Gujarat High Court
Atulbhai Dahyabhai Parmar vs State Of Gujarat on 11 April, 2022
Bench: Biren Vaishnav
C/SCA/21927/2019 JUDGMENT DATED: 11/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21927 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ATULBHAI DAHYABHAI PARMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR GM JOSHI, SR COUNSEL for MR VYOM H SHAH(9387) for the
Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 11/04/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Krutik Parikh,
learned Assistant Government Pleader waives
C/SCA/21927/2019 JUDGMENT DATED: 11/04/2022
service of notice of Rule for respondents.
2. With the consent of the learned advocates for the
respective parties, the petition is taken up for final
hearing today.
3. Heard Mr. G.M. Joshi, learned Senior Counsel
assisted by Mr. Vyom Shah, learned advocate for the
petitioner and Mr. Krutik Parikh, learned AGP for
the respondents.
4. Looking to the prayer made in this petition, the issue
was considered by this Court by Common Oral
Judgment dated 8.3.2022 passed in Special Civil
Application No.16299 of 2018 and allied matters
wherein this Court held as under:
"11. In the case before the Supreme Court and of
the Division Bench of this Court, the Court held that if the
petitioners were transferred to a new department, they may
not get seniority but the past experience would count for
the purposes of promotion and higher pay scale etc. In the
case on hand where the petitioners are concerned, in fact,
they have a better case inasmuch as they were within the
same department appointed on a fixed pay.
12. Merely because by resolutions post their
appointment i.e. on 18.01.2017 and 20.01.2018, the benefit
of the entire period of five years of fixed pay services is
C/SCA/21927/2019 JUDGMENT DATED: 11/04/2022
being given to the petitioners, the loss of seniority of two
years will cumulatively damage the case of the petitioners
in the matters of promotion etc., inasmuch as, by virtue of
the resolutions and the appointees post these two
resolutions of 2017 and 2018, the petitioners will continue
to stagnate because the appointees post these resolutions
will steal a march over the petitioners. That could not have
been the intention of the undertaking when the petitioners
filed such undertakings in the year 2015 when they opted
for transfer.
13. The case of Uttam Pawar (supra) relies on the
decision in case of Raksha Mantri (supra). Considering
the decision of the Supreme Court, the Supreme Court held
as under:
"7. The respondent herein was working as a
Telephone Operator in Irrigation Department of the
State of Maharashtra. Thereafter he made a request
for his transfer from Mumbai Zone to Kolhapur Zone.
The request of the respondent was acceded to and he
was transferred on his own request from Mumbai
Zone to Kolhapur Zone and he lost his seniority in
Mumbai Zone and he joined in Kolhapur Zone on
14.6.1990 as a Junior Clerk at zero seniority.
Thereafter, the State Government passed a Resolution
dated 8.6.1995 giving a Time Bound Promotion to the
persons who are stagnated in the Group C and D
cadres for a long period. As per the said Resolution
those persons who have put in 12 years of service and
who fulfill other conditions laid down in the said
Resolution were eligible for the next higher scale of
pay. We are not concerned with the other conditions
laid down in the Resolution dated 8.6.1995. We are
only concerned with the limited question that whether
the respondent is entitled to count his service
rendered in the Mumbai Zone when he was
transferred to Kolhapur Zone for purposes of
computing 12 years of service so as to enable him to
get the benefit of this Resolution. The Tribunal
granted the benefit of past service to the respondent
and the same was affirmed by the Division Bench of
the High Court."
14. Accordingly, the petition being Special Civil
Application Nos.16299 of 2018 and 16729 of 2020 are
allowed. The petitioners' undertaking shall not count to
their detriment for the purposes of their seniority. The
undertaking shall not operate and their seniority shall be
counted from the date of their initial appointment post the
period of five years in view of the resolutions dated
18.01.2017 and 20.01.2018."
C/SCA/21927/2019 JUDGMENT DATED: 11/04/2022
5. Accordingly, the petition is allowed. The petitioner's
undertaking shall not count to his detriment for the
purposes of his seniority. The undertaking shall not
operate and his seniority shall be counted from the
date of his initial appointment post the period of five
years in view of the resolutions dated 18.01.2017
and 20.01.2018.
6. Rule is made absolute to the aforesaid extent. Direct
Service is permitted. No order as to costs.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
