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2016 DIGILAW 232 (GUJ)

State of Gujarat v. S. B. Shaikh

2016-02-02

JAYANT PATEL, VIPUL M.PANCHOLI

body2016
JUDGMENT : VIPUL M. PANCHOLI, J. 1. This appeal is directed against the judgment dated 9th/10th June, 2014 rendered by the learned Single Judge by which the learned Single Judge has allowed the appeal filed by the present respondent-original petitioner. 2. The facts in nutshell are that the respondent-original petitioner was appointed as Clerk in the revenue department on 19.8.1972. Thereafter, he passed post-training examination in April, 1973. It is the case of the petitioner that he passed Sub-Service Departmental Examination (hereinafter referred to as SSDE) in year 1984 and thereafter he passed Lower Revenue Qualifying Examination (hereinafter referred to as LRQE) in second attempt. It was the grievance of the petitioner that though he passed both the examinations within prescribed chance, his case was not considered for promotion and juniors to him were promoted. Therefore, he preferred Special Civil Application No. 29 of 1987. The Division Bench of this Court allowed the said petition by an order dated 8.11.1993 Thus, name of the petitioner was placed at Sr. No. 57A in the final seniority list which was published on 18.3.1993 Thereafter, the name of the petitioner was pushed back at Sr. No. 196-A and then at Sr. No. 218 in the seniority list. The petitioner therefore preferred Special Civil Application No. 1178 of 1995 which was allowed by this Court by quashing and setting aside the said decision and with a direction that if the petitioner's seniority is required to be re-determined, the said exercise shall be undertaken only after affording opportunity of hearing to the petitioner. In spite of such direction, name of the petitioner was not placed at correct place in the seniority list and, therefore, he preferred another petition being Special Civil Application No. 8465 of 1999 which was dismissed by this Court with a direction to the respondent not to alter the position without considering the objections raised by the petitioner. In spite of repeated directions given by this Court, name of the petitioner was not being placed at right position and, therefore, he preferred Special Civil Application No. 4666 of 2001. This Court, after considering the material on record and submissions canvassed on behalf of learned advocates for the parties, allowed the said petition. The State has, therefore, preferred this appeal challenging the order passed by the learned Single Judge. 3. Learned AGP Mr. This Court, after considering the material on record and submissions canvassed on behalf of learned advocates for the parties, allowed the said petition. The State has, therefore, preferred this appeal challenging the order passed by the learned Single Judge. 3. Learned AGP Mr. Devnani appearing for the appellants mainly contended that the concerned officer of the appellants filed an affidavit in the petition wherein it has been pointed out that petitioner has not passed the LRQE within prescribed chances and period. The chance of the petitioner started from May, 1982 which was the first trial and thereafter petitioner gave almost eight trials between August, 1982 to December, 1985. Even after so many trials, the petitioner did not pass LRQE within the prescribed chances and period. The petitioner is a late latif and he lost his original seniority of the clerk cadre. However, learned AGP has fairly submitted that the concerned officer has, through oversight, filed the said affidavit and therefore the said affidavit was explained and clarified by filing another affidavit wherein it has been stated that the petitioner has passed SSDE in September, 1984 and thereafter he was eligible for LRQE. The petitioner passed the LRQE in December, 1985 after two trials. However, during the period between August, 1982 to December, 1985, eight times LRQE was declared but the petitioner could not avail this opportunity of giving LRQE due to late passing the SSDE in September, 1984 and therefore his juniors availed the opportunity of giving examination and passed within the prescribed period and chances and, therefore, the juniors to the petitioner are placed above the petitioner in the seniority list. 4. Learned AGP thereafter contended that the aforesaid aspects were not brought to the notice of the Division Bench in Special Civil Application No. 28 of 1987 and therefore the Division Bench had quashed the seniority list dated 18.3.1993 so far as the petitioner is concerned and directed that after the seniority of the petitioner is refixed, the case of the petitioner shall be considered for promotion to the post of Dy. Mamlatdar in accordance with law. Thus, as per the submission of learned AGP, the aforesaid direction was given by the Division Bench in absence of proper facts put forward by the concerned authorities before it. Learned AGP, therefore, requested that the impugned order passed by the learned Single Judge be quashed and set aside. 5. Mamlatdar in accordance with law. Thus, as per the submission of learned AGP, the aforesaid direction was given by the Division Bench in absence of proper facts put forward by the concerned authorities before it. Learned AGP, therefore, requested that the impugned order passed by the learned Single Judge be quashed and set aside. 5. Though served, respondent has not filed appearance. 6. We have considered the submissions advanced on behalf of learned AGP. We have also gone through the material placed on record. 7. From the record, it has emerged that the petitioner cleared SSDE in the year 1984 and thereafter on 28.9.1986, he also cleared LRQE in the second attempt. Thus, as per the relevant rules, the petitioner has cleared LRQE within prescribed chances and period in the year 1986. The said aspect is clearly admitted by the respondent-authorities-appellants herein by filing an affidavit in the petition before the learned Single Judge that though LRQE was declared for eight times during the period between May, 1982 to December, 1985, the petitioner cleared the said examination in the second attempt. When the promotion was not given to the petitioner, the petitioner preferred Special Civil Application No. 29 of 1987. The Division Bench of this Court, by an order dated 8.11.1993, quashed and set aside the seniority list dated 18.3.1993 so far as the petitioner is concerned and the Division Bench has observed as under: “We further direct to refix the seniority of the petitioner on the basis of continuous officiation within a period of three months from the date of the service of the writ or the service of the certified copy of this order, whichever is earlier and thereafter, work out the consequences of the adjustments in accordance with Rules. We also direct that after the seniority is refixed, as above, the case of the petitioner shall be considered for the promotion to the post of Deputy Mamlatdar in accordance with law.” 8. Though the Division Bench of this Court has quashed the seniority list dated 18.3.1993 so far as the petitioner is concerned and direction was given to refix the seniority and to consider the case of the petitioner for promotion to the post of Dy. Mamlatdar, his case was not considered and contrary to such direction, he was pushed back and placed at Sr. No. 196A. Mamlatdar, his case was not considered and contrary to such direction, he was pushed back and placed at Sr. No. 196A. He, therefore, filed another petition being Special Civil Application No. 1178 of 1995. This Court allowed the said petition by an order dated 11.9.1996 This Court observed as under: “2. Under order dated 18th March, 1993, petitioner was placed at Serial No. 57A of the seniority list. The said order has been modified under Order dated 30th September, 1994 and the petitioner's position in the above referred seniority list has been shifted from Serial No. 57A to Serial No. 196A. Learned Advocate Mr. Hakim appearing for the petitioner challenges the above order dated 30th September, 1994 and contends that the said order has been made without affording an opportunity of hearing to the petitioner. He further contends that while considering the petitioner's seniority, the fact of petitioner's having passed the sub-service departmental examination at 15th attempt has been taken into consideration. He has submitted that in view of the judgment of this Court in the matter of Safimiya G. Malek 1992 (1) GLR 704 , the relevant factor for determination of seniority is passing of Lower Revenue Qualifying Examination. Thus, according to this ratio, the seniority of the petitioner under dated 30th September, 1994 has been fixed on wrong interpretation of judgment delivered by this Court. Be that as it may, petitioner's seniority was fixed at Serial No. 57A. In view of the order made by this Court, it could not have been altered to the detriment of the petitioner without affording an opportunity of hearing. In view of the above discussion, the impugned order dated 30th September, 1994 – Annexure ‘F’ to the petition is quashed and set aside. It is clarified that in the event the petitioner's seniority is required to be re-determined, the said exercise shall be taken only after affording an opportunity of hearing to the petitioner. Petition is allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs.” 9. Inspite of the aforesaid two orders passed by this Court, by another seniority list dated 18.9.1999, the petitioner was placed in the seniority list at Sr. Petition is allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs.” 9. Inspite of the aforesaid two orders passed by this Court, by another seniority list dated 18.9.1999, the petitioner was placed in the seniority list at Sr. No. 218 ignoring the aforesaid directions issued by this Court and though opportunity of hearing was given to the petitioner for filing objection, without passing a speaking order, his objection was rejected. The petitioner has, therefore, preferred the aforesaid petition in the year 2001. 10. In our opinion, when the Division Bench of this Court has specifically given the direction on 8.11.1993 and quashed and set aside the action of the respondent-authorities in publishing seniority list dated 18.3.1993 qua the petitioner and direction was given to refix the seniority of the petitioner and consider his case for promotion, it was not open for the respondent-authorities to contend that the respondent-authorities have not pointed out the correct facts before the Division Bench of this Court in the year 1993. No review application was preferred by the respondent-authorities before the Division Bench and for the first time in the present proceedings before the learned Single Judge, an affidavit came to be filed wherein also it has been stated that the petitioner has cleared LRQE in second attempt. Thus, principles of constructive res-judicata would be applicable in the facts of the present case and it is not open for the appellants-respondent-authorities to contend that the petitioner has not passed the LRQE within prescribed time limit and chances. The Division Bench of this Court has specifically given the direction to refix the seniority of the petitioner and for considering his case for promotion on the post of Dy. Mamlatdar. Inspite of that, the petitioner was pushed back at Sr. No. 196A in the seniority list and thereafter at Sr. No. 218. It is true that as per the direction given by this Court in the order dated 11.9.1996 passed in Special Civil Application No. 1178 of 1995, the authority has given opportunity of hearing to the petitioner. However, it is also true that the objection of the petitioner was rejected without giving proper reasons. Thus, the action of the respondent-authorities in placing the petitioner at Sr. However, it is also true that the objection of the petitioner was rejected without giving proper reasons. Thus, the action of the respondent-authorities in placing the petitioner at Sr. No. 218 in the seniority list is required to be quashed and set aside on the ground of non-speaking order passed by the respondent-authorities. 11. Thus, in the facts and circumstances of the present case, it would not be open for the appellants to contend that the petitioner has not passed the LRQE within the prescribed chances and period and therefore he is pushed back in the seniority list. However, the question that if the employee has not passed the LRQE in the prescribed chances and prescribed period and in the meantime, the juniors to the employee have passed the said examination, it is open for the respondent-authorities to push back the concerned employee in the seniority list or not is kept open. The appellants-authorities to take such contention in appropriate case. However, as observed hereinabove, in the facts of the present case, no interference is required in the order passed by learned Single Judge. 12. In view of the aforesaid discussion, the appeal fails and the same is accordingly dismissed. As the main appeal is dismissed, civil application is also dismissed. Stay stands vacated.