Alpaben Hirabhai Pethani vs State Of Gujarat
2021 Latest Caselaw 16884 Guj

     C/SCA/13120/2020                             JUDGMENT DATED: 27/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13120 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                     Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                           YES

2     To be referred to the Reporter or not ?
                                                                       NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution              NO
      of India or any order made thereunder ?

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                        ALPABEN HIRABHAI PETHANI
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR ANAND L SHARMA(1714) for the Petitioner(s) No. 1,2,3,4,5
MR UTKARSH SHARMA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 27/10/2021

                             ORAL JUDGMENT

1. Heard learned Advocate Mr.Anand L. Sharma for the petitioners

and learned AGP Mr.Utkarsh Sharma on behalf of the

respondents.

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2. Issue Rule returnable forthwith. Learned AGP waives service of

notice of Rule on behalf of the respondent State.

3. With the consent of the parties, the present petition is taken up for

final hearing.

4. By way of this petition, the petitioner has prayed for the following

reliefs:-

"7(a) Your Lordships may be pleased to issue writ of mandamus or any other writ, order or direction, quashing and set aside order dated 9.7.2020, being illegal, arbitrary, unconstitutional, against settled legal position and in violation of principles of natural justice;

(b) Be pleased to hold and declare that the petitioners are entitled for the benefit of continuity of service for the calculation of five years in the fixed pay scheme as petitioners have secured their place in the first merit list as well as in the revised merit list and both the times appointed on the same post of Accountant by the respondent authorities with all consequential benefits;

(C) Be pleased to direct the respondent authorities to give seniority, benefit of continuity of service for the calculation of five years in the fixed pay scheme as petitioners have secured their place for the same post of Accountant both in the first merit list as well as in the revised merit list and both the times appointed on the same post, as has been granted to other similarly situated employees."

5. The brief facts leading to filing of this petition are as under:-

5.1. The petitioners had applied for the post of Accountant on

the basis of an advertisement published by the Joint Selection

Committee of the Finance Department on 12.11.2011. The

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petitioners having cleared the selection process by the Joint

Selection Committee were placed on the select-list for the

post of Accountant (Class-III Grade-I). Such appointment was

on fixed pay for a period of five years as per the extant Policy

of the State Government and whereas the appointment order

was issued on 26.9.2012. It is stated that vide an order

passed by the respondent No.2 herein dated 15.4.2014, the

order of appointment had been cancelled. It appears that the

order of cancellation had been necessitated on account of

later developments. The selection process had been

challenged by some candidate, who had not cleared the

selection process and whereas this Court had initially vide an

order passed in Special Civil Application No.12500 of 2013

directed the respondent Authority to consider the

representation of the aggrieved persons. It appears that later

on few other persons had filed petitions and whereas this

Court had directed the respondents to complete the process of

revising the merit list more particularly in context of error in

answer keys. It further appears that the Joint Selection

Committee had sought for a report of experts and whereas

based upon the same, the Gujarat Technology University

(GTU) was requested to prepare a revised merit list as per the

correct answer keys furnished by experts. That as per the

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result prepared by the GTU a fresh merit list and waiting list

were prepared by the Committee. It appears that based upon

the merit list and waiting list prepared by the GTU, the Joint

Selection Committee vide an order dated 11.1.2014 had

cancelled the original merit list and instructions were given to

the respondent No.2, who vide order dated 11.4.2014 had

cancelled the appointments given to selected candidates,

including the present petitioner. It further appears that even in

the revised merit list, the petitioners were placed and whereas

the petitioners were reappointed on the post of Accountant

vide order dated 28.5.2014/19.7.2014 and that the petitioner

had resumed duties since then. It appears that the order of

appointment of the petitioners was a fresh appointment order

and whereas there is no reference to the earlier appointment

order or the period of 1½ years worked by the petitioner on the

post in question. The petitioners state that some similarly

situated persons had challenged the decision of the

respondents in not giving benefits of continuity of service for

the purpose of considering the period of five years in the fixed

pay scale, more particularly the petitioner therein having

secured place in the first merit list as well as in the second

merit list and had been appointed on the same post of

Accountant and Sub-accountant by the respondent

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Authorities. It appears that the Coordinate Bench of this Court

vide an order dated 24.1.2017 in Special Civil Application

No.16290 of 2016 had inter alia held that the petitioners

therein would be entitled to the benefit of continuity of service

for the purpose of calculating five years from the date of their

original appointments. That the appointment was to relate

back to the date when the petitioners therein were originally

appointed, with continuity of service for the purpose of

seniority without any back-wages or incidental benefits. It is

stated that the respondent State had challenged the decision

before the Hon'ble Division Bench and vide an order dated

7.9.2017, Hon'ble Division Bench of this Court had been

pleased to confirm the decision of the learned Single Judge. It

appears that the State had challenged the said decisions

before the Hon'ble Apex Court and vide an order dated

30.7.2019 the Hon'ble Apex Court had been pleased to reject

the appeals. It appears that the petitioners therein had been

granted the benefit of continuity of service for the purpose of

counting the period of five years. Since similarly situated

persons had been granted the benefit of continuity of service,

the present petitioner has approached this Court praying for

grant of the same benefit.

6. Learned Advocate Mr.A. L. Sharma on behalf of the petitioners

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would submit that since similarly situated candidates had been

granted continuity of service by this Court, which decision had

been confirmed up to the Hon'ble Apex Court, there was no

reason whatsoever for the respondents to deny the same benefit

to the present petitioners. Learned Advocate Mr.Sharma would

further submit that the petitioners were higher in merit than one

Mr.Sonara Dineshbhai Mohanbhai in the revised merit list, but on

account of the fact that the said person was a petitioner in SCA

No.16290 of 2016, therefore, the benefit of continuity had been

given to the said person and not given to the present petitioners.

Learned Advocate Mr.Sharma would also rely upon a Circular by

the GAD Department dated 22.8.2014, whereby it was held that

as per the State Litigation Policy published vide Notification dated

29.12.2011 and as per the ratio of decisions of various Courts of

giving benefits of a judgement to identically situated persons, who

were not party to a litigation, the State has framed a policy

whereby in case of decisions of the Courts having been accepted

and no review applications are pending, or where the decisions

attained finality in appeals, it was decided that a report by the

Department concerned about the cases where persons are

similarly situated to the persons who have been granted benefit

by an order of a Court should be submitted to the Competent

Authority of the Department and if they are similarly situated, then

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the case should be put up before the General Administrative

Department and the Finance Department, which would in turn

place the same before the Chief Secretary for approval. Learned

Advocate would submit that since the cases of the present

petitioners and of the petitioners in SCA No.16290 of 2016 were

identical, and therefore, as per the policy of the State

Government it was incumbent upon the Department to have

proceeded in accordance with the policy of the State Government

and given the benefit as granted to the petitioners of SCA

No.16290 of 2016. Learned Advocate would further submit that

as such the entire issue had arisen on account of a mistake

committed by the Authorities themselves. It was not a case

where there was any allegation or malpractice, etc. The issue

was with regard to calculation of marks and whereas in case of

the present petitioners in both the original merit list as well as in

the revised merit list, the petitioners had found their place in the

merit category, and therefore, the petitioners could not have been

denied the benefit of continuity of service.

7. On the other hand, learned AGP Mr.Sharma would submit that

while the case of the petitioners may or may not be identical to

the case of the petitioners in SCA No.16290 of 2016, yet the fact

remains that at the relevant point of time, the petitioners had not

questioned the decision of the State Government of not granting

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continuity of service to the petitioners. Learned AGP would

submit that it is only after this Court had passed the order in SCA

No.16290 of 2016, which came to be confirmed up to the Hon'ble

Apex Court, the petitioners had challenged the decision of the

State Government of not granting continuity of service. Learned

AGP, relying upon the decision of the Hon'ble Apex Court in case

of State Of U.P. & Ors. Vs. Arvind Kumar Srivastava & Ors.,

reported in (2015) 1 SCC 347, would submit that in case of

those persons, who did not challenge wrongful action and

acquiesced to the same and woke up after a long delay only

because their counterparts, who had approached this Court

earlier in time, succeeded in their efforts, then such employees

could not claim the benefit of the judgement in case of similarly

situated persons to be extended to them. Learned AGP would,

therefore, submit that the petition being barred by delay and

laches, this Court may not entertain the present petition.

8. Heard the learned Advocates for the respective parties, who have

not submitted anything further. At the outset, it requires to be

noted that the petitioners of SCA No.16290 of 2016 and the

present petitioner are identically situated. Paragraphs 6, 7, and 8

of the decision of the Coordinate Bench of this Court dated

24.1.2017 in SCA No.16290 of 2016 confirms the said facts and

for the purpose of better appreciation, the said paragraphs are

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reproduced herein below:-

"6. Present petitioners are aggrieved by the fact that their names appeared in the first list and thereafter, they continued to serve for nearly 1½ years from the date of receipt of the appointment order. However, due to the decisions in the case of others, who had not cleared the examination or those of them who were wrongly appointed due to the wrong answer keys, the reappointment was given to the petitioners.

7. The petitioners had approached this Court by preferring Special Civil Application No. 4067 of 2016 whereby they had requested for benefit of continuity of service by calculation of five years in fixed payscale on the ground that they had served the place in the first merit list as well as in the revised merit list and they were appointed on the very post of Sub-Accountant by the respondent authorities. This Court directed the authority to consider the case of the petitioners on the basis of the decision of Rajesh Kumar and others (supra) as follows:

"4. Having regard to the relief prayed for keeping in mind the decision of the Supreme Court in case of Rajesh Kumar and Others v. State of Bihar and others, I quote the observation made by this Supreme Court in Paragraph Nos. 18 and 19(3):

18. There is considerable merit in the submission of Mr.Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a reevaluation. The reevaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such reevaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.

19(3) In case writ petitioners respondent nos.6 to

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18 also figure in the merit list after reevaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits."

5. Let appropriate decision be taken within a period of six weeks from the date of receipt of this order. The decision shall be in writing with reasons and with consideration of the decision of the Supreme Court and the same shall be communicated to the petitioner. With the above, this writ application is disposed of. Direct service is permitted."

8. Pursuant to the directions of this Court, the respondent authority denied the grant of seniority to the present petitioners mainly harping on the fact that pursuant to the Court's directions revised list had been prepared and the appointment given was fresh appointment, and therefore, the petitioners could not have requested for continuity of their services which they did for 1½ years."

9. In the above referred judgement, the Coordinate Bench has held

at paragraphs No.23 to 27 as thus:-

"23. Applying the said ratio to the case of the present petitioners whose names figured in both the lists and who have continued to serve except for the period of 1 month and 25 days, in the opinion of this Court, for the purpose of seniority, their date of appointment must go back to the original date of appointment.

24. Petitioners enjoyed the privilege of being meritorious to figure in the first merit list and also in the subsequently drawn merit list. Therefore, to equate their case with those who either were left out earlier or those whose names erroneously appeared due to wrong answer keys would not be a just approach. Action of the State respondent, therefore, warrants indulgence.

25. Learned advocate Mr.Thakkar at this stage has requested for concession that the period when these petitioners were unable to serve for 1 month and 25 days for no fault of theirs, be treated as an extraordinary leave. The period during which the petitioners served was nearly 1½ years when

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service came to be ended due to litigation by those who did not succeed and once again reappointment pursuant to the revised merit list has been done and therefore, since the act of the Court should prejudice none and as the petitioners had no role to play in dropping the first merit list and also in redrawing the same nor were they at fault anywhere, such a request for concession that the said period of one month and twenty five days be treated as extraordinary leave, as the petitioners are not desirous to enter into any other dispute with regard to that period, appears to be a reasonable request.

26. Let the authority treat the same accordingly.

27. Petition in wake of the aforesaid discussion stand allowed. Order of the respondent authority dated 3.8.2016 is quashed. The petitioners are held entitled to benefit of continuity of service for the calculation of five years from the date of their original appointment. Their appointment shall relate back to the date when they were first appointed with continuity of service to them for the purpose of seniority without any back wages or other incidental benefits."

10. The said decision of the learned Single Bench of this Court

(Coram: Ms.Sonia Gokani, J.) had been confirmed by the Hon'ble

Division Bench (Coram: Mr.R. Subhash Reddy, C.J. and Mr.Vipul

Pancholi, J.). That the decision of the learned Single Bench as

well as of the Division Bench had not been interfered with by the

Hon'ble Apex Court.

11. Thus, the only issue which requires consideration of this

Court is whether the petitioners ought to be granted the same

benefit as was granted to the petitioners of SCA No.16290 of

2016. The position of law in this regard has been succinctly

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explained by the Hon'ble Apex Court in case of State Of U.P. &

Ors. Vs. Arvind Kumar Srivastava & Ors. (Supra) which was

incidentally relied upon by the respondent. Paragraphs 22, 22.1,

22.2 and 22.3 of the decision are reproduced herein below for

better appreciation:-

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma & Ors. v. Union of India (supra).

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On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

12. Thus, appreciating the findings set out by the Hon'ble Apex

Court relying upon the earlier decision of the Hon'ble Apex Court,

it could be appreciated that the normal rule in this regard being

that in case of relief given by a Court to an employee or group of

employees, then in normal circumstances all other identically

situated persons should be treated alike by extending the same

benefit. That merely because other similarly situated persons

have not approached the Court, they are not to be treated

differently. The normal rule would be subject to the exception in

the form of laches, delay and acquiescence, more particularly

when the person claiming similar benefits had waken up after a

long delay and because his counterparts, who had approached

the Court earlier in time, succeeded in their efforts. Again, the

Hon'ble Apex Court has stated that even the exception as above

would be subject to another exception in case the judgement

pronounced by the Court was in rem with the intent to give

benefits to all similarly situated persons.

13. Having regard to the proposition of law laid down by the

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Hon'ble Apex Court, this Court finds that the petitioners ought not

to be denied the benefit as available to the petitioners of SCA

No.16290 of 2016 only on the ground of laches. The reason for

reaching such conclusion are three-fold; one being the cause

which led to the dispute in the first place i.e. the revised merit list

could not be attributable to the petitioners or for that matter any

other candidate. From perusal of the decision of this Court in

SCA No.16290 of 2016, it clearly appears that the revision in

merit list was necessitated on account of the mistake committed

by the respondent Authorities and not on account of any fault on

the part of the present petitioners or any other similarly situated

candidates. Under such circumstances, the petitioners ought not

to be prejudiced on account of no fault on hers. The second

reason is that the petitioners being meritorious candidates

inasmuch as even the revision in the merit list did not affect their

position in the merit list inasmuch as in both the merit lists the

petitioners being selected upon merit; and the third reason being

that the Circular of the State Government through the GAD dated

22.8.2014, which inter alia requires the Department to prepare

monthly statements with regard to decisions of the Courts being

applicable to other similarly situated employees, who had not

approached the Court and the issue is required to be forwarded

to the Chief Secretary through the concerned head of the

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Department and whereas the Chief Secretary to give appropriate

recommendation. It appears that though a specific contention

has been raised with regard to the Circular dated 22.8.2014,

more particularly at paragraph 3 of the petition, yet in the affidavit-

in-reply there is no explanation coming forth as to whether such

process had been carried out or not. Perusal of the Circular

clearly reveals that the onus of taking a decision as to whether

similarly situated persons are entitled to the benefit of a

judgement in spite of their having not approached the Court was

on the respondent Authorities. As per the terms of the Circular

dated 22.8.2014 it was the responsibility of the Nodal Officer or

the Administrative Officer of the Department to place the issue of

similarly situated persons before the head of the Department

every month, who in turn is required to take approval from the

Chief Secretary through GAD and the Finance Department. The

respondent authorities having not adhered to their own policy of

giving benefit to similarly situated persons, beneficiaries of a

litigation, the said aspect would also be a relevant factor in

granting prayers as prayed for by the petitioner.

14. As such in case of State Of U.P. & Ors. Vs. Arvind Kumar

Srivastava & Ors. (supra) before the Apex Court the petitioners

were challenging cancellation of their appointments after a period

of 9 years and whereas as on the date of the judgement as noted

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by the Hon'ble Apex Court any direction to give appointment to

the respondents therein would be after a period of 27 years when

most of the respondents would be almost 50 years of age. In the

instant case, the petitioners had joined service vide appointment

order dated 26.9.2012 and whereas vide an order dated

11.4.2014 appointment came to be cancelled and whereas the

petitioners were reappointed on 28.5.2014. The request of the

petitioners for continuity of service from the date of actual

appointment appears to be reasonable and just, more particularly

since as noted herein above, the termination could not be said to

be on account of any fault of the petitioners or for that matter,

fault of any candidate.

15. In this view of the matter, in the considered opinion of this

Court, the present petition deserves consideration. At this stage,

it would be relevant to refer to concession given by the learned

Advocate Mr. Sharma, relying upon the concession given by the

learned Advocate for the petitioners in SCA No.16290 of 2016

that the period during which the petitioners were unable to serve

for no fault of theirs be treated as an extraordinary leave.

16. Having regard to the same, the period from the date of

cancellation of appointment till the date of actual joining of the

petitioners is directed to be treated as extraordinary leave. The

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petitioners are directed to be conferred with the benefit of

continuity of service for calculation of five years from the date of

her original appointment i.e. w.e.f. 26.9.2012. It is clarified that

the continuity of service as available to the petitioners in SCA

No.16290 of 2016 would be for the purpose of seniority only

without any back-wages or any other incidental benefits.

17. The petition stands disposed of accordingly. Rule is made

absolute to the aforesaid extent.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL