Gujarat High Court

Indravijaysinh Bachwantsinh Zala vs State Of Gujarat on 26 September, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

                                                                                                          NEUTRAL CITATION




                              C/SCA/13518/2020                             ORDER DATED: 26/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 13518 of 2020

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                                              INDRAVIJAYSINH BACHWANTSINH ZALA
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR GM JOSHI, SENIOR ADVOCATE with MR VYOM H SHAH(9387) for the
                       Petitioner(s) No. 1
                       MS SUMAN MOTLA, AGP for the Respondent(s) No. 1,2,3,4
                       NOTICE SERVED for the Respondent(s) No. 1
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                          CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                       Date : 26/09/2024

                                                        ORAL ORDER

1. Heard Mr. Gautam Joshi, the learned Senior Counsel

assisted by Mr. Vyom H Shah, the learned advocate appearing

for the petitioner and Ms. Suman Motla, the learned AGP

appearing for the respondent No.1 - State.

2. By way of present petition filed under Article 226 of the

Constitution of India the petitioner herein is challenging the

action of the respondent authority of making the petitioner

loose his seniority in the Final Seniority list dated 07.08.2020

and subsequently in the final seniority list dated 13.01.2021

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published by the respondent authority and declare the same to

be arbitrary and illegal.

3. It is the case of the petitioner that the petitioner was

originally appointed as Forest Guard for a fixed period of 5

years on fixed wages in the year 2011. The petitioner had

cleared the CCC examination on 26.10.2010 i.e. even before

his appointment and the petitioner had submitted the said CCC

certificate at the time of appointment which was accepted by

the respondent authorities. The petitioner also came to be

regularized on his post on the basis of the said certificate itself

vide order dated 01.03.2016.

4. It is the case of the petitioner that the respondent

authorities published seniority lists on 31.12.2018 as well as on

18.03.2020 wherein the petitioner was shown to have cleared

the CCC examination. The petitioner was informed that he will

have to clear the CCC examination again for the purpose of

promotion and hence, the petitioner appeared and cleared the

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CCC examination again on 09.12.2018.

5. It is the case of the petitioner that thereafter, the

respondent authorities published a new provisional seniority list

dated 18.07.2020 for the division wherein the petitioner was

shown to not have cleared his CCC examination till 2018 and

hence, the petitioner was made to lose his seniority of 7 years

on that ground and placed at the bottom of the seniority list

without even according any opportunity of hearing.

6. It is the case of the petitioner that the petitioner had

submitted his objections to the said provisional seniority list,

however, the same were rejected by the respondent authorities

and the provisional list was finalized on 07.08.2020. During

the pendency of the petition, the authorities have finalized the

seniority list at the zone level dated 13.01.2021 wherein the

petitioner was again kept at the bottom of the list, The said

seniority list has been placed on record and challenged by

way of an amendment. It is also the case of the petitioner that

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due to the said loss in seniority, juniors to the petitioner have

been promoted to the post of Forester, bypassing his claim for

promotion.

7. Being aggrieved and dissatisfied by the impugned action

of the respondent authorities, the petitioner herein has

approached this Court and has prayed for the following reliefs:-

"(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 action of the respondent authority of making the petitioner loose his seniority in the Final Seniority list dated 07.08.2020 published by the respondent authority at the division level and declare the same to be arbitrary and illegal.

(AA) 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 13.01.2021 of the Gandhinagar Zone as well as letter dated 16.01.2021 issued by the Chief Conservator of Forest.

(B) During the admission, pendency and final hearing of the

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petition, be pleased to stay the operation and implementation of the impugned seniority list of the respondent department dated 07.08.2020 and restrain the respondent department from taking any action on the basis of changed position of the petitioner.

(BB) During the admission, pendency and final hearing of the matter, be pleased to stay the implementation of the final seniority list dated 13.01.2021 as well as the letter dated 16.01.2021 and be pleased to restrain the respondents, their officer servants or agents from acting on the same qua the petitioner.

(C) Be pleased to grant such other and further relief as may deem just and proper in the facts and circumstances of the case.

(D) Be pleased to award cost of this petition."

8. At the outset, Mr. Gautam Joshi, the learned Senior

Counsel appearing for the petitioner submitted in light of the

aforesaid facts, the said issue has been considered in the

Special Civil Application No.3808 of 2021 and Special Civil

Application no. 2754 of 2023 wherein identical prayers as

prayed for came to be allowed and where it was held that it is

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not in dispute that once the services of the petitioner were

regularized, the services of the petitioner were never

terminated on the ground that the petitioner was not having

CCC certificate within the prescribed time period. The validity

of the said certificate is not in dispute and the services of the

petitioner were regularized and the petitioner were placed in

the regular pay-scale upon completion of contractual period of

five years.

9. In light of the aforesaid, it was held that the petitioner

could not be treated as fresh appointee and that their services

were required to be considered as regular appointee. The

aforesaid was also subject matter of appeal being LPA No.129

of 2024 by the respondent State which came to be dismissed.

10. It is submitted that the petitioner herein is identically

placed having CCC certificate prior to the appointment which

is also valid certificate duly produced at page-15 (Annexure-B),

The petitioner herein had submitted the said certificate at the

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time of his appointment and the same was duly accepted by

the authorities. The services of the petitioner also came to be

regularized based on the said CCC certificate. In view thereof,

the prayers as prayed for be allowed.

11. Ms. Suman Motla, the learned AGP appearing for the

respondent No.1 - State is not in position to controvert the

aforesaid position of law as laid down in Letters Patent Appeal

No.129 of 2024.

12. Considering the submissions advanced by the learned

advocate appearing for the respective parties, in the opinion of

this Court, the petitioner herein came to be appointed by the

respondent No.1 on 14.02.2011 and services of the petitioner

came to be regularized upon completion of five years. The

petitioner herein was having a valid CCC certificate prior to

his appointment which was accepted by the respondent

authorities and at no point in time was the petitioner informed

that the certificate submitted by the petitioner at the time of

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joining will not be considered.

13. In view of the aforesaid, as held by the Hon'ble Division

Bench in the Appeal being Letters Patent Appeal No.129 of

2024 confirming the judgment passed by the Learned Single

Judge in Special Civil Application no. 3808 of 2021, the

petitioner having cleared the CCC examination once, cannot be

forced to clear the same examination again especially when the

petitioner has been appointed as well as confirmed in services

based on the said certificate itself. Further, the petitioner was

never informed that he will be required to clear the CCC

examination again before directly taking the impugned action

of making him loose his seniority of 7 years. Even the

seniority list published by the respondent authorities before the

impugned seniority list showed the petitioner to have cleared

the CCC examination which necessarily means that the

respondent authorities themselves had accepted the CCC

certificate submitted by the petitioner at the time of

appointment. The Honourable Division Bench has also dealt

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with the said aspect in its judgment dated 15.07.2024 passed

in Letter Patent Appeal No.129 of 2024 wherein it has held as

follows:

"22. When this Court called upon the learned Assistant Government Pleader to explain as to whether the CCC Certificate/ course, which the respondent had cleared subsequently on the second occasion, was specialized course or the same was different than the first CCC Certificate/course, however, nothing is pointed out to us, which would suggests that CCC Certificate which, the respondents were already possessing, was not in any manner different or lower in standard than the CCC Certificate, which they had obtained subsequently in the year 2018 and 2019. In any case, the appellants could not have treated the respondents as fresh appointees on the date of passing the CCC Certificates as they were never informed that their earlier Certificates were invalid or not up to the standards required by the State Government. On the contrary, when the appellants informed the respondents to clear the examination, they have immediately again cleared the same and obtained the CCC Certificates. It is pertinent to note that the clauses of the Resolution dated 04.06.2009 as well as the Resolution dated 23.10.2005 were never invoked and they were never terminated from the services, since the respondents were already possessing the CCC Certificates before they were regularized in services."

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14. Thus, in view of the above facts and the law laid down

by this Honourable Court in Letter Patent Appeal No.129 of

2024 confirming the judgment passed by the Learned Single

Judge in Special Civil Application no. 3808 of 2021, the

petition deserves to be allowed. The petitioner herein having

been appointed as Forest Guard for a fixed period of 5 years

on fixed wages in the year 2007, having cleared the CCC

examination from the Department of Electronics and

Accreditation of Computer Courses (DOEACC) in October 2009