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2022 DIGILAW 1747 (GUJ)

INODKUMAR RAMANLAL JOSHI v. STATE OF GUJARAT

2022-12-13

A.J.DESAI, NISHA M.THAKORE

body2022
JUDGMENT : NISHA M. THAKORE, J. 1. The appellants are the original petitioner Nos. 4 and 6, who have preferred this appeal under Clause 15 of the Letters Patent, challenging the oral judgment dated 29.11.2018 passed by the learned Single Judge in the captioned writ petition, whereby the learned Single Judge has dismissed the petition. 2. Facts as emerged from the records of the above captioned petition are briefly summarized as under: 2.1 The above captioned writ petition was preferred by six petitioners, who were originally appointed as Clerk except the petitioner No. 3, who was appointed as Typist in the district other than Mehsana or Patan districts. The petitioner No. 1 was appointed in Ahmedabad district, the petitioner No. 2 was appointed in Panchmahals district, the petitioner Nos. 3 and 4 were appointed in Kutch district, whereas the petitioner Nos. 5 and 6 were appointed in Kheda district. 2.2 It is the case of the petitioners that they were appointed more than 15 years back of filing of the captioned writ petition. 2.3 The State Government issued Notification dated 02.04.1997, which had constituted a new district Patan by carving areas of Mehsana and Banaskantha districts. The State Government passed an order dated 26.11.1998 laying down criteria for allocation and absorption of staff, procedure thereof, conditions of service of such employees for newly constituted districts. It is the case of the petitioners that in view of Para 2(b)(1) of the aforesaid order, the petitioners were required to be given their seniority from their initial date of appointment as Clerk in the respective districts. Thus, their original seniority was required to be maintained by treating it as continuous officiation in the Revenue Department. 2.4 The petitioners have further relied upon a letter dated 19.05.1998, wherein the State Government had informed the Collector of the respective districts to provide options to such employees working in other districts for the appointment/absorption in Patan district. The petitioners therefore, contended that they had opted for Patan district under the belief that their seniority would be maintained on the basis of continuous officiation by treating their earlier service of native district and had accordingly exercised their option for Patan district. It is the case of the petitioners that they have joined newly constituted district Patan in the months of December, 1998 and January, 1999. It is the case of the petitioners that they have joined newly constituted district Patan in the months of December, 1998 and January, 1999. 2.5 To their utter surprise by letter dated 19.01.1999, the Revenue Department instructed the Collector, district Patan to give effect of seniority from the date of joining of their duties in Patan district. By such a letter, the respondent Authorities had further clarified that such employees were required to tender their consent letters and if the employees failed to give their consent letter, then they were required to be restored back to their native district. It is the case of the petitioners that such consent letters were immediately called for on the same date i.e. 19.01.1999. In such circumstances, the petitioners left with no option, without any reasonable time given, were constrained to submit their consent letters for joining new district Patan. 2.6 Thereafter, the provisional list of Deputy Mamlatdar was circulated and the objections were invited against such a provisional list. In response to such a provisional list, the petitioners raised objections contending that their seniority should be fixed taking into account their earlier service in earlier districts. However, such objections were not entertained and the final seniority list of Deputy Mamlatdar came to be notified on 01.01.2002 reflecting the position of the petitioners. The petitioners’ name appeared at Sr. No. 83 to 88 in the final seniority list by taking into consideration the date of joining new district Patan. 2.7 Hence, the petitioners were constrained to approach this Court by way of captioned petition under Article 226 of the Constitution of India praying for issuance of writ of mandamus or any other writ, direction or orders for quashing and setting aside the final seniority list dated 21.12.2002 of the Deputy Mamladar in case of the petitioners. The petitioners have also prayed for further direction against the respondent authorities to assign their seniority based on the earlier date of joining the Revenue Department. The petitioners have also prayed for direction to quash and set aside the order dated 01.05.1999 and to restore the earlier order dated 23.11.1998. 3. The petitioners have mainly contended that the action on the part of the respondent authorities is not only unjust, arbitrary but is titled with mala-fide as well as hostile discrimination which violates Article 14, 16 of the Constitution of India. 3. The petitioners have mainly contended that the action on the part of the respondent authorities is not only unjust, arbitrary but is titled with mala-fide as well as hostile discrimination which violates Article 14, 16 of the Constitution of India. The petitioners have heavily placed reliance upon earlier order dated 26.11.1998 and contended that the State Government by unilateral action and without giving reasonable time to the employees like the petitioners, has amended the aforesaid order by subsequent orders dated 19.01.1999 and 01.05.1999. The petitioners also contended that the consent letters obtained by the State Government in no manner can take away the earlier length of service rendered by the petitioners in native district for recording seniority inter se. 4. The respondent No. 2 Collector, Patan has filed an affidavit as well as further affidavit which has further been dealt with by filing affidavit in rejoinder on behalf of the petitioners. The respondent Authority has placed reliance upon the order dated 01.05.1999 passed by the Revenue Department, which has not been challenged by the petitioners. The respondent Authorities have specifically submitted that the principle of seniority from the date of appointment cannot be applied in the facts of the case, more particularly, when the petitioners have given their consent letter. It was, therefore, submitted before the learned Single Judge that the respondent Authorities have rightly taken into consideration the date of joining at Patan district as the basis for recording seniority which cannot be termed in violation of provisions of law. 5. The learned Single Judge after hearing the learned advocates for the respective parties and on perusal of the record, took notice of the consent letters, wherein the petitioners have accepted the seniority to be maintained as per the date of joining of new district. The learned Single Judge has taken note of specific assertion made in the affidavit in reply filed by the respondent No. 2, Collector, Patan as well as additional affidavit filed by the respondent No. 2 along with several consent letters which were brought on record. Thus, on appreciation of such materials, learned Single Judge has found argument of discrimination raised with regard to the seniority list as not relevant and has thus, dismissed the petition. 6. We have heard Mr. Ishan Joshi, learned advocate appearing for Mr. Vyom Shah, learned advocate for the appellants and Ms. Thus, on appreciation of such materials, learned Single Judge has found argument of discrimination raised with regard to the seniority list as not relevant and has thus, dismissed the petition. 6. We have heard Mr. Ishan Joshi, learned advocate appearing for Mr. Vyom Shah, learned advocate for the appellants and Ms. Nirali Sarda, learned AGP appearing for the respondent State. 7. Mr. Joshi, learned advocate for the appellants has invited attention of this Court to the orders dated 26.11.1998, 01.09.1999 and 01.05.1999 and has submitted that the issue of non-considering prior service while recording the seniority arose in the month of May, 1999. He further submitted that in the Notification dated 26.11.1998, a specific clause was incorporated which mentions that original seniority in the Revenue set up was to be considered thus treating it as on continuous service. He relied upon clause 1(b) of the aforesaid Notification dated 26.11.1998 by referring to the order dated 19.01.1999. He submitted that while amending the earlier Notification dated 26.11.1998, it was clearly reflected that the seniority was originally recorded from the date of their appointment in the native district and was treated as continuous for the purpose of recording seniority. He further invited our attention to the order dated 05.12.1998 passed in the case of one of the employees. He placed heavy reliance upon the conditions incorporated in the order relieving the employees from the native district and submitted that the original seniority in the revenue set up was to be retained by treating it as continuous officiation. He further emphasized upon condition No. 2 and submitted that even in the case where the need arises to revert the employee, the employee loses his right to come back to the native district. In such circumstances, the petitioners have agreed to join the newly constituted Patan district. However, the State Government subsequently by order dated 19.01.1999 and 01.05.1999 unilaterally took the decision to amend the earlier Notification dated 26.11.1998 thereby resolving to consider the date of joining of newly constituted district Patan for reckoning seniority. In such circumstances, the petitioners have agreed to join the newly constituted Patan district. However, the State Government subsequently by order dated 19.01.1999 and 01.05.1999 unilaterally took the decision to amend the earlier Notification dated 26.11.1998 thereby resolving to consider the date of joining of newly constituted district Patan for reckoning seniority. At this stage, he has relied upon the decision in the case of Somesh Thapliyal and Another vs. Vice Chancellor, H.N.B. Garhwal University and Another, 2021 (10) SCC 116 for proposition of law: “That it is open to the employee to challenge terms of the appointment later after same are not in conferred with the statutory requirement and prescribed procedure and therefore, the employees cannot be estopped from questioning at a stage where he found himself aggrieved.” No further submissions were canvassed by the learned advocate for the appellants. 8. On the other hand, Ms. Sarda Nirali, learned AGP appearing for the respondents has placed heavy reliance upon Notification dated 19.01.1999 as well as consent letters produced along with further affidavit in reply filed by the respondent No. 2 and has submitted that no error of law or facts is pointed out by the learned advocate appearing for the appellants in the impugned order passed by the learned Single Judge. She further submitted that in the facts of the case, when the petitioners have not challenged the Notification dated 19.01.1999 and consequential order being passed on 01.05.1999 is just and proper. She further submitted that in absence of any order passed by this Court, the petitioners have continued to serve Patan district. She further submitted that apart from the petitioners, other employees have continued to work at newly constituted district Patan. She, therefore, prayed not to entertain the present appeal. 9. We have heard learned advocates appearing for both the parties and have perused the records of the appeal. It is an undisputed fact that the petitioners have submitted consent letters, one such letter dated 15.2.1999 is placed on record at page 55. She, therefore, prayed not to entertain the present appeal. 9. We have heard learned advocates appearing for both the parties and have perused the records of the appeal. It is an undisputed fact that the petitioners have submitted consent letters, one such letter dated 15.2.1999 is placed on record at page 55. Bare reading of the recital of the aforesaid consent letters reflects that the petitioners have agreed to join newly constituted Patan district in terms of letter bearing No. MKM/district approval/Vashi/ 1482/162/99 dated 21.01.1999 addressed by the office of the respondent No. 2 Collector, Patan, on condition to treat their seniority from the date of joining i.e. 14.12.1998 and has accordingly joined their services at newly constituted district Patan. Thus, the petitioners have been acquainted with right as regards their seniority from the date of joining their services at newly constituted Patan district and not from the initial date of appointment under the Revenue set up. In such circumstances, we do not find any fault with the observations and findings recorded by the learned Single Judge of not accepting the case of the petitioners as regards the issue of seniority. 10. At this stage, we further take notice of the few dates as emerges from the records of the present appellants. It is true that the State Government had issued Notification dated 26.11.1998, which specifically deals with the issue of absorption/allocation of the Government employee in view of the bifurcation of districts Mehsana and Banaskantha and constitution of newly district Patan. The reliance placed by the learned advocate for the appellants on clause 2(b)(1) of the aforesaid Notification clearly mentions options being offered to the erstwhile employees of other districts, who have shown their willingness to join their service at Patan district. It further mentions that if any such allocation is made in view of the public interest, it has been resolved to record the original seniority on the basis of continuous officiation in the Revenue set up. Aforesaid Notification was subsequently amended by the Revenue Department by issuing Notification dated 19.01.1999, whereby the State has reviewed aforesaid decision and has resolved to call for option from the employees, whose name appeared in the schedule appended to the aforesaid Notification to join their service at newly constituted district Patan. Aforesaid Notification was subsequently amended by the Revenue Department by issuing Notification dated 19.01.1999, whereby the State has reviewed aforesaid decision and has resolved to call for option from the employees, whose name appeared in the schedule appended to the aforesaid Notification to join their service at newly constituted district Patan. Such consent has been sought for with specific clarification that their seniority shall be considered from the date of their joining district Patan and in case such employees are not agreeable then they are required to be brought back to their original cadre in native district based on such Notification dated 19.1.1999. The respondent No. 2 Collector, Patan had addressed a letter dated 21.01.1999 seeking consent of such employees including the petitioners. In response to such a letter dated 21.01.1999, the petitioners have in no uncertain terms on their own submitted their consent letter which are forming part of the record of the captioned petition. Based on the aforesaid Notification and the consent letters being submitted by the petitioners, the Revenue Department had issued final order dated 01.05.1999 to treat their date of joining Patan district as the date for reckoning their seniority inter se. Thus, in our opinion, the contention raised by the learned advocate for the appellants challenging the aforesaid order dated 01.05.1999 being arbitrary, in violation of Articles 14 and 16 of the Constitution of India, is devoid of merit and is not accepted. In fact, the aforesaid dates of events goes to suggest that the petitioners had option as it was very much clarified by the State Government that in case the employees do not wish to join district Patan by losing earlier service for the purpose of reckoning seniority then such employees were to be taken back on the same cadre at their native district. In Spite of such an option being offered by the State Government, the petitioners on their own have submitted consent letters agreeing to join newly constituted district Patan and to record their seniority from the date of their joining such service at Patan. Reliance placed on the decision in the case of Somesh Thapliyal (Supra) is totally misplaced in the peculiar facts and circumstances of the case as noted hereinabove. Reliance placed on the decision in the case of Somesh Thapliyal (Supra) is totally misplaced in the peculiar facts and circumstances of the case as noted hereinabove. It was a case where the Hon’ble Apex court on examining the facts of the case noticed that the appellants therein were appointed after going through the process of selection as contemplated under Part VI of the Act 1973 which indeed was an appointment on substantive basis and since the appellants were not in an equal bargaining position and were in the need of employment when the offer of appointment was made, were left with no option but to accept such arbitrary conditions incorporated in the letter of appointment in treating it to be contractual for a limited period. The Hon’ble Court further took notice of the fact that the appellants therein have recorded their protest while joining but no heed was paid. The Court therefore upon examination of the scheme arrived at conclusion that once the appellants have gone through the process of selection provided under the scheme of the Act 1973 regardless of the fact whether the post is temporary or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority. Thus, it was in light of these peculiar facts the Hon’ble Apex Court has held so. Whereas in the present case, for the reasons recorded earlier, the State Government has offered the writ applicants and other similar employees the right to exercise their option. In our opinion, such action of the State cannot be termed as arbitrary to attract the aforesaid principle as laid down by the Hon’ble Apex Court. In fact, the aforesaid decision has been distinguished in the case of Union of India and Others vs. N. Murugesen, (2022) 2 SCC 25 where the Hon’ble Apex Court has examined the word “acquiescence” in the facts of the case, as a tacit or passive acceptance and considered implied and reluctant consent to an Act. We therefore, agree with the decision of the learned Single Judge as no error of law and fact is committed by the learned Single while passing the impugned order. Present appeal stands dismissed.