retrospectively. In this case also the earlier criteria for determination of seniority was length of continuous service whereas the subsequent Rules provided for determination the seniority on the basis of the date of confirmation. This Court held that the subsequent Rules cannot impair the existing rights of officials who were appointed long prior to coming into force of the Rules. Those officials had right of determination of their seniority in accordance with the pre-existing memoranda which provided for reckoning length of continuous service. This decision also undoubtedly, supports Mr. Rao's contention and further holds that an employee has an existing right of getting his seniority determined in the cadre according to the Rules in force on the date of his appointment. 8. In the Constitution Bench decision of this Court in B.S Yadav v. State of Haryana, (1981) 1 SCR 1024 : (1980 Supp SCC 524 : AIR 1981 SC 561 : 1981 Lab IC 104), the Court was considering a case of drawing up of seniority list of judicial officers and then finally directed the High Court to redraw inter se seniority list of those direct recruits and promotees who were appointed to the Superior Judicial Service prior to 31st December, 1976 on the basis of the respective dates of their confirmation allotted to them and of all those who were appointed to the post in service after 31st December, 1976 in accordance with the amended Rule 12. It may be stated that amended Rule 12 was notified on 31st December, 1976 which lays down the length of continuous service in a cadre post as a guiding criteria for fixing seniority, whereas under the Rules prior to that date the guiding factor for determination of seniority in the cadre was on the basis of date of confirmation allotted to the employees. The aforesaid Constitution Bench decision, therefore indirectly supports the contention of Mr. Rao that the seniority of an employee in a cadre is required to be determined in accordance with the Rules in force on the date of appointment and not under any amended Rules unless the amended Rules itself are retrospective in nature. 9. In P.D Aggarwal v. State of U.P, (1987) 3 SCC 622 : (AIR 1987 SC 309: 1987 Lab IC 1307), certain temporary Assistant Engineers had been appointed in consultation with the Union Public Service Commission and had been rendering service since 1956. 9. In P.D Aggarwal v. State of U.P, (1987) 3 SCC 622 : (AIR 1987 SC 309: 1987 Lab IC 1307), certain temporary Assistant Engineers had been appointed in consultation with the Union Public Service Commission and had been rendering service since 1956. The Rules for seniority was Rule 23 of the U P. Service of Engineers (Building and Roads Branch) Class II, Rules. That Rule stood amended in the year 1971. This Court held that on the basis of the provision of Rule 23 it was before the amendment made in 1971, the temporary Assistant Engineers are legally entitled to have their seniority reckoned from the date of their being members of the service, no matter whether they are holding posts which remained as temporary for years together. The Court repelled the contention of the direct recruits Assistant Engineers that they being recruits under amended Rule 23 of 1971 Rules, they cannot be deprived of their right to be promoted on the basis of fixation of their seniority in the cadre, as provided in the amended Rules. The Court further observed that substituted Rule 23 introduced in 1971 is on the face of it unreasonable and arbitrary inasmuch as it purports to deprive a member of service from having his seniority reckoned on ipse dixit Rules that he had not been appointed in the substantive vacancy. 10. In Gaya Baksh Yadav v. Union of India, (1996) 4 SCC 23 , the question of inter se seniority between direct recruits and promotees Customs Appraisers during the period proceeding and succeeding the Rules of 1961 was under consideration. In that case also the Statutory Rules governing the subject of seniority came into force in the year 1961, called, The Customs Appraisers Service Class II Recruitment Rules 1961, and prior to coming into force of the aforesaid Recruitment Rules the seniority of such customs appraisers in the cadre was being determined in accordance with Administrative Instructions from time to time and in Mervyn Continho ( AIR 1967 SC 52 ) (supra) this Court discarded the quota system for promotion. This Court ultimately held that appraisers appointed prior to the decision of this Court in Mervyn Continho (supra) would get their seniority on the basis of quota rota formula, whereas appraisers appointed on and from the Recruitment Rules came into force, would get their seniority determined on the basis of continuous officiation as indicated in the Recruitment Rules. 11. In Indian Administrative Service Association v. Union of India, 1993 Supp (1) SCC 730: (1993 AIR SCW 1135), the question of determination of seniority in the All India Service was under consideration. In that case this Court had observed while interest to seniority can be acquired under relevant rules, there is no vested right to seniority or promotion. The real question for consideration in that case was whether a particular statute can be said to have retrospective effect when the language plainly does not indicate the same. This decision is really not directly on the point in the present case, particularly when it is conceded that the Rules of 1992 is prospective in nature. 12. In Prem Kumar Verma v. Union of India, (1998) 5 SCC 457 : (1998 AIR SCW 1626: AIR 1998 SC 2854 : 1998 Lab IC 1603), to which one of us (Pattanaik, J) was the party, on considering paragraph 303 of the Railway Establishment Manual, which was the provision for determining the seniority of candidates recruited through Railway Service Commission, the Court held that the post which fell vacant prior to July 1989 and the persons were selected prior to the amendment made on 5-5-1990 the seniority of those recruits will have to be determined on the basis of pre-amended paragraph 303, whereas those who were recruited subsequent to 5th May, 1990, their seniority would be determined according to the amended criteria. A conspectus of the aforesaid decision, therefore, unequivocally indicate that the seniority of an employee in the cadre is required to be determined in accordance with the Rules in force unless the subsequent amendment is expressly given the retrospective effect, and even though an employee does not have a vested right to have any particular position in the gradation list, but it does possess a right to get his seniority determined in accordance with the Rules in force when he was recruited and that right should not be interfered with unless the Rules making Authority by virtue of amending the Rules make it applicable to all the existing employees in the cadre notwithstanding the fact that their seniority had already been determined under the pre-existing Rule. 13. Mr. Dave, learned senior counsel appearing for the contesting respondents strongly relied upon the Constitution Bench decision of the Court in State of Jammu and Kashmir v. Shri Triloki Nath Khosa, (1974) 1 SCC 19 : ( AIR 1974 SC 1 : 1974 Lab IC 1). In this case the power of the employer to change the conditions of service retrospectively was under consideration and this Court in that context had observed that the Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services are often attempted to be achieved, consent is not a pre-condition of the validity of Rules of service, the contractual origin of the service notwithstanding. Though the question of seniority was not a matter for consideration but Mr. Dave, appearing for the respondents relied upon the observations of the Court in paragraph 16, wherein this Court had observed:- “It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operate on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective.” 14. The aforesaid decision is obviously not a direct decision on the point that has arisen for consideration in the present case though indirectly the observations referred to may have some relevance. Wing Commander J. Kumar's case ( (1982) 2 SCC 116 : AIR 1982 SC 1064 : 1982 Lab IC 1586) (supra) is undoubtedly a direct case on the point in issue and seniority was the subject-matter for consideration. In that case also the seniority of the employees under the Defence Research and Development Organisation was being determined in accordance with a set of Memorandum issued by the Ministry of Defence dated 18thMarch, 1967. In November, 1979 the President of India promulgated in exercise of power under proviso to Article 309 of the Constitution a set of Rules, called ‘R and D Organisation Terms and Conditions of Service Rules. The appointees, prior to the said Rules came into force had contended, that their seniority cannot be affected by the new Rules and that has to be determined in accordance with the Memorandum of 18thMarch, 1967 This Court, however, did not accept the said contention on the ground that the Statutory Rules having been promulgated by the President of India under the proviso to Article 309 of the Constitution an employee cannot claim to have acquire the right to have his seniority in the Research and Development Organisation reckoned with reference to the date of his temporary secondment. The Court also had further observed that it is a settled law that service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the Rules and except to the extent of protecting promotions that have already been earned under the previous Rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service. The aforesaid observation undoubtedly supports Mr. Dave's contention. But it may be noticed that the Statutory Rule in Rule 16 had used the expression “hitherto” and the Court considered the aforesaid expression in the Statutory Rule to be the factual background leading to the enactment, particularly when the employee did not bring to the notice any clinching material for justifying any departure from the accepted principles in Statutory Rules. That apart, the principles under a set of administrative instructions was being substituted by a set of Statutory Rule and that Statutory Rule also itself gave certain indication as to how in the past seniority of officer was being reckoned, namely, on the basis of attainment of substantive rank of major/Sqdrn,. Leader/Lt. Commander. The Court further observed that when a Statutory Rule governing seniority is issued in respect of a service the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the Rule in future, there is no element of retroactivity involved. This observation supports Mr. Dave's contention to a great extent. But in the teeth of the series of authorities we have discussed earlier, we are not persuaded to accept the reasoning in this decision for coming to the conclusion that the seniority of the employees has to be re-determined over and over again as and when the criteria changes. 15. In the case of R.S Makashi v. I.M Menon, (1982) 1 SCC 379 : ( AIR 1982 SC 101 : 1982 Lab IC 38) a question of determination of seniority in a cadre, of the personnel draw from different sources and merging into a single newly formed organisation was under consideration. The relevant Rules protected the pre-existing seniority and preserved maintenance of the same and this was challenged to be arbitrary and unreasonable. The relevant Rules protected the pre-existing seniority and preserved maintenance of the same and this was challenged to be arbitrary and unreasonable. The Court considered the circumstances under which the people from different sources have been drawn and are drafted to serve on deputation and consequently it was held that it is a just and wholesome principle commonly applied in such situation that their inter se seniority in parent department should be respected and preserved so long as continue in the department and the relevant rule in that respect cannot be held to be violative of Articles 14 and 16. The aforesaid decision, therefore, is in relation to the fact situation of that case and does not help either of the rival stand of the parties in the present case. 16. It would be appropriate to notice a Three Judge Bench decision of this Court in S.S Bola (1997 AIR SCW 3172: (1997) 8 SCC 522 : AIR 1997 SC 3127 ) (supra). It is this judgment on which the High Court heavily relied upon. In that case the question of seniority between direct recruits and promotees had been decided by the Supreme Court adopting a particular principle and the seniority list had been drawn up. But the Haryana Legislature enacted an Act governing the conditions of service of the employees and that Act had been given retrospective effect and the legislative intervention became necessary as the entire seniority position became topsy-turvy to such an extent that a direct recruit Assistant Executive Engineer, who was not even borne on the cadre when a promotee had been appointed as a Deputy Engineer became senior to the said promotee. It is because of the retrospectivity of the Act the seniority was required to be re-drawn up in accordance with the Act, the validity of the Act having been upheld. The principle decided in S.S Bola's case (supra), by this Court will have no application to the present case since, admittedly, the amended provisions which came into force in September, 1992, is not retrospective in nature. The High Court, therefore, was not justified in drawing its conclusion on the basis of the aforesaid judgment in Bola's case (supra). At this juncture, we may notice yet another judgment of this Court in P.S Mahal v. Union of India, (1984) 4 SCC 545 : ( AIR 1984 SC 1291 : 1984 Lab IC 1176). The High Court, therefore, was not justified in drawing its conclusion on the basis of the aforesaid judgment in Bola's case (supra). At this juncture, we may notice yet another judgment of this Court in P.S Mahal v. Union of India, (1984) 4 SCC 545 : ( AIR 1984 SC 1291 : 1984 Lab IC 1176). It is in this case the Supreme Court by its judgment dated 11th December, 1974 had indicated that in the absence of any Statutory Rules governing the inter se seniority of the Executive Engineers promoted from two sources, the seniority inter se should be determined on a General Principle indicated in the Memorandum dated 22nd June, 1949 on the basis of length of continuous officiation in the grade. The Rule making Authority then came forward with a set of Recruitment Rules in exercise of power under proviso to Article 309 and gave it retrospective effect from a date prior to the judgment of the Supreme Court, referred to earlier. When the seniority list was re-determined on the basis of the Statutory Recruitment Rules this Court held, that since by the earlier judgment it has been held that the inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers up to December 11, 1974 would be governed by the Rule of length of continuous officiation, that direction and decision cannot be set at not by the subsequent Recruitment Rules coming into force and giving the same retrospective effect. The Court, therefore, directed that in respect of the appointees prior to the promulgation of the Recruitment Rules the seniority has to be determined on the basis of the decision in A.K Subraman v. Union of India, (1975) 1 SCC 319 : ( AIR 1975 SC 483 : 1975 Lab IC 254). 17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. If the retrospectivity of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of re-drawing of the seniority list under the amended provisions would not arise, but if however, the retrospectivity is upheld by a Court then the seniority could be re-drawn up in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some other cadre by that date. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority comes into existence and requires otherwise, as was done in Bola's case (1997 AIR SCW 3172: (1997) 8 SCC 522 : AIR 1997 SC 3127 ) (supra). It may be further stated that if any Rule or Administrative Instruction mandate drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for noncompliance of the same. 23. The genesis or the origin of the Resolution dated 18/05/1999 lies in the Division Bench decision of this Court in the case of Safimiya G. Malek v. State of Gujarat; 1992 (1) GLR 704 . In the said case, the petitioners were servants of the State working in the Revenue Department and had entered the service in the position of Clerks. The recruitment of the said post was done under the Gujarat Non-Secretariat Clerks, Clerk/Typists and Typists Recruitment Examination Rules, 1970. The petitioners in the said case disputed the stance taken by the State Government and contended that their seniority should be fixed from the date of their joining service. The claim was upheld by the Division Bench pronouncing as under:- 5. The petitioners in the said case disputed the stance taken by the State Government and contended that their seniority should be fixed from the date of their joining service. The claim was upheld by the Division Bench pronouncing as under:- 5. On going through the said Rule 21 at page 40 of the main petition, it becomes at once clear that it refers to batch-wise seniority and provides for candidates who appear at the examination on completion of the training prior to their entering into service. Strictly speaking, this will not be of much help in resolving the controversy with reference to LRQE 1978. Otherwise also, in our opinion, the State Government has strictly contended that this being General Rule of Recruitment, it will apply to the candidates, who enter into the Government service for the first time, irrespective of the Department to which they have been allocated. On going through the aforesaid direct Recruitment Rules, we find the provision of Centralised Recruitment Scheme, the details of which can be had from Rule 3. The selection is necessarily meant for all the Departments of the State, except for the officers that have been mentioned in Appendix A’ to the Rule. They are only 12 in number, being Department of Secretariat, GPSC, Vigilance Commission, Legislature Secretariat, Judicial Courts and others. 6. We, therefore, agree with the submission of learned counsel Miss Doshit appearing for the respondents that Rule 21 will not govern the seniority of the present petitioners, after their recruitment under the aforesaid Recruitment Examination Rules, 1970 have been allocated to the Revenue Department. In our opinion, she is right in submitting that if at all their seniority is to be determined it will have to be according to the Rules that are prevalent in the Revenue Department and in absence of the Rules, the Government can determine the seniority on the basis of Notification or resolution. The definite stand of the respondents is that there are no such Rules. 7. However, when we turn to those SSD Rules, it becomes clear that they to control seniority. As the Rule originally stood, Rule 4 provided for discharge from service for failure to pass the examination within the specified chances during the specified period. The definite stand of the respondents is that there are no such Rules. 7. However, when we turn to those SSD Rules, it becomes clear that they to control seniority. As the Rule originally stood, Rule 4 provided for discharge from service for failure to pass the examination within the specified chances during the specified period. There were only two chances available to a given candidate with one more referred to in proviso to Rule 4 with the details of which we are not concerned. There is second proviso to Rule 4 which saves the candidates who were recruited prior to the appointed date, from appearing at the examination. However, disability is that they will not be eligible for confirmation, nor will they be able to appear at the Revenue Examination. 8. The appointed date is none else, but the date on which the Rules came into force, namely, February 1, 1971. 9. The Rules came to be amended and as on the date with which we are concerned, the aforesaid Rule 4 of Subordinate Revenue Service reads as under: “4(1) If a person appointed on or after the appointed date to a lower division of Subordinate Revenue Service fails to pass the examination within the specified chances or within the specified period, his increment shall after the expiry of specified chances or specified period withheld until the eligible for appearing at the Revenue Qualifying Examination for promotion to higher post. (2) Any increment withheld under sub-rule (1) shall become payable to him from the date on which he passed the examination and all future increments shall accrue to him, as if not increment had been withheld. Provided however, that such person shall not be entitled to claim the arrears of pay which were lost to him by reason of the increments having been withheld. Explanation Supreme Court:- For the purpose of releasing the withheld increments the date of passing the examination means the date following the date of which the examination ends. Provided however, that such person shall not be entitled to claim the arrears of pay which were lost to him by reason of the increments having been withheld. Explanation Supreme Court:- For the purpose of releasing the withheld increments the date of passing the examination means the date following the date of which the examination ends. (3) If a candidate appointed to the Lower Division of Subordinate Revenue Service prior to the appointed date, fails to pass the examination within the specified chances or specified period, he shall not be eligible for confirmation in the Lower Division of Subordinate Revenue Service and shall also not be eligible for appearing at the Revenue Qualifying Examination for promotion to higher posts.” On going through the aforesaid Rule, it becomes at once clear that apart from discharge from service, disability imposed is only if withholding of increments and the same shall be available except for actual payment from the date of employee has passed the examination. The moment this aspect is borne in mind, in our opinion, that it has a reference to the date of joining. 10. Increment, as rightly referred to on behalf of the respondents in affidavit-in-reply page 83 onwards, filed by one Mr. T.N Parekh, is to be paid on yearly interval or at any other periodicity that may be prescribed. From the date of service after one year in the instant case, increment would be payable and till the SSD examination is successfully completed by a given candidate, after exhaustion of the prescribed chances which by the time would become 3, the further earning of increment will be withheld. On clearing the examination, the ban on the increment will be lifted with a disability that there will be no financial payment. In other words, notional increment from the date of passing of the examination shall be paid to the candidate on the basis of his having earned income. The only effect is that there is financial loss in the intervening period to the extent of amounts of the increment. This is clear-cut element of continuous service from the date of joining. In other words, the doctrine of continuous officiation has been allowed to have full play. 11. As per Government Resolutions Annexures ‘H’ & ‘HI’, pages 72, 74 & 75 respectively, at present the Government is working out the respective seniority. This is clear-cut element of continuous service from the date of joining. In other words, the doctrine of continuous officiation has been allowed to have full play. 11. As per Government Resolutions Annexures ‘H’ & ‘HI’, pages 72, 74 & 75 respectively, at present the Government is working out the respective seniority. Subsequent effect of said amendment in Rule 4(3) will be adverted to thereafter. As per the Government Resolution dated September 6, 1962 Annexure ‘H, the seniority till then was being determined on the basis of pay. On passing of SSD Examination, the candidate was confirmed as Clerk and again his seniority was fixed amongst confirmed Clerks on the basis of his pay. It has created anomaly and therefore, by this Resolution, it was decided that there should be seniority initially fixed of temporary Clerks with reference to the date of his continuous service and the list thus prepared should be given English alphabet “A” and it was known as list “A”. The seniority of confirmed Clerk was to be maintained as per list B’ which was to be fixed on the basis of the passing of SSD Examination and by the rank obtained therein if the date of passing of the examination was the same. Needless to say, the confirmation depended on passing of the Sub-service Examination. 12. Later on as per Annexure ‘HI’, Resolution dated October 8, 1975, the said 1982 G.R came to be amended. As per this amendment the seniority list A, i.e. Temporary Clerks, was to be fixed with reference to the date of continuous service of a given candidate. If there was an occasion to give temporary promotion from amongst the temporary SSD Examination and given temporary promotion and this preference was against the temporary Clerks who had not cleared the SSD Examination, for this purpose a separate list ‘AI’ was to be maintained. The seniority list of Clerks in ‘AI’ list was fixed on the passing of SSD Examination and if the date of passing of the examination was the same, rank obtained therein was to govern the ranking in the seniority list. The seniority list of Clerks in ‘AI’ list was fixed on the passing of SSD Examination and if the date of passing of the examination was the same, rank obtained therein was to govern the ranking in the seniority list. In this background if we read the aforesaid amendment of Rule 4 of the SSD Examination, as indicated above, the effect would be that on passing of the examination, not only the candidate will become eligible for appearing at LRQE but will get his increment released and therefore, there will come into play the doctrine of continuous officiation. 13. Mrs. Mehta had pointed out the General Administration Department Notification dated February 15, 1985 which is at page 23 of Special Civil Application No. 7786 of 1990, whereby the Recruitment Examination Rules, 1970, Rule 8 thereof, came to be amended and after sub-rule 2, sub-rule 3 came to be added which reads as under: “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 of the post-training examination, if he fails to pass the examination as prescribed in Rule 7 within three chances (four chances in case of Scheduled Caste or Scheduled Tribe candidate)”. Corresponding change was made in Rule 21 of the Recruitment Examination Rules, 1970 and sub-rule 3 was inserted which reads as under: “The seniority of a candidate appointed as a Clerk or Clerk-Typist, subject to undergoing training and/or passing the examination shall be determined as per the provisions of Rule 8(3) of the Gujarat Non-Secretariat Clerks and Clerk-Typists (Training and Examination) Rules, 1970.” The aforesaid amendment to Rule 21 was as per Government Notification dated February 15, 1985. Afterwards, the Government came out with Circulars dated June 19, 1986 and July 21, 1986 respectively at pages 26 & 28 of the said petition No. 7786 of 1990. A conjoint reading of all these 4 documents clearly indicates that the date of joining will govern the fixation of seniority. Afterwards, the Government came out with Circulars dated June 19, 1986 and July 21, 1986 respectively at pages 26 & 28 of the said petition No. 7786 of 1990. A conjoint reading of all these 4 documents clearly indicates that the date of joining will govern the fixation of seniority. This was required obviously because the candidates recruited as Clerks, Clerk-cum-Typists or as Typists were sought to be equated for the purpose of future promotion and other incidental events of service life, the aforesaid difficulties were felt and therefore, amendments were made and further, it was clarified by the Government that these amendments are to be given effect to prospectively and they will not operate retrospectively. 14. Miss Doshit had submitted that when the Government had clarified that these amendments were not to operate retrospectively, it would mean that the persons who are already recruited cannot get the benefit thereof. They would continue to be governed by the respective Rules as they existed prior to the amendment. Apart from the fact that this situation would end up into a dichotomy of bringing into existence two sets of employees, one recruited prior to the amendment and one thereafter, it would also create continuation of two sets of seniority. The event of fixation of seniority as and when it arises will be governed by the Rules that are existed at the time when the event has occurred. After the amendment, if seniority is required to be fixed, Rules including the amendment should be allowed to have full play; then only, the real position could emerge. To allow the things to operate in the manner suggested by the respondent-State would not only continue the said dichotomy but would bring about many anomalies in future. 15. 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. This submission of Miss Doshit therefore, cannot be accepted. 16. Whatever may be the reason for bringing about the amendment, the effect thereof cannot be restricted only to the case contemplated. This submission of Miss Doshit therefore, cannot be accepted. 16. In short, the say of the respondent-State is that in absence of Rules, they can govern the seniority of candidates by executive directions and on the one had, the framing of Recruitment Rules would be affecting seniority batch-wise and those Rules will have no bearing on fixation of seniority in a given Department of the State of Gujarat. 17. However, the aforesaid reference to the amendment in the Direct Recruitment Procedure Rules as well as training Rules clearly indicates falling back upon the Rule of continuous officiation and the same is the position in Sub-service Examination Rules. In either event, therefore, there is no escape from the conclusion that the seniority is being fixed on the basis of the date of entering into the service and regulated thereafter on the basis of the continuous officiation. 18. In the result, the petitioners would succeed in the respective petitions and the challenge that they have put forth in connection with respective seniority list will have to be upheld. The respective seniority lists and the reversion only based on these lists are therefore, struck down. The respondents are directed to refix the seniority on the basis of continuous officiation within a period of 3 months and, thereafter work out the consequences of these re-adjustments in accordance with the Rules. Rule in each of these petitions is made absolute accordingly. Looking to the facts and circumstances of the case, there shall be no order as to costs. 24. Thus, the picture that emerges from the materials on record is that earlier the Policy of the State Government was to confer seniority upon the Assistant from the date of passing of the Post Training Examination. To put it in other words, if a Junior Assistant would be in a position to pass Post Training Examination in a first attempt, whereas, the senior Assistant is able to clear the examination later on, then the senior would be ahead of the person although appointed prior in point of time than the junior. The State Government by the impugned Resolution amended the Policy in light of the Division Bench decision of this Court in the case of Safimiya G. Malek (Supra) referred to above. 25. The State Government by the impugned Resolution amended the Policy in light of the Division Bench decision of this Court in the case of Safimiya G. Malek (Supra) referred to above. 25. In the aforesaid context, I may profitably refer to the judgment passed by the Apex Court in P. Mohan Reddy v. E.A.A Charles, (2001) 4 SCC 433 wherein, the Apex Court has considered the question in respect of retrospective application of the Rules conferring seniority and came to a conclusion that reading down of the Rule and its effect is the decisive factor for applying the same for giving the retrospective effect and accordingly the same is to be given effect to for the purposes of fixing seniority, if it is permissible with retrospective effect under the Rules. The relevant paragraphs 16 & 17 from the said judgment are reproduced as under:- 16. It would be appropriate to notice a Three Judge Bench decision of this Court in S.S Bola. It is this judgment on which the High Court heavily relied upon. In that case the question of seniority between direct recruits and promotees had been decided by the Supreme Court adopting a particular principle and the seniority list had been drawn up. But the Haryana Legislature enacted an Act governing the conditions of service of the employees and that Act had been given retrospective effect and the legislative intervention became necessary as the entire seniority position became topsy-turvy to such an extent that a direct recruit Assistant Executive Engineer, who was not even borne on the cadre when a promotee had been appointed as a Deputy Engineer became senior to the said promotee. It is because of the retrospectivity of the Act the seniority was required to be re-drawn up in accordance with the Act, the validity of the Act having been upheld. The principle decided in S.S Bola's case (supra), by this Court will have no application to the present case since, admittedly, the amended provisions which came into force in September, 1992, is not retrospective in nature. The High Court, therefore, was not justified in drawing its conclusion on the basis of the aforesaid judgment in Bola's case (supra). At this juncture, we may notice yet another judgment of this Court in P.S Mahal v. Union of India, (1984) 4 SCC 545 : ( AIR 1984 SC 1291 : 1984 Lab IC 1176). The High Court, therefore, was not justified in drawing its conclusion on the basis of the aforesaid judgment in Bola's case (supra). At this juncture, we may notice yet another judgment of this Court in P.S Mahal v. Union of India, (1984) 4 SCC 545 : ( AIR 1984 SC 1291 : 1984 Lab IC 1176). It is in this case the Supreme Court by its judgment dated 11th December, 1974 had indicated that in the absence of any Statutory Rules governing the inter se seniority of the Executive Engineers promoted from two sources, the seniority inter se should be determined on a General Principle indicated in the Memorandum dated 22nd June, 1949 on the basis of length of continuous officiation in the grade. The Rule making Authority then came forward with a set of Recruitment Rules in exercise of power under proviso to Article 309 and gave it retrospective effect from a date prior to the judgment of the Supreme Court, referred to earlier. When the seniority list was re-determined on the basis of the Statutory Recruitment Rules this Court held, that since by the earlier judgment it has been held that the inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers up to December 11, 1974 would be governed by the Rule of length of continuous officiation, that direction and decision cannot be set at not by the subsequent Recruitment Rules coming into force and giving the same retrospective effect. The Court, therefore, directed that in respect of the appointees prior to the promulgation of the Recruitment Rules the seniority has to be determined on the basis of the decision in A.K Subraman v. Union of India. 17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. If the retrospectivity of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of re-drawing of the seniority list under the amended provisions would not arise, but if however, the retrospectivity is upheld by a Court then the seniority could be redrawn up in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some other cadre by that date. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority comes into existence and requires otherwise, as was done in Bola case. It may be further stated that if any Rule or Administrative Instruction mandate drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for non-compliance of the same.” 26. Keeping in mind the dictum of the Supreme Court referred to above and the circumstances, which laid the State Government to pass the impugned Resolution, I am of the view that the decision of the State Government is in consistent with the requirement of the Articles 14 and 16 of the Constitution. I do not find any good reason to decline the two resolutions as unconstitutional or arbitrary. 27. For the forgoing reasons, this writ-application fails and is hereby rejected. Rule is discharged.