Gujarat High Court
Kambhaliya Hareshbhai Keshurbhai vs State Of Gujarat on 2 February, 2024
NEUTRAL CITATION
C/SCA/20893/2018 ORDER DATED: 02/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20893 of 2018
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KAMBHALIYA HARESHBHAI KESHURBHAI & 1 other(s)
Versus
STATE OF GUJARAT
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Appearance:
ABHISST K THAKER(7010) for the Petitioner(s) No. 1,2
RULE SERVED BY DS for the Respondent(s) No. 1,2,3,4
MS DHARITRI PANCHOLI, AGP for the Respondents-State
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/02/2024
ORAL ORDER
1. Present Special Civil Application is filed praying for the
following reliefs:-
"(A) YOUR LORDSHIPS be pleased to issue writ of Mandamus or any
other appropriate writ order or direction directing the
respondent no.2 not to alter / amend the Seniority of the
Petitioners and be pleased to direct the respondents that
seniority of the petitioners be calculated from the date of joining
as beat guard.
(B) Pending hearing and final disposal of this petition, the Hon'ble
Court be pleased to direct the respondents not to disturb the
seniority and/or service conditions of the Petitioner as per the
zonal-list dated 11.12.2018;
(C) ............."
2. Affidavit-in-Reply on behalf of respondent No.3 and
Affidavit-in-Rejoinder of the petitioners is taken on record.
3. It is the case of the petitioners that they were appointed as
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Ad-hoc Beat Guards on 10.6.2009 and thereafter, on completion
of 5 years of mandatory period, the respondents were pleased to
appoint the petitioners as permanent Beat Guards. That the
petitioners applied for transfer on their expense as per the
existing policy of the State Government and accordingly, the
petitioner No.1 came to be transferred on 19.2.2018 and
petitioner No.2 came to be transferred on 27.9.2017. That
pursuant to the said transfer orders, the petitioners resumed
their charge immediately. It is the case of the petitioners that
the transfer orders did not mention that if they were transferred
on their own request, then the existing seniority of the
petitioners would lapse and their seniority would be calculated
from the date of assuming the charge at the new posting. It is
further the case of the petitioners that they had been given
seniority as per the merit number in the list prepared on
1.1.2018 and since the petitioners were transferred after the
said date, they are likely to lose their seniority as similarly
situated employees who have opted for transfer by request in
two different Districts have lost their seniority. Apprehending
the loss of their seniority, the petitioners have filed the present
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Special Civil Application.
4. Learned counsel Mr. Abhisst K. Thaker appearing for the
petitioners submits that this Court, vide judgment and order
dated 8.3.2022, in Special Civil Application No.16299 of 2018
and other connected matters has dealt with the said issue and
held that petitioners' undertaking shall not count to their
detriment for the purposes of their seniority which had been
given at the time of request for transfer to another District. It
has also been held that the undertaking shall not operate and
that the seniority shall be counted from the date of their initial
appointment post the period of five years in view of the
Government Resolutions dated 18.1.2017 and 20.1.2018. The
learned counsel for the petitioners submits that the case of the
petitioner No.2 is squarely covered by the aforesaid decision
dated 8.3.2022 in Special Civil Application No.16299 of 2018
and other connected matters. He, therefore, submits that the
present Special Civil Application be allowed and the relief as
prayed for be granted.
5. Per contra, Ms. Dharitri Pancholi, learned Assistant
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Government Pleader, appearing on behalf of the respondents,
submits that the petitioners were recruited on 10.6.2009 and
after completion of 5 years of satisfactory service, they came to
be inducted into the regular service as Forest Guard. She
submits that the Forest Guard is a Class III district wide cadre
post. She submits that the determination of the seniority of the
district level cadres is governed by the Government Resolution
dated 22.1.2009. She further submits that the petitioners after
being regularized as Forest Guards had sought for inter-district
transfer at their own request, which was approved by the
competent authority in the State Government. Accordingly the
petitioners stood transferred from the district of their original
recruitment to the district of their choice. Owing to their inter-
district transfer, the petitioners have lost their seniority since
they would be treated as freshly appointed in the district
wherein they have been transferred at their request. She
further submits that the loss of seniority is a consequence of an
inter-district transfer as per the prescription of the policy of the
State Government by Government Resolution dated 22.1.2009.
She submits that since fixation of seniority at the request of the
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employee is a matter of State policy, no interference is called
for and their seniority would be fixed as per the policy
prevalent. She, therefore, submits that the present Special Civil
Application be dismissed.
6. Heard learned counsels appearing for the parties and
perused the documents on record. It is not in dispute that the
present petitioners are similarly situated as the petitioners in
Special Civil Application No.16299 of 2018 on which the learned
counsel for the petitioners has placed reliance. The Coordinate
Bench of this Court after exhaustively dealing with various
issues and the decisions of this Court has held that in view of
the Government Resolutions dated 18.1.2017 and 20.1.2018, the
petitioners' undertaking shall not count to their detriment for
the purposes of their seniority and such an undertaking shall
not operate and their seniority shall be counted from the date of
their initial appointment post the period of five years. It was
further clarified that those employees whose orders of transfer
are post the Government Resolution dated 20.1.2018, they shall
not be governed by the said Government Resolution. Further,
the said issue pertaining to the seniority of Beat Guard upon
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request transfer was also decided on the same ratio and
reasoning contained in the judgment and order dated 2.5.2022
passed in Special Civil Application No.9530 of 2019 and further
in the judgment and order dated 24.1.2023 passed in Special
Civil Application No.1708 of 2019 with Special Civil Application
No.20892 of 2018.
7. This Court has gone through the facts of the said cases as
well as the facts of the present petition, which are similar in
nature. This Court, therefore, adopts the reasoning given in the
aforesaid decisions by the Coordinate Benches of this Court in
the above-referred petitions.
8. In view of the aforesaid observations, the present petition
stands DISMISSED in respect of petitioner No.1 whose transfer
order has been issued on 19.2.2018. Insofar as petitioner No.2
is concerned, his transfer order has been issued on 27.9.2017
which is before the date of Government Resolution dated
20.1.2018 and therefore, the present petition is ALLOWED in
respect of petitioner No.2.
9. The Special Civil Application accordingly stands disposed
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of. No order as to costs. Rule is made absolute to the aforesaid
extent.
Direct Service is permitted.
(ANIRUDDHA P. MAYEE, J.)
OMKAR
