Gadhavi Aala Nagshi vs State Of Gujarat
2022 Latest Caselaw 8155 Guj

    C/SCA/10918/2022                             CAV JUDGMENT DATED: 20/09/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10918 of 2022

                                    With
                R/SPECIAL CIVIL APPLICATION NO. 11683 of 2022

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 ?

========================================================== GADHAVI AALA NAGSHI Versus STATE OF GUJARAT ========================================================== Appearance:

MR KB PUJARA(680) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9 MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9

MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR. NINAD SHAH, ADVOCATE WITH MS SHIKHA D PANCHAL(10764) for the Respondent(s) No.10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,1 15,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,13 1,132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,14 8,149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164 ,165,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180, 181,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,197, 198,199,20,200,201,202,203,204,205,206,207,208,209,21,210,211,212,213,2 14,215,216,217,218,219,22,220,221,222,223,224,225,226,227,228,229,23,23

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

0,231,232,233,234,235,236,237,238,239,24,240,241,242,243,244,245,246,24 7,248,249,25,250,251,252,253,254,255,256,257,258,259,26,260,261,262,263 ,264,265,266,267,268,269,27,270,271,272,273,274,275,276,277,278,279,28, 280,281,282,283,284,285,286,287,288,289,29,290,291,292,293,294,295,296, 297,298,299,30,300,301,302,303,304,305,306,307,308,309,31,310,311,312,3 13,314,315,316,317,318,319,32,320,321,322,323,324,325,326,327,328,329,3 3,330,331,332,333,334,335,336,337,338,339,34,340,35,36,37,38,39,4,40,41, 42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,6 5,66,67,68,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88, 89,9,90,91,92,93,94,95,96,97,98,99 in SCA NO. 10918 of 2022

MR. UTKARSH SHARMA, AGP, for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 20/09/2022

CAV JUDGMENT

1 Rule returnable forthwith. Mr.Utkarsh Sharma,

learned Assistant Government Pleader, waives service of

notice of Rule on behalf of State respondents Nos. 1,2 &

3. Mr.Ninad Shah, learned advocate, waives service of

notice of rule on behalf of private respondents in Special

Civil Application No. 10918 of 2022.

2 By way of these petitions under Article 226 of the

Constitution of India, the petitioners, who are working as

Forestors in the Junagadh and Gandhinagar Zones have

approached this Court challenging the communications

dated 16.5.2022 and 7.6.2022. By the impugned

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

communications, the State has decided to forego the

practice of foregoing Zonal Seniority Gradation Lists and

preparing State Wise seniority list for Forestor Guards.

3 Facts in brief are as under:-

3.1 It is the case of the petitioners that they are duly

selected and appointed as Forest Guards, Class-III, in

their respective zones falling within the Junagadh zone

and the Gandhinagar zone.

3.2 The case of the petitioners is that they are placed in

the Final Gradation List as far as Junagadh is concerned

and the said list has been operated for the purposes of

promotion to the post of Forestors and the petitioners

were awaiting their orders of promotion which were

issued to the earlier selectees on 7.7.2021 and 8.7.2021.

3.3 It is the case of the petitioners that the letters dated

12.06.2020 indicate that the Forest Guards who have

been transferred on their own request from one Division

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

to other Division shall have to face loss of seniority. Even

in the case of those who have not passed the CCC

Examination within two years from the date of their

regular appointments will face loss of seniority.

3.4 On a representation made by the Association of the

Forest Guards at Valsad-Navsari requesting that the

cadre of Forest Guards should be made a State Level

Cadre the impugned orders have been passed.

4 Mr.K.B.Pujara, learned advocate for the petitioners,

would submit that as per the Recruitment Rules of the

Cadre of Forest Guards and as per the Gujarat Forest

Manual, the appointing authority of this cadre is the

Divisional Forest Officer and the Zone Level Gradation

list is prepared only for the purpose of promotion from

Forest Guard to Forestor by integrating the Seniority

Lists of Divisions included in the concerned zone.

Moreover, the promotions are given from the cadre of

Forest Guard to the cadre of Forestors considering the

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

posts available in each Zone.

4.1 Mr Pujara, learned advocate, would submit that the

Gujarat Forest Manual distributes the entire State into

Four Zones; Junagadh, Surat, Gandhinagar and Vadodara

and the respondents have decided to maintain a common

gradation list of Forest Guards for each of the four zones

as is evident from the letter dated 3.2.1983.The practice

has been in vogue for 40 years now to give promotions

from Forest Guards to Foresters in each Zone.

4.2 Mr Pujara, learned advocate, would submit that vide

letter dated 9.2.2022, information was sought regarding

vacant posts of Foresters and approval was sought to give

promotions in the four Zones. The petitioners are already

in the Select List and are waiting for their promotion

orders. By the impugned Circular dated 16.5.2022, the

respondent no.2, has taken a "U" Turn and has decided to

abandon the Zonal Gradation List prepared for promotion

of Forest Guards to Foresters and decided to prepare a

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

State Level Gradation List.

He would submit that this exercise is wholly arbitrary and

violates the principles of natural justice and also that it is

violative of Articles 14,16 and 21 of the Constitution of

India.

4.3 Adding to his submissions, Mr Pujara, learned

advocate, would submit that these communications are

contrary to the letter and spirit of the Gujarat Forest

Manual which clearly provides that the State shall be

divided into four Zones. He would rely on the provisions

of the manual to submit that the manual provides that the

seniority in the Divisional Cadre of the Guards will be

division-wise. Even the recruitment is made division-wise.

He would rely on the Forest Guard, Class-III,Competitive

Examination for Direct Recruitment Rules, 2016 made

under Article 309 of the Constitution Of India and submit

that Rule 6 provides for district-wise requisition and

Rules 19-22 and Rule 26 provide for preparation of

district-wise select list and merit list. He would submit

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

that it is therefore obvious that the seniority list of Forest

Guards is maintained at District Level and there is no

question of preparing any State Level Seniority List.

4.4 Mr Pujara, learned advocate, would rely upon the

following decisions:

(I) In the case of Y.V.Rangaiah vs. J. Sreenivasa

Rao., reported in AIR 1983 SC 852.

(ii) In the case of Nirmal Chandra

Bhattacharjee vs. Union of India., reported in

1991 Suppl. (2) SCC 363.

(iii) In the case of B.L.Gupta vs. M.C.D, reported

in 1998 (9) SCC 223.

(iv) In the case of Mohd. Raisul Islam vs. Gokul

Mohan Hazarika., reported in 2010 (7) SCC 560.

(v) In the case of State of U.P vs. Mahesh

Narain., reported in 2013 (4) SCC 169.

(vi) In the case of Kulwant Singh vs. Daya Ram.,

reported in 2015 (3) SCC 177.

(vii) In the case of Dr.Aswathy R.S.Karthika vs.

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

Dr.Archana M. reported in 2020 (8) SCC 98.

5 Mr.Utkarsh Sharma, learned AGP appearing for the

State has made the following submissions:

5.1 He would submit that what was found in operating

the Seniority List Zone-wise was that it was creating

heart burning amongst some colleagues of a different

zone. He would submit that for instance, in the Junagadh

Forest Division the batch of the year 2013 has been

promoted whereas in Surat the batch of the year 1999

has still not been promoted as Foresters.

5.2 He would submit that due to the existing system not

all the available seats get filled in some zones even

though there may be eligible candidates in some other

zones. For instance in the Junagadh Zone, at the time of

promotion, around 33 seats could not be filled in as there

were no eligible candidates in the Junagadh Zone. The

existing system was not only causing injustice to the

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

Forest Guards of the Surat Zone but also creating a

situation where the department was not able to fill up all

the posts. Treating the entire State as one zone provides

equal opportunity to all the eligible guards and their

seniority alone is the criteria for consideration of

promotion and hence is fairer than the earlier regime.

5.3 Mr.Sharma, learned AGP, would submit that now

since the recruitment of Forest Guards is being done by a

common examination at the State Level, the same

consideration would weigh for making a common

seniority list. He would submit that as far as transfer on

request is concerned and the loss of seniority is an issue

which has been addressed, the general circular of the

government employees for loss of seniority is not

applicable as there is no legally defined cadre of Forest

Guards. The provision that the Forest Guard will be in the

zonal cadre has been removed and as a result of this

handicap the case in Special Civil Application No.16299

of 2018 could not be defended.

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

5.4 Mr.Sharma, learned AGP, would submit that no

injustice has been caused to the petitioners, inasmuch as,

neither their service conditions are changed nor are the

Junior Guards being promoted over the petitioners.

Mr.Sharma, learned AGP, would further submit that as

far as the objection to the seniority in the case of CCC

Examinees is concerned, the Notification dated 16.5.2022

does not change the re-determination of seniority of the

guards getting affected due to late passing of the CCC

Examinations. The petitioners have a right to get timely

promotion as others.

5.5 Mr.Sharma, learned AGP, would submit that to

increase the promotional posts and avenues, a proposal

has already been sent to stop direct recruitment in the

Forester cadre and instead fill all the posts by promotion.

6 Mr.Shalin Mehta, learned Senior Advocate, has

appeared with Mr.Ninad Shah, learned advocate for the

private respondents and would submit that nowhere do

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

the Recruitment Rules, especially the Rules of 2004 and

2016 contemplate that the cadre of Foresters has to be a

District-wise cadre.

6.1 Mr.Shalin Mehta, learned Senior Counsel, would

submit that the exercise of making the cadre a State-wise

cadre on the contrary is in light of the equality principle,

inasmuch as, it will give all Foresters throughout the

State, an equal opportunity of promotion and such

promotions would not be on fortuitous basis as on the

availability of vacancies in the respective Zones. No

illegality can be said to have been committed by the State

in passing the impugned Notification.

7 Having considered the submissions made by the

learned advocates for the respective parties, the language

of the Notification dated 16.5.2022 reflects the intent of

bringing out a change in the policy of making the

seniority of the Foresters State wise from the earlier it

being Zone-wise.

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

7.1 Reading the notification indicates that as a result of

lack of opportunities of promotion to the post of foresters

from the post of Forest Guards and with a view to see

that such promotional avenues are equally available, it

has been decided to change the practice of zone wise

seniority of Forest Guards to make it State level. What

has been also found on reading the notification is that the

purpose of issue in the communication dated 03.2.1983

was to see that opportunities of promotion are available

to Forest Guards. That purpose now having been

accomplished, it has been decided to reframe the policy

and make the seniority of Forest Guards a state level

seniority with a purpose to bring in uniformity and

accordingly the Notification dated 16.5.2022 was issued.

7.2 As far as the objection of the learned counsel for the

petitioners on the aspect of alteration of the principle of

seniority of candidates who fail in the CCC examination is

concerned, affidavit- in-reply takes care of the grievance

of the petitioners. The affidavit-in-reply clearly states that

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

the Notification dated 16.05.2022 does not change any

rule regarding the determination of the seniority of the

Guards getting affected due to late passing of CCC

examinations. Affidavit-in-reply states that the seniority

will be continued to be determined as per the existing

rules.

7.3 The challenge to the Notification dated 16.05.2022

and to the subsequent communication dated 07.06.2022

on the ground that a policy practice prevailing since 1983

is sought to be disturbed as the petitioners were about to

be promoted but for the change in policy is misconceived.

Sufficient material has been brought on record by way of

affidavit-in-reply to suggest that if promotions to the post

of foresters was to be given on the basis of zonal

seniority, there was an inherent discrimination,

inasmuch as, in some districts if there are lower number

of vacancies, a forester appointed much earlier than his

colleagues in the other zone would be deprived of

promotion because more vacancies are available in a

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

particular zone. Resultantly, the Junior Forest Guard

would steal a march over the colleague in the other zone.

7.4 The affidavit-in-reply demonstrates the case where a

Forest Guard of 2013 has secured promotion in his

division whereas a Forest Guard appointed in Surat in the

year 1999 has not had the benefit of being promoted to

the post of Forester because of lack of vacancies. The

submission canvassed by the learned advocate on behalf

of the petitioners based on the percentage of vacancies in

each zone being almost similar, I will also not take the

case of the petitioner any further. The state has the sole

repository to frame policies or amend them keeping in

view the foremost principle that such policy is in

furtherance of promotion of the principles Article 14 and

16 of the Constitution of India.

7.5 Reading the Resolution dated 16.05.2022 together

with the affidavit makes it abundantly clear that the State

in its attempt to bring in uniformity in the matter of

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

promotions to the post of Forester, has thought it fit to

depart from the old rule of zonal wise seniority to

maintaining State wise seniority.

7.6 The decision relied upon by the learned counsel for

the petitioners in respect of restructuring of Quotas and

also on the question whether it is justifiable to change the

process of selection once the same has been started on

the basis of unamended rules, the Gujarat Forest Manual

which has been extensively relied upon, cannot be

pressed into service to defend a practice which has been

prevalent and merely because it has been so prevalent for

over 40 years, cannot make it legal.

7.7 The decision of the Hon'ble Supreme Court in the

case of Wing Commander J. Kumar vs. Union of

India & Ors, reported in AIR 1982 Supreme Court

1064, provides that service conditions pertaining to

seniority are liable to alteration by subsequent change as

that may be introduced in the rules and except to the

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

extent of protecting promotions that have already been

earned under the previous rules. The revised rules will

operate to govern seniority and future promotion

prospects.

7.8 In the case of Ramachandra Shankar Deodhar

and Ors vs State Of Maharashtra, reported in AIR

1974 SC 259, it has been held that a rule which mainly

affects chances of promotion cannot be regarded as

varying a condition of service. In the facts on hand, what

is evident is that the State has in its wisdom decided to

change the principle of reframing the Seniority List and

make it State-wise rather than zonal-wise so as to give

equal chances of promotion to all Forest Guards for

higher posts. It has also come on record that a proposal

has been sent to the state to do away with direct

recruitment in the cadre of Foresters which will give

more opportunities and avenues of promotion to the

cadre of Forest Guards and therefore, the apprehension

of the petitioners that such change in the principle of

C/SCA/10918/2022 CAV JUDGMENT DATED: 20/09/2022

making the list state wise would hamper their chances of

promotion is misconceived.

8 For the aforesaid reasons, the petitions are

dismissed with no order as to costs. Interim relief, if any,

stands vacated. Rule is discharged.

(BIREN VAISHNAV, J) BIMAL

FURTHER ORDER

After pronouncement of judgement, Mr.Pujara,

learned counsel for the petitioners, requests for stay of

the judgement. Request for stay is rejected.

(BIREN VAISHNAV, J) BIMAL