Vinodchandra Kantilal Tanna vs State Of Gujarat
2023 Latest Caselaw 4903 Guj

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 16000 of 2016



FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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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 ?

========================================================== VINODCHANDRA KANTILAL TANNA Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:

MR YATIN N OZA, SENIOR ADVOCATE with MS AMRITA AJMERA(5204) for the Petitioner(s) No. 1 MR SANJAY UDHWANI, AGP for the Respondent(s) No. 1,2

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 26/06/2023

CAV JUDGMENT

1. By way of the present petition, petitioners have challenged the exclusion of the name of the petitioner in "the State Level Provisional Seniority List dated 17/07/2014

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prepared by the Revenue Department, State of Gujarat, as, though petitioner is senior to one Mr. Mayurbhai N. Thakkar and though the name of the petitioner was above the said person in the Central Selection List, his name was excluded in the seniority list and the name of Mr. Mayur N. Thakkar was included at Sr.No.6153, the same being unjust and causing great prejudice to the petitioner and also affects his promotional avenues. The petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order and/or directions directing the respondent authorities to show the name of the petitioner above the name of the respondent No.3 - Mayur N. Thakkar who is junior to the petitioner and shown at Sr.No.1064 by giving effect of deemed date in the provisional seniority list dated 17/4/2017 of Deputy Mamlatdar.

2. The facts giving rise to the present petition are as under:

2.1. The petitioner was appointed as a Clerk by an appointment order dated 06/08/1984 issued by the District Collector, Gandhinagar. Initially, he was asked to report as Clerk in the office of the Deputy Conservator of Forests, Gandhinagar. Pursuant to the appointment order, the petitioner resumed his duty on 23/08/1984.

2.2. The District Collector, Gandhinagar, had published a

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seniority list dated 16/04/1990 for Gandhinagar District, considering the seniority as on 01.01.1990. The District Collector also invited objections from aggrieved person, if any, to be submitted within a period of 30 days thereof. In the said seniority list, name of the petitioner was shown at Sr.No.28 and the name of one Mayur N. Thakkar was shown at Sr.No.27, though he was junior to the petitioner. Mr. Mayur N. Thakkar was shown above the petitioner because, he reported to duty on 18/08/1984 whereas the petitioner had reported for duty on 23/08/1984. It is the case of the petitioner that otherwise, petitioner is senior to said Mr. Mayur N. Thakkar.

2.3. Thereafter, the petitioner made representation dated 18.03.1992 requesting the Deputy Collector to consider the original selection list and to implement the seniority list accordingly instead of considering the date of reporting while preparing the petitioner made representation with a view seniority list in the promotional post of Circle to avoid injustice Inspector which was likely to be considered in the year 1992.

2.4. The office of the District Collector, Gandhinagar issued a Circular dated 05/01/1998 whereby the seniority list for Gandhinagar District as on 01/01/1997 was prepared and objections, if any, were invited to the same. That as per the seniority list prepared as on 01/01/1997, the name of the

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petitioner appeared at Sr.No.13 and the name of said Mr. Mayur N. Thakkar was listed at Sr.No.14. Therefore, in the seniority list prepared as on 01/01/1997, the mistake was corrected and the petitioner was placed at above Mr. Mayur N. Thakkar as petitioner is senior to him.

2.5. Thereafter again the seniority list was prepared as on 1/01/1999 wherein through mistake the name of Mr. Mayur N. Thakkar was shown at Sr.No.29 and the name of the petitioner was shown at Sr.No.30.

2.6 The petitioner therefore made a representation dated 12/07/1999 to the office of the District Collector and and lodged his objections. The petitioner had stated one instance from the same seniority list wherein one Mr. T.F. Zala who, though was junior to Mr. L.S. Desai and other four persons, was placed above four persona and therefore, on the basis of representation by those four persons and considering the that (hat four persons were seniors to Mr, T.F. Zala, they were placed above Mr. T.P, Zala and in the said case the date of reporting to duty was not considered, but, purely the seniority was considered. Therefore, petitioner, by representation dated 12/07/1999, sought parity and requested that his name may be placed above Mayur N.Thakkar.

2.7. Thereafter, by letter dated 09/06/1999, petitioner

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again made a request to put his name above the name of Mayur N. Thakkar. Thereafter, again by letter dated 18/11/1999, petitioner lodged his objections and again requested to consider the case of Mr. T.F. Zala and other four persons and accordingly put his name above the name of Mr. Mayur N. Thakkar.

2.8. Thereafter, by letter dated 21/02/2000, petitioner had drawn the attention of the learned District Collector about the double standard adopted in the promotion to the post of Deputy Mamlatdar. Petitioner raised grievance that in case of the employees shown at Sr.Nos.16, 17, 18 and 19, they were shown above the employee at Sr.No.20 though they have reported to duty subsequent to the date of reporting of the employee shown at Sr.No.20. However, considering their seniority and not only the reporting date, they have been given seniority in the list and the case of the petitioner is not considered though petitioner is senior to one Mr. Mayur N. Thakkar, but, only because said Mr. Mayur N. Thakkar had reported to duty a few days before the petitioner, he was placed at Sr.No.29 whereas the petitioner is placed at Sr.No.30. Therefore, the petitioner vide representation daated 21/02/2000 requested to remove the said anomaly.

2.9. Thereafter by letter dated 06/03/2000, Additional Collector informed the petitioner that his objections was not

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considered and the same was rejected. The Additional Collector had also given reasons in a tabular form stating that, in view of the notification dated 30.09.1994 issued by the General Administrative Department, the date of joining is required to be considered while considering the seniority. It is the case of the petitioner that the said decision of the Additional Collector is absolutely contrary to the earlier decision of the District Collector dated 31.08.1990 taken in the case of Mr. T.F. Zala and other similarly situated four employees.

2.10. It is the case of the petitioner that due to the aforesaid order, great injustice has been caused to the petitioner because, Mr.Mayur N. Thakkar - respondent No.3, who is junior to the petitioner, got promoted as Deputy Mamlatdar on 22/02/2000 whereas the petitioner has been promoted on 01.05.2000. It is the case of the petitioner that when the State Level Provisional Seniority List was prepared, the cut- off date was 31.03.2000. Therefore, the name of the petitioner came to be excluded from the State Level Provisional Seniority List.

2.11. Thereafter the Revenue Department, State of Gujarat has published provisional seniority list of the employees for the post of Mamlatdar and the seniority list of Deputy Mamlatdars who are appointed from the period 01/01/1997 to 31/03/2000 have been included in the said provisional

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seniority list. In the aforesaid seniority list, Mr. Mayur N. Thakkar, who is junior to the petitioner is shown at Sr.No.6153 and the name of the present petitioner is not included in the said seniority list though the petitioner is senior to Mr. Mayur N. Thakkar.

2.12. Therefore, the petitioner lodged his objections by letter dated 05/05/2015 to the Deputy Secretary, D-1 Branch, Revenue Department, Gandhinagar. The petitioner has pointed out that, he is also from the establishment of Gandhinagar District and though he is senior to Mr. Mayur N. Thakkar, the name of the petitioner is excluded. Therefore, the petitioner requested to include the name of the petitioner above the name of Mr. Mayur N. Thakkar. Thereafter, again by representations dated 16/09/2015 and 31/08/2016, petitioner had made representation to consider his case and include his name in the provisional State Seniority List. However, the respondent authority has not considered the case of the petitioner.

2.13. Recently, Government of Gujarat issued provisional seniority list of the Deputy Mamlatdar as on 29/05/2012. In the said seniority list, name of Mr. Mayur N. Thakker, who is Junior to the petitioner, is shown at Sr. No. 1064 and the name of the present petitioner is shown at Sr. NO. 1292.

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2.14. It is the case of the petitioner that it was provided in the aforesaid circular that if any employee has any objection, then he has to make representation within 15 days of publication. Accordingly petitioner has made representation on 21/04/2017 and submitted to the office of Collector, Gandhinagar on 21/04/2017.

2.15. It is the case of the petitioner that he is senior to one Mr. Mayur Thakker on merit. Therefore, petitioner is required to be given "deemed date" of appointment as 18/08/1984 as per his Junior and his name is required to shown before Sr. No. 1064, above the name of his Junior Mr. Mayur N. Thakker and as the representations of the petitioners are not considered, the petitioner has approached this Court by way of preferring the present petition.

3. SUBMISSIONS OF THE PETITIONER:

3.1. Mr.Yatin Oza, learned senior advocate for the petitioner has vehemently submitted that the Select list for the post of Clerk was published in June, 1984 and in the said Select list, the petitioner was at Sr. 62 as per merit and the private respondent No.3 - Mayur N. Thakkar was at Sr.

63. It is submitted that the appointment order was dispatched to the petitioner on 06/08/1983 and one of the stipulation in the said order was that the candidate will have to report within 8 days from the date of the receipt of

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the order, failing which his appointment will stand terminated, unless condoned by the competent authority. It is submitted that the private respondent was also issued an appointment order dispatched on 07/06/1984 wherein similar such stipulation of reporting was mentioned. It is submitted that there is nothing on record as to when either the petitioner or the private respondent were actually served with the order, in other words, there is nothing on record as to when the letter of appointment was received either by the petitioner or the private respondent. It is submitted that the respondent authority in most mechanical manner without any application of mind, and in complete violation of the Government Resolution dated 1/9/1970, takes the date of dispatch as the relevant date rather than the date of receipt.

3.2. Mr.Yatin Oza, learned senior advocate for the petitioner has further submitted that the factum that the petitioner was permitted to join the service on 23/08/1984, presupposes that after complete verification of the fact that the petitioner was reporting within 8 days of the receipt of the appointment letter.

3.3. Mr.Yatin Oza, learned senior advocate for the petitioner has submitted that the Government Resolution dated 1/9/1970 relied upon by the respondents, clearly helps the petitioner, because according to the petitioner has

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resumed within 8 days of the receipt of the order, otherwise, respondents would not have permitted him to resume and it is to be presumed that it is only after the verification of the date of the receipt of the appointment order that the petitioner must have been permitted to resume. It is submitted that not withstanding above the list dtd 16/4/1990 the private respondent No.3 was shown senior to the petitioner.

3.4. Mr.Yatin Oza, learned senior advocate for the petitioner has further submitted that the petitioner had filed a representation, objecting to the same on 18/7/1992. However, in 1997, the petitioner is again shown senior to the private respondent No.3 in the provisional list. Again in here it has to be presumed that the said exercise has to be undertaken apropos the objection raised by the petitioner. It is submitted that in 1999 again Private respondent is shown senior. It is submitted that at this stage very important to note that on what basis this seniority came to be changed is not reflected in the order.

3.5. Mr.Yatin Oza, learned senior advocate for the petitioner has further submitted that it is relevant to note that nowhere on the record of the case, the State has said that the petitioner has reported to the duty beyond the period of 8 days of the appointment letter not withstanding 3 affidavits have been filed.

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3.6. Mr.Yatin Oza, learned senior advocate for the petitioner has further submitted that even if it assumed, without admitting, that the petitioner joined the duty five days later than the private respondents, the said fact would not make any difference in as much as the issue is covered by the judgement of the Hon'ble Supreme Court in the case of Chairman, Puri Gramya Bank vs Ananda Chandra Das reported in 1994 (6) SCC 301.

3.7. Mr.Yatin Oza, learned senior advocate for the petitioner has submitted that in the present petition, three affidavits are filed, one before admission of the petition and two after the admission of the petition. In none of the affidavit, the respondents have raised objection of delay and laches. It is settled law that no arguments can be advanced or entertained, if not pleaded.

3.8. Mr.Yatin Oza, learned senior advocate for the petitioner has submitted that once the petition has been admitted, the plea of delay and latches cannot be entertained. In support of his submission, he has placed reliance on the following decisions :

[1] (1972) 3 SCC 432 (P.B.Roy Vs Union of India); [2] 1994 2 LW 362 (Madras High Court) (V.S.Rangnatha lyer vs The Principal Labour Court)

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[3] 1989 SCC Online Pat 120 (Dr.Jagannath Mishra Vs State of Bihar;

[4] 2011 SCC Online Cal 4023 (Kolkatta Metropolitan Development Authority Vs Lakshmi Rani Pan) [5] (1997) 1 GLR 617 (Dr.Jayantilal Mohanlal Desai Vs State of Gujarat) [6] (1995) 1 GLH (UJ) 29 (PV Makwana Vs The Chairman) [7] 1993 (2) GLH 705 (Babubhai Ranchhodbhai Patel Vs State of Gujarat)

3.9. Mr.Yatin Oza, learned senior advocate for the petitioner has submitted in view of the aforesaid facts of the case and the law laid down by the Hon'ble Apex Court and followed bty various High Courts, the respondent Nos.1 and 2 may be directed to show the name of the petitioner above the name of the respondent No.3 - Mayur N. Thakkar, who is junior to the petitioner and shown at Sr.No.1064 by giving effect of "deemed date" in the provisional seniority list dated 17/4/2017 of Deputy Mamlatdar and grant all consequential benefits keeping in mind, by restoring his seniority at Sr. 62 in the selection list of the year 1983-84 and all consequential benefits, accruing therefrom so as to include all promotions with pay difference (all promotions would include the orders of promotions that have been passed in favour of private respondents), and all consequential benefits flowing therefrom as if the petitioner's seniority is above the private respondent. He has requested to allow the petition accordingly.

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4. SUBMISSIONS OF RESPONDENT Nos.1&2 AGP 4.1. Mr.Sanjay Udhwani, learned AGP appearing on behalf of the respondent Nos.1 and 2 authorities, on the ground of delay and laches, has vehemently submitted that the present petition suffers from unexplained, inordinate and fatal delay. He has submitted that the cause of action arose on 16/04/1990 when the provisional list for seniority as on 01/01/1990 was published and objections were invited. He has submitted that the petitioner has accepted final seniority lists dated 01/01/1990, 01/01/1997 and 01/01/1999 without demur, and the same have remained unchallenged till date and hence the same have attained finality. He has further submitted that the petitioner's objection to provisional seniority list of 01/01/1999 came to be rejected vide order dated 06/03/2000 in view of GR dated 30.03.1994 and the said decision has also remained uncontested till date. He has submitted that the petitioner has not made any averment explaining the inordinate delay in approaching this Court. It is submitted that the purported claim of the petitioner is stale, highly belated, time barred and not deserving of any relief. In support of above submission, he has relied on the decision reported in the case of State of Uttar Pradesh and others vs. Rajmati Singh, reported in (2022) SCC Online SC 1785 (Paragraph 6 12 13 1 19 21 & 21 as well as in the case of Malcom Lawrence CECIL D'souza, reported in (1976) 1

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SCC 599 (Paragraphs 8 and 9)

4.2. Mr.Sanjay Udhwani, learned AGP for the respondents authorities, on the ground that no right is derived from the Provisional List, has submitted that the petitioner's sole reliance is on a provisional list dated 05/01/1998 showing seniority as on 01/01/1997, where the petitioner is placed above the respondent no. 3 at Sr. No. 13. It is submitted that the said provisional list itself culminated and resulted into the final list as on 01/01/1997, where the petitioner is again placed below the respondent No. 3 at Sr. No. 27. It is submitted that however, the petitioner has never challenged any of the final seniority lists prepared by the respondents despite always being placed below the respondent No.3 and hence, no right can be derived on the basis of a provisional list which is, in any case, superseded by the final seniority list.

4.3. Mr.Sanjay Udhwani, learned AGP for the respondent authorities, on the ground of not challenge to GR and Rules, has submitted that the impugned list as well as the earlier seniority lists are drawn up in accordance with State Policy propagated vide GR dated 01/9/1970 (Clause 2) and Gujarat Non-Secretarial Clerks & Clerk-Typists (Training & Examination) Rules, 1970, amended vide GR dated 30.03.1994, whereby sub-rule 3 to Rule 8 was inserted with retrospective effect from 10/06/1970 in light of directions of

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this Court vide order dated 24/03/1992 in Safimiya Malck vs. State of Gujarat [33(1) GIR 704] & judgment dated 07.06.1993 in SCA No. 1220/83. It is submitted that no relief, which is contrary to such Rules and GR, can be granted in favour of the petitioner in absence of any challenge to the same.

4.4. Mr.Sanjay Udhwani, learned AGP for the respondent authorities, on the ground that the burden of proof is on the petitioner to prove his case, has submitted that no relief can be granted in favour of the petitioner on account of nonavailability of records with the respondents, especially when the petitioner is guilty of approaching this Court after a long unusual and unexplained delay of about 26 years. The burden to prove that the impugned seniority lists are erroneous is completely on the petitioner and the petitioner has failed to make out a positive case on merits to establish the same.

4.5. In response to the petitioner's reliance on Judgement delivered in the case of Ananda Chandra Das (supra), it is submitted by the learned AGP that the same is not applicable in as much as the facts are completely distinguishable. It is submitted that in the present case, the impugned list is prepared in accordance with the Rules and GR, which is not the case in the aforesaid decision and hence, the Hon'ble Supreme Court was not confronted with

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a situation, where the list was prepared in accordance with statutory rules. The only challenge was to the direction to the petitioner therein to be given seniority on the basis of date of reporting. It is further submitted that the issue of delay & laches is also not involved in the said decision, hence the same is not applicable to the facts of the present case.

4.6. In response to the petitioner's reliance on the decision rendered in the case of P.B. Roy (supra), it is submitted by the learned AGP that the same is not applicable in as much as the facts are completely distinguishable, firstly, there the cause of action arose on 10/03/1960 and the writ petition was filed before the Hon'ble Court on 11/01/1963, which is much less than the delay & laches in the present case. It is further submitted that moreover, what is held is that consideration of aspect of delay may (emphasis supplied) be relaxed after admission of a writ petition, if his case is positively good, It is submitted that the Hon'ble Supreme Court has not laid down a mandatory directive that any length of completely unexplained delay must necessarily be overlooked only on account of admission of a writ petition or that delay is deemed to have been overlooked once a petition is admitted and cannot be entertained at the stage of final adjudication. The discretion is vested in the Hon'ble Court to adjudicate each case on its own merits and in a case where there is long, inordinate delay, it is pertinent to note

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that the Hon'ble Supreme Court has reiterated and regularly emphasized that the principles of delay and laches be adhered to.

4.7. In response to the argument that delay is deemed to have been overlooked by this Court in view of admission of the petition and various orders that have been passed during pendency of the present petition, learned AGP has submitted that it is submitted that the said orders are interim in nature, do not record any observation that issue of delay is to be overlooked and thus, adjudication on this point of law has clearly never taken place till date. It is submitted that the petitioner cannot escape his obligation to explain the long, inordinate delay by simply harping upon pendency of the writ petition before this Hon'ble Court for many years and by relying on unknown principle of deemed condonation of delay.

Learned AGP has requested to dismiss the petition.

5. SUBMISSION OF THE RESPONDENT NO.3:

5.1. Mr.Sanjay Parmar, learned advocate for the private respondent No.3 - Mr.Mayur N. Thakkar has chosen not to appear before this Court to contest the present petition, though the matter is called out thrice today. On 5/6/2023 and on last adjournment on 19/6/2023 also, learned advocate for the respondent No.3 had not appeared before this Court. Thus, oral no submissions have been made by

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the learned advocate for the respondent No.3.

However, the respondent No.3 has filed Affidavit-in- reply wherein the respondent No.3 has contended that the petitioner has joined the services on 23/8/1984 in pursuance of appointment order dated 6/8/1984, while the respondent no. 3 has joined the service on 18/08/1984 in pursuance of appointment order dated 7/8/1984 and in view of Government Resolution of the year 1/9/1970, the seniority of the employee is counted and considered from the date of joining of service. It is further contended that the petitioner has joined the service on 23/8/1984 i.e. after 17 days of appointment order, whereas present respondent No.3 has joined the service on 17/8/1984 i.e. after 10 days from the appointment order. Therefore, seniority of the respondent No.3 is considered above the petitioner as per Government Resolution of 1970 and it is settled law that seniority of the employee is to be considered on the date of joining of service and not from the date of appointment. It is also contended that there is delay in approaching this Court and the petitioner has not challenged the earlier orders rejecting the representations of the petitioner.

6. Having heard the learned advocates for the respective parties and considering the material on record, the following Issues arise in the present petition for consideration of this Court.

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                    (1)   whether      the      delay   and        laches           in

preferring the petition belatedly and after publication of the earlier seniority lists and after rejection of the representations, would prejudice the case of the petitioner ?

AND (2) What shall be the ranking among the recruits? Is it the date on which they joined duty or according to the ranking given by the appointing authority?

6.1. So far as the issue No.1 as to whether the delay and laches in preferring the petition belatedly and after publication of the earlier seniority lists and after rejection of the representations, would prejudice the case of the petitioner ? is concerned, the same is also not res integra in view of decision of the Hon'ble Apex Court in the case of P.B. Roy (supra) wherein the Hon'ble Supreme Court in para 8 has observed and held as under:-

"8. The learned Judge who had initially heard the petition had pointed out that the representation of the Appellant was first rejected on July 29, 1960, and that it did not matter that the petitioner had continued making subsequent representations. The learned Judge had noticed the explanation that the petitioner could not approach the Court as he was admitted to a Tuberculosis Clinic in June, 1961. The learned Judge,

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having found that this was not sufficient to explain the delay between July 29, 1960 and June, 1961, was disposed to reject the petition on the ground of laches. But, in view of the decision of the majority of the Full Bench of the Punjab High Court in S.

Gurmej Singh vs. Election Tribunal, Gurdaspur (1964) PLR 589, the delay in filing the petition was overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is ''positively good''.

6.1.1. In the case of P.V. Makwana (supra), the Division Bench of this Court has observed and held as under:-

"14. Learned counsel for the respondent has raised another contention to the effect that the petition is barred by delay and laches and/or acquiescence inasmuch as the impugned order is dated 21st September, 1976 whereas the petition has been filed in the year 1983, I am not impressed by the submission at all inasmuch as this question may perhaps be relevant at the admission stage. Either this contention was not taken by the learned Counsel for the respondent when it appeared in response to the notice issued on the petition, or if the contention was taken the court was not impressed with the same.

It is for this reason that the petition was admitted. In any case, once the petition has been admitted in the year 1983, and the

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same comes up for final hearing in the year 1995, I do not see any jurisdiction in rejecting the petition on such a ground, particularly since the petition has been found to be sustainable and as found by me hereinabove, also deserves to be allowed. I do not propose to go into the case law on the subject which is clearly settled, that a petition cannot be rejected on the ground of delay once it has been admitted.

6.1.2. In the case of Babubhai Ranchhodbhai Patel (supra), this Court in the case where there was delay in filing the petition but the contention was not taken in the affidavit-in-reply by the respondents, as in the present case, it has been held that the contention cannot be allowed to be raised in the course of the final hearing, and when the matter remained pending in the court for three and half years after being admitted, Court ought not to dismiss the same on the ground of delay. It has been further observed that if such objection of delay was taken, the petitioner might have explained such delay on his part. This is one reason why the said preliminary objection need not be sustained.

In the present case, present petition has been filed in the year 2016 and this Court took cognizance of the matter vide order dated 21/9/2016 issuing Notice for final disposal.

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Thus, when the petition is pending since 2016 and this Court has taken cognizance of the matter way back in the year 2016 and various orders have been passed by this Court, now the respondents cannot contend that there is delay and laches. The plea of delay and laches is required to be raised at the first instance when the petition was filed in the year 2016. Even otherwise, on perusal of the various orders passed by this Court, as well as three affidavits filed by the respondents on record, it is clear that there is no whisper about delay in the three Affidavits-in-reply filed by the respondents and no plea of delay and laches has ever been raised by the respondents. When the respondents have not pleaded the plea of delay and laches since 2016 and even in all the three affidavits, now in the year 2023, i.e. after a period of 7 years, it is not open for the respondents for the first time to contend that the present petition suffers from delay and laches. Even otherwise, as per the settled legal position, when this Court has taken cognizance of the matter and admitted the matter by issuing notice for final disposal, way back in the year 2016, when the present petition is taken up for hearing in the year 2023, this petition cannot be thrown out on the ground of delay and laches and the matter is required to be considered on merits.

6.1.3. It is pertinent to note that this Court vide order dated 21/6/2017 directed the respondent nos.1 and 2

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authorities to disclose the record how the chronology of employees have been confirmed in the list which is effective from 1/1/1997 and it was also directed to disclose the original selection list of the petitioner and the private respondent. The respondent Nos.1 and 2 were also directed to disclose on record when the intimation to join service with details of selection list has been conveyed to the present petitioner. However, the records were not produced. Therefore, the co-ordinate Bench of this Court on 31/7/2017 directed the respondent nos.1 and 2 to comply with order dated 21/7/2017. Thereafter also on 8/11/2017, the co-ordinate Bench of this Court recorded that the compliance is awaited and thereafter till today, no documents have been placed on record by the respondent Nos.1 and 2 as directed by this Court and thus, though this Court directed time and again, there is non-compliance of the order dated 21/6/2017. Therefore also adverse interference is required to be drawn against the respondent Nos.1 and 2.

6.2. So far as the Issue No.2 as to what shall be the ranking among the recruits? Is it the date on which they joined duty or according to the ranking given by the appointing authority, is concerned, is concerned, the same is not res integra in view of decision of the Hon'ble Supreme Court in the case of Chairman, Puri Gramya Bank (supra) wherein the Hon'ble Supreme Court has observed and held

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as under :-

"......The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board had prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. ...."

In the present case, as per the appointment orders, the petitioner and respondent No.3 were required to join their duty within a period of 8 days from the date of receipt of the order. In the present case, no material has been placed on record to show on which date the petitioner and the respondent No.3 received the appointment order and therefore, it is to be presumed that the petitioner and the

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respondent No.3 have joined the duty within the stipulated period of time, because otherwise, the respondent authorities was required to pass order for condoning the delay. In the present case, no such order is placed on record and it is not even the case of the respondent authority that the petitioner and respondent No.3 have joined the duty beyond the period of 8 days. Therefore, it is presumed that the petitioner and respondent No.3 have joined the duty within 8 days from the date of receipt of the appointment order. The date of receipt of the appointment order may be different and same depends on the distance. However, when both, the petitioner and the respondent No.3 has joined the service within stipulated period of 8 days, as held by the Hon'ble Apex Court in the case of Chairman, Puri Gramya Bank (supra), it is settled law that if more than one are selected, the seniority is to be determined as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster and by mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the appointing authority and the arranged one as per roster and as per the settled legal position. Therefore, the seniority cannot be determined on the basis of the joining reports given by the candidates selected for appointment and length of service on its basis. In the present case, so far as the merits is concerned, the petitioner was at Sr.No. 62, whereas the private respondent No.3 was 63 in the first

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merit list of Clerk of the year 1983-84. Thus, the petitioner has more meritorious than the respondent No.3 and hence his seniority is required to be considered above the seniority of the respondent No.3.

6.3. So far as the decisions relied upon by the learned AGP are concerned, this Court is in complete agreement with the law laid down in the said decisions, but the said decisions would not be applicable to the facts of the case on hand.

6.4. In the facts and circumstances of the case and considering the judgement of the Hon'ble Apex Court in the cases of P.B. Roy (supra), P.V. Makwana (supra) and Babubhai Ranchhodbhai Patel (supra), on the point of delay, laches and acquiescence as well as in the case of Chairman, Puri Gramya Bank (supra) on the ground that merits is to be considered while deciding the seniority and not the date of joining, both the issues arising in the present petition are squarely covered, present petition is required to be allowed.

7. In the result, present petition is allowed. The respondent authorities are hereby directed to show the name of the petitioner above the name of the respondent No.3 - Mayur N. Thakkar who is junior to the petitioner and shown at Sr.No.1064 by giving effect of "deemed date" in the

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provisional seniority list dated 17/4/2017 of Deputy Mamlatdar and intimate the petitioner in writing accordingly and grant the consequential benefits and pay arrears within a period of four weeks from today. Rule is made absolute. No costs.

Sd/-

(RAJENDRA M. SAREEN,J) Rafik