Gujarat High Court

Chaudhari Hinaben Balabhai vs State Of Gujarat on 21 January, 2025

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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                            C/SCA/2038/2021                                     JUDGMENT DATED: 21/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 2038 of 2021

                                                          With
                                       R/SPECIAL CIVIL APPLICATION NO. 4329 of 2023
                                                          With
                                       R/SPECIAL CIVIL APPLICATION NO. 5974 of 2023
                                                          With
                                       R/SPECIAL CIVIL APPLICATION NO. 5645 of 2023

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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                                    Approved for Reporting                     Yes           No

                       ==========================================================
                                              CHAUDHARI HINABEN BALABHAI & ANR.
                                                            Versus
                                                  STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       MR. G. M. JOSHI, SENIOR ADVOCATE with VYOM H SHAH, MR. NILUL
                       SONI (9387) for the Petitioner(s) No. 1,2
                       MR. ADITYA DAVDA, ASST. GOVERNMENT PLEADER, for the
                       Respondent(s) No. 1,2,3
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                                           Date : 21/01/2025

                                                       COMMON ORAL JUDGMENT

1. Heard learned Senior Advocate Mr. G. M. Joshi appearing with

learned advocate Mr. Vyom H. Shah for the petitioners in

Special Civil Application Nos. 2038 of 2021, 4329 of 2023,

5974 of 2023 and learned advocate Mr. Nikul Soni for the

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petitioner of Special Civil Application no. 5645 of 2023 and

learned AGP Mr. Aditya Davda for the respondents - State.

2. Affidavit in reply in Special Civil Application No. 4329 of 2023

tendered by learned AGP Mr. Davda is taken on record and he

requests that the same may be treated as affidavit-in-reply in

each of the petition as the issue involved is common.

3. As it was stated by learned Senor Advocate Mr. Joshi that the

issue involved in this petition is a covered issue and as learned

AGP Mr. Aditya Davda for the respondent - State could not

dispute the fact that the issue involved is a covered issue, with

consent of all the parties, the matter was taken up for final

hearing. Accordingly, issue RULE. Learned AGP waives

service of notice of rule for and on behalf of the respondent -

State in each of the petition.

4. For the purpose of considering the prayers and relevant facts,

Special Civil Application No. 2038 of 2021 is considered to be

lead matter and hence, the prayer and the facts are incorporated

from the above Special Civil Application.

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5. By way of these petitions, the petitioners have prayed for

quashing and setting aside the action of the respondent authority

of making the petitioners loose their seniority in the final

seniority list dated 13.01.2020 published by the respondent

authority at the divisional level and has prayed for declaring the

same as arbitrary and illegal. The petitioners have further

prayed for a direction against the respondent to place the

petitioners at their correct position as per their original date of

appointment.

6. The brief facts giving rise to the present petition are stated as

under:-

6.1. that the petitioners were originally appointed as Forest

Guard for a fixed period of five years on fixed wages on

different dates after 2009. All the petitioners herein have

cleared the Course on Computer Concepts (herein after 'CCC'

for short) Examination either before appointment or within a

period of five years from the recognized institution i.e.

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DOEACC/ Dr. Baba Saheb Ambedkar Open University. The

certificates issued to the each of the petitioners clearly stated

that the course of examination is as per the Government of

Gujarat Resolution dated 13.08.2008. In the service book of the

petitioners, entry also was made to the effect that they had

cleared the CCC examination.

6.2. Upon completion of five years services, their services were

regularized on different dates as the authority was of the view

that they had fulfilled all the conditions of the appointment

order.

6.3. Thereafter, the respondent department published a

provisional seniority list in the year 2018 and in that also the

petitioners were shown to have cleared the CCC Examination.

However, thereafter, another seniority list was published on

23.03.2020 which also shown that the petitioners have cleared

the CCC Examination.

6.4. For the purpose of promotion, the department had made a

prerequisite of having cleared the CCC Examination. Thus, the

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petitioners decided to clear the CCC Examination in advance so

that their candidature would be considered for the purpose of

promotion when the exercise of promotion is undertaken.

Accordingly, the petitioners appeared for CCC Examination in

different years and cleared the CCC Examination.

6.5. Though the petitioners found their name in seniority list

published on 23.03.2020 and were shown to have cleared the

CCC examination, when a provisional seniority list dated

18.08.2020 was published showing the position of the

petitioners on 01.01.2019, to the surprise to the petitioners, they

were made to lose their seniority for the first time and were

placed at the bottom of the seniority list again and shown to

have cleared the CCC examination.

6.6. As the petitioners were placed at the bottom of the seniority

list, they raised their objections to the aforesaid seniority list,

which were not considered and a final provisional seniority list

was published on 29.08.2020. The petitioners were orally told

that they could not clear the CCC examination till 2018/2019

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and therefore, they have lost their seniority of eight years and

are placed at the bottom of the seniority list.

6.7. Thereafter, at Zonal level, a provisional seniority list was

published on 03.11.2020 and again the petitioners were made to

loose their seniority. The said provisional seniority list dated

03.11.2020 was finalized and final seniority list was published

on 13.01.2021 wherein also the petitioners were made to loose

their seniority and were placed at the bottom of the list which

has created a situation that the petitioners would never get a

chance of being promoted in their entire career and the same has

taken place on account of the fact that the State authorities have

suddenly after a period of around 10 years after the petitioners

have been appointed and after about 5 years, after they were

confirmed ignored the fact that they have already cleared the

CCC examination through DOEACC as well as through Dr.

Baba Saheb Ambedkar Open University.

6.8. That is how the petitions are preferred and the principal

grievance of the petitioners is against the action on the part of

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the respondents of making the petitioners to loose their

seniority.

7. To get a better idea about the facts of each of the petitioner,

learned advocates Mr. Sharma and learned advocate Mr. Soni

have tendered a chart of respective petitioners of each of the

petitions which is reproduced as under:-

Petition Petitioner Appointment 1st CCC Regularization 2nd CCC No. Name Date certificate certificate

SCA No. Hinaben 2038 of Balabhai 2021 Chaudhari Bhatia Parmeetkaur Manmohansinh SCA No. Jayeshkumar 4329 of Kalubhai 2023 Mangrola Gauriben Dharmabhai Nayak SCA No. Santoshkumar 30.06.2009 5974 of Naransinhbhai 2023 Sevara 17.02.2011 DOEACC 01.03.2016 02.12.2018 Arihant (Gujarat Softech University) 17.02.2011 DOEACC 01.03.2016 20.01.2019 Arihant (Gujarat Softech University) 15.02.2011 17.05.2009 09.03.2016 10.02.2021 (Dr. Baba (SPIPA) Saheb Ambedkar University) 13.08.2013 18.11.2010 31.08.2018 28.09.2020 (Dr. Baba (SPIPA) Saheb Ambedkar University) 07.06.2009 28.07.2015 29.09.2019 (National (Gujarat Computer University) Training Centre)

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Petition Petitioner Appointme 1st CCC Regularizati 2nd CCC Current No. Name nt Date certificate on certificate Post

SCA Tapariya 08.09.2009 11.01.2008 20.02.2015 29.09.2019 Forest No. Mehulkumar w.e.f (Dr. w.e.f. (Gujarat Guard 5645 of Kishordan 01.09.2009 Babasaheb 06.11.2014 University) 2023 Ambedkar Open University) Patel 19.02.2011 17.05.2009 15.03.2017 Forest Maheshbhai w.e.f. (Dr. w.e.f. Guard Shankarbhai 23.02.2011 Babasaheb 23.02.2016 Ambedkar Open University)

8. Learned Senior Advocate Mr. G. M. Joshi appearing for the

petitioners submitted that the issue about seniority of the

petitioners is squarely covered by the decision of Coordinate

Bench of this Court dated 03.08.2022 passed in Special Civil

Application No. 3808 of 2021 and allied matters in case of

Askani Rubinaben Mahmadhanif and Other V/s State of

Gujarat and others whereby the Coordinate Bench of this

Court after elaborately discussing the submissions made by

learned counsels appearing for the parties, allowed the petition

except Special Civil Application No. 7585 of 2020 and issued

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certain directions.

8.1. Learned Senior Advocate Mr. Joshi submitted that the

aforesaid decision was carried in appeal by the State by way of

Letters Patent Appeal No. 129 of 2024 and allied matters vide

decision dated 15.07.2024 in case of State of Gujarat and

others V/s. Maheshbhai Sureshbhai Parmar and others and the

Division Bench of this Court dismissed the Letters Patent

Appeal preferred by the State of Government.

8.2. Learned Senior Advocate Mr. Joshi drew attention of the

Court to the observations made by the Division Bench of this

Court in case of State of Gujarat and others V/s. Maheshbhai

Sureshbhai Parmar and more particularly, observations made

in paragraphs no. 22, 23 and 24 and submitted that in identical

set of facts by making observations in above referred

paragraphs, the Letters Patent Appeals preferred by the State

Government were dismissed by the Division Bench of this

Court.

8.3. It was also contended on the basis of above judgment of the

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Division Bench of this Court by learned Senior Advocate Mr.

Joshi that the Division Bench of this Court has held that once at

the time of clearing the CCC examination, for the first time,

when each of the petitioners have cleared the same from

recognized institution, there is no necessity for them to clear it

once again just to get the promotion as they had already

acquired the aforesaid skils while clearing the examination on

the first occasion and therefore, the petitioners would not lose

their seniority and they are required to be placed in the seniority

list as per their original position and in case of promotion, their

original seniority is required to be governed by the State

Government and therefore, this Court may give suitable

direction to ensure that in case if during the pendency of

petition, any juniors to the petitioners are promoted, the State

may set right the same by placing the petitioners at the correct

position in their seniority list and to promote the petitioners.

9. Learned AGP Mr. Aditya Davda appearing for the respondent -

State vehemently opposed the petitions, however, could not

point out that the facts of these petitions are different from the

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facts of a group of petitions against which Letters Patent Appeal

preferred by the State are different and therefore, despite

making the best efforts, learned AGP Mr. Davda could not

distinguish the judgment relied upon by learned Senior

Advocate Mr. Joshi either on facts or on law point which has

lead this Court to a conclusion that the facts of the present

petition is covered by the Division Bench in case of State of

Gujarat and others V/s. Maheshbhai Sureshbhai Parmar.

10. I have heard learned advocates for the respective parties and

perused the record. The chart submitted by learned Senior

Advocate Mr. Joshi and learned advocate Mr. Soni in respect of

each of the petitioners also could not be disputed by learned

AGP Mr. Davda as I have stated in foregoing paragraphs that

learned AGP could not dispute the facts or the law point and

therefore, in similar situation, the observations made by the

Division Bench of this Court becomes relevant to determine the

issue on hand. The Division Bench of this Court while deciding

the Letters Patent Appeal No. 129 of 2024 in case of State of

Gujarat and others V/s. Maheshbhai Sureshbhai Parmar in

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paragraphs no. 22, 23 and 24 observed as under:-

"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.

23. We have examined the judgement and order passed by the learned Single Judge, which is very comprehensive in nature. The learned Single Judge has considered all the Resolutions and Circulars governing the CCC examination as well as Rule 9(a) of the Recruitment General Rules,1967. At this stage, we clarify that Five years' period, on which the respondents were appointed on contractual basis, is required to be considered as probation period. It appears that the respondents were appointed on fixed pay in view of the Resolution dated 16.02.2006, by which the Finance Department introduced a scheme of appointment of employees of Class-III and Class-IV posts in all cadres. The Division Bench of this Court in the judgement dated 06.09.2018 passed in Letters Patent Appeal No.392 of 2016 in the case of State of Gujarat vs. Hiteshkumar Bharatbhai Vaghela, after considering the scheme of resolution dated 16.02.2006 and 04.06.2009, has held that the period of five years rendered by an employee on fixed pay has to be considered as probation period. The observations are as under:

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"14 As regards the contention raised by the learned AGP that the Resolution dated 04.05.2007 would not apply in the case of the respondent since the appellant cannot be said to be on probation period as envisaged in the said resolution as he was appointed on five years contractual basis does not merit acceptance for the following reasons:-

a) It is not denied that the respondent has been appointed on both the posts through the recruitment process prescribed under the resolution dated 04.06.2009. Vide Government Resolution dated 16.02.2006 issued by the Finance Department, the State Government had introduced a Scheme of appointment of the employees of Class-III and Class-IV posts in all cadres. The preamble of the Government Resolution specifies that all the appointments in Class-III and Class-IV in all cadres shall be made for five years on fixed pay on probation. Condition nos.20 and 22 mention the service as on probation. Condition no.22 specifically stipulates that after an employee who completes period of five years on fixed pay, and he is placed in regular pay scale then he shall not be placed on probation.

b) The aforesaid resolution was further modified by the Resolution dated 04.06.2009 in which it is provided that the government servants, who are appointed on Class-III and Class-IV posts on contractual basis in their case the provision for probation as envisaged under Rule 10-A of the Gujarat Civil Services (Classification and Recruitment) Rules, 1967, which prescribes one year probation period would not apply and they shall not be placed on probation further after they undergo five years service. Condition no.5 of the said G.R prescribes that all the departmental examination, pre-service training which are to be undertaken during the probation are to be passed during the contractual period.

c) The Government Resolution dated 04.05.2007 does not imply that only those government servants/officers who are confirmed on a post can get the benefit of reverting to their original post during the probation period of recently selected subsequent post. After the introduction of policy of contractual appointment in the year 2006, every Class-III and Class-IV employee of all the cadres in the State have to undergo five years fixed period, and on completion of the same they are placed in the regular pay scale. Thus, an

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employee who has been confirmed after successfully completing his probation period and is placed in a regular pay scale will never take the risk of applying for a rigors of five of five years fresh post and undergo in a fixed pay. Thus, the contention of the learned AGP that a confirmed government servant/officer can only get the benefit of G.R. dated 04.05.2007 defies the logic and hence, cannot be accepted.

24. Rule 9(A) of the Gujarat Civil Services Classification Recruitment (General) Rules, 1967 was introduced by the amendment dated 04.06.2009 i.e. after the appointments of the respondents, except Mukeshbhai Tidabhai Dhabi(Respondent of LPA No.132 of 2004). As per the provisions of Rule 9(A)(iii), the candidates, who were appointed on contractual basis have to pass the CCC examination for computer knowledge during the contractual period or within a period of 2 years thereafter. Thus, when the respondents have entered in their services, they were either possessing the CCC Certificate or they have cleared the same during their contractual period. They have also subsequently again cleared the CCC examination in the year 2018 and 2019."

11. Learned AGP Mr. Davda also read out the contents of the

affidavit-in-reply and tried to justify the stand of the State

Government. However, the Court finds that as the facts are

undisputed and are identical to that of Letters Patent Appeal

which is decided against the State Government, the contentions

of learned AGP are not incorporated elaborately.

12. Considering the facts that on facts as well as on the law point,

the aforesaid observations are squarely applicable to the facts of

the present case as well and therefore, each of the present

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