Gujarat High Court
Panchani Ashishkumar Pravinbhai vs State Of Gujarat on 11 April, 2023
Bench: Nikhil S. Kariel
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2754 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 2755 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 2757 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 2762 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 24213 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 24923 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 25416 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
PANCHANI ASHISHKUMAR PRAVINBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR G M JOSHI, SR. ADVOCATE with VYOM H SHAH(9387) for the
Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR HARDIK SONI, AGP for the Respondent(s) No. 1
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C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 11/04/2023
COMMON ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. G.M. Joshi with learned
Advocate Mr. Vyom Shah on behalf of the petitioners and learned AGP Mr.
Hardik Soni for the respondent-State.
2. Rule returnable forthwith. Learned AGP Mr. Soni waives service of
Rule for the respondent-State.
3. With consent of the parties and since a common issue is involved in
this group of petitions, the same are being taken up for final decision
forthwith.
4. Since prayers of the petitioners in these petitions are more or less
similar, the prayers sought for by the petitioner of Special Civil Application
No. 2762 of 2023 are quoted hereinbelow :
"6(A) This Honourable Court be pleased to issue a writ of
mandamus or in the nature of mandamus or any other writ that the
Honourable Court deems fit quashing and setting aside the final
seniority list dated 01.02.2023 or in the alternative be pleased to direct
the respondent State to place the petitioner on their original place in
the seniority list by considering his original date of appointment by
declaring that the petitioner was not liable to lose his seniority on the
ground of alleged non-clearance of CCC examination and further
direct the respondent authorities to grant promotion to the petitioner
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
from the date of which the juniors to the petitioner was granted
promotion i.e. 07.07.2021.
(B) During the admission, pendency and final hearing of the
petition, be pleased to stay the operation and implementation of the
final seniority list dated 01.02.2023.
(C) During the admission, pendency and final hearing of the
petition, be pleased to direct the respondent State to keep one
promotional post of Forester for the petitioner vacant as and when
the promotional exercise is undertaken by the respondent State.
(D) Be pleased to grant such other and further relief as may deem
just and proper in the facts and circumstances of the case."
5. A very short question has arisen for consideration of this Court in
this group of petitions inasmuch as whether the petitioners who have been
appointed after 04.06.2009, i.e. the date on which Rule 9A had been inserted
in the Gujarat Civil Services Classification and Recruitment (General) Rules,
1967 vide Government Resolution of the said date, whereby employees who
were recruited even on contractual basis like the petitioners, were required
to pass CCC examination after joining of service.
6 It would be relevant to state here that the above framed question has
arisen in context of a decision of this Court in Special Civil Application No.
3808 of 2021 and allied matters dated 03.08.2022, whereby this Court while
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
dealing with the case of persons similarly situated to the present petitioners
had inter alia held that employees who had been appointed originally to the
post of Foresters after 16.02.2006 and before 04.06.2009 are not required to
pass the CCC examination as per the Rule 9A(3) of the Gujarat Civil
Services Classification and Recruitment (General) Rules, 1967, during the
contractual period or the extended period.
7 The petitioners herein being similarly situated to the petitioners of the
petitions being Special Civil Application No. 3808 of 2021 and allied matters
decided on 03.08.2022 by this Court are sought to be discriminated only on
account of the fact that the petitioners had been appointed after 04.06.2009,
though the advertisement, the selection list etc. were the same in case of the
petitioners herein and the petitioners of Special Civil Application No. 3808
of 2021 and allied matters. The issue therefore would be that would the
aspect of the date of appointment of the petitioners being later than
04.06.2009 by itself would dis-entitle the petitioners for getting the benefit
as directed in the above referred decision.
8. To decide whether the petitioners would be entitled to the benefit as
directed by this Court in the decision in Special Civil Application No. 3808
of 2021 and allied matters, it would be required to be mentioned that the
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
petitioners herein and the petitioners in the above referred group of
petitions, came to be appointed as Forest Guards, more particularly both the
set of petitioners having responded to a common advertisement and the
petitioners also figured as selected candidates in a common select list, in
case of the petitioners herein, figured in waiting list.
9. At the outset, it is required to be stated that the main plank of
submissions of learned Senior Advocate Mr. G.M. Joshi for the petitioners
was on the basis of the present petitioners being similarly situated to
petitioners of Special Civil Application No. 3808 of 2021, decided on
03.08.2022 and whereas the learned AGP Mr. Soni for the respondent-State
has attempted to distinguish the facts of the said petition from the fact of
the present petitions.
10. That since this Court had already discussed the issues in the decision
dated 03.08.2022 in Special Civil Application No. 3808 of 2021, this Court
deems it appropriate, more particularly to ensure unnecessary repetition, not
to discuss the facts of the present petitions threadbare. Furthermore, since
all issues have been elaborately dealt with in the above referred decision, this
Court deems it appropriate to restrict its discussion and findings on the
aspect of applicability of decision of this Court dated 03.08.2022 in Special
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
Civil Application No. 3808 of 2021 in the facts of the present case, more
particularly on account of the similarity of the facts of the said case with the
facts of the present case. Since one of the crucial issues which had weighed
with the Court in addition to the fact of the date of appointment of the
petitioners therein being prior to 04.06.2009, being the fact of the
petitioners therein having passed the CCC examination prior to their being
appointed, therefore, this Court deems it appropriate to reproduce
hereinbelow a chart showing relevant details of the present petitioners
including the date of appointment, the date of passing of CCC examination
etc., to facilitate application of the legal proposition to the facts of the case.
Petition Petitioner Appointment 1st CCC Regularization 2nd CCC
No. Name Date Certificate Certificate
SCA No. Bariya 13.08.2009 31.12.2008 25.09.2014 04.05.2019
24923 of Pankajkumar (Dr.Babasa w.e.f (Gujarat
2022 Hamirbhai heb 26.08.2014 University)
Ambedkar
Open
University)
Babulal 08.09.2009 01.10.207 22.01.2015 26.04.2017
Bhurabhai (Dr.Babasa w.e.f (Saurashtra
Bala heb 14.09.2014 University)
Ambedkar
Open
University)
SCA No. Bariya 10.08.2009 15.09.2008 17.01.2015 21.01.2017
24213 of Sureshbhai (Dr.Babasa w.e.f (The
2022 Chimanbhai heb 11.08.2014 Maharaja
Ambedkar Sayajirao
Open University
University) of Baroda)
(Exam Date
: 10.01.2016
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
SCA No. Panchani 09.06.2009 01.12.2010 28.07.2015 28.10.2016
2754 of 2023 Ashushkumar (Advertisemen (DOEACC) w.e.f (Saurashtra
Pravinbhai t of 2007) 09.06.2014 University)
SCA No. Arvindbhai 09.06.2009 11.10.2012 28.07.2015 07.09.2016
2762 of 2023 Rambhai (Advertisemen (DOEACC) w.e.f (Saurashtra
Dangar t of 2007) 03.09.2014 University)
SCA No. Haribhai 11.09.2009 08.08.2016 11.02.2015 30.12.2018
25416 of Daljibhai (Dr.Babasa w.e.f (Gujarat
2022 Chaudhary heb 29.10.2014 University)
Ambedkar
Open
University)
Brijeshkumar 29.07.2009 15.09.2008 14.08.2014 30.12.2018
Govabhai (Dr.Babasa w.e.f (Gujarat
Chaudhary heb 30.07.2014 University)
Ambedkar
Open
University)
Pankajkumar 01.09.2009 08.08.2006 26.08.2015 30.12.2018
Rameshbhai (Dr.Babasa w.e.f (Gujarat
Chaudhary heb 01.09.2014 University)
Ambedkar
Open
University)
SCA No. Maliya 09.06.2009 17.06.2009 28.07.2015 12.05.2019
2757 of 2023 Hiteshbhai (Advertisemen (Dr.Babasa w.e.f (Gujarat
Sajanbhai t of 2007) heb 01.07.2014 University)
Ambedkar
Open
University)
Jaydipsinh 22.06.2009 01.10.2007 28.07.2015 10.11.2019
Kripalsinh (Advertisemen (Dr.Babasa w.e.f (Gujarat
Zala t of 2007) heb 10.08.2015 University)
Ambedkar
Open
University)
Khachar 09.06.2009 15.09.2008 28.07.2015 24.11.2019
Bharatbhai (Advertisemen (Dr.Babasa w.e.f (Gujarat
Bawkubhai t of 2007) heb 27.06.2014 University)
Ambedkar
Open
University)
SCA No. Bloch 29.07.2009 20.10.2013 28.07.2015 19.06.2019
2755 of 2023 Rahimbhai (Advertisemen (SCED w.e.f (Saurashtra
Osamanbhai t of 2007) SOCIETY) 01.08.2014 University)
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
10.1 Form the above chart it would appear that except for petitioners of
Special Civil Application Nos. 2754 of 2023, 2762 of 2023 and 2755 of
2023, all other petitioners have cleared the CCC examination as a pre-
condition of enter in service. On the other hand, as far as the other
petitioners i.e. the petitioners of Special Civil Application Nos. 2754 of
2023, 2762 of 2023 and 2755 of 2023 are concerned, it would appear that
such petitioners had passed the CCC examination before the date of their
confirmation i.e. during the period in which they were in contractual
appointment. It would also be required to be mentioned here that while
some of the petitioners have passed the CCC examination from Dr.
Babasaheb Ambedkar Open University, as noted at Paragraph No. 9 of the
decision dated 03.08.2022 in Special Civil Application No. 3808 of 2021 and
allied matters, Certificates of Dr. Babasaheb Ambedkar Open University are
valid Certificates.
11. In the judgment dated 03.08.2022 passed in Special Civil Application
No. 3808 of 2021 this Court had observed at Paragraph Nos. 32-A, 32-B
and 32-C as hereunder :
"32. In view of the discussion, analysis and reasoning herein above,
this Court arrives at the following conclusions :-
A. That the petitioners appointed after 16.2.2006 and before 4.6.2009
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
were only required to pass the CCC Examination as a pre-requisite
for entry in service;
B. That the petitioners of the category referred to herein above were
not required to pass the CCC Examination during the contractual
period or even during the extended period of two years after the
contractual period/regularization, and no adverse consequences
could have been imposed upon the petitioners of the said category
for not complying with Rule 9A of the Gujarat Civil Services
Classification and Recruitment (General) Rules;
C. That the petitioners, who have been appointed between 16.2.2006
and 4.6.2009 having fulfilled the requirement of passing the CCC
Examination as applicable to them, they shall not be denied
seniority and other benefits as applicable for non-fulfillment of
Rule 9A of Gujarat Civil Services Classification and Recruitment
(General) Rules, further modified vide G. R. dated 23.10.2015. It
is further clarified that the petitioners of the above category shall
be treated as having cleared the CCC Examination as per the
requirement of the Rules and shall be given all applicable benefits
of seniority, etc., considering them as having passed the CCC
Examination within the stipulated time;"
11.1 From the above conclusion it becomes clear that this Court had inter
alia held that petitioners who were appointed after 16.02.2006 and before
04.06.2009 who are required to pass the CCC examination as a pre-requisite
for entry in service and whereas non-passing of the CCC examination
during the contractual period or during the extended period of two years
would not result in any adverse consequences upon the petitioners and that
they should be treated as having cleared the CCC examination as per the
requirement of the Rules and shall be given all applicable benefits of
seniority etc.
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
12. At this stage, it would be relevant to mention that almost all the fact
situation between the petitioners herein and the petitioners therein being
similar, in a State-wise seniority list of forest guards dated 01.11.2022, the
seniority of the petitioners which had been adversely effected on account of
misreading of the extant provisions had been restored, more particularly
taking into consideration the judgment of this Court in Special Civil
Application No. 3808 of 2021.
13. It would appear that again the seniority had been revised by
publishing a final seniority list on 01.02.2023 and whereas in the said final
seniority list, the petitioners were made to lose their seniority. It would
appear that the only reason for losing out on seniority appears to be the fact
of the petitioners being appointed after 04.06.2009, more particularly by
exercising the waiting list.
14. Having observed that the petitioners herein stood similarly situated to
the petitioners in the judgment referred to hereinabove and whereas since
the only difference between the petitioners herein and the petitioners in the
said group of petitions being the date of appointment, more particularly the
present petitioners having been appointed after 04.06.2009, whereas the
petitioners in the earlier group of petitions appear to have been appointed
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
prior to the said date, the issue being that would the date of appointment
have made any difference insofar as the requirement to pass the CCC
examination as a pre-requisite to enter service or as a post-requisite to enter
service.
15. It would be relevant to observe here that in decision of Special Civil
Application No. 3808 of 2021 this Court had inter alia observed that vide
Government Resolution dated 16.02.2006 it was envisaged that
appointments to Class -III and Class-IV posts through direct selection
would only be on contractual basis. This Court had also observed that as it
stood the Gujarat Civil Services Classification and Recruitment (General)
Rules, 1967 did not envisage employees selected to be appointed through
direct recruitment but on contractual basis being required to clear the CCC
examination till insertion of Rule 9A vide Government Resolution dated
04.06.2009. This Court had also observed that Rule 9A did not envisage
retrospective applicability. Prior to insertion of Rule 9A, the Gujarat Civil
Services Classification and Recruitment (General) Rules, 1967 envisaged a
candidate selected by direction selection and appointed on contractual basis
was required to pass CCC examination as a pre-requisite for entry in service.
Rule 9A upon introduction, envisaged that employees appointed on
contractual basis were required to pass the CCC examination during the
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
contractual period. This Court had also observed that candidates appointed
between 16.02.2006 and 04.06.2009 i.e. the period between the policy of the
State Government to appoint employees selected by way of direct
recruitment only on contractual basis and the date on which passing of CCC
examination was made mandatory during the contractual period were
consisting of a special class and since Rule 9A did not envisage retrospective
applicability, any person of the said category appointed during the period
mentioned hereinabove would not be required to undergo the rigors of that
Rule.
16. As it is, it would also be required to be noted that except for the
petitioners herein being appointed on a date later than 04.06.2009, there was
no difference whatsoever between the present petitioners and the
petitioners of Special Civil Application No. 3808 of 2021. In the considered
opinion of this Court, since the advertisement, the selection process, the
select list and/or the waiting list, were all common for the petitioners herein
and the petitioners of Special Civil Application No. 3808 of 2021, merely on
account of the fact that the petitioners had been appointed on a date later
than the date of insertion of Rule 9A, in absence of retrospective
applicability being envisaged, the present petitioners are also required to be
treated similarly as the petitioners of Special Civil Application No. 3808 of
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
2021. In the considered opinion of this Court, persons similarly situated
cannot be denied the right to be treated uniformly merely on account of a
fortuitous circumstance i.e. the difference of date of appointment. Such
uniform treatment would also be necessary since the date of 04.06.2009
when Rule 9A had been inserted in the Gujarat Civil Services Classification
and Recruitment (General) Rules, 1967, is not to be treated like a cut off
date prescribing eligibility for any selection process or such like situations,
which cut off dates ought not to be interfered with in absence of any
extraordinary circumstance.
17. At this stage, reliance is also placed on decision of the Hon'ble Apex
Court in case of P. Mahendran and Others Vs. State of Karnataka and
Others, reported in (1990) 1 SCC 411, whereby the Hon'ble Apex Court had
inter alia held that the amending Rules which did not envisage retrospective
applicability could not adversely effect the right of such candidates who
were qualified for selection and appointment on the date they had applied
for the post, more particularly when the process of selection had already
commenced when the amending Rules had come into force. Paragraph Nos.
4 and 5 of the said decision being relevant for the present purpose are
quoted hereinbelow for benefit.
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
4. There is no dispute that under the Recruitment Rules as well as
under the advertisement dated October 6, 1983 issued by the Public
Service Commission, holders of Diploma in Mechanical Engineering
were eligible for appointment to the post of Motor Vehicle
Inspectors along-with holders of Diploma in Automobile
Engineering. On receipt of the applications from the candidates the
Commission commenced the process of selection as it scrutinised the
applications and issued letters for interview to the respective
candidates. In fact the Commission commenced the interviews in
August 1984 and it had almost completed the process of selection but
the selection could not be compieted on account of interim orders
issued by the High Court at the instance of candidates seeking
reservation for local candidates. The Commission completed the
interviews of all the candidates and it finalised the list of selected
candidates by June 2, 1987 and the result was published in the State
Gazette on July 32, 1987. In addition to that the selected candidates
were intimated by the Commission by separate letters. In view of
these facts the sole question for consideration is as to whether the
amendment made in the Rules on May 14, 1987 rendered the
selection illegal. Admittedly the amending Rules do not contain any
provision enforcing the amended Rules with retrospective effect. In
the absence of any express provision contained in the amending
Rules it must be held to be prospective in nature. The Rules which
are prospective in nature cannot take away or impair the right of
candidates holding Diploma in Mechanical Engineering as on the
date of making appointment as well as on the date of scrutiny by the
Commission they were qualified for selection and appointment. In
fact the entire selection in the normal course would have been
finalised much before the amendment of Rules, but for the interim
orders of the High Court. If there had been no interim orders, the
selected candidates would have been appointed much before the
amendment of Rules. Since the process of selection had commenced
and it could not be completed on account of the interim orders of the
High Court, the appellants' right to selection and appointment could
not be defeated by subsequent amendment of Rules.
5. It is well-settled rule of construction that every statute or
statutory rule is prospective unless it is expressly or by necessary
implication made to have retrospective effect. Unless there are words
in the statute or in the Rules showing the intention to affect existing
rights the rule must be held to be prospective. If a rule is expressed in
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language which is fairly capable of either interpretation it ought to be
construed as prospective only. In the absence of any express
provision or necessary intendment the rule cannot be given
retrospective effect except in matter of procedure. The amending
Rules of 1987 do not contain any express provision giving the
amendment retrospective effect nor there is anything therein showing
the necessary intendment for enforcing the rule with retrospective
effect. Since the amending Rules were not retrospective, it could not
adversely affect the right of those candidates who were qualified for
selection and appointment on the date they applied for the post,
moreover as the process of selection had already commenced when
the amending Rules came into force, the amended Rules could not
affect the existing rights of those candidates who were being
considered for selection as they possessed the requisite qualifications
prescribed by the Rules before its amendment moreover construction
of amending Rules should be made in a reasonable manner to avoid
unnecessary hardship to those who have no control over the subject
matter."
17.1 Considering the law laid down by the Hon'ble Apex Court as above,
and applying the same to the present fact situation, it would appear that the
amending Rule i.e. Rule 9A came to be inserted in the Government Civil
Services Classification and Recruitment (General) Rules 1967 with effect
from 04.06.2009 and whereas the petitioners came to be appointed near
about the said date clearly implying that the selection process had
commenced and was about to reach its logical conclusion upon
appointment orders being issued to selected candidates when the amending
Rules came into force. Thus, the petitioners admittedly possessed a requisite
qualifications for being considered for selection as per the pre-amended
scenario and furthermore since the amendment Rules did not envisage
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retrospective applicability, therefore the amended Rules would not effect the
existing right of the candidates who were considered and declared eligible
for selection by the time the amended Rules were inserted.
18. In view of the above discussion and conclusions, in the considered
opinion of this Court, it is required to be declared that candidates who were
selected and appointed on basis of the same selection process as petitioners
of Special Civil Application No. 3808 of 2021 had been selected and
appointed, would not automatically be required to comply with the rigors of
Rule 9A of the Government Civil Services Classification and Recruitment
(General) Rules 1967. Hence, it is directed that the petitioners herein are
also entitled to the same benefits as directed to be granted to the petitioners
of Special Civil Application No. 3808 of 2021 vide judgment dated
03.08.2022.
19. At this stage, it is required to be clarified that while the petitioners
except the petitioners of Special Civil Application Nos. 2754 of 2023, 2762
of 2023 and 2755 of 2023 having cleared the CCC examination as pre-
condition for being appointed in service, they could not be required to
comply with the rigors of Rule 9A. On the other hand, the petitioners of
Special Civil Application Nos. 2754 of 2023, 2762 of 2023 and 2755 of 2023
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
appear to have cleared the CCC examination during the contractual period
and hence they clearly appear to have fulfilled the mandate of Rule 9A of
the Gujarat Civil Services Classification and Recruitment (General) Rules,
1967. Under such circumstances, while there is no special direction required
to be given in case of petitioners of Special Civil Application Nos. 2754 of
2023, 2762 of 2023 and 2755 of 2023, except as mentioned hereinabove that
they clearly fulfilled the mandate of Rule 9A.
20. The respondents are directed to appropriately rework the seniority of
the present petitioners as per the direction given in case of petitioners of
Special Civil Application No. 3808 of 2021, more particularly the seniority
being required to be fixed by holding that the petitioners having fulfilled
requirement of passing of CCC examination as applicable to them i.e. as a
pre-requisite for entery in service shall not be denied seniority and other
benefits as applicable on account of non-fulfillment of Rule 9A of the
Government Civil Services Classification and Recruitment (General) Rules
1967, further modified vide Government Resolution dated 23.10.2015.
21. It requires to be clarified at this stage that the petitioners shall be
treated as having cleared the CCC examination as per the requirement of the
Rules and shall be given all applicable benefits of seniority etc. considering
C/SCA/2754/2023 JUDGMENT DATED: 11/04/2023
the petitioners as having passed the CCC examination within the stipulated
time.
22. It is further clarified at this stage that the above directions would be
applicable to such petitioners who have cleared the CCC examination as a
pre-condition for entry in service and whereas insofar as the petitioners of
Special Civil Application Nos. 2754 of 2023, 2762 of 2023 and 2755 of 2023
are concerned, since they have fulfilled the mandate of Rule 9A by clearing
the CCC examination during the contractual period, therefore the
respondents are directed to work out and grant appropriate seniority
position to such petitioners considering that they have fulfilled the mandate
of the Rules.
23. Upon the seniority position being finalized as per Paragraph No. 21
or 22, the respondents shall promote such of the petitioners who become
eligible and entitled for promotion, more particularly on basis of person
junior to them having been promoted, with effect from the date such
juniors having been promoted.
24. The respondents are directed to carry out such exercise i.e. finalizing
the seniority and granting promotion, within a period of three months from
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the date of receipt of this decision.
25. It is also clarified that in case the State deems it expedient, it would
also be open for the State to frame a policy as directed vide Para No.33-C of
decision dated 03.08.2022 in Special Civil Application No. 3808 of 2021
which shall also be applicable to the present petitioners, irrespective of their
date of appointment being after 04.06.2009.
26. With these observations and directions, the present petitions are
disposed of as allowed. Rule is made absolute to the aforesaid extent.
(NIKHIL S. KARIEL,J)
BDSONGARA
