State Of Gujarat vs Vasantlal K Sutharia @ Becharbhai ...
2023 Latest Caselaw 3663 Guj

    C/LPA/1496/2022                            CAV JUDGMENT DATED: 29/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO.     1496 of 2022

         In R/SPECIAL CIVIL APPLICATION NO. 12842 of 2006
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
            In R/LETTERS PATENT APPEAL NO. 1496 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

==========================================================

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 ?

========================================================== STATE OF GUJARAT Versus VASANTLAL K SUTHARIA @ BECHARBHAI K VANKAR ALIAS VASANTLAL K VANKAR ========================================================== Appearance:

MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2 MR RASHESH A RINDANI(5380) for the Respondent(s) No. 1 MR SHIRISH H GOHIL(3253) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA

C/LPA/1496/2022 CAV JUDGMENT DATED: 29/04/2023

Date : 29/04/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Preferred by the State and the Commissioner of Midday Meals and Schools, the present Letters Patent Appeal under clause 15 of the Letters Patent is against the judgment and order Judge dated 17.03.2022 of learned Single, whereby Special Civil Application of the respondent-original petitioner came to be allowed in part.

2. Learned Single Judge negatived the claim and the prayer of the petitioner for grant of higher pay- scale upon completion of 9 years in the cadre of Head Clerk, however, the prayer for grant of deemed date of promotion with effect from 09.10.1989 in the cadre of Auditor Group-I came to be granted.

2.1 Following is the operative part of the said relief, because of which the appellants are aggrieved,

"12. The respondents are directed to pass necessary orders in case of the petitioner conferring the deemed date of promotion of Auditor Group-I w.e.f. 09.10.1989 (i.e from the date of his juniors) within a period of two months and thereafter, re-fix his pay as well as retirement benefits at par with his juniors namely Mr.V.B.Damor and Mr.P.G.Damor and he shall be paid the similar benefits, which are conferred to them."

3. The facts of the case inter alia were that the

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petitioner upon being selected by the Gujarat Public Service Commission in the cadre of Junior Clerk came to be posted in the Fisheries Department with effect from 12.05.1969. On 22.10.1969, the petitioner was transferred as Junior Clerk in the office of Director of Education, now known as the Commissioner of Mid- Day Meals and Schools. The petitioner came to be promoted as Senior Clerk on 21.01.1972 and thereafter, as Head Clerk with effect from 21.02.1991. The petitioner was promoted to the post of Auditor Group-I, by order dated 02.01.2002 with effect from 16.12.2002. It was a permanent promotion and the petitioner accepted the same.

3.1 When the petitioner was promoted from Senior Clerk to Head Clerk and thereafter from Head Clerk to Auditor Group-I, there was no seniority list prepared by the Department. The seniority list for the cadre of Senior Clerk was ultimately published on 02.04.2002. The petitioner was granted deemed date in respect of post of Senior Clerk to be 15.11.1971, while his date of actual promotion was 24.01.1972.

3.2 In the same way, when the seniority list for the Head Clerk cadre was published on 16.02.2002, instead of actual date of promotion which was 21.02.1991, the deemed date of 28.03.1985 for the post of Head Clerk was granted to the petitioner. Now, when the seniority list for the cadre of Auditor Group-I was published, the petitioner was not given any deemed

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date and the authorities considered the actual date of promotion. This became grievance for the petitioner.

3.3 It is the case of the petitioner that while he was denied the deemed date in the cadre of Auditor Group-I, two juniors named Shri V.B.Damor and Shri P.G. Damor, came to be granted deemed date of 09.10.1989 in the cadre. These two persons were placed in the seniority list at serial no. 360 and 361 respectively, whereas the petitioner's name figured at serial no. 348. Though the petitioner was admittedly senior, it was the case of the petitioner that he was thus denied the lawful treatment and was not granted the deemed date.

3.4 The claim of the petitioner for grant of deemed date of promotion to the post of Auditor Group-I was rejected by the authorities of the respondents on the ground that by order dated 30.03.1999, the petitioner was granted promotion to the post, but the petitioner refused the same.

3.5 It is the case of the respondent that therefore, in view of the Rule 11 of Gujarat Civil Services (Classification and Recruitment) General Rules, 1967, the petitioner is not entitled to be granted the deemed date.

3.6 The Special Civil Application and the prayers made therein were contested by the respondents by

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filing affidavit-in-reply as well as additional reply through respondent no.2. It was contended that as in the list of Auditor Group-I, the name of the petitioner did not figure, no promotion was granted to the petitioner. It was stated that in the year 1999, when the petitioner was in the selection lsit for the promotion to the post of Auditor Group-I, he was entitled to promotion and that promotion was granted by order dated 30.03.1999, however, since the same was not accepted by the petitioner, he stood dis-entitled to claim the benefit of seniority or deemed date of promotion.

3.7 It was contended in the additional affidavit that 27 posts of Auditor Group-I were created for one year by Resolution dated 25.08.1998. It was in light of that, contended the respondent, the order dated 30.03.1999 was issued by the Commissioner of Higher Education offering the promotion to the such newly created post. The petitioner intimated to the Office of the Commissioner that he was not willing to accept the promotion, which as per the stand of the respondents rendered the petitioner not entitled to claim the deemed date.

3.8 Respondent no.2 stated in the affidavit with reference to aforementioned Office Order dated 30.03.1999, "a perusal of aforementioned Office Order woukld reflect that promotion to the post of Special Auditor Group-I was temporary, but the post of

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Auditor Group-I was itself temporary".

4. Heard learned Assistant Government Pleader Mr. Krutik Parikh for the appellant and learned advocate Mr. Rashesh Rindani for the respondent-original petitioner.

4.1 Learned Assistant Government Pleader relied on and raised the very contentions which were contained in the affidavit-in-reply of the respondent before learned Single Judge. He harped that once the petitioner refused the promotion given by order dated 30.03.1999 and since that it was a regular promotion, petitioner would have to forego the benefit of the seniority and deemed date. He highlighted the part of his affidavit to contend that the post of Auditor Group-I, created pursuant to Resolution dated 25.08.1998 may have been temporary but the promotion to the said post were not temporary. He then contended that the learned Single Judge erred in not appreciating the said aspect and that he ought to have considered that the promotion given to the said post was not temporary but regular.

4.2 On the other hand, learned advocate for the respondent-petitioner supported the order of learned Single Judge. He highlighted the contents of Office Order dated 03.09.1999 and the further order dated 02.01.2002 whereby the petitioner was given the promotion to the post of Auditor Group-I.

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5. The claim of the respondent-petitioner for deemed date of promotion with effect from 09.10.1989 in respect of post of Auditor Group-I is based on the relevant Rule under the Gujarat Civil Services Classification and Recruitment (General) Rules, 1961. Rule 11B, in particular sub-rule (1) and sub-rule (2) pertain to the refusal of promotion by Government servant.

5.1 Rule 11B of the aforesaid Rules is extracted hereinbelow,

"11.B Refusal to accept promotion by Government Servant. (1) Where a Government Servant refuses to accept the promotion, he shall make an application to that effect to the appointing authority showing the reasons for refusing the promotion. The appointmenting authority, thereafter, may promote the next eligible person and such Government Servant shall lose his seniority vis-a-vis his juniors who have been promoted after his refusal.

(2) Where a Government Servant has refused to accept the promotion, his case shall not be considered for promotion for a period of one year from the date of refusal or promotion or till next vacancy arises, whichever is later. Provided that the provisions of sub-rules (1) and (2) shall not apply where ad-hoc promotion against short term vacancy is refused by the Government Servant."

5.2 A reading of sub-rule (2) would suggest that the provisions of sub-rules (1) and (2) about refusal on part of the Government servant to accept the

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promotion and consequential loss of seniority would not apply, 'where adhoc promotion against short term vacancy is refused by the government servant'.

5.3 Learned Single Judge rightly held thus,

"9. The entire case of the respondents is premised on the order dated 30.03.1999. It is the case of the respondents that the petitioner has refused promotion, which was granted by this order to the post of Auditor Group-I and hence, he is not entitled to deemed date promotion at par with his juniors. A bare reading of the order dated 30.03.1999 reveals that the petitioner, who is placed at serial no.2, has been promoted to the post of Auditor Group-I for only 4 months i.e. till 24.08.1999. Thus, the promotion of the petitioner to the post of Auditor Group-I vide order dated 30.03.1999 was not a regular promotion, but it was temporary/ad hoc or for a fixed period of four months. The aforesaid order, if it is read in juxtaposition with the statutory rules, more particularly sub- rule (2), the refusal to accept ad hoc promotion will not attract the rigours of Rule 11.B."

5.4 The 27 posts, which became subject matter of promotion under order dated 30.03.1999 and at which stage the petitioner was offered promotion, were created by Resolution dated 25.08.1988 of the Education Department. They were the posts for one year and were pay verification posts. These posts were to be continued upto 24.08.1999. These are the admitted facts which emanate from the contents of order dated 30.03.1999 itself.

5.5 It is further mentioned in the said order that

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the promotions were being given on such posts upto 24.08.1999. It could be safely concluded from these facts that not only posts were temporary for one year, even the promotions proposed to be given to the said post were also upto a particular date, therefore, were adhoc and temporary in nature. It was such promotion of such nature on such kind of posts which was refused by the petitioner.

5.6 It was only irrational to view, which was the submission advanced on behalf of the respondent by learned Assistant Government Pleader, that the post might have been temporary, but the promotion to those posts were not temporary. It could hardly stand to logic that the promotions were not temporary, but the post might be temporary. It is only incongruous and not permissible in law to treat the post in question to be temporary, but promotion thereto, not to be tempoary.

5.7 The facts show that both were temporary. In any view, the temporary post and permanent regular promotion cannot co-exist. The entire stand of the respondent is falsified not only because it is based on inconsistent plea, but also for the reason that the order dated 30.03.1999 shows that the nature of posts were temporary and therefore, the promotion offered thereunder to the petitioner was also temporary.

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5.8 The petitioner earned actual regular promotion on 02.01.2002, which in juxtaposition to promotion in order dated 30.03.1999 was regular promotion in place of vacancy arising by virtue of retirement of an employee, as reflected in the order dated 02.01.2002. In a way it came as a post-facto confirmation that the earlier promotion offered in order dated 30.03.1999 was temporary.

5.9 Once the refusal by the petitioner was to the adhoc promotion on temporary post, it would not become and impediment for the petitioner. In terms of Rule 11B (2), the petitioner would not lose his seniority and right to claim the deemed date.

6. For the above factual position emerging and the reasons operating, once the post as promotion were temporary, which were offered to the petitioner by order dated 30.03.1999, the statutory Rule 11B(2) would operate in favour of the petitioner.

6.1 As is rightly held by the learned Single Judge, in above view, reliance placed by respondent on circular dated 30.11.1965 on the basis of which the claim of the petitioner was rejected, was erroneous in law. The Circular could not stand against the operation of statutory rule. It cannot override the statutory contemplation.

6.2 It has to be reiterated that refusal of promotion to the post of Auditor Group - I, which was

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only for four months, cannot block the right of the petitioner to claim the deemed date in the cadre of Auditor Group-I.

6.3 For the discussions and reasons supplied hereinabove, no interference is called for in the judgment and order of learned Single Judge granting relief to the petitioner in respect of giving deemed date of promotion as per the operative paragraph 12 of the order.

7. The Letters Patent Appeal is dismissed.

Civil Application would not survive in view of the decision in the main Letters Patent Appeal.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) BIJOY B. PILLAI