Gujarat High Court
Mandakini Vijay Kaptan vs State Of Gujarat on 9 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/686/2025 ORDER DATED: 09/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 686 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 14940 of 2017
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MANDAKINI VIJAY KAPTAN
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1
MS. SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 09/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal arises out of the judgment and order dated 31.01.2025 passed by the learned Single Judge in the captioned petition dismissing the said writ petition.
2. Learned advocate Mr. H.J. Karathiya, at the outset has submitted that the order passed by the learned Single Judge is required to be quashed and set aside as the learned Single Judge has failed to examine the facts in light of the provisions of Rules 8 and 9 of the Gujarat Fisheries Department (Lower Cadre Examination and Upper Cadre Examination) Rules, 1972 ("said Rules" for short) governing the promotion and seniority of employees of Class-III of Fisheries Department for non-gazetted post. It is submitted that the appellant is entitled to deemed date of promotion from the date of passing of the examination and not from any subsequent date. It is submitted that the person, who was appointed/promoted at the relevant time, was required to Page 1 of 5 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jun 20 2025 Downloaded on : Fri Jun 20 23:12:00 IST 2025 NEUTRAL CITATION C/LPA/686/2025 ORDER DATED: 09/06/2025 undefined be reverted and the present appellant, who has passed the departmental promotion examination on 28.05.1986, is required to be granted deemed date of promotion as a Senior Clerk from 28.05.1986, instead of 31.05.1989 and also consequential benefits.
3. Mr. H.J. Karathiya, learned advocate for the appellant has referred to the prayers made in the appeal before the tribunal, which are incorporated by the tribunal in the order dated 03.10.2016, wherein the appellant had claimed deemed date of promotion in the cadre of senior clerk. He has submitted that the first seniority list was promulgated by the respondent authorities on 27.04.2005 after the appellant had raised an objection against the provisional seniority list. It is submitted that the appellant made representations to the respondent authorities to grant deemed date of promotion, however, nothing was done. Therefore, the appellant was constrained to make an appeal before the Tribunal, which was rejected.
4. Learned Advocate for the appellant has invited the attention of this court to the order passed by the learned Single Judge and has submitted that as per the said Rules, since the appellant had passed the examination on 28.05.1986, he is entitled for deemed date of promotion. Learned Advocate also referred to the names of the candidates mentioned in the order dated 17.10.2002, who were given promotion in the year 1986. Thus, it is urged that as per the specific provisions of Rules 8 and 9 of the said Rules, the appellant is entitled for deemed date of promotion in 1986 in the cadre of Senior Clerk.
5. Per contra Ms. Shruti Dhruve, learned AGP for the respondent Nos. 1 and 2 has urged that the judgment and order passed by the learned Single Judge is not required to be interfered with as the same is precisely Page 2 of 5 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jun 20 2025 Downloaded on : Fri Jun 20 23:12:00 IST 2025 NEUTRAL CITATION C/LPA/686/2025 ORDER DATED: 09/06/2025 undefined passed. It is submitted that the appellant at the relevant point of time was awarded the deemed date of promotion on 31.05.1989, on 03.12.1992. It is submitted that the Tribunal has also rejected the appeal filed by the appellant which has been confirmed by the learned Single Judge and hence, it is urged that this Court may not interfere with the aforesaid order.
6. We have heard the learned advocates for the respective parties. The unequivocal facts, which are established from the matter are that the appellant, who was working as a Senior Clerk was granted the deemed date of promotion on 03.12.1992 w.e.f 31.05.1989. After the grant of promotion, the respondent-department also published a provisional seniority list, against which the appellant raised objections on 30.05.2002. The appellant has raised a specific objection relating to the fixation of her seniority on the basis of passing of the departmental examination. She has alleged that the Senior Clerks, who are juniors to her, have been placed above her. Similar objection was again raised by her vide communication dated 17.10.2002. She has specifically raised objection against the placement of one Shri P.H.Gupta and 38 other Senior Clerks. Thereafter, also number of representations were made by her. Ultimately, the respondent-department published a final seniority list of senior clerks on 27.04.2005.
7. From the documents on record, it appears that the respondent- department published the provisional seniority list of Office Superintendent on 01.07.2010. The appellant, vide a communication dated 26.07.2010, again reiterated her request for incorrect fixation of seniority in the cadre of senior clerk. Further representations were also made, and ultimately, the appellant filed her representation on 15.05.2012. Thereafter, the appellant filed Appeal no.79 of 2012,before Page 3 of 5 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jun 20 2025 Downloaded on : Fri Jun 20 23:12:00 IST 2025 NEUTRAL CITATION C/LPA/686/2025 ORDER DATED: 09/06/2025 undefined the Tribunal praying for grant of deemed date of promotion to the post of Senior Clerk from 28.05.1986 and further promotion to the post of Head Clerk Superintendent along with arrears with 12% interest. The Tribunal, vide order dated 03.10.2016 rejected the appeal. The review filed by the appellant was also rejected vide order dated 22.05.2017. The captioned writ petition has also met with the same fate, hence the present appeal.
8. It is an admitted fact that the appellant has not challenged her fixation of seniority in any of the cadre before any forum. She has alleged that the persons juniors to her were placed above her. The appellant was assigned the deemed date of promotion on 03.12.1992 w.e.f 31.051989. She has never assailed the same till the year 2012 by filing the appeal before the Tribunal. In the intervening period, her department has also declared the final seniority list on the basis of the promotion to the post of Senior Clerk, and further provisional seniority list of Office Superintendent is also published. The appellant has not challenged the seniority lists. It is also not in dispute that in none of the proceedings, the appellant has arraigned the affected candidates as party respondents. While examining the present appeal,we cannot ignore these vital aspects. We are not inclined to disturb the seniority of Senior Clerks after a span of more than 20 years, that too in absence of the affected party/parties.
9. The appellant has primarily placed reliance on the provisions of Rules 8 and 9 of the Rules in her representation and also before the Tribunal, and before this Court. The entire case of the appellant hinges on Rule 9 of the said Rules, which is translated as under:
"If no qualified person holding any of the posts mentioned in Annexure-B is available for promotion to any of the posts mentioned in Annexure-A, then, on such occasion, any unqualified person holding any of the posts mentioned in Annexure-B, who has not Page 4 of 5 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jun 20 2025 Downloaded on : Fri Jun 20 23:12:00 IST 2025 NEUTRAL CITATION C/LPA/686/2025 ORDER DATED: 09/06/2025 undefined exhausted the chances prescribed under the rules for passing the higher standard examination, may be promoted, subject to the condition of reversion, to discharge duties on any of the appropriate posts mentioned in Annexure-A. Whichever of the following events occurs earlier -- either a qualified person becomes available for promotion, or the individual fails to pass the higher standard examination within the period and attempts prescribed under Rule 4 or 5 -- the individual shall be reverted to his original post."
Thus, it is the case of the appellant that one of the employees Shri Gupta was wrongly promoted as a Senior Clerk, despite he having passed the examination in the year 1981. However, the said employee is not made a party respondent in any of the proceedings. When a specific query was raised to the learned advocate Mr. H.J. Karathiya, to point out any provisions of law or any Rules or Regulations, which entitles the appellant - employee to be granted deemed date of promotion from the date of passing of the departmental examination, he has only pointed out the aforesaid Rule 9. In our considered opinion, if Rule 9 is invoked, then the person/s, who was/were holding the posts at the relevant time are also required to be heard. A bare reading of the aforesaid Rule 9 declares that it does not entitle the appellant to deemed date of promotion from the date of passing of the departmental examination. Except this, no provision is shown in this regard. Hence, the submissions advanced by the learned advocate do not merit acceptance.
10. We do not find any persuasive reason for interfering with the order passed by the learned Single Judge rejecting the writ petition. Hence, the present appeal fails, the same is rejected.
(A. S. SUPEHIA, J) (R. T. VACHHANI, J) MVP/39 Page 5 of 5 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jun 20 2025 Downloaded on : Fri Jun 20 23:12:00 IST 2025