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2024 DIGILAW 1923 (GUJ)

RAJESHKUMAR KANTILAL RAMI (DECEASED) v. DIRECTOR

2024-10-15

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. Heard Mr. Haresh J. Trivedi, learned advocate appearing for the petitioner, Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent Nos. 1 and 2- State and Mr. Nirav C. Thakkar, learned advocate appearing for the respondent no. 3. 2. By way of the present Petition, petitioner herein has invoked Article-226 of the Constitution of India and has prayed for the following reliefs: “(A) Your Lordships may be pleased to issue a writ in the nature of mandamus or quo warranto or any other appropriate writ, order or direction and be pleased to quash and set aside the promotion to the post of Head Examiner dated 01.04.2016 given to the respondent no. 3. (B) Your Lordships may be pleased to direct the respondent no. 1 and 2 to give promotion to the petitioner on the post of Head Examiner from the same date as that of the promotion given to respondent no. 3 and pay for all benefits applicable after promotion. (BB) Your Lordships may be pleased to direct the respondent nos. 1 and 2 to give notional promotion to the husband of the petitioner on the post of Head Examiner as that of promotion given to respondent no 3 and pay all other consequential benefits applicable after promotion w.e.f. 01.04.2016; including difference of pay with all admissible allowances from 01.04.2016 to 30.6.2020, alongwith difference of pension admissible on such revised pay with other consequential benefits, with further direction to fix her family pension on the revised pay scale. (C) Pending admission and final disposal of this petition, Your Lordships may be pleased to grant stay against any further implementation and operation of the promotion order dated 01-04-16 for the post of Head Examiner given to respondent no. 3. (D) Your Lordships may be pleased to grant any other and further relief as may be deemed fit and proper, in the interest of justice. (E) Your Lordships may be pleased to grant costs of this petition.” 3.1. Briefly stated that, the petitioner herein was working with the respondent no. 2- Government Central Press, Gandhinagar on the post of Proof Reader. It is the case of the petitioner that the petitioner was entitled to be promoted as Head Examiner in accordance with the rules and has been granted the pay scale of Senior Examiner, on 01.09.2010. 3.2. Briefly stated that, the petitioner herein was working with the respondent no. 2- Government Central Press, Gandhinagar on the post of Proof Reader. It is the case of the petitioner that the petitioner was entitled to be promoted as Head Examiner in accordance with the rules and has been granted the pay scale of Senior Examiner, on 01.09.2010. 3.2. It is the case of the petitioner that the respondent no. 3 is a junior to the petitioner herein from the beginning and is possessing lesser qualification compared to the petitioner. It is further the case of the petitioner that the petitioner applied under the Right to Information Act (‘RTI’ for short) with respect to the educational qualification of the respondent no. 3 as well as exact caste position of the respondent no. 3, but the said information was not parted with and in view thereof, the petitioner preferred Appeal, which was referred back to Manager Gandhinagar Printing Press for doing the needful. No reply has been received by the petitioner from the appellate authority. In light of the aforesaid, the petitioner herein has filed the present petition seeking the reliefs as referred above. 4.1. Mr. Haresh J. Trivedi, learned advocate appearing for the petitioner vehemently submits that the respondent no. 3 herein has entered the service as ‘Copy Holder’ as a Scheduled Tribe (S.T.) candidate. It is submitted that, the respondent no. 3’s caste, i.e. ‘Majirana’ or ‘Marwadi Bhil’ do not fall in S.T. category in Gujarat origin. Reliance is placed on the information received from the Commissioner, Adijati Vikas, Gujarat State, Gandhinagar by communication dated 02.07.2015 and placing reliance on the aforesaid submission, it is submitted that the respondent no. 3 was unlawfully recruited as Copy Holder, on reserved seat for Scheduled Tribe candidate. It is submitted that, the seniority of the petitioner herein is ahead of the respondent no. 3 and in view thereof, the petitioner challenges the promotion of the respondent no. 3 to the post of Head Examiner dated 01.04.2016 given to the respondent no. 3. 4.2. It is submitted that the respondent no. 3 was granted promotion, erroneously after relying on the caste certificate of the respondent no. 3 and the respondent no. 3 marched over the petitioner in seniority, because of his 1st unlawful promotion in S.T. category in the year 1997. 4.3. 3. 4.2. It is submitted that the respondent no. 3 was granted promotion, erroneously after relying on the caste certificate of the respondent no. 3 and the respondent no. 3 marched over the petitioner in seniority, because of his 1st unlawful promotion in S.T. category in the year 1997. 4.3. Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for be granted and petition be allowed. 5.1. Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent nos. 1 and 2-State placed reliance on the affidavit-in-reply filed by the respondent nos. 1 and 2 and submitted that the respondent authorities sent the caste certificate of the respondent no. 3 to the appropriate authority of the Gujarat State, i.e. Director of Social Welfare Gujarat State vide communication dated 05.03.1991, in turn the said authority vide letter dated 28.08.1991, upon verification informed that the said certificate is genuine and the respondent no. 3 is entitled to the benefits of S.T. category. 5.2. Considering the aforesaid, the respondent no. 3 was promoted in the year 1997 to the promotional post of Proof Reader from feeder cadre to Copy Holder. The respondent no. 3 was promoted to the said post against the reserved backlog post of S.T. candidate, as per the guidelines of Social Welfare Department, Gujarat State, Gandhinagar as per the letter of November, 1996 and duly endorsed dated 03.02.1997. 5.3. It is submitted that, the respondent no. 3 was promoted as Scheduled Tribe candidate from feeder cadre post of Copy Holder to the promotional post of Proof Reader and in view thereof, marched over the seniority and became senior in promotional post. 5.4. It is submitted that, thereafter, in the year 2007, further promotional post of Senior Examiner from the feeder cadre post of Proof Reader was required to be filled up, two posts were considered by the Recruitment Advisory Committee. It is submitted that, upon due consideration, the post was unreserved and as per seniority-cum-merit, the respondent no. 3 was senior most in the feeder cadre of Proof Reader and the respondent no. 3 came to be promoted to the post of Senior Examiner, vide order dated 11.06.2007. 5.5. It is submitted that, upon due consideration, the post was unreserved and as per seniority-cum-merit, the respondent no. 3 was senior most in the feeder cadre of Proof Reader and the respondent no. 3 came to be promoted to the post of Senior Examiner, vide order dated 11.06.2007. 5.5. It is further submitted that in the year 2016, the question for filling up post of Head Examiner from the feeder cadre of Senior Examiner was considered, wherein, the said post was also unreserved and the respondent no. 3 being the senior most in the feeder cadre of Senior Examiner was fulfilling all the criteria of the promotional post came to be promoted as Head Examiner vide order dated 01.04.2016. 5.6. It is submitted that the respondent no. 3 has been promoted on reserved category in the year 1997, i.e. once in his entire service tenure, further promotion has been given on unreserved post as per seniority cum merit basis. 5.7. It is submitted that the respondent authority has followed the procedure of appointment on the post of Copy Holder, as per the government resolution dated 18.11.1976. The petitioner and the respondent no. 3 were possessing the qualification for the post of Copy Holder and both were appointed on 28.08.1985 and joined services on 09.09.1985, i.e. on the same day. The respondent no. 3 was appointed on the post of Copy Holder on merits and he was qualified for the said post. The respondent no. 3 was not appointed on this post, as he belonged to Schedule Tribe. Reliance is placed on the appointment letter of the respondent no. 3 dated 28.08.1985, duly produced at Annexure-R-7, wherein, reliance reliance is placed on condition no. 13. 5.8. It is submitted that, no information as prayed for by the petitioner is shared under the Right to Information Act. It is submitted that the respondent no. 3 herein possessed the qualifying criteria and in view thereof the orders of promotion have been granted to the respondent no. 3 from time to time. It is submitted that the petitioner herein is holding the post of Proof Reader and is getting the higher grade of Senior Examiner. The petitioner would be eligible for promotional post, only when the filling up of the post of Senior Examiner will be considered. Till then the petitioner remains on the post of Proof Reader. It is submitted that the petitioner herein is holding the post of Proof Reader and is getting the higher grade of Senior Examiner. The petitioner would be eligible for promotional post, only when the filling up of the post of Senior Examiner will be considered. Till then the petitioner remains on the post of Proof Reader. The post of Head Examiner is two step above of Proof Reader, i.e. Senior Examiner and thereafter Head Examiner. The promotion to the post of Head Examiner can be given only from the cadre post of Senior Examiner, i.e. Feeder cadre of Head Examiner, having five years of experience. The petitioner was not holding the post of Senior Examiner, i.e. he was not promoted to the post of Senior Examiner but only gets higher grade pay scale of the post of Senior Examiner. Therefore, the petitioner does not fulfill the criteria for the promotional post and cannot be promoted to the Head Examiner, as prayed for. It is submitted that, in view thereof the petitioner herein has been granted the higher pay scale as available in accordance with the rules and regulations. 5.9. Placing reliance on the aforesaid submissions, it is submitted that the present petition is devoid of merits and that the respondent no. 3 has been granted promotion from time to time, upon due verification of the caste certificate of the respondent no. 3 as also the seniority-cum-merit of the respondent no. 3. 6. In rejoinder, Mr. Trivedi, learned advocate placed reliance on the caste certificate, which is duly produced at Page-87 and questions the genuineness of the same, and thereafter placed reliance on the school leaving certificate of the respondent no. 3 and placing reliance on same, it is submitted that in column no. 2, the caste is stated as ‘Marvadi Bhil’. It is submitted that the school leaving certificate and caste certificate of the respondent no. 3 are not in consonance and in view thereof this is a fit case to exercise the powers under Article-226 of the Constitution of India and set aside the promotional order of the respondent no. 3 dated 01.04.2016 and the prayers as prayed for in the petition may be allowed. It is also submitted that, it is the State, that is espousing the cause of the respondent no. 3 which is also required to be questioned. 7. Mr. 3 dated 01.04.2016 and the prayers as prayed for in the petition may be allowed. It is also submitted that, it is the State, that is espousing the cause of the respondent no. 3 which is also required to be questioned. 7. Mr. Nirav C. Thakkar, learned advocate appearing for the respondent no. 3 submits that pending the present petition, the respondent no. 3 has been superannuated. It is submitted that, the appointment of the respondent no. 3 is in accordance with the law and promotion granted to the respondent no. 3 from time to time are also in accordance with the rules and regulations, and therefore, no recovery be affected from the respondent no. 3. It is submitted that during the entire span of service, no inquiry has been initiated against the respondent no. 3 herein and at the instance of the petitioner herein, the prayer as prayed for against the respondent no. 3, may not be granted and the present petition may be dismissed. 8.1. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein seeks promotion as Head Examiner as per the Rules, though the petitioner has been granted the pay scale of the Senior Examiner on 01.09.2010. 8.2. Further, even after entering the government service, the petitioner has shown M.A., as his educational qualification, not only that but higher educational qualification is not the base for the promotion. The petitioner was holding the post of Proof Reader and getting higher grade of Senior Examiner. The petitioner is eligible for promotional post only, when the filling up of the post of Senior Examiner is being considered and till then, he remains on the post of Proof Reader. The post of Head Examiner is two steps above of Proof Reader, i.e. Senior Examiner and thereafter Head Examiner. The promotion to the post of Head Examiner can be given only from the cadre post of Senior Examiner, i.e. Feeder Cadre of head Examiner, having five years experience. The petitioner was not holding the post of Senior Examiner, therefore, he was not promoted to the post of the Senior Examiner, but only gets higher grade pay scale of the post of Senior Examiner. Thus, as the petitioner does not fulfill the criteria for promotional post, he cannot be promoted to the post of Head Examiner. 8.3. The petitioner was not holding the post of Senior Examiner, therefore, he was not promoted to the post of the Senior Examiner, but only gets higher grade pay scale of the post of Senior Examiner. Thus, as the petitioner does not fulfill the criteria for promotional post, he cannot be promoted to the post of Head Examiner. 8.3. The petitioner herein is aggrieved by the order of promotion issued in favour of the respondent no. 3 herein, i.e. the last promotional order dated 01.04.2016 mainly on the ground of caste certificate. This Court has perused the caste certificate of the respondent no. 3 which is duly produced on record at Page-87, Annexure-R-8. The said certificate has been duly verified by the respondent authorities, which is produced on record and upon perusal of the communication dated 28.08.1991, it emerges that the said certificate is genuine. This Court has also noted that the said certificate has never been a subject matter of challenge and in view thereof the question of doubting the genuineness of the said caste certificate of the respondent no. 3 does not arise. The aforesaid contention raised by the petitioner herein therefore fails that the respondent no. 3 is granted 1st promotion on the basis of the caste certificate of the year 1997 and the promotion from the feeder cadre of Copy Holder to Proof Reader is negated. Further, this Court has also considered the submissions advanced by Ms. Ashar, learned AGP and the affidavit in reply which is also produced on record, it is apposite to refer to Para-5 to 14 of the Affidavit in reply, which reads thus: “5. At the outset I specifically deny the contentions raised and averments made in the memo of petition under reply, that petitioner has made contention in para. five that the respondent number 3 had miss represented himself as a schedule Tribe of Gujarat Origin even if his Maji rana or say Marwadi Bhil does not fall in S.T. Category of Gujarat State. With this regard I submit that I have Perused the record and it revealed that the said Cast Certificate was sent for verification to the appropriate authority of Gujarat State i.e. Director Of Social Welfare Gujarat State vide a letter dated 5/3/1991 by this Office. With this regard I submit that I have Perused the record and it revealed that the said Cast Certificate was sent for verification to the appropriate authority of Gujarat State i.e. Director Of Social Welfare Gujarat State vide a letter dated 5/3/1991 by this Office. In turn the said authority vide its later dated 28/8/1991 Annexure R1, Informed this office that the cast certificate issued to respondent number 3 i.e. (Mr. N.P. Majirana) is verified and found genuine. He is entitle for all the benefits of S.T. Category. After considering genuineness of Cast Certificate, respondent Number 3 was promoted in 1997 to the promotional post of Proof Reader from the Feeder Cadre of Copy Holder. He was promoted to this post against reserved backlog post of S.T. Candidate as per guidelines of Social Welfare Department, Gujarat State, Gandhinagar, as per letter dated November 1996 and endorsement dated 03/02/1997 Annexure R2 by the office of Director, Government Printing and Stationary, Gandhinagar, not only that but there was a guideline of General Administrative Department, Secretarial Gujarat State, vide are G.R. number PWS/1386(4)/G5/Roaster dated 26/09/1986 Annexure R3 above filling up of carry forward reserved vacant post of S.T. Candidate. I for the submit that the respondent number 3 has been promoted as S.T. Candidate from Feeder Cadre post of Copy Holder to the Promotional post of Proof Reader and thus, He marched over seniority and became senior in promotional post. There after in the year 2007 further promotional post of Senior Examiner from the Feeder Cadre post of Proof Reader was required to the filled up, two post was considered by Recruitment Advisory Committee. The Committee considered to fill up the post of Senior Examiner on the post based instead of vacant post based on Roaster as per G.A.D. GR. Dated 08/03/1999. The said post was unreserved and as per seniority cum merit respondent number 3 was senior most in the Feeder Cadre of Proof Reader, it was decided to promote respondent number 3 and thus he got promotional post of Senior Examiner vide order dated 11/06/2007 Annexure R4. In the year 2016 the question of filling up post of Head Examiner from the Feeder Cadre of Senior Examiner was considered. In the year 2016 the question of filling up post of Head Examiner from the Feeder Cadre of Senior Examiner was considered. At this juncture also the post was unreserved and respondent number 3 was Senior most in the Feeder Cadre of Senior Examiner fulfilling all the criteria of promotional post, he was promoted as Head Examiner vide order dated 01/04/2016 Annexure R5 and at present he is holding the same post. Thus it can be seen that respondent number 3 has been promoted on Reserved Category in the year 1997 i.e. once in his entire service tenure, further promotion has been given on unreserved post as per seniority cum merit basis. 6. I state that the petitioner has filed the present petition inter-alia praying to quash and set-aside the promotion order dated 01/04/2016 of respondent number 3 to the post of Head Examiner and further prays to direct the respondent no. 1 and 2 to give promotion to the petitioner on the post of Head Examiner from the same date as that of the promotion to the respondent no. 3 and pay retrospectively for all benefits applicable after promotion. In this context I state that the present petitioner is not entitled for any relief as prayed for in the memo of petition mainly on the ground that he does not fulfill the criteria as mention for the post of the Head Examiner Class III Recruitment Rules, 2009. Annexed hereto and marked as Annexure R6 is the copy of the Head Examiner Class III Recruitment Rules, 2009. 7. I state that the procedure for appointment on the post of Copy Holder is as per the Government Resolution dated 18.11.1976. If the candidates possess the qualification mention in Para 3(a) and 3(e). He can be appointed on the post of Copy Holder as per recruitment rules 1976. I further state that as both the petitioner and respondent no. 3 were possessing the qualification for the post of Copy Holder, both were appointed on 28.8.1985 on the post of Copy Holder and joined the service from 9.9.1985, i.e. on the same day. It is pertinent to note that respondent no. 3 was appointed on the post of Copy Holder on merits as he was qualified for the said post. 3 were possessing the qualification for the post of Copy Holder, both were appointed on 28.8.1985 on the post of Copy Holder and joined the service from 9.9.1985, i.e. on the same day. It is pertinent to note that respondent no. 3 was appointed on the post of Copy Holder on merits as he was qualified for the said post. He was not appointed on this post as he was belongs to the Schedule Tribes which can be seen from the Condition No. 13 of the appointment letter date 28.8.1985. Annexed hereto and marked as Annexure R7 (Colly) are the copies of the appointment letter dated 28.8.1985 of the petitioner as well as of Respondent no. 3. 8. I state that the information as sought for by the present petitioner under Right to Information Act, 2005 could not give to him as under Section 11(1) of the Right to Information Act, 2005 as respondent no. 3 has intimated that no information should be given to the third party, under R.T.I. Act, 2005. 9. I state that the respondent no. 3 belongs to Schedule Tribes which can be justified from the documents produced by the respondent no. 3 at the time of his appointment as Copy Holder. I state that the documents produced by the respondent No. 3 to justify about varacity as to Schedule Tribes are annexed hereto and marked as Annexure R8 (Colly). 10. I state that as the respondent no. 3 possesses all the criteria for the post of proof reader and considering the Government Notification dated 26.9.1986, the respondent was promoted as proof reader from 4.4.1997 as per roster system of the Government as per backlog reserved seat of S.T. Candidate as guided by the instruction given by the social welfare department Gandhinagar. Annexed hereto and marked as Annexure R3 (Colly) are the copies of the Government Notification dated 26.9.1986. 11. I state that as per the Government Notification dated 18.11.1976, the recruitment rules for the post of Senior Examiner the candidate who having an experience of Five Years as proof reader shall be appointed as Senior Examiner. I state that the respondent no. 3 was working as proof Reader from 4.4.1997 and fulfilling the criteria as required for promotional post of Senior Examiner. He was promoted vide office number MKM/A-1/2007/4689 dated 11/06/2007 on the basis of Seniority cum merit. I state that the respondent no. 3 was working as proof Reader from 4.4.1997 and fulfilling the criteria as required for promotional post of Senior Examiner. He was promoted vide office number MKM/A-1/2007/4689 dated 11/06/2007 on the basis of Seniority cum merit. This promotion was not against reserved post as there is only 04 post, the roster system is not applicable as per Government policy. I state that as the respondent no. 3 belongs to Schedule Tribes and also he was on first considering the seniority list and therefore, he was appointed as Senior Examiner with effect from 11.6.2007. Annexed hereto and marked as Annexure R4 (Colly) are the copies of the Seniority list dated 1.1.2007 and Government Notification dated 18.11.1976. 12. I further state that there is no any financial loss to the present petitioner because as per the various Higher pay scale policy of the Government, the petitioner has received the benefits of Second Higher pay scale from 12.9.2009 like other employees who were appointed/promoted as Senior Examiner. But as the petitioner received the higher pay scale of Senior Examiner, he does not hold the post of Senior Examiner, that is to say he is not promoted to the post of Senior Examiner. 13. I state that at the time of giving a promotion from Feeder Cadre on higher post, the qualification, seniority list, Roster Point and Personal report i.e. confidential report are required to be considered. And after considering all criteria for promotional post as stated herein above promotion is given to the eligible candidates, from Feeder Cadre. 14. I further state that thereafter, the respondent no. 3 was promoted as Head Examiner from 1.4.2016 considering all the criteria for the promotional post of Head Examiner as stated herein above. The respondent no. 3 was promoted on considering the seniority list dated 1.4.2015 of Senior Examiner post which is Feeder Cadre post of Head Examiner and other criteria for the said promotional post, he was promoted as Head Examiner on 1.4.2016. Annexed hereto and marked as Annexure R5 (colly) are the copies of the letter dated 14.8.2015, Seniority list dated 1.4.2015 and appointment order dated 1.4.2016.” 8.4. Upon perusal of the same, it emerges that the respondent no. 3 herein has granted 1st promotion based on caste certificate, which is duly verified by the respondent authority and thereafter, promotions have been affected in terms of seniority-cum-merit. 8.5. Upon perusal of the same, it emerges that the respondent no. 3 herein has granted 1st promotion based on caste certificate, which is duly verified by the respondent authority and thereafter, promotions have been affected in terms of seniority-cum-merit. 8.5. Learned advocate appearing for the petitioner herein is not in a position to dispute the aforesaid undisputed facts, as stated in the reply filed by the respondent-State authorities. It is also not in dispute that the petitioner has expired and the respondent no. 3 has been superannuated. The respondent no. 3 has an unchequered history and in absence of inquiry/complaint against the respondent no. 3 herein, the respondent no. 3 herein has also superannuated. 9. For the aforesaid reasons as referred above, no case is made out to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India. The present Petition stands dismissed accordingly. Rule discharged.