Gujarat High Court

Atulbhai Dahyabhai Parmar vs State Of Gujarat on 28 February, 2023

Bench: Aniruddha P. Mayee

    C/SCA/10251/2018                                   JUDGMENT DATED: 28/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10251 of 2018
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
             In R/SPECIAL CIVIL APPLICATION NO. 10251 of 2018


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                                 Sd/-
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1    Whether Reporters of Local Papers may be allowed                       No
     to see the judgment ?

2    To be referred to the Reporter or not ?                                No

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 ?

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                 ATULBHAI DAHYABHAI PARMAR & 41 other(s)
                                Versus
                      STATE OF GUJARAT & 6 other(s)
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Appearance:
MR GM JOSHI, SR. ADVOCATE, WITH MR M T SAIYAD(3848) for the
Petitioner(s) No.1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,
25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,5,6,7,8,9
MS TEJAL RAJPUT AGP for the Respondent(s) No. 1,2,3,4,5,6,7
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                     Date : 28/02/2023
                     ORAL JUDGMENT

The present Special Civil Application is filed praying for the

following reliefs:-

"8(A) YOUR LORDSHIPS may be pleased to issue appropriate writ/order or direction directing the respondents herein to consider the date of appointment of the petitioners during preparing the seniority list

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

to give promotion on the post of Foresters from the post of Beat Guards in the interest of justice;

(B) During the pendency and/or Final Disposal of the present petition, YOUR LORDSHIPS may be pleased to direct respondents herein not to prepare the seniority list of the Beat Guards and not take any action with regard to the promotion of the Beat Guards to the Foresters in the interest of justice;

(C) YOUR LORDSHIPS may be pleased to issue appropriate writ/order or direction directing the respondents herein to consider the representation of the petitioners dated 07-06-2018 in view of the resolution of the Finance Department dated 18-01-2017 and the resolution of the General Administration Department 20-01-2018 in the interest of justice;"

2. The factual matrix in the present case is that, the

petitioners are serving as Beat Guards with the Forest &

Environment Department, Government of Gujarat, since the year

2008. That on 30.11.2005, the Gujarat Subordinate Service

Selection Board - respondent No.2 herein issued an

advertisement for recruitment on the post of Beat Guard in the

Forest Department. The petitioners applied for the same and

cleared the said examination. That in the year 2008, the

petitioners came to be appointed as Beat Guard in different

districts of the State of Gujarat initially for 5 years and,

thereafter, they were regularized on the said post. That on

30.5.2009, the petitioners requested the higher authorities to

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

transfer them to parent district or adjacent district as there were

vacancies. However, the Department informed that after

completion of 5 years of service and after regularization in

service, they could apply for transfer in the parent district.

2.1 That the Finance Department, State of Gujarat, issued a

resolution dated 18.1.2017 wherein 5 years ad-hoc services of

the employees like the petitioners was directed to be considered

for seniority, promotion, higher pay-scale and retiral benefits

after getting regularization in service. That thereafter, as per the

G.R. dated 20.1.2018 issued by the General Administrative

Department, Government of Gujarat, it was directed that the

date of appointment of the employees who were appointed on the

fixed pay scale for 5 years like the petitioners herein, the merit

list is to consider the initial date of appointment for seniority and

promotion. Accordingly, on 24.5.2018 the Principal Chief

Conservator of Forests has written letters to all Conservator of

Forests to prepare seniority list and to keep the employees who

were transferred inter-district, at the bottom of the list and to

consider the seniority from the date when they were transferred.

That the petitioners requested the respondent authorities to

consider their date of appointment in the seniority list as they

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

were appointed after clearing the State Level Examination held

by the respondent No.2. That since no reply was given by the

department to the representation with respect to fixing of their

seniority as per the initial date of appointment, aggrieved the

petitioners approached this Court by way of present Special Civil

Application.

3. Mr. G.M.Joshi, learned Senior Counsel with Mr.

M.T.Saiyed, learned advocate for the petitioners, submits that

the issue raised in the present Special Civil Application has been

settled by the coordinate Bench by order dated 11.4.2022 in

Special Civil Application No.3690 of 2019 and by order dated

24.1.2023 in Special Civil Application Nos.1708 of 2019 with

20892 of 2018. He, therefore, submits that the present Special

Civil Application may be allowed in terms of the judgments

rendered in the afore-mentioned Special Civil Applications.

4. Ms. Tejal B. Rajput, learned AGP appearing for the

respondents, upon verification, confirms the factual position of

the petitioners in the present case as identical to one which has

been decided in the afore-mentioned Special Civil Applications

decided by the coordinate Bench. She does not dispute the said

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

legal position as decided.

5. Heard learned senior counsel for the petitioners and

learned AGP for the respondents and perused the documents on

record.

6. The coordinate Bench of this Court by order dated

11.4.2022 in Special Civil Application No.3690 of 2019 has held

thus:-

"12. Merely because by resolutions post their appointment i.e. on 18.01.2017 and 20.01.2018, the benefit of the entire period of five years of fixed pay services is being given to the petitioners, the loss of seniority of two years will cumulatively damage the case of the petitioners in the matters of promotion etc., inasmuch as, by virtue of the resolutions and the appointees post these two resolutions of 2017 and 2018, the petitioners will continue to stagnate because the appointees post these resolutions will steal a march over the petitioners. That could not have been the intention of the undertaking when the petitioners filed such undertakings in the year 2015 when they opted for transfer.

13. The case of Uttam Pawar (supra) relies on the decision in case of Raksha Mantri (supra). Considering the decision of the Supreme Court, the Supreme Court held as under:

"7. The respondent herein was working as a Telephone Operator in Irrigation Department of the State of Maharashtra. Thereafter he made a request for his transfer from Mumbai Zone to Kolhapur Zone. The request of the respondent was acceded to and he was transferred on his own request from Mumbai Zone

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

to Kolhapur Zone and he lost his seniority in Mumbai Zone and he joined in Kolhapur Zone on 14.6.1990 as a Junior Clerk at zero seniority. Thereafter, the State Government passed a Resolution dated 8.6.1995 giving a Time Bound Promotion to the persons who are stagnated in the Group C and D cadres for a long period. As per the said Resolution those persons who have put in 12 years of service and who fulfill other conditions laid down in the said Resolution were eligible for the next higher scale of pay. We are not concerned with the other conditions laid down in the Resolution dated 8.6.1995. We are only concerned with the limited question that whether the respondent is entitled to count his service rendered in the Mumbai Zone when he was transferred to Kolhapur Zone for purposes of computing 12 years of service so as to enable him to get the benefit of this Resolution. The Tribunal granted the benefit of past service to the respondent and the same was affirmed by the Division Bench of the High Court."

14. Accordingly, the petition being Special Civil Application Nos.16299 of 2018 and 16729 of 2020 are allowed. The petitioners' undertaking shall not count to their detriment for the purposes of their seniority. The undertaking shall not operate and their seniority shall be counted from the date of their initial appointment post the period of five years in view of the resolutions dated 18.01.2017 and 20.01.2018."

6.1 The coordinate Bench of this Court by order dated

24.1.2023 in Special Civil Application Nos.1708 of 2019 with

20892 of 2018 held as follows:-

"11. The Court has gone through the facts of both these cases as well

as the facts of the petitions decided by the Co-ordinate Benches as

mentioned in the presiding paragraphs and ultimately finds that where

C/SCA/10251/2018 JUDGMENT DATED: 28/02/2023

the transfer of Beat Guards were on the basis of their own request to

other circles even out of district, their seniority was ordered to be

maintained regardless of the undertaking at the time of seeking request

transfer. This Court is, therefore, inclined to adopt the reasonings and

modus adopted by this Court in the decisions of the Co-ordinate

Benches in the above referred petitions and hold that the seniority of

the petitioners be treated from the date of their initial appointment to

the posts of Beat Guard and will not be disturbed due to their request

transfer and resuming the post at the transferred place."