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2020 DIGILAW 152 (GUJ)

Parmar Kantilal Punjalala v. State Of Gujarat

2020-01-24

N.V.ANJARIA

body2020
ORDER : Heard learned advocate Mr.V.K. Joshi for the petitioner, learned Assistant Government Pleader Mr.Rohan Shah for respondent No.1 and learned advocate Ms.Trusha Patel for respondent No.2. 2. By filing the present petition, petitioner has prayed to direct respondent No.2 to place the petitioner in the gradation list of 2016-17 as per the initial date of appointment of the petitioner, that is with effect from 24th May, 1988, when the petitioner was appointed as English Section Writer. It is further prayed to hold that the petitioner is entitled to continue his seniority on the basis of his initial appointment date on the above post. 3. The relevant facts are that the petitioner came to be appointed as English Section Writer in the establishment of Principal District Judge, Panchmahal at Godhra - respondent No.2 herein by office order No.88/1988 dated 24th May, 1988. Seniority of the petitioner was stated to be reflected in the gradation list on the basis of the date of his appointment as above. The petitioner having passed higher and lower departmental examination, consequentially came to be promoted to the post of Senior Clerk in January, 2011. It appears that the petitioner came to be reverted by Office Order No.74/2016 dated 15th February, 2016 on the ground that he did not pass the CCC examination before 31st December, 2013. 3.1 It is the case of the petitioner that he completed 50 years of age on 01st August, 2015 which entitled him to the exemption from appearing in the CCC examination for the purpose of benefit of higher pay-scale and promotion. Office Order dated 26th August, 2015 was passed in that regard, however, admittedly, petitioner passed CCC examination on 24th March, 2015 from Dr.Baba Saheb Ambedkar Open University. Dr.Baba Saheb Ambedkar Open University was recognised by the State Government in the year 2010 and the CCC examination qualification was treated as valid. 3.2 It is the grievance of the petitioner that reversion given to him as per order dated 15th February, 2016 to the post of Junior Clerk (Assistant) was wrongful and that the petitioner was entitled in terms of seniority as per gradation list of 2016 at Serial No.7 and that he ought to have been considered for the next promotional post of Head Clerk on that basis. 4. 4. Learned advocate for the petitioner submitted that as per gradation list of 2016-17, the employees named Shri I.N Patel, Shri A.H. Pathan, Shri G.S. Dalwani, Shri R.S. Vasava, Shri D.K. Mori, Shri S.S. Farmer and Shri M.A. Haji were wrongly place in seniority above the petitioner. It was submitted that since the petitioner had passed CCC examination, under the rules, the petitioner's gradation ought to have been respected, instead of that the petitioner came to be reverted. It was also the contention raised that the petitioner was deprived of the benefit of implementation of Shetty Pay Commission and that he was not given the grade pay of Rs.4200 but given only Rs.2400. 4.1 It was further submitted that since the petitioner had passed CCC examination as per result dated 24th March, 2015 from the recognised Dr.Baba Saheb Ambedkar Open University, his seniority was entitled to be counted from the initial date of appointment. It was submitted that the order of reversion dated 15th February, 2016 was passed and the petitioner was placed much below in the gradation list at Serial No.46 and that the seniority was not fixed properly. 4.2 The petition was contested by respondent No.2, contending inter alia that passing of CCC examination was one of the requirements. It was sought to be made out that the petitioner passed CCC examination on 24th March, 2015 and that all the centers of Dr.Baba Saheb Ambedkar Open University were derecognised by Notification dated 01st March, 2014. It was stated that it was compulsory for the candidates to pass CCC examination, for which the time limit was extended to 31st December, 2013 which was the deadline. It was stated that petitioner was promoted as Senior Clerk with effect from 04th January, 2011 and since the petitioner passed CCC examination only on 24th March, 2015, he became liable to be reverted, and he was reverted for the period between 05th January, 2011 to 31st July, 2015. 5. In light of the facts emerging as above and the rival case, it could be seen that the petitioner came to be reverted by order dated 15th February, 2016 to the post of Assistant (Junior) Clerk. The petitioner was continued to be shown as junior and placed in the seniority list at Serial No.46. 5. In light of the facts emerging as above and the rival case, it could be seen that the petitioner came to be reverted by order dated 15th February, 2016 to the post of Assistant (Junior) Clerk. The petitioner was continued to be shown as junior and placed in the seniority list at Serial No.46. As many as 41 employees who were junior to the petitioner, came to be placed above the petitioner in the gradation list of the year 2017. This made the petitioner aggrieved to come to this Court by means of this petition seeking direction against respondent No.2 to place the petitioner in the seniority list as per his initial date of appointment and to consider the petitioner for the next promotion of Head Clerk. 5.1 When the order of reversion being office order No.74/2016 dated 15th February, 2016 is seen, the ground mentioned is that the incumbents mentioned in the order were compulsorily required to pass CCC examination for which extended deadline was upto 31st December, 2013 but since they did not pass the examination in the stipulated period, they are required to be reverted. The name of the petitioner was mentioned in the list of such candidates at Serial No.1. The petitioner was promoted on 05th January, 2011 in the cadre of Senior Clerk, however by virtue of the aforementioned order dated 15th February, 2016, he was reverted retrospectively in respect of period from 05th January, 2011 to 31st July, 2015. Strikingly enough, in the very order of reversion, it was expressly mentioned by respondent No.2 that, “the original seniority shall be maintained as per their first appointment”. In other words, it was stipulated that reversion was not to affect the original seniority based on the date of appointment. 5.2 Even if office order No.6/2011 dated 04th January, 2011, whereby the petitioner was promoted on ad hoc basis in the cadre of Senior Clerk in the payscale of Rs.5200-20200 is noticed, the said promotion was not subjected to any condition. Paragraph 4 of the said order of promotion mentioned thus, “Shri K.P. Parmar, Assistant, working in the Court of Principal Senior Civil Judge, Godhra, is on purely Temporary and on ad-hoc Provisional basis promoted in the cadre of (Senior Clerk) in the Pay Scale of Rs.5200-20200, with Grade Pay of Rs. Paragraph 4 of the said order of promotion mentioned thus, “Shri K.P. Parmar, Assistant, working in the Court of Principal Senior Civil Judge, Godhra, is on purely Temporary and on ad-hoc Provisional basis promoted in the cadre of (Senior Clerk) in the Pay Scale of Rs.5200-20200, with Grade Pay of Rs. 2400/- and he is posted as Sheristedar, in the Court of Principal Civil Judge, Jambughoda, on the vacant post. Further, he is directed to perform his duty on order to work basis in the same Court.”. Thus, there was no condition placed while promoting the petitioner. 5.3 In the ground regarding passing of CCC examination to make it as premise for reversion stood least convincing, in asmuch as, it is an admitted position that the petitioner passed his CCC examination and the result was declared on 24th March, 2015. It is further not in dispute that it was a valid qualification obtained by the petitioner from Dr.Baba Saheb Ambedkar Open University scoring 58.25% of marks. Dr.Baba Saheb Ambedkar Open University was recognised by the State Government as per Resolution dated 22nd June, 2010 for holding the CCC examination. 5.4 Peculiarly, the passing of CCC examination by the petitioner from Dr.Baba Saheb Ambedkar Open University in March, 2015 was not accepted by the respondents on the ground that, according to the respondents, Notification dated 01st March, 2014 was issued whereby Dr.Baba Saheb Ambedkar Open University was de-recognised as a center. This appears to be factually incorrect. By Notification dated 22nd June, 2010 Dr.Baba Saheb Ambedkar Open University was declared as one of the recognised centers for conducting CCC examination. 5.5 Furthermore, the Resolution dated 01st March, 2014 which is relied on to suggest that the University was de-recognised, figures on record, it does not mention anything about de-recognising Dr.Baba Saheb Ambedkar Open University as center. What it contemplates is that the Sardar Patel Institute of Administration and Technical Examination Board, Gandhinagar were handed over the task to conduct the CCC examination, but since the Technical Examination Board did not have the staff, work to be done by the Technical Examination Board for conducting the CCC examination was handed over to Gujarat Technological University. The whole defence of the respondents that by the said Resolution dated 01st March, 2014 Dr.Baba Saheb Ambedkar Open University was de-recognised as a center stood erroneous and amounted to evident misreading of the Resolution. The whole defence of the respondents that by the said Resolution dated 01st March, 2014 Dr.Baba Saheb Ambedkar Open University was de-recognised as a center stood erroneous and amounted to evident misreading of the Resolution. 5.6 In any view, what is decisive for crystalisation of rights of the petitioner is that the order of reversion against the petitioner was passed on 15th February, 2016, and on the date of passing of this order, petitioner had already cleared his CCC examination on 24th March, 2015. In other words, when the petitioner was reverted, he had the qualification of CCC pass. The impugned order of reversion, reverting the petitioner for limited period, that too retrospectively, even when the petitioner had passed the CCC examination at that juncture. 5.7 The above lead aspect stood coupled with the fact that in the order of reversion it was clearly stated that seniority shall remain as per the first appointment. The order of promotion to the petitioner dated 04th January, 2011 was again an unconditional order. In view of all these circumstances cumulatively operating, when the petitioner had already passed CCC examination to stand qualify, the reversion order could not be justified. It had the discriminatory and arbitrary effect of lowering down the seniority of the petitioner from Serial No.7 to Serial No.46. The action was unjust and unreasonable which would not stand the touchstone of Articles 14 and 16 of the Constitution. 6. As a result of above reasons and discussion, petitioner is entitled to be granted the relief. Resultantly, respondent No.2 is directed to place the petitioner in the gradation list of the year 2016-17 on the basis of the initial date of appointment of the petitioner in his seniority for the purpose of promotional post shall be counted accordingly. 7. Petition stands allowed in the aforesaid terms. Direct service is permitted.