Vinodkumar Ramanlal Joshi vs State Of Gujarat
2022 Latest Caselaw 10017 Guj

     C/LPA/583/2019                              JUDGMENT DATED: 13/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 583 of 2019

            In R/SPECIAL CIVIL APPLICATION NO. 10643 of 2003


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI

and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================

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 ?

==========================================================
                      VINODKUMAR RAMANLAL JOSHI
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR ISHAN JOSHI FOR MR VYOM H SHAH(9387) for the Appellant(s) No.
1,2
for the Respondent(s) No. 6
DELETED for the Respondent(s) No. 4,5
MS NIRALI SARDA AGP for the Respondent(s) No. 1,2,3,7
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                             Date : 13/12/2022

                         ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)

C/LPA/583/2019 JUDGMENT DATED: 13/12/2022

1. The appellants are the original petitioner Nos. 4 and 6, who have preferred this appeal under Clause 15 of the Letters Patent, challenging the oral judgment dated 29.11.2018 passed by the learned Single Judge in the captioned writ petition, whereby the learned Single Judge has dismissed the petition.

2. Facts as emerged from the records of the above captioned

petition are briefly summarized as under:

2.1 The above captioned writ petition was preferred by six

petitioners, who were originally appointed as Clerk except the

petitioner No.3, who was appointed as Typist in the district other

than Mehsana or Patan districts. The petitioner No.1 was

appointed in Ahmedabad district, the petitioner No.2 was

appointed in Panchmahals district, the petitioner Nos.3 and 4 were

appointed in Kutch district, whereas the petitioner Nos.5 and 6

were appointed in Kheda district.

2.2 It is the case of the petitioners that they were appointed more

than 15 years back of filing of the captioned writ petition.

2.3 The State Government issued Notification dated 02.04.1997,

which had constituted a new district Patan by carving areas of

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Mehsana and Banaskantha districts. The State Government

passed an order dated 26.11.1998 laying down criteria for

allocation and absorption of staff, procedure thereof, conditions of

service of such employees for newly constituted districts. It is the

case of the petitioners that in view of para 2(b)(1) of the aforesaid

order, the petitioners were required to be given their seniority from

their initial date of appointment as Clerk in the respective districts.

Thus, their original seniority was required to be maintained by

treating it as continuous officiation in the Revenue Department.

2.4 The petitioners have further relied upon a letter dated

19.05.1998, wherein the State Government had informed the

Collector of the respective districts to provide options to such

employees working in other districts for the appointment /

absorption in Patan district. The petitioners therefore, contended

that they had opted for Patan district under the belief that their

seniority would be maintained on the basis of continuous officiation

by treating their earlier service of native district and had

accordingly exercised their option for Patan district. It is the case of

the petitioners that they have joined newly constituted district

Patan in the months of December, 1998 and January, 1999.

       C/LPA/583/2019                           JUDGMENT DATED: 13/12/2022




2.5     To their utter surprise by letter dated 19.01.1999, the

Revenue Department instructed the Collector, district Patan to give

effect of seniority from the date of joining of their duties in Patan

district. By such a letter, the respondent Authorities had further

clarified that such employees were required to tender their consent

letters and if the employees failed to give their consent letter, then

they were required to be restored back to their native district. It is

the case of the petitioners that such consent letters were

immediately called for on the same date i.e. 19.01.1999. In such

circumstances, the petitioners left with no option, without any

reasonable time given, were constrained to submit their consent

letters for joining new district Patan.

2.6 Thereafter, the provisional list of Deputy Mamlatdar was

circulated and the objections were invited against such a

provisional list. In response to such a provisional list, the

petitioners raised objections contending that their seniority should

be fixed taking into account their earlier service in earlier districts.

However, such objections were not entertained and the final

seniority list of Deputy Mamlatdar came to be notified on

01.01.2002 reflecting the position of the petitioners. The

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petitioners' name appeared at Sr. No.83 to 88 in the final seniority

list by taking into consideration the date of joining new district

Patan.

2.7 Hence, the petitioners were constrained to approach this

Court by way of captioned petition under Article 226 of the

Constitution of India praying for issuance of writ of mandamus or

any other writ, direction or orders for quashing and setting aside

the final seniority list dated 21.12.2002 of the Deputy Mamladar in

case of the petitioners. The petitioners have also prayed for further

direction against the respondent authorities to assign their seniority

based on the earlier date of joining the Revenue Department. The

petitioners have also prayed for direction to quash and set aside

the order dated 01.05.1999 and to restore the earlier order dated

23.11.1998.

3. The petitioners have mainly contended that the action on the

part of the respondent authorities is not only unjust, arbitrary but is

titled with malafide as well as hostile discrimination which violates

Article 14, 16 of the Constitution of India. The petitioners have

heavily placed reliance upon earlier order dated 26.11.1998 and

C/LPA/583/2019 JUDGMENT DATED: 13/12/2022

contended that the State Government by unilateral action and

without giving reasonable time to the employees like the

petitioners, has amended the aforesaid order by subsequent

orders dated 19.01.1999 and 01.05.1999. The petitioners also

contended that the consent letters obtained by the State

Government in no manner can take away the earlier length of

service rendered by the petitioners in native district for recording

seniority inter se.

4. The respondent No.2 Collector, Patan has filed an affidavit

as well as further affidavit which has further been dealt with by

filing affidavit in rejoinder on behalf of the petitioners. The

respondent Authority has placed reliance upon the order dated

01.05.1999 passed by the Revenue Department, which has not

been challenged by the petitioners. The respondent Authorities

have specifically submitted that the principle of seniority from the

date of appointment cannot be applied in the facts of the case,

more particularly, when the petitioners have given their consent

letter. It was, therefore, submitted before the learned Single Judge

that the respondent Authorities have rightly taken into

consideration the date of joining at Patan district as the basis for

C/LPA/583/2019 JUDGMENT DATED: 13/12/2022

recording seniority which cannot be termed in violation of

provisions of law.

5. The learned Single Judge after hearing the learned

advocates for the respective parties and on perusal of the record,

took notice of the consent letters, wherein the petitioners have

accepted the seniority to be maintained as per the date of joining

of new district. The learned Single Judge has taken note of specific

assertion made in the affidavit in reply filed by the respondent

No.2, Collector, Patan as well as additional affidavit filed by the

respondent No.2 along with several consent letters which were

brought on record. Thus, on appreciation of such materials,

learned Single Judge has found argument of discrimination raised

with regard to the seniority list as not relevant and has thus,

dismissed the petition.

6. We have heard Mr. Ishan Joshi, learned advocate appearing

for Mr. Vyom Shah, learned advocate for the appellants and Ms.

Nirali Sarda, learned AGP appearing for the respondent State.

7. Mr. Joshi, learned advocate for the appellants has invited

attention of this Court to the orders dated 26.11.1998, 01.09.1999

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and 01.05.1999 and has submitted that the issue of non-

considering prior service while recording the seniority arose in the

month of May, 1999. He further submitted that in the Notification

dated 26.11.1998, a specific clause was incorporated which

mentions that original seniority in the Revenue set up was to be

considered thus treating it as on continuous service. He relied

upon clause 1(b) of the aforesaid Notification dated 26.11.1998 by

referring to the order dated 19.01.1999. He submitted that while

amending the earlier Notification dated 26.11.1998, it was clearly

reflected that the seniority was originally recorded from the date of

their appointment in the native district and was treated as

continuous for the purpose of recording seniority. He further invited

our attention to the order dated 05.12.1998 passed in the case of

one of the employees. He placed heavy reliance upon the

conditions incorporated in the order relieving the employees from

the native district and submitted that the original seniority in the

revenue set up was to be retained by treating it as continuous

officiation. He further emphasized upon condition No.2 and

submitted that even in the case where the need arises to revert the

employee, the employee loses his right to come back to the native

district. In such circumstances, the petitioners have agreed to join

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the newly constituted Patan district. However, the State

Government subsequently by order dated 19.01.1999 and

01.05.1999 unilaterally took the decision to amend the earlier

Notification dated 26.11.1998 thereby resolving to consider the

date of joining of newly constituted district Patan for reckoning

seniority. At this stage, he has relied upon the decision in the case

of Somesh Thapliyal and Anr. Vs. Vice Chancellor, H.N.B.

Garhwal University and Anr. reported in 2021(10) SCC 116 for

proposition of law : "That it is open to the employee to challenge

terms of the appointment later after same are not in conferred with

the statutory requirement and prescribed procedure and therefore,

the employees cannot be estopped from questioning at a stage

where he found himself aggrieved."

No further submissions were canvassed by the learned

advocate for the appellants.

8. On the other hand, Ms. Sarda Nirali, learned AGP appearing

for the respondents has placed heavy reliance upon Notification

dated 19.01.1999 as well as consent letters produced along with

further affidavit in reply filed by the respondent No.2 and has

C/LPA/583/2019 JUDGMENT DATED: 13/12/2022

submitted that no error of law or facts is pointed out by the learned

advocate appearing for the appellants in the impugned order

passed by the learned Single Judge. She further submitted that in

the facts of the case, when the petitioners have not challenged the

Notification dated 19.01.1999 and consequential order being

passed on 01.05.1999 is just and proper. She further submitted

that in absence of any order passed by this Court, the petitioners

have continued to serve Patan district. She further submitted that

apart from the petitioners, other employees have continued to work

at newly constituted district Patan. She, therefore, prayed not to

entertain the present appeal.

9. We have heard learned advocates appearing for both the

parties and have perused the records of the appeal. It is an

undisputed fact that the petitioners have submitted consent letters,

one such letter dated 15.2.1999 is placed on record at page 55.

Bare reading of the recital of the aforesaid consent letters reflects

that the petitioners have agreed to join newly constituted Patan

district in terms of letter bearing No.MKM/district approval/Vashi/

1482/162/99 dated 21.01.1999 addressed by the office of the

respondent No.2 Collector, Patan, on condition to treat their

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seniority from the date of joining i.e. 14.12.1998 and has

accordingly joined their services at newly constituted district Patan.

Thus, the petitioners have been acquainted with right as regards

their seniority from the date of joining their services at newly

constituted Patan district and not from the initial date of

appointment under the Revenue set up. In such circumstances, we

do not find any fault with the observations and findings recorded by

the learned Single Judge of not accepting the case of the

petitioners as regards the issue of seniority.

10. At this stage, we further take notice of the few dates as

emerges from the records of the present appellants. It is true that

the State Government had issued Notification dated 26.11.1998,

which specifically deals with the issue of absorption / allocation of

the Government employee in view of the bifurcation of districts

Mehsana and Banaskantha and constitution of newly district

Patan. The reliance placed by the learned advocate for the

appellants on clause 2(b)(1) of the aforesaid Notification clearly

mentions options being offered to the erstwhile employees of other

districts, who have shown their willingness to join their service at

Patan district. It further mentions that if any such allocation is

C/LPA/583/2019 JUDGMENT DATED: 13/12/2022

made in view of the public interest, it has been resolved to record

the original seniority on the basis of continuous officiation in the

Revenue set up. Aforesaid Notification was subsequently

amended by the Revenue Department by issuing Notification

dated 19.01.1999, whereby the State has reviewed aforesaid

decision and has resolved to call for option from the employees,

whose name appeared in the schedule appended to the aforesaid

Notification to join their service at newly constituted district Patan.

Such consent has been sought for with specific clarification that

their seniority shall be considered from the date of their joining

district Patan and in case such employees are not agreeable then

they are required to be brought back to their original cadre in

native district based on such Notification dated 19.1.1999. The

respondent No.2 Collector, Patan had addressed a letter dated

21.01.1999 seeking consent of such employees including the

petitioners. In response to such a letter dated 21.01.1999, the

petitioners have in no uncertain terms on their own submitted their

consent letter which are forming part of the record of the captioned

petition. Based on the aforesaid Notification and the consent

letters being submitted by the petitioners, the Revenue

Department had issued final order dated 01.05.1999 to treat their

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date of joining Patan district as the date for reckoning their

seniority inter se. Thus, in our opinion, the contention raised by the

learned advocate for the appellants challenging the aforesaid order

dated 01.05.1999 being arbitrary, in violation of Articles 14 and 16

of the Constitution of India, is devoid of merit and is not accepted.

In fact, the aforesaid dates of events goes to suggest that the

petitioners had option as it was very much clarified by the State

Government that in case the employees do not wish to join district

Patan by losing earlier service for the purpose of reckoning

seniority then such employees were to be taken back on the same

cadre at their native district. In Spite of such an option being

offered by the State Government, the petitioners on their own have

submitted consent letters agreeing to join newly constituted district

Patan and to record their seniority from the date of their joining

such service at Patan. Reliance placed on the decision in the case

of Somesh Thapliyal (Supra) is totally misplaced in the peculiar

facts and circumstances of the case as noted hereinabove.It was a

case where the Hon'ble Apex court on examining the facts of the

case noticed that the appellants therein were appointed after going

through the process of selection as contemplated under Part VI of

the Act 1973 which indeed was an appointment on substantive

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basis and since the appellants were not in an equal bargaining

position and were in the need of employment when the offer of

appointment was made, were left with no option but to accept such

arbitrary conditions incorporated in the letter of appointment in

treating it to be contractual for a limited period. The Hon'ble Court

further took notice of the fact that the appellants therein have

recorded their protest while joining but no heed was paid. The

Court therefore upon examination of the scheme arrived at

conclusion that once the appellants have gone through the

process of selection provided under the scheme of the Act 1973

regardless of the fact whether the post is temporary or permanent

in nature, at least their appointment is substantive in character and

could be made permanent as and when the post is permanently

sanctioned by the competent authority. Thus, it was in light of

these peculiar facts the Hon'ble Apex Court has held so. Whereas

in the present case, for the reasons recorded earlier, the State

Government has offered the writ applicants and other similar

employees the right to exercise their option. In our opinion, such

action of the State cannot be termed as arbitrary to attract the

aforesaid principle as laid down by the Hon'ble Apex Court. In fact,

the aforesaid decision has been distinguished in the case of Union

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of India and Ors. Vs. N. Murugesen reported in (2022) 2 SCC 25

where the Hon'ble Apex Court has examined the word

"acquiescence" in the facts of the case, as a tacit or passive

acceptance and considered implied and reluctant consent to an

Act. We therefore, agree with the decision of the learned Single

Judge as no error of law and fact is committed by the learned

Single while passing the impugned order. Present appeal stands

dismissed.

(A.J.DESAI, J)

(NISHA M. THAKORE,J) Y.N. VYAS