Padhiyar Munaf Satarbhai vs State Of Gujarat
2022 Latest Caselaw 4263 Guj

    C/SCA/19160/2017                                        ORDER DATED: 20/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 19160 of 2017

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                         PADHIYAR MUNAF SATARBHAI
                                    Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MM SAIYED(1806) for the Petitioner(s) No. 1
ABHISST K THAKER(7010) for the Respondent(s) No. 4
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1
MR DIPEN DESAI(2481) for the Respondent(s) No. 5
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2
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  CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                    Date : 20/04/2022

                                      ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed praying for setting aside order dated 25­09­2017 passed by the Joint Secretary, Urban Development and Urban Housing Department (UDHD) and order dated 12­12­2012 passed by the Under Secretary, UDHD.

2. Essentially, the challenge was with regard to the seniority list published by the concerned Department, wherein two colleagues of the petitioner namely J.S.CHAVDA and D.J.GAVIT were placed higher in the seniority list of the Town Planner Class­I by giving them deemed date of promotion.

3. Pending the petition, the petitioner has also moved the Draft amendment, which was granted. It is prayed for setting aside order dated 27­07­2018, which was the communication addressed to the petitioner upon his grievance made regarding aforementioned colleagues of the petitioner. The petitioner has also prayed for quashing and setting aside the decision of the State for granting deemed date of

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promotion in the cadre of Town Planner, Class­I and challenging the order dated 01­06­2018, whereby the aforesaid colleagues of the petitioner were granted promotion to the post of Senior Town Planner, Class­I. It appears from the record that the colleagues of the petitioner, whose promotion / deemed date of promotion are the subject matter of challenge, were joined as respondent Nos.4 and 5 by order of this Court dated 11­02­2019, of which the respondent No.4 has retired in June, 2021.

4. It is the case of the petitioner that the petitioner was recruited as Town Planner on 25­06­2007 and the UDHD had merged the post of Deputy Town Planner (Junior), Class­II and the Assistant Town Planner and created new post of Junior Town Planner, Class­II in the year 2001­ 2002. It is the case of the petitioner that the UDHD had granted seniority to respondent Nos. 4 and 5 by giving them deemed date of promotion on 31­01­2003, though they were appointed in the year 1998 and 1999 respectively and after having necessary experience as per the Recruitment Rules were actually promoted on 17­2­2009. It is submitted that as per the Recruitment Rules, for promotion to the post of Town Planner Class­I, experience of 7 years in Class­II post is prescribed. Disregarding this, the Departmental Promotion Committee, which took place on 07­02­2002, case of the respondent Nos. 4 and 5 were considered and though by that time, the respondents had only experience of 3 to 4 years only in Class­II post, they were given promotion ignoring objections raised by the petitioner.

5. It is submitted that the petitioner had made representation on 09­10­ 2017 objecting to the altering of the Seniority when the list was finalized under the Order dated 25­09­2017, but such representation was not decided. However, pending the petition, the representation has been decided after the orders passed by this Court, whereby the previous decision of the State Government was upheld and representation of the petitioner was not considered.

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6. Learned Advocate for the petitioner has argued that the promotion given to the respondents and the deemed date of promotion is very much against the Recruitment Rules, which require experience of 7 years on the post of Class­II and when respondent Nos.4 and 5 were admittedly recruited in the year 1998­1999, as on the date of DPC, those respondents had only experience of 3 to 4 years and were therefore, not entitled to deemed date of 2003. It is submitted that in view of the illegal decision taken by the respondent­State, respondent Nos.4 and 5 have jumped in the seniority list and bypassed almost 15 candidates including the petitioner. It is submitted that as the promotion of respondent Nos.4 and 5 to the post of Town Planner, Class­I itself is illegal, consideration of their names for the post of promotion to the next higher post of Senior Town Planner, Class­I, is also unjust and would thereby frustrate the case of the petitioner for promotion to the post of Senior Town Planner, Class­I as the petitioner would be higher on the seniority list of the Town Planner, Class­I, but by granting deemed date of promotion to respondent Nos.4 and 5 and adjusting them in the seniority list of the Town Planner, Class­I ahead of the petitioner, would result in the name of respondent Nos.4 and 5 being considered before the petitioner for the promotion to the post of Senior Town Planner, Class­I and therefore, injustice is meted out to the petitioner.

7. Learned Advocate for the petitioner has taken this Court through order dated 25­09­2017, which is annexed with the Patrak­1, which is part of the seniority list, relevant for the purpose of this case to show that names of respondent Nos. 4 and 5 have appeared at Sr. No.68A and 70A of the seniority list of Town Planner Class­I as on 01­04­2017, whereas the name of the petitioner had appeared at Sr. No.88. It is the case of the petitioner that the injustice is meted out to the petitioner also when the petitioner was pushed down in the seniority list from Sr.No.88 to Sr.No.132. Learned Advocate has also tried to challenge the

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entire procedure by contending that the procedure itself is without jurisdiction as the Under Secretary (UDHD) has no power to decide the deemed date of Town Planner Class­I in view of the Clause­4­CH of the Schedule­1 of the Resolution of GAD and such power is conferred upon ACS (Personnel), General Administrative Department (GAD) to decide the deemed date of seniority of Class­I post of Senior Town Planner.

8. As against this, learned Advocate for the respondents submitted that though the prayer is for quashing and setting aside order dated 25­09­ 2017 as well as order dated 12­12­2012, in fact, the challenges is to the decision of 2012, which the petitioner is now making in the year 2017, which is grossly belated as the issues of grant of seniority and promotion, has thereafter crystallized with the passage of time and therefore, it may not be prudent to interfere with the seniority list as well as the order of the deemed promotion. It is submitted that the petitioner has not disclosed all the true and correct facts, which would indicate that the service of the petitioner as Town Planner, Class­I stood terminated by the State Government and it was only after the intervention of this Court to decide the representation of the petitioner sympathetically, that the order was passed for reappointing the petitioner on 19­05­2014, wherein, while accepting the appointment on condition of giving undertaking by the petitioner that the petitioner will not seek any rights on the basis of his original services, which were brought to an end by order of the State Government, now the petitioner, to circumvent this Undertaking given as condition of his appointment, has filed the present petition.

9. It is submitted that case of respondent Nos. 4 and 5 was considered by application of Rule­11A(2)(d) of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 as injustice was meted out to them, while considering their previous round of promotion. It is submitted that in the year 2002, when the DPC was conducted, respondent Nos. 4 and 5 were at Sr. No.1 and 6 respectively, but their

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names were dropped from promotion due to lack of minimum experience and after application of Rule­11A, benefit of deemed date was given from the date on which their Juniors were given promotion.

10. Learned Advocate for the private respondents have adopted the arguments of the learned AGP and emphasized that the petitioner's challenge to the decision of giving deemed date of promotion to respondent Nos. 4 and 5 is belated. He has relied upon the decision of the Supreme Court in case of S. S. Balu and another v/s. State of Kerala and others reported in (2009) 2 SCC 479. It is submitted that as respondent No.4 was a direct recruitee to the post of Deputy Town Planner (Junior), which was the higher scale than of the Assistant Town Planner, that the petitioner was therefore put at Sr. No.1 for the purpose of promotion. However, on account of the seniority of the respondent No.4 in the seniority list and lack of experience as per the Recruitment Rules, none of the persons who were Junior to respondent No.4, could be granted promotion and hence, for the benefit of the others, who were Junior to respondent No.4, he had offered to give a Consent letter for the Department to give promotion to other Juniors on a condition that after the petitioner gains due experience, he may be permitted to gain his position in seniority with deemed date. It is with understanding that the others were given promotion and the petitioner was promoted later on, but was given deemed date of promotion.

11. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the issue pertains to the grant of deemed date of promotion to the post of Town Planner, Class­I and consequentially Senior Town Planner, Class­I of respondent Nos. 4 and 5. From the records, it appears that the present petitioner was originally appointed as a Planning Assistant Class­3 on 03/09/1991 in Town Planning and Valuation Department. Subsequently petitioner was selected on the post of Town Planner Class­ I by G.P.S.C. and was appointed by State Government as a Town

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Planner Class­I on 22.06.2007 at office of the Rajkot Urban Development Authority (RUDA) on deputation basis. The petitioner resumed his duty as Town Planner Class­I on 25.06.2007. When the present petitioner was serving at Bhachau on probation, his services were not satisfactory, particularly, from dated 01/08/2008 to 31/03/2009 an adverse remarks were found in his confidential report. Since the present petitioner was on probation, and due to (1) adverse remarks in his confidential report, (2) as per condition no.(4) of the petitioner's appointment order dated 22/6/2007 and (3) provision under G.A.D. Circular No. PRO/1088/1709/G­2, dated 30­3­1989 the present petitioner was terminated by State Government vide order dated 14/06/2011. The petitioner had preferred a Special Civil Application No.16669 of 2013 against the order dated 14.06.2011 passed by State Government. The aforesaid matter was decided by this Court by passing an order dated 17.12.2013. The High Court has directed competent authority to decide the representation dated 15.11.2011 made by petitioner within 15 days, if it is undecided and pass appropriate order as expeditiously as possible preferable, within 45 days after receipt of certified copy of the order in accordance with law. It is also clarified by this Court in said order that competent authority may decide the petitioner's representation in accordance with law, applicable rules, regulations and policy. After careful consideration, State Government has decided his representation sympathetically and issued the order dated 19.05.2014 and decided to re­appoint him with certain conditions. The conditions were framed on the basis of his written request and undertaking dated 19.05.2014.

12. From the records, it appears that State Government had issued provisional seniority list for the post of Town Planner Class­I of Town Planning and valuation department on dated 2/8/2017. By said provisional seniority list, State Government asked for objections if any from concern officers. After careful consideration of all the objections

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received, State Government issued final seniority list as on 1/4/2017 by Circular dated 25/9/2017. It is clarified in final seniority list itself that as per condition no (3) of re­appointment order of Mr. Padhiyar on 19/5/2014 issued by State Government. One of the condition was that Mr. Padhiyar will not be entitled for any rights for his earlier services. So Mr. Padhiyar's seniority number has gone to number 132 instead of

88. Mr J.S. Chavda was originally appointed as a Deputy Town Planner Class­II on 09.09.1997 by direct recruitment and Mr. D.Z. Gavit was originally appointed as a Assistant Town Planner Class­II subsequently Mr. D.Z. Gavit has appeared in examination of direct recruitment for the post of Deputy Town Planner (Junior) Class­II and appointed on 10.12.1999.

13. It appears that the Urban Development and Urban Housing Department had issued the GR dated 01.01.2002 inter alia the post of Assistant Town Planner Class­II and Deputy Town Planner (Junior) Class­II were merged in new post i.e. Junior Town Planner Class­II. By aforesaid G.R. the Government has decided that when the cadre of Assistant Town Planner Class­II will merged in to Junior Town Planner Class­II inter alia the first preference for seniority will be given to Deputy Town Planner (Junior) Class­II and after that Assistant Town Planner (Junior) Class­II will be placed. After merging two cadres in Junior Town Planner Class­II for further promotion for the post of Town Planner Class­I the Departmental Promotion Committee was held on 07.02.2002. In DPC 2002, it was decided that there are total 23 post were vacant which required to be fill up by 1:1 ratio meaning thereby one direct selection and one post is to be fill up by promotion. In 2002 DPC Mr. J.S. Chavda was at Sr.No.1 and Mr. D.Z. Gavit was at Sr.No.6 in the post of Junior Town Planner Class­II in seniority list but at that time Mr. J.S. Chavda and Mr. D.Z. Gavit were not having prescribed minimum experience for Class­II post. So as per Rule 11A(2)(d) in Gujarat Civil Service Classification and Recruitment (General) Rules­

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1967. Mr. J.S. Chavda and Mr. D.Z. Gavit were dropped for promotion in 2002 DPC. The DPC also recommended that when both of them complete prescribed minimum experience of 2/3 service in Class­II cadre as per Rule­11A.

14. Because of the seniority of the respondent Nos. 4 and 5, none of the persons who were behind the respondent Nos. 4 and 5 in the senior list could be granted promotion. Thus, it was requested to the respondent Nos. 4 and 5 that since he does not have adequate experience for promotion, he may give consent letter saying that Juniors may be promoted, but on his promotion, after getting due experience, he may be placed at his actual position of seniority with deemed date. It is submitted that when it was requested on behalf of the Union, the respondent Nos. 4 and 5 consented to the same and accordingly he gave a letter to the Secretary reserving his right to the seniority upon being granted Promotion in future. In this context, it is stated that even in the Departmental Promotion Committee (D.P.C.) meeting held for the said promotion, it was recommended that when the respondent Nos. 4 and 5 are promoted, the deemed date be considered for them for seniority. The said recommendation was also sent to the Respondent no.3, General Administration Department (G.A.D.) and the G.A.D., at that point of time, consented to the said recommendations. Hence, on such assurance, the cadres of Assistant Town Planner Class­II and Jr. Town Planner Class II were merged with first preference to Deputy Town Planner (Junior) Class II and after that Assistant Town Planner. In the D.P.C. held on 7 February, 2002 total 23 posts were vacant and the same was to be filled in the ratio of 1:1. In the year 2002, the respondent no.4 was at Sr.No.1., but at that time, they were not having prescribed minimum experience for Class II post as per the Rules 11(A) (2)(D) of Gujarat Civil Services Classification and General Service Rules, 1967.

15. The Departmental Promotion Committee also recommended that both

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the respondent nos.4 & 5 complete prescribed minimum experience of 2/3 services m Class II Cadre post and after that they should be given benefit of deemed date. Subsequently, the Departmental Promotion Committee was held on 22/10/2007 wherein the departmental promotion committee had recommended to promote them to Town Planner Class­l. Hence, vide notification dated 17/02/2009 the respondent Nos. 4 and 5 were promoted to the post of Town Planner, Class­I.

16. The Notification dated 10th October, 1967, Clause­11A provides that Minimum experience in service or post requisite for promotion, wherein proviso reads as under:

"Provided that where an appointing authority is satisfied that a person having an experience specified in clause (a), (b), *** "[(c), (d) or as the case may be, (e)]" is not available for promotion and that it is in public interest to fill up the post or service by promotion of a person having experience for a lesser period, it may for reasons to be recorded in writing promote such person who has experience for a period not less than two thirds of the period specified in clause (a),(b), *** [(c), (d) or

(e)] which applies to him."

17. It appears that it is by applying this Rule that respondent Nos.4 and 5 were given deemed date of promotion. The reasons with the respondent­ State deemed fit have been recorded in accordance with law, which the petitioner has not challenged and therefore, not open to the scrutiny by this Court at this stage. It also appears from the record that the justification offered for applying the proviso to Rule­11A, is that because of the seniority of the respondent Nos. 4 and 5, none of the persons who were behind the respondent Nos. 4 and 5 in the senior list could be granted promotion. Thus, it was requested to the respondent Nos. 4 and 5 that since he does not have adequate

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experience for promotion, he may give consent letter saying that Juniors may be promoted, but on his promotion, after getting due experience, he may be placed at his actual position of seniority with deemed date. It is submitted that when it was requested on behalf of the Union, the respondent Nos. 4 and 5 consented to the same and accordingly he gave a letter to the Secretary reserving his right to the seniority upon being granted Promotion in future. In this context, it is stated that even in the Departmental Promotion Committee (D.P.C.) meeting held for the said promotion, it was recommended that when the respondent Nos. 4 and 5 are promoted, the deemed date be considered for them for seniority. The said recommendation was also sent to the Respondent no.3, General Administration Department (G.A.D.) and the G.A.D., at that point of time, consented to the said recommendations. Hence, on such assurance, the cadres of Assistant Town Planner Class­II and Jr. Town Planner Class II were merged with first preference to Deputy Town Planner (Junior) Class II and after that Assistant Town Planner. In the D.P.C. held on 7 February, 2002 total 23 posts were vacant and the same was to be filled in the ratio of 1:1. In the year 2002, the respondent no.4 was at Sr.No.1., but at that time, they were not having prescribed minimum experience for Class II post as per the Rules 11(A) (2)(D) of Gujarat Civil Services Classification and General Service Rules, 1967.

18. The Departmental Promotion Committee also recommended that both respondent nos.4 & 5 complete prescribed minimum experience of 2/3 services in Class II Cadre post and after that they should be given benefit of deemed date. Subsequently, the Departmental Promotion Committee was held on 22/10/2007 wherein the departmental promotion committee had recommended to promote them to Town Planner Class­l. Hence, vide notification dated 17/02/2009 the respondent Nos. 4 and 5 were promoted to the post of Town Planner, Class­I.

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19. The Court does not find any reason to not accept the justification, thus offered. The Apex Court in case of S. S. Balu and another (supra) has held as under:

"18. It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal there against, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage."

20. In the facts of this case also, it appears that the objection raised by the petitioner against the deemed date of promotion benefit to Mr. J.S. Chavda is after a long lapse of time and therefore the respondent having a settled position for a long time can result into administrative complications and difficulties and can cause serious prejudice to the rights of the respondent and also others who are subsequently promoted, on the account of the petitioner remaining quite.

21. In view of the aforesaid reasons, the Court does not find any case to interfere. Therefore, this petition deserves to and is hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA